KF 652.VV2'r""""'""""-"'™^ A treatise on the principles and practic 3 1924 018 769 574 QlnrnHl Ham ^rljool Hibrarg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018769574 A TREATISE ON THE PEINCIPLES AND PEACTICE OF THE ACTION OF EJECTMENT AND STATUTORY SUBSTITUTES BT GEO. W. WARVELLE, LL. D. Author op a Treatise on Abstracts op Title, The Law op Tendoe AHD Purchaser, Principles op Real Property, Etc. CHICAGO T.H. FLOOD AJSTD COMPANY 1905 Lfl \QU5 Copyright, 1905, BY GEORGE W. WARVELLK STATE JOTIRNAL PEINTINa COMPANY, Printees and Stereotypbbs, madison, wis. To the HON. RICHARD W. CLIFFORD, One of the Judges of the Circuit Court of Cook County, Illi- nois, in token of appreciation of his merit as a Man and his ability as a Lawyer, this work is inscribed by The Author. PREFACE It is now almost one hundred years since John Adams, of the Middle Temple, Esq., gave to the legal profession his., luminous and able treatise on the Action of Ejectment. Dur- ing this interval the changes to which the remedy has been subjected have been many and great, yet its essential character remains the same now as then. The task that Mr. Adams set for himself in the early years of the last century is not materi- ally different from that which confronts the writer of today, and the words which he employed in the opening paragraph of his preface I may well adopt as my own at this time. Speaking of his work he said : "It has been the Author's chief endeavour, in the following pages, to investigate the principles upon which the remedy by Ejectment is founded ; to point out concisely the different changes which the action has undergone ; and to give a full and useful detail of the practical proceedings by which it is, at this time conducted. To this end the later decisions have been very fully considered ; whilst a slight mention only has been made of the more ancient cases, now, for the most part, indi- rectly overruled, or altogether inapplicable to the modern practice." But the later decisions which Mr. Adams so fully considered are now, for the most part, "altogether inapplicable to the modern practice" and have themselves become "ancient cases," to which only slight reference need be made. The radical changes in the form of the action, which were instituted by the State of New York about the year 1830, have rendered utterly useless the old precedents ; the old decisions are now but little more than monuments of obsolete learning ; and the writer who assumes to treat the subject today, must, in large measure, con- duct his work on new and original lines. This I have endeav- VI PEEFACE, ored to do in the present volume, and while the work may not possess that completeness which should characterize some of the topics discussed, I am yet emboldened to hope that it will be found a practical aid in the solution of many perplexing questions and an acceptable contribution to the general litera- ture of the subject. As the action, as now administered, has been shorn of its fictions, and differs but little in its general features from other actions at law, there no longer exists the necessity of those minute specifications of the details of pleading and practice which abound in the works of the earlier writers. The plead- ings, therefore, have been given only incidental attention, no more being attempted than to show their general structure and the character of the allegations. On the other hand, special emphasis has been placed on the proofs. The nature of the evidence required to sustain or defeat the action has been very fully considered and the different forms of title that may be involved have received corresponding treatment. The citation, while liberal, does not profess to be exhaustive. The work is essentially a treatise, not a digest. The very favorable reception given to the writers previous works induces the hope that the present venture will be re- ceived with the same kind indulgence. G. W. W. Chicago, December I, 1905. TABLE OF CONTENTS. CHAPTER T, PRELIMINARY VIEWS. Page i 1. Introductory 1 2. Real actions at common law 2 3. Requisites of real actions 3 4. Ejectment 4 5. Origin and history 5 6. Nature of the ancient remedy 6 7. Enlargement of the remedy , 7 8. Development of the action — Introduction of fictions 8 9. Rolle's system of fictions 10 10. Present condition of the action 12 11. Trespass to try title 13 12. Action to quiet title 14 13. Forcible entry and detainer 15 CHAPTER n. FOR WHAT THE ACTION LIES. 14. General principles 17 15. Chattels 19 16. Water 20 17. Tenements and hereditaments 21 18. Lands in hostile possession 22 19. Partial possession 22 20. Vacant or unoccupied lands 23 21. Incorporeal hereditaments • 25 22. Easements 28 23. Land subject to easement 28 24. Parts of buildings — Upper chambers 29 25. Mines and subterraneous deposits 30 26. Growing crops 31 27. Overhanging roof or other projections 32 28. Protruding trees 35 29: Accretions 36 30. Burial lots and rights of interment 38 31. Land in possession of the government 39 32. Lands occupied by semi-public corporations '. 40 33. Streets and highways — Individual rights 41 34. Continued — The rule and its exceptions 43 35. Continued — Entry under municipal license 45 36. Continued — Incidental questions 4C 37. Continued — Extent of recovery 47 VIU TABLE OS CONTENTS. Page '§ 38. Dedicated streets 48 39. Streets and highways — Municipal rights 49 40. Continued — Parol dedication 51 41. Turnpikes and toll roads 51 42. Rights of way — Quasi public 51 43. Recovery of right of way by land owner 52 CHAPTER III. WHEN THE ACTION MAY BE BROUGHT. 44. Generally considered 54 45. Disseizin of plaintiff 56 46. Defendant's possession 56 47. Condition broken 57 48. Remainders ^ 59 49. Reversions 60 50. Leaseholds 60 51. Continued — Forfeitures 62 52. Continued — Statutory provisions 63 53. Dower 03 54. When right of entry is lost 65 55. Statutes of limitation 65 56. Within what time action must be brought 66 57. When right of action accrues 66 58. Persons under disability 67 59. Heirs and successors of person under disability. 69 60. Prevention of suit by paramount authority 69 61. Lands sold for taxes 70 CHAPTER IV. NOTICE TO QUIT 62. Generally considered 72 63. When notice is required 73 64. When notice is dispensed with 74 65. When notice is not required 75 66. Tenant from year to year 76 67. Continued — Theory of the tenancy 77 68. Tenant holding over 78 69. Tenant at will 79 70. Tenant by sufferance 79 71. Vendees 81 72. Vendors 82 73. Mortgagors 82 74. Licensees S3 CHAPTER V INCIDENTAL MATTERS OF PRACTICE. 75. Introductory 85 70. Form of the action 85 77. Joinder of actions 86 TABLE OF COJS TENTS. IX 78. Concurrent actions 87 79. Process and appearance 87 SO. Continued — Former practice 87 81. Continued — Present practice 88 82. Service 88 83. Continued — Agents 89 84. Owner out of possession 90 85. Attorney's authority to bring action 92 86. Appointment of receiver 94 87. Precept to stay waste 95 88. Continued — ^Remaindermen and reversioners 97 89. Enjoining ejectment suit 98 CHAPTER VI. PARTIES TO THE ACTION. I. Genbrai.lt Consideked. 90. Preliminary views 99 91. Plaintiffs 100 92. Defendants 101 93. Continued — Persons not in possession 103 94. Joinder of parties — Plaintiffs 103 95. Continued — Hostile claims 104 96. Joinder of parties — Defendants 104 97. Continued — Separate trials lOG 98. Improper joinder of parties 107 99. Nonjoinder of parties 107 100. Tenants in common 108 101. Coparceners 108 102. Joint-tenants 109 103. Insane persons 109 104. Infants 109 105. Death of parties — Defendants 110 106. Continued— Plaintiffs Ill 107. Interveners 113 108. Servants and employees 113 109. Purchasers pendente lite 114 110. Corporations 115 111. Railway companies 115 112. Continued — Entry under right of eminent domain 115 113. Trespassers IIC II. Special Classes of Paeties. 114. Heirs and devisees US 115. Reversioners -. . 119 116. Continued — Forfeiture -. . . 120 117. Assignee of reversion 122 118. Reversioners by possibility 120 119. Remaindermen 124 120. Cotenants — Suits between 125 121. Continued — Extent of recovery 12C 122. Cotenants and strangers 127 123. Continued — Extent of recovery 128 124. Continued— Opposing views 129 125. Doweress 131 12G. Tenant by courtesy ; 131 : TABLE OF CONTENTS. III. Husbands and Wives. PagB 127. Generally considered 1" 128. Married women— Plaintiffs 132 129. Suits .against the husband 133 130. Married women — Defendants 135 131. Joinder of wives 13'^ 132. Homesteads 137 IV. Mortgagors and Mortgagees. 133. Generally considered 139 134. Relation of the parties 140 135. Actions by the mortgagee 142 136. Continued — Modifications and denials of mortgagee's rights 143 137. Actions by the mortgagor — Against mortgagee 144 13S. Provisions for possession 146 139. Accounting and payment 147 140. Variances and exceptions 148 141. Debt barred by limitation 14S 142. Actions by the mortgagor — Against strangers 149 143. Equitable mortgages 149 V. Vendors and Purchasers. 144. Relation of the parties 150 145. Right of possession 151 146. Actions by the vendor ..; 152 147. Actions by the vendee '. 154 148. Actions against vendee by third persons 155 VI. Landlords and Tenants. 149. Generally 156 150. Landlords 157 151. Cumulative remedies — Rent in arrear 158 152. Forfeiture — Default generally 159 153. Assignee of landlord 159 154. Landlords as defendants 160 155. Tenants 161 156. Tenants for years 162 157. Tenants at will 163 158. Tenants from year to year 163 159. Tenants by sufferance 165 160. Entry under void lease 165 161. Forfeiture of tenant's rights 166 VII. Officers and Fiduciaries. 162. Trustees 166 163. Executors and administrators 168 164. Continued — Statutory powers 169 165. Guardians 170 166. Conservators and committees 172 167. Receivers 172 168. Action by receiver in foreign jurisdiction 174 169. Actions against receivers I75 170. Assignee in bankruptcy 176 T4-BLK OF CONTENTS. SI VIII. Municipalities. Faze 171. The United States 176 172. Officers of the United States 178 173. The state 180 174. Counties 181 175. Cities and towns 181 CHAPTER VII. THE PLEADINGS. I. Bt the Plaintiffs. 176. General observations 183 177. The venue 185 178. The demise 185 179. Continued— Eouitable titles 187 180. Continued— Equitable relief 188 181. Lease, entry and ouster 188 182. Allegations of possessory rights 190 183. Character of ownership 191 184. The estate claimed , 192 185. Description of the premises 193 186. Continued — Particulars of description , 195 187. Description by reference 197 188. Double descriptions 198 189. Exceptions from the grant 199 190. Sufficiency of pleadings under the code ) 199 191. Amendments : 201 192. Continued — Changing nature of action 202 193. Joinder of actions 203 194. Several plaintiffs 203 195. Actions in official capacities 204 196. Actions against receivers 205 197. Claimants by hostile titles 205 198. Exhibits 205 IL By the Defenda^'t. 199. Pleas in abatement 206 200. Continued— Demurrers 206 201. Continued — Former action pending 207 202. Pleas in bar — The general issue .^ 208 203. Theory of the general issue ." 210 204. Special pleas — Statute of limitations 211 205. Plea of title 212 206. Adverse possession .' 213 207. Extrinsic facts 213 208. Plea of title from common source 213 209. Former recovery 214 210. Denial of possession 214 211. Disclaimer of title 216 212. Inconsistent pleas 217 213. Continued — Special Instances 218 214. Pleas since the last continuance , 219 215. Equitable defenses 220 216. Estoppels 221 b Sli TAliLB OF CONTBNrg, CHAPTER VIII. THE PROOFS. I. By the Plaintiff. § 217. Generally considered 2.-,a 218. Competency of witnesses 225 219. Proof of entry and ouster 226 220. Proof of defendant's possession 228 221. Proof of title 229 222. Proof of possession 230 223. Title shovm must be valid 230 224. Tracing title 231 225. Continued — Origin and duration of title shown 233 226. Secondary evidence 234 227. Relevancy of testimony — Order of proof ' 236 228. Plaintiff must prove title as alleged 237 229. Plaintiff must rely on title asserted 238 230. Proof must be consistent with, allegations 239 231. Variance between allegations and proof 240 232. Objection to variance — When talten 241 233. Extent of proof required 242 234. Prima facie title 243 235. Character of t=tle 244 236. Against grantee for condition broken 246 237. As against mere Intruders 246 238. On default of dependant 247 II. By the Defendant. 239. Generally considered 248 240. Order of proof 249 241. Under the general issue 249 242. Continued — Estoppels 251 243. Under special pleas 253 244. Inconsistent defenses 254 245. Affirmative defenses 254 246. Outstanding title in stranger 255 247. Outstanding title by lease 257 248. Outstanding mortgage 257 249. Outstanding easement 257 250. Adverse possession 257 251. Claim by descent 258 252. Against breach of condition " 259 253. Ejectment for dower 260 254. Fraud and circumvention '. 260 255. Equities — At common law 262 256. Continued — Qualifications of the rule 263 257. Continued — ^Under the statute 264 258. Theory of equitable defenses 266 258o. Equities in the federal courts 267 259. Character of equities set up 268 260. Estoppels in pais 268 261. Continued — Parol agreements respecting boundaries.... 270 262. Equitable mortgage ; 271 263. Easements — Rights of way 272 TABLE OF CONTENTS. Xlll III. Wheee Both Parties Claim feom a Common Souece. Page 264. General doctrines 2 1 3 2G5. Extent of proof— Denial of claim 274 266. Defendant's assertion of outstanding title 275 2G7. Effect of former adjudications '277 IV. Disputed Boundakies. 268. General observations 277 269. The original survey 278 270. Monuments and landmarks 279 271. Parol evidence 279 272. Oral agreements 280 273. Common • repute 281 274. Hearsay — Declarations of persons deceased 282 V. Landlord vs. Tenant. 275. Introductory 284 276. Landlord's title, how proved 284 277. Forfeiture of lease 285 278. Re-entry for nonpayment of rent 286 279. Tenant's defenses 287 CHAPTER IX. TITLE BY DEED. I. Elements and Deeaignment. 280. Generally considered 289 '281. Requisites of deeds 290 282. Form and contents 292 283. Unstamped deeds 296 284. Proof of deeds 294 285. Continued — Ancient deeds 295 286. Continued — Grantor's possesssion 296 287. Continued— Technical defects 297 288. Disabilities of coverture 298 289. -Deeds of corporations 300 290. Construction of deeds 301 291. Identification of parties 291 292. Description of the premises 306 293. Identification of land after conveyance 307 294. Limitation- of estate 308 295. Repugnant clauses and recitals 309 296. Continued — Granting clause and habendum 311 297. Signing by one not described as a grantor 311 298. Forged deeds '. 312 299. Fraudulent conveyance 315 300. Land held in adverse possession 316 301. Claimant under deed of bargain and sale 318 302. Claimant under quitclaim deed , 319 303. Deeds to take effect at grantor's death 321 304. Deed by donee of power 323 305. Lost deeds 325 306. Continued — Presumption of lost deed 327 XIV TABLE OF CONTENTS. II. Deeds oe Oeficials and Piduciaeies. Paee § 307. Generally considered ^^8 308. Sheriff's deeds 329 309. Recitals in sheriff's deeds 330 310. Interest levied upon 331 311. Description of land sold 332 312. Sale under execution on dormant judgment 333 313. Sale under execution issued after judgment is harred. . . 334 314. Purchaser under void execution sale 334 315. Sale under satisfied judgment 334 316. Confirmation of execution sale 336 317. Master's and commissioner's deeds 336 318. Proof of master's deed 338 319. Purchaser at void judicial sale 338 320. Writ of assistance .339 321. Administrator's deeds 340 322. Administrator's deed of estate of living person 341 323. Proof of administrator's deeds 344 324. Guardian's deeds 344 325. Continued — Invalid sale of ward's land 345 326. Continued — Failure to give bonds 346 327. Continued— Rights of ward 347 328. Tax deeds 348 329. Continued — Defects appearing upon the deed 350 330. Continued — Matters of extrinsic proof 351 III. Deeds by Pebsons Incompetent. 331. Generally considered 353 332. Deeds of married women 353 333. Deeds of minors 354 334. Deeds of lunatics 357 IV. Defeasible Conveyances. 335. Deeds upon condition 358 336. Construction of conditions 359 337. Creation of conditions 359 338. Conditions subsequent 360 339. Avoidance of conditions 362 CHAPTER X. TITLE BY DEVISE, 340. Generally considered 363 341. Methods of proof 363 342. Effect of probate of wills 365 343. Continued — Foreign probate 366 344. Lost wills ' 368 345. Establishment of title 368 346. Construction of wills 369 347. Continued — Underlying principles 370 348. Continued — As affected by extrinsic facts 372 349. General and particular intent 373 TABLE OF CONTENTS. X^ Pa^e 350. The rule in Shelley's case 374 351. Repugnancy 374 352. Devise of same tract of different persons 37G 353. Description of devisee 377 354. Definition of terms— Issue 37S 355. Continued— Children 380 356. Continued— Hfeirs 381 357. Illegitimates -382 358. Adoptive heirs 382 359. Description of land devised 383 360. Erroneous description — The rule stated 385 3()1. Continued — Qualifications of the rule io7 3C2. Devise upon condition 389 3G3. Devise of power of disposition 390 364. Devise by joint tenant 391 365. Void devise 392 CHAPTER XI. TITLE BY DESCENT. 366. Generally considered 394 367. Conflict of laws 394 368. What interests descend 395 369. Tracing descent 396 370. Degrees of consanguinity 397 371. Rights of inheritance , 399 372. Line of succession 400 373. Ancestral estates 402 374. Evidence of pedigree 403 375. Continued — Family records 406 376. Continued — Church and parish records 407 377. Continued — Marriage certificates 408 378. Continued — Oral declarations 409 379. Proof by court records 411 380. Proof of marriage 412 381. Continued — General reputation 414 382. Continued — Divided reputation 415 383. Validity of marriage 416 384. Presumptions of marriage 417 385. Continued — Death of former spouse 419 386. Presumption of divorce 419 387. Illegal inception of cohabitation 421 388. Void marriage 422 389. Proof of birth 423 390. Continued — General reputation 423 391. Presumption of legitimacy 424 392. Continued — Ante-nuptial conception 425 393. Continued — Character of evidence 426 394. Proof of death 426 395. Continued — Heresay — Reputation 428 396. Presumption of death — Grant of letters 430 397. Continued — Unexplained absence 430 398. Presumption of time of death 432 399. Continued— Death. of children 433 400. Survivorship 434 XVI TABLE OF CuNTE:\"i'S, Page § 401. Civil death 43S 402. Posthumous children 436 403. Illegitimates — The rule stated 437 404. Continued — "Variances and exceptions 439 405. Legitimation 440 406. Extra-territorial effect of legitimation 442 407. Adoptive heirs 443 408. Rights of adoptive heirs 444 409. Extra-territorial effect of adoption 445 410. Proof of adoption 446 411. Continued — Parental consent 448 412. Heirship through affinity 449 413. Inheritance of contingent estates 450 414. Declarations and admissions of ancestor 451 CHAPTER XII. TITLE BY LIMITATION AND POSSESSION. I. Natube and Requisites. 415. Generally considered 453 416. Derivation of the right 455 417. Immemorial usage 456 418. Limitation 457 419. Disseizin 458 420. Requisites and sufficiency 460 421. Continued — Statutory modifications 463 422. Claim and color of title distinguished 464 423. Good and bad faith 467 424. Entry under void deed 468 425. Constructive possession 470 426. Mixed possession 471 427. Tacking 472 428. Continued — Conflicting theories 474 429. Adverse possession by one of several occupants 474 430. Nature of occupancy 475 431. Occupation under license 478 432. Payment of taxes 479 433. Declarations and admissions 4S1 434. Interruption 4S3 435. Entry by owner 4S4 436. Effect of absence from state 485 437. Abandonment 4S6 438. Presumptions 487 439. Mines and sub-strata 4S9 II. Disputed Boundakies. 440. Land enclosed by mistake 49O 441. Continued — Opposing viev7s 49X 442. Agreed boundary 493 443. Boundary by parol agreement - 495 444. Acquiescence in boundary 49(; 445. Existence of dispute " 497 446. Adverse entry by tenant — Tacking 498 TABLE OF CONTENTS. XVII III. Relation of Parties. Page 447. Introduction 499 448. Co-tenants 499 449. Continued — Ouster and hostile possession 501 450. Continued — Grantee of cotenant 502 451. Remaindermen and life tenants 504 453. Mortgagee in possession 507 452. Remaindermen and strangers 505 454. Possession under parol gift 507 455. Husband and wife 509 45fi. Parent and child 510 457. Continued — Child vs. Parent 512 458. Dower rights 512 459. Adverse claim by tenant 513 460. Continued — Adverse claim before expiration of term.... 515 461. Tenant holding over 516 462. Adverse entry under deed from tenant 516 IV. The State and Its Agencies. 463. Adverse rights against the sovereign 517 464. Continued — Grantees of the United States 518 465. The state 519 466. Municipalities ." 521 467. Continued — Theory of municipal ownership 522 468. Continued— Effect of estoppel 523 469. Continued — Conflicting views 524 470. Adverse claims by the municipality 526 471. QMasi-public corporations ': 526 CHAPTER XII. VERDICT AND JUDGMENT. I. Vebdict oe Findings. 472. Generally considered 529 473. Form of verdict 530 474. Sufficiency 531 475. Defects and invalidities 533 476. Directing verdict 535 477. Finding by the court 536 II. Judgment. 478. At common law 536 479. Under the statute 537 480. By confession 538 481. Conformity to verdict 538 482. Conditional judgment 539 483. Description of the land 540 484. Description of estate 541 485. Description of interest recovered 541 486. Operation and effect 542 487. Conclusiveness of judgment 542 488. Judgment as an estoppel 543 489. Effect of vacation — Second trials 544 XVlil TABLE OF CONTENTS. Page § 490. Effect of former adjudication in a different proceeding. . 545 491. Parties and privies distinguislied 546 492. Effect on after-acquired title 547 493. Effect on adverse possession 548 494. Effect on persons entering pendente lite 549 495. Wtiere plaintiff's right expires pending suit 550 496. Where defendant acquires plaintiff's title pending suit.. 551 497. Amendment of judgment 552 498. Annulment of judgment 554 499. Against officers of United States .' 556 500. Against persons deceased 556 501. Effect on landlord of judgment for or againnst tenant. . . 557 502. Revivor : 558 502a. Reversal 560 CHAPTER XIV. WRIT OP POSSESSION. 503. Generally considered 562 504. Requisites of writ 563 505. Time of issuance 504 506. Execution of the writ 565 507. Continued — Execution without eviction 566 508. " Delivery of possession 567 509. Who may be evicted 568 510. Continued — Husband and wife 568 511. Who may not be evicted 569 512. Persons entering pending suit 570 513. What may be taken under writ 571 514. Crops 572 515. Continued — Harvested crops 573 516. Continued — Adverse views 573 517. Fixtures 574 518. Continued — Special instances 575 519. Return of writ 576 520. Recalling writ — Order of restitution 577 521. Restraining execution of writ 578 522. Restitution of possession under reversed judgment 579 523. Continued — Where strangers are concerned 579 524. Alias writ 580 525. Entry without writ 582 CHAPTER XV. DAMAGES AND MESNE PROFITS. 526. Generally considered 583 527. Costs 585 528. Nominal damages 587 529. Exemplary (Jamages 587 530. Action for mesne profits 588 531. When mesne profits may be recovered 590 532. From whom recovery may be had 591 TABLE OF CONTENTS. XIX Paee § 533. Limit of recovery 591 534. Continued — Good faith as an element of limitation 592 535. Suggestion for damages 594 536. Damages in original action 595 537. Where plaintiff acquires possession pending suit 596 538. Damages on default 597 539. Defenses 597 540. Measure of damages 59S 541. Assessment of damages — ^Writ of inquiry 600 54 2. Death of parties 600 543. Offsets by defendant 60(1 544. Continued — Payment of taxes 602 545. Continued — Payment of incumbrances 603 546. Compensation for improvements 603 547. Continued — Statutory rules 604 548. Continued — By tenants 606 549. Continued — By strangers 606 550. Continued — By purchaser pendente lite 606 551. Improvements made under defeasible title 607 552. Improvements must be made in good faith 607 553. Improvements made after notice of plaintiff's claim 608 554. Continued — Statutory notice 610 555. Improvements made after action commenced 610 556. Continued — Opposite views and conflicting rules 611 557. Character of improvements 613 558. Measure of compensation 615 559. Continued — Assessment by commissioners 616 560. Crops 616 561. Effect of supersedeas bond 617 CHAPTER XVI. NEW TRIAL. 562. Generally considered 619 563. At common law , 620 564. Continued — When allowed or denied 621 565. Upon which grounds granted 622 566. When verdict will not be disturbed 624 567. Under the statute 624 568. Time for application 625 569. Payment of costs 626 670. Who may make motion 626 571. Judgment by default ■. 627 572. Effect of granting new trial 627 573. Effect of judgment in trespass '. 628 574. Relief in equity 630 CHAPTER XVII. FORCIBLE ENTRY AND DETAINER. 575. General principles 631 576. Right of owner to make entry on land 633 XX TABLE OF CONTENTS. page § 577. When the action lies 635 578. Jurisdiction 636 579. Parties to the action 636 580. Cotenant versus cotenant 637 581. Demand for possession 639 582. The complaint 640 583. Dismissal of complaint 641 584. The issues 641 585. The proofs 642 586. The judgment 644 587. Execution 644 588. Damages 645 TABLE OF CASES. References are to pages. Abbott V. Cromartle, 252. V.Abbott, 303, 493. V. Holway, 321, 323. V. Lindenbower, 350. V. Roche, 532. Abeel v. Van Gelder, 270. Abington v. Duxbury, 426. Abernathy v. Seagle, 184. Adams v. Stanyan, 283. V. Blodgett, 283. V. Cowles, 341. V. Jones, 431. Adie V. Commonwealth, 411. Agee V. Williams, 170. Agnew y. Perry, 224. Agricultural Bank v. Rice, 311. Aiken v. Smith, 31. V. Benedict, 32, 33. V. Ela, 477. Albert v. Albert, 371. Alcorn v. Morgan, 61, 76, 79. Alderman v. Boeken, 637. Alderson v. Marshall, 479. Aldine Mfg. Co. v. Barnard, 575. Alexander v. Harris, 78. V. Polk, 290, 291. Y. Gibbon, 274. V. Stewart, 472. V.Wheeler, 491, 532. V. Kennedy, 502. Allaire v. Allaire, 366. Allard v. Lamirande, 530. AUebaoh v. Godshalk, 154. Allen, Succession of, 375. Allen V. Craft, 370, 374. V. De Groodt, 506. V. Sales, 331. T. Long, 126, 227. V. Higgins, 127, 128. V. Kellam, 149. V. Tobias, 151, 641. V. Shannon, 160. V. Ransom, 172. V. Higgins, 212. V. Salinger, 227. Allis V. Field, 258. Allison V. Casey, 643. Almond v. Bonnell, 191, 193, 240. Almy V. Church, 522. Alsup V. Stewart, 460. Altes V. Hinckler, 31, 572. Alwood V. Mansfield, 284. American Mtg. Co. v. Hopper, 246. Ames V. Beckley, 214, 273, 276. Amey v. Cockey, 407. Amons v. Dwyer, 296. Amy V. Amy, 399. Anderson v. Williams, 609. V. Mills, 636. V. Strauss, 572, 573, 617. V. Melear, 454. V. Hapler, 20. V. Courtright, 24, 102. V. Fisk, 210. V. McCormick, 229, 233. V. South, etc. Co., 301. V. Jackson, 467, 471. V. Dodd, 470. V. McCormick, 478, 535. Anding v. Davis, 507. Andrews v. Carlile, 106. V. Dyer, 305. V. Senter, 362. Angel V. Smith, 175. Anglo-American Co. v. Cannon, 326. Ansley v. Bank, 217. Anzar v. Miller, 518. Apperson v. Balton, 367. Arbuckle v. Ward, 454. Archer v. Deneale, 384. Archibald v. Railroad Co., 476. Arents v. Railroad Co., 325. Armington v. Armington, 403. Armstrong v. Mudd, 308. V. Stovall, 312. V. St. Louis, 596. Arneson v. Spawn, 280, 282. Arnold v. Cheesebrough, 413. xxu TABLE OF OASES. References are to paReg. Arrowsmith v. Harmoning, 347. Asher v. Mitchell, 237, 249. Asheville v. Aston, 29. Ashmead v. V/ilson, 239, 246. Asia V. Hiser, 590. Aspden's Estate, 3S1. Atchison v. Pease, 493. Atkins V. Lester, 641. Atwater v. Spaulding, 200. Atwood V. State, 5C6, 569. Auburn v. Goodwin, 535. Austin V. Bailey, 116. V. Andrews, 280. V. Rust, 477. Avery v. Everett, 436. V. Fitzgerald, 537. Ayoock V. Kimbrough, 495. Ayers v. Reidel, 195, 493. V. Roper, 331. Baboock v. Cobb, 346. Baber v. Henderson, 127, 130, 460. Bachelor v. Korb, 346, 348. Bachman v. Gross, 586. Bacon v. Brown, 77. V. Thornton, 614, 615. Bader v. Dyer, 509. Badger v. Phinney, 357. V. Badger, 415, 421. Baeder v. Jennings, 483. Bagby v. Railroad Co., 174. Bagley v. Kennedy, 224, 246, 504. V. Stephens, 247. Bailey v. March, 219. V. Bailey, 431. v. Boyd, 440. Baird v. Jackson, 314. Baker v. McArthur, 280, 282. V. Taylor, 283. V. Lovett, 355. V. Scott, 374. v. Oakwood, 458. V. Swan, 465. V. Haskell, 483. V. McClurg, 575. Baldwin v. Burt, 326. V. Durfee, 483. V. Temple, 508. Ball V. Ball, 375. v. Palmer, 500, 501. V. Chadwick, 639. Ballance v. Rankin, 192. Balliett v. Veal, 195, 540. Baltimore R. R. Co. v. West, 78. Bank v. Hudson, 609, 612. V. Blye, 552. Bank V. Albee, 483. V. Public Schools, 428. V. Wilcox, 345. V. Spencer, 334. V. Rlsley, 316. V. Mitchell, 295. V. Morrison, 29. V. Shoemaker, 202. V. Manard, 213. V. Raynor, 243. V. Mathews, 272. V. Parker, 578. Bannon v. Brandon, 516. Banta v. Siller, 217. V. Boyd, 370. Banyer v. Bmpie, 24, 25, 103. Barber v. Root, 417. V. James, 542. Barclay v. Yeomans, 190. Barco v. Fennell, 169, 170. Barger v. Hobbs, 247. Bark«r v. Comins, 365. V. Valentine, 423. Barlow V. Burns, 642. V. Wainwright, 165. V. Bell, 608. Barnard v. Barlow, 372. Barnes v. Underwood, 185 V. Light, 233, 454, 475, 481, 482. V. Loyd, 399, 400. Barnet v. Praskauer, 297. v.Bull, 346. Barney v. Keokuk, 45. V. Miller, 199, 307. Barnhizel v. Perrell, 445. Barnitz's Lessee v. Casey, 125, 450. Barnum v. Barnum, 414, 421, 444, 446. Baro V. Fennell, 100. Baron v. Abeel, SS. Barrel! v. Guarantee Co., 549. Barrett v. Birge, 110. V. French, 129. V. Hinckley, 143, 149, 155, 191, 262, 291. v. Stradl, 487, 504, 612. Barrie v. Smith, 358. Barron v. Robbing, 14. Barrows v. Kindred, 548. Barrs v. Brace, 258, 454. Bartlett v. Ambrose, 466, 469. V. Patton, 283. V. Secor, 213, 508. TABLE OF CASES, XXlll References are to pages. Hartley v. Bingham, 530. Barton v. Barton, 135. V. Beatty, 339, 340. Bassett v. Budlong, 309. Batavia Mfg. Co. v. Newton, 3031 Bates V. Poster, 307. V. Woodruff, 371. V. Shroeder, 401. Batterman v. Albright, 572. Battner v. Baxter, 491, 492. Baucum v. George, 479. Bauer v. Gottmanhauser, 279, 494. Baum V. Griggsby, 150. Baum I. Co. v. Bank, 530. Baumier v. Antiau, 645. Bay County v. Bradley, 230. Bayne v. Wiggins, 300. Baxter v. O'Leary, 336. BazlUe V. Murray, 461. Beach v. Beach, 167. Beal V. Blair, 195. V. Harmon, 263. Y. McMenemy, 513. Bear Valley Co. v. Dewart, 249, 255. Beard v. Mosely, 403. V. Dansby, 609. V. Morancy, 614. Beattie v. Whipple, 66. Beatty v. Gregory, 17, 30. V. Mason, 460. Beaublen v. Kellogg, 282. Beaver v. Taylor, 480. Beckman v. Sikes, 572. Bedell v. Shaw, 504. Bedford v. Willard, 525. Beecher v. Galvin, 460. Belcher v. Weaver, 300. Belden v. Innis, 622. V. Meeker, 365. Bell V. Clark, 155. V. Brown, 218. T. McCawley, 296. V. Longworth, 466. V. Denson, 483. V. Bell, 509, 510. Bender v. Pitzer, 283. Benedict v. Torrent, 502. Bennet v. Bullock, 59d. Bennett v. Robinson, 80. v. Horr, 256. V. Butterworth, 268. V. Land & I. Co., 466, 469. V. Morrison, 536. Bennison v. Aiken, 320. Benoist v. Rothschild, 500. Bensieck v. Cook, 107, 109, 137. Benson v. Musseter, 239. Bent V. Rogers, 302. Beranek t. Beranek, 540. Bergere v. United States, 477. Bernhardt v. Brown, 213, 298, 300, 455. Bernstein v. Humes, 255, 469. Berrington v. Casey, 162, 164. Berry v. Billings, 311. Berthold v. Pox, 140. Bertram v. Cook, 252. Besse v. Pellochoux, 416. Betsey v. Torrence, 318. Betz V. MuUin, 534. Beville v. Jones, 483. Bicknell v. Comstock, 458. Biggers v. Bij-d, 150. Bigley v. Souvey, 322. Biglow v. Battle, 21. , Billings V, Sanderson, 186, 187, I 189, 200. ; Bingell v. Voltz, 372, 385, 386, ■ 387. ! Binkley v. Porkner, 575. Birch V. Hutchings, 310. V. Linton, 356, 357. Bird V. Decker, 149. Bishop V. Chiniquy, 98. V. Truett, 273. V. Remple, 325. V. O'Connor, 337. V. Morgan, 386. V. Hampton', 436. Bissell V. Railway Co., 43, 48. Bitner v. Land Co., 306. Bitting V. Ten Byck, 94, 174, 628. Black V. Trickier, 209. V. Cartmell, 382. Blackburn v. Crawford, 421. Blackman v. Bauman, 346. V.Riley, 224. Blackney v. Pergusen, 285. Blackwell v. Barnet, 140. Blagge V. Miles, 325. ' Blair v. Wait, 270. Blake v. Ham, 28. Blakey v. Morris, 466. Blanchard v. Moulton, 475. V. Lambert, 419, 423. V. Morey, 322. Bland v. Bowie, 339. Blaney v. Bearce, 143. Bledsoe v. Simms, 136, 137. XXIV TABLE OF CASEa, References are to pages. Bliss V. Johnson, 464. Blodgett V. Hitt, 601. Blomberg v. Montgomery, 304. Blood V. Light, 335. Bloom V. Pergusen, 279. Bloomington v. Bloomington Ass'n, 495. Blow V. Vaughn, 194, 196, 198. Blum V. Robertson, 163. Blunt V. Barrett, 148. Blythe v. Ayres, 441, 442. Board of Education v. Bdson, 123. V. Trustees, 359. Boardman v. Thompson, 632. Bobb V. Woodward, 316. Bobo V. Richmond, 495. Bodine's Adm'rs v. Arthur, 311. Boiling V. Petersburgh, 42. V. Teel, 276; Bolton V. Bolton, 382. Bond V. Hill, 614. V. O'Gara, 460, 478. Book Co. V. Jevene, 591. Boone v. Clark, 360. Boos V. Morgan, 335. Booth V. Clark, 174. V.Wiley, 348. V. Small, 460. Borders v. Hodges, 505. Borel V. Rollins, 459. Borroughs v. Adams, 438, 439. Bosse V. Johnson, 145. Boston Mill v. Buimnch, 57. Boston Safe D. Co. v. Coffin, 371. Bothick V. Rothick, 413. Botsford V. O'Conner, 436, 437. Bottorff V. Wise, 585. Boulden v. Mclntire, 225, 420. Boulware v. Davis, 174. Bounds V. Little, 235. Bowar v. Railroad Co., 560, 563, 565, 582. Bowen v. Guild, 485. v. Allen, 365. V. Bowen, 59. V. Bond, 341, 344. Bowers v. Van Winkle, 414. V. Cherokee Bob., 639. Bowling V. Roark, 317. Bowman v. Foot, 286. V.Lee, 460. Boyd V. Graves, 494. V.Boyd, 502. Boyer v. Thornburg, 224, 245; 255. V. Robertson, 540, 555. Boyett V. State, Boykin v. Boykin, 426. V. Smith, 507. Boynton v. Miller, 510. Bracken v. Jones, 461, 462, Bradbury v. Yeomans, 22. Bradford v. Bradford, 538. Bradish v. Schneck, 31. Bradley v. McDaniel, 591. v. Brown, 598, 599. V. Lightcap, 275, 543. V. Rees, 377, 378. V. Drayton, 536. Brady v. Krueger, 29, 128, 200. V. Connelly, 174. Bragg V. Massie's Adm'r, 271. V. Thompson, 557. Brandt v. Livermore, 250. Brant v. Coal Co., 391. Braum v. Sauerwein, 70. Bray v. Adams, 307. V. Clapp, 354. Brenner v. Bigelow, 252. Brett V. Farr, 460. Brewer v. Beckwith, 189. V. State, Brickett v. Spofford, 484. Bridgham v. Prince, 110. Briggs V. Light Boats, 179. Brigham v. Palmer, 294. Brinkley v. Brinkley, 414, 416. Brinkman v. Jones, 140, 146. Briscoe v. Holder, 258. Broach v. Kelly, 529. Brock V. Frank, 366, 367. Brome v. Pembroke, 372. Brooks V. Rogers, 166. v. Brugn, 470. V. Riding, 523. Brolaskey v. McClain, 548. Brothers v. Hurdle, 574, 617. Brousard v. Brousard, 245. Brown v. Keller, 641. V. Burdick, 636. v. Feagins, 636. V.Mitchell, 622, 623. V.Baldwin, 608, 609. V. Carthage, 521. V. Bridges, 492. V. Hanauer, 483. V. Boquin, 481, 503. V. Rose, 479. TABLE OF OASES. XXT Eeferenoes are to pages. Brown v. Jewett, 432. V. Critchell, 395. V. Kink, 101. V. Cram, 143. V. Anderson, 185, 195,492. V. Moore, 238, 504. V. Brown, 291, 472, 473. V. State, 291, 294. V. Simpson, 296. V. Coal Oil Co., 321. V.Wright, 349. V.Caldwell, 360. V. Cockerell, 464. Brownsville v. Basse, 240. Branson v. Morgan, 479. Brunswick Sav. Inst. v. Cross- man, 110. Bryan v. Uland, 608, 609. Bryant v. Kinlaw, 161. V. Groves, 254. Rnchanan v. Hazzard, 23. Buck V. Payne, 149. Buckingham v. Buckingham, 134. Buckley v. Superior Court, 346. Buckner v. Chambliss, 169. Buddington v. Munson, 414. Buell V. Irwin, 262, 607. Buesing v. Forbes, 216. Bufford V. Holliman, 119. Bullard V. McArdle, 335. Bunce v. Bidwell, 137, 492. V. Bunce, 347. Bunch V. Nicks, 321. Burbage v. Fitzgerald, 239. Burbank v. Fay, 521. Burch V. Winston, 520. Burchard v. Roberts, 24, 102. Burdick v. Peterson, 235. Burdis v. Burdis, 389. Burgett V. Taliaferro, 466. Burke v. Water Co., 17, 21. V.Hall, 28'7. Burleigh v. Clough, 323, 390. Burlen v. Shannon, 544. Burnet v. Crane, 272. Burnett v. Harrington, 451, 482. Burnham v. Burnham, 389. Burns v. Bryant, 163. V. Goff, 276. V. Byrne, 500. V. Headerick, 503, 504. V. People, 623. Burr V. Spencer, 257. Burrall v. Bender, 64. Burrell v. Burrell, 493. Burris v. Fitch, 496. Burt V. French, 159. V. Bowles, 200. V. Panjaud, 243. Burton v. Laughrey, 52. V. Burton, 545. Busch V. Huston, 500. Bushong V. Rector, 560, 570, 578. Butcher v. Rogers, 273, 276. Butler v. Railway Co., 326. V. Huestis, 382. V. Bertrand, 514. Butterfield v. Sawyer, 303. Buxbaum v. McCorley, 216. Byam v. Cook, 351. Byerss v. Rippey, 547. C. & E. I. R. R. Co. V. Clapp, 102, 255. Caballero's Succession, 440. Cabell V. Grubbs, 298. Cadwallader v. Harris, 156, 647. Cady V. Eighmey, 518. Cagger v. Lansing, 595. Cahill V. Palmer, 460, 463. Cain V. Hunt, 188. V. Furlow, 503. V. Cox, 609. Cairo R. R. Co. v. Turner, 53. V. Parks, 66. V.Wiggins F. Co., 78, 641, 643. Caldwell v. Copeland, 489. V. Fullton, 18, 31. V. Neely, 276. V. Center, 285. Calhoun v. Cook, 460. Callahan v. Davis, 208. Callaway v. McMillian, 66. V. Cooley, 367. Callins v. Lavalle, 360. Camden Land Co v. Lippencott, 37. Camden v. Haskill, 88. Cameron v. Railway Co., 126. V. Phillips, 167. V. Logan, 253. Camp V. Bates, 96. Campbell v. Hunt, 162. V. Carruth, 306. 1 V. Jones, 316. V. McCahan, 337. V.Ware, 403. V.Wilson, 405, 406, 407. V. Braden, 508. XXVI TABLE OF CASES. References are to pages. Campbell v. Brown, 589. Canadian, etc. v. Bloomer, 419. Canning v. Fibush, 76. Cannon v. Davies, 539. Cantwell v. Moore, 160. Capehart v. Dowery, 337. Caperton v. Schmidt, 200. Carbine v. Morris, 331. Carey v. Whitney, 519. Cargile v. Wood, 421. Carlisle v. Killebrew, 31, 552, 554, 555, 572. Carlton v. Cameron, 322. Carman v. Johnson, 212, 213, 221 V. Beam, 597. Carmichael v. Argard, 101, 103. Carney v. Hennessey, 462. Carpenter v. Van Olinder, 374. V. Railroad Co., 43. V. Bowen, 140. V. Natoma, etc. Co., 549. V. Carpenter, 142. V. Snelling, 293. V. Sherfy, 330. Carpentier v. Montgomery, 245, 276. V. Small, 607. Carr v. United States, 177. V. Townsend, 557. Carroll v. Ballance, 142. V.Carroll, 365, 441. V. Burns, 374. V. Gillien, 460. Carson v. Butt, 200. Carter v. Brown, 604, 609. V. Dorn, 16. V. Railway Co., 196. V.Marshall, 252. V.Wise, 320. V. Hornback, 477. Cartwright v. McGown, 414, 416, 417, 418, 420, 421. Carson v. Dundas, 273. V. Broady, 285. Case V. Dexter, 199, 306, 307, 310. Casey, Kimmel, 243, 535. V. Hanriok, 287. Cash T. Cash, 419. Cassem v. Kennedy, 389. Castner v. Walrod, 68. Castro V. Geil, 69, 357. Casualty Co. v. Ka'oer, 434. Cate V. Hutchinson, 217, 218. Cates V. Cates, 321. Catlin V. Washburn, 74. Catlin V. Silver Plate Co., 174. V.Wright, 286. V.Ware, 312. Catlin Coal Co. v. Lloyd, 489. Caujolle V. Ferrie, 438. Caulfleld v. Sullivan, 365. V.Clark, 492. Cavalli v. Allen, 152. Cave V. Anderson, 454. Cemetery Co. v. Buffalo, 38. V. Buckmaster, 39. Cent. Pac. R. R. Co. v. Benity, 52. V. Mudd, 154. Cervena v. Thurston, 483. Chadwick v. Parker, 63, 158. Challis V. Wise, 336. Challnor v. Thomas, 20. Chamberlain v. McCarthy, 627. V. Chamberlain, 413. Chamberlin v. Donohue, 34, 79, 163. Chambers v. Butcher, 529. V. Handley, 133. V. Pleak, 515. Chambers, Ex parte, 447. Chambersburg v. Manko, 51. Chandler v. Temple, 294. V.White, 314. V. Bailey, 316. V. Simmons, 355. V.Walker, 629. Chapin v. Wright, 147, 148, 507. V. McLaren, 335. V. Freeland, 474. V.Hunt, 482. Chapman v. Hollister, 170. V. Twitchell, 283. V.Miller, 312. V. Chapman, 406, 407, 429. V.Kimball, 427. V. Armistead, 537. V. Holding, 554. Chappell V. Missionary Soc, 377. Chapoton, Estate of, 380. Charter Oak Ins. Co. v. Cum- mings, 578. Chartier, etc. Co. v. McNamara, 294. Chase v. Whiting, 331. Chatard v. O'Donovan, 113. Chautauqua Bank v. Risley, 172. Cheatham v. Young, 209. Cheek v. Aurora, 523. Cheney v. Crandell, 262, 315. Cherry v. State, 406. TABLE OF CASES. XXVU References are to pages. Chester v. Railroad Co., 50, 51. Chicago V. Iron Worlcs, 318. Chicago Canal Co. v. Kinzie, 37. Chicago Ry. Co. v. Quincy, 49. Chicago V. "Wright, 51. V. Middlebrooke, 526. Chicago R. R. Co. v. Knox Col- lege, 73, 79, 84. V.Morgan, 238, 241. V. Schumacher, 623. V. Hay, 630. Childs V. Chappel, 18, 25, 28. V.Nelson, 460, 522. V. Showers, 590. Childress v. Cutter, 399. Chiniquy v. Bishop, 114. Chippewa L. Co. v. Tremper, 260. Chisholm v. Georgia, 179. V. Weise, 645, 646. Chivington v. Colorado Springs, 212. Christenbury v. King, 214, 273, 275. Christie v; Gage, 504. Christy v. Pullinan, 193. ' v. Scott, 247, 256. V. Badger, 385, 386, 388. Church V. Hoboken, 51. V.Melville, 302. V. Church, 306. V.English, 553, 554. Cincinnati v. White, 43, 44, 267. City Mission v. Appleton, 359. Claflin V. Dunne, 557. Claggett V. Kilbourne, 267. Clapp V. Bromagham, 126. Clark V. Rhoades, 74. V.Clark, 167, 194. V. Crego, 207. V. Hulsey, 28] V.Wilson, 297. V.Hodge, 301. V. Hornthal, 372, 373. V. Shalier, 400. V. Owens, 459, 507. V. Potter, 459, 507. V.Gilbert, 508. V. Parkinson, 550. V. Day, 622. Clarke v. Wagner, 532, 586, 587. V. Clarke, 239. v. McClure, 507. Clarkson v. Hatton, 445, 592, 593. Claughton v. Claughton, 509. Clawson v. Doe, 350. Clay V. Hammond, 59. Clayton v. Feig, 255. V. Warden, 414. Cleaver v. Bigelow, 138. Cleland v. Clark, 616. Clement v. Kimball, 415. V. Perry, 459, 477. Clements v. Lampkin, 486. V.Hays, 636. Cleveland v. Spelman, 389. V. Obenchain, 496. Cleverly v. Cleverly, 387. Clift V. Moses, 372. Clute V. Railroad Co., 505. Clyburn v. McLaughlin, 220. Coal Run Co. v. Jones, 419, 420. Coale V. Campbelle, 71. Coan V. Mole, 164. Cobb V. Lavalle, 36, 120, 255, 257. V. Garner, 344. Coburn v. Litchfield, 575. Cocks V. Simmons, 351. Codman v. Winslow, 471. Cody V. Quarterman, 74. V. Bunn, 372. Gofer V. Sehening, 238, 251. V. Scroggins, 444. Coffin V. Freeman, 224, 226. Cofield V. Furry, 480. Cohen v. St. Louis R. R. Co., 41. V. Insurance Co., 235. Cohn V. Parcels, 522. Colburn v. Yantls, 94, 561. V. Mason, 500. Cole V. Johnson, 604. V. Parker, 492. V. Cole, 418. V. Pennoyer, 357. V. McLaughlin, 538, 539, 555. V. Drew, 48. Coleman v. Billings, 468, 478, 486. V.Foster, 399. V. Blach, 302. V. Improvement Co., 306, 307. Coles V. Yorks, 310. Colgrove v. Koonce, 113. Collett V. Vanderburg, 526. Collier v. Sapp, 94. Collins V. Lynch, 136, 475. V. Boring, 314. Colman v. Packard, 143. Colorado R. R. Co. v. Smith, 23. Comings v. Leely, 315. Commonwealth v. Moorhead, 522. XXVUl TABLE OF CASES. References are to pages. Comstock V. Freierickson, 175. Comyn v. Kineto, 30. Conger v. Duryee, 166. Conlan v. Grace, 290. V. Sullivan, 615. Conley v. Finn, 294. Conn. Ins. Co. v. Jones, 138. V. Kinne. 202. Connard v. Calgan, 291. Connor v. Nichols, 138. Conrad v. Long, 389. Conroy v. Duane, 637. Converse v. Dunn, 24, 238. Conwell V. Mann, 232. V. Watkins, 337. Cook V. Bertram, 117, 243. V. Caswell. 124, 504. V.Cook, 133, 134, 416. V. Sinnamon, 191, 193. V.Clinton, 461. V. Parrah, 461. V. Babcock, 462. V. Foster, 517. V.Moore, 552. V.Wood, 625. Cook County v. Calumet C. Co., 552. Cooke v. Cooper, 145. 146. V. Avery, 214, 276. Cooney v. Hayes, 309. Coonradt v. Campbell, 630, 632, 636. Cooper V. Cooper, 310. V. Sunderland, 346. V. Ord, 465. V. Morris, 477. Cornelius v. Ivins, 58. Corning v. Troy I. Factory, 516. Cornwall v. Culver, 283. Coryell v. Cain, 22. Costello V. Edson. 462, 487. Cottingham v. Hill, 198. V. Parr, 307. Cottle V. Morris, 623. Cotton V. Carlisle, 257, 332. Coughanour v. Blood.good, 577. Coulson V. Wing, 110. Courtney v. Turner, 57. Covert V. Morrison, 163. V. Selbern, 378. Cowan V. Lindsaj^ 432. Coward v. Clanton, 92. V. Coward, 468. Cowdrey v. Johnson, 532. Cowell V. Springs Co., 358. Cox V. Arnold, 37, 38. V. Douglass, 95. V. Hart, 273, 276. V.Clark, 400. V. Rash, 413, 439. V. Ellsworth, 427, 428. V. Dill, 624. Coy V. Miller, 280, 282. Coye V. Leach, 434, 435. Crabtree v. Crabtree, 294. Craig V. Church, 38. V. Taylor. 191, V. McBride, 191. V. Bennett, 237, 244. V. Van Bebber, 355, 357. V.Watson, 572, 574. Craft V. Merrill, 335. V. Yeaney, 563. Crampton v. Prince, 279. Crane v. Crane, 439. V.Marshall, 296. V. Reeder, 318. Cranston v. Crane, 323. Crary v. Goodman, 153, 265, 267. Craskery v. Busch, 614. Crater v. Crater, 134. Cravens v. White, 303, 309. Crawford v. Corey, 230, 292, 296, 297. V. Ahrnes, 497. V. Shaft, 604, Credle v. Hays, 307. V. Ayers, 598, 599. Creekmur v. Creekmur, 460. Crenshaw v. Julian, 250, 256. Cressler v. Cressler, 252. Crippen v. Dexter, 366. Crisman v. Johnson, 70, 71, 350, 351. Crispen v. Hannavan, 464, 470, 486, 561. Crocker v. Collins, 522. Crolly V. Clark, 367. Cronin v. Gore, 273. Crook V. Glenn, 507. V. Vandervort, 129. Crooks V. Whitford, 386. Crosby v. Clark, 202. Cross V. Robinson. 126, 227 V.Knox, 145, 146. V. Weare Com. Co., 293 Crowder v. Searcy, 218. Cruger V. McLaury, 130. Crunimey v. Bently, 534 Crusoe v. Butler, 367. TABLE OF CASES. XXIX References are to pages. Cuddy V. Brown, 404, 410. Culver V. Rhodes, 503. Cummings v. Wyman, 125, 503. V. Plummer, 3S0. Cummings v. Shav/, 391. Cunningham v. McCollum, 196. V.Davis, 322. V. Baxly, 396. Curran v. Taylor, 400. Curry v. Fish Co., 590. Curtis V. Aaronson, 283. V.Campbell, 459, 477. Curtiss V. Livingston, 186. V. Gay, 602. Custard v, Musgrove, 212. Cutler v. Callison, 271, 281, 497. Dahm v. Baflow, 166. Dale v. Hunneman, 244. Damon v. Dures, 145. Daniel v. Daniel, 126. V. Lefevre, 228. Daniels v. Chicago R. R. Co., 41, 53. Danlhee v. Hyatt, 114. Danner v. Crew, 216. Darby v. Callahan, 133. Dark v. Johnson, 18, 25. Darrow V. Homer, 525. Darst V. Enlow, 493. Dasher v. Ellis, 514. Davidson v. Morrison, 297. V. Laniphrey, 624, 626. V. Ernst, 151, 152. V. Cox, 354. v. Wallingford, 402. Davies v. Huebner, 523. Davis, The, 178. Davis V. Settle, 14, 15. V.Taylor, 95. V. Railway Co., 123. V. Jones, 125. V. Gray, 179. V. Davis, 222. V. Powell, 605. V. Darrow, 253. V. Souk, 590. V. Gaines, 339. V. Bowmar, 508. V. Dudley, 356. V. Judge, 496, 540, 541. V. Briggs, 427, 428, 431. V. Laning, 436. T. Howard, 464. V. McArthur, 473. Dawley v. Brown, 207, 214, 577. Dawson v. Mills, 130, 191. V. Parham, 340. V. Grow, 605, 608, 610. Day V. Alverson, 234. V. Philbrook, 327. v. Wallace, 377. V. Wilder, 472. Dayton v. Atkinson, 442. De Forest v. Walters, 266. De Graw v. Prior, 644. DeKalb v. Luney, 523, 524. DeLancey y. Ganong, 515. De Segond v. Culver, 298. De Sepulveda v. Baugh, 554. DeVotie v. McGerr, 222. Dean v. Comstock, 151, 152, 153, 154. V. State, 426. V. Goddard, 454, 458. Deaver v. Jones, 306. Decker v. Decker, 370. Defferback v. Hawke, 518. Deford v. Mercer, 348. De Haven v. De Haven, 429. Delaplain v. Grubb, 294. Delaware & H. C. Co. v. Hughes, 488, 489. Den V. Smith, 201. V.Wright, 213. V. McKnight, 261. V. Despreaux, 329. V. McMurtrie,' 370. Denham v. Holeman, 462, 464. Dennis v. Wood, 644. Dennison v. Page, 425, 426, 438. Dentzel v. Waldie, 354. Depriest v. Jones, 522. Deputron y. Young, 471. Dequindre v. Williams, 347. Des Moines v. Harker, 519. Devin v. Hendershott, 167. Devine v. Burlson, 185. Devlin v. Commonwealth, 342. Deweese v. Reinhard, 176. Dewey v. Brown, 130. Devereux v. McMahon, 291. Dexter v. Inches, 379. Dice V. Brown, 477. Dickey v. Vann, 367. Dickerson v. Hendryx, 190, 210, 216. v. Colgrove, 267, 269. V. Commissioners, 269, 348. Dickinson v. Dickinson, 375. Dickson v. Gamble, 268. XXX TABLE OF CASES. Eeferenoes are to pages. Dietrich v. Hutcliinson, 354. Dlggs V. Kurtz, 280, 281. Dikeman v. Parrisli^ 516. Dillingliam v. Brown, 230. Dillon V. Center, 228. Dilworth v. Rice, 365. V. Fee, 631, 633, 634. Dimick v. Deringer, 161. Dimon v. Dimon, 257. Dingey v. Paxton, 350. Dixcy V. Laning, 347. Dixon V. People, 418, 419. V. Cook, 460, 464. Dobbins v. Baker, 587. Dobbs V. Kellogg, 150, 251. Dobson V. Cothran, 406. Dodd V. McCraw, 511. Dodge V. Wright, 159. V. Spiers, 245. V. Beiler, 400. Dodge's Appeal, 371, 381. Doe V. Denton, 22. V. Pasquali, 75. V. Stradling, 114. V. Butler, 189. V. Dugan, 273. V. Aiken, 325. V. Thompson, 464. V. Clayton, 466. V. Hearick, 518. y. Reynolds, 549. Dohan v. Murdock, 608. Donahue v. McNulty, 303. V. Railroad Co., 454. V. Klassner, 628. Donehoo v. Johnson, 614. Donnell v. Johnson, 80, 165. Donnelly's Will, 365. Donovan v. Bissell, 484. Dooley v. Christ, 575. Doran v. Railroad Co., 517. Dorer v. Hood, 607. Dorland v. Hanson, 334. Dorsey v. Hall, 150. V.Kyle, 92. Doswell V. De la Lanzo, 249. Dothard v. Denson, 246, 612. Doty V. Burdiok, 224. Dougherty v. Purdy, 202. V. Powe, 535, 536. Douglas V. Dakin, 304. Douglass V. Ruffin, 243, 244, 489. V. James, 380. Dow V. McKenney, 495. Dawd V. Watson, 432. Dowden v. Wilson, 325. Dowdy V. McArthur, 304. Downey v. Bordan, 391. Downing v. Nicholson, 382. V.Mayes, 459, 486, 487. Doyle V. Wade, 119, 213, 273, 461. 465, 467, 486. V. Franklin, 539. Drake v. Root, 107. V. Newton, 165. V. Happ, 273. V. Brown, 329. Draper v. Shoat, 459, 479. Dreisbach v. Serfass, 321. Drew v. Valentine, 517. Drexel v. Man, 549. Dublin V. Chadbourne, 366. Dubois V. Holmes, 229. Dubuque v. Coman, 466, 469. Ducker v. Burnham, 323. Dudley v. Sumner, 295. v. Hurst, 483. V. Frankfort, 525. V.Lee, 636. Duff V. Moore, 293. V. Leary, 508. Duffey V. Raferty, 224, 229. Dugan V. Follett, 501. Duggan V. McCullough, 251. V. Uppendahl, 271. Duke V. Reed, 146, 149. V. Harper, 515. Dukes V. Faulk, 381. Dulaney v. Nolan Co., 606. Dunbar v. Harden, 295. Duncan v. Rodecker, 127. V. Gainey, 339. V. Stewart, 341, 342. Dunlap V. Henry, 237. Dunn V. Rothermel, 166. V. Baston, 327, 328. Dunne v. Trustees, 77, 164. Dunton v. Keel, 257. Dupoyster v. Gazani, 367. Duren v. Kee, 472, 473. Durette v. Briggs, 330. Durham v. Averill, 378. V. Angler, 513. Dustin V. Cowdry, 634. Dutra V. Percira, 582. Dutton V. Warschauer, 102. V. Clark, 249. Dwight V. Cutler, 151. V. Packard, 306. Dyer v. Gill, 65. TABLE OF CASES. X3fXl References are to pages. Dyke v. White, 255. East V. Peden, 211, 221, 265, 266. East Hampton v. Vail, 302. V. Kirk, 463. Bast St. Louis v. Hacl<;ett, 534. Eastman v. Eastman, 399, 403. V. Martin, 405. Eaton V, Freeman, 595. V. Rice, 493. V. Tallmadge, 423. V. Sanford, 68. V. Smitli, 244. V.Eaton, 261, 357. Eberts v. Thompson, 529. Eberwine v. Coolc, 74. Eckford v. Bckford, 385, 387, 388. Ecroyd v. Coggeshall, 360. Eddie v. Eddie, 442. Eddy V. Caldwell, 333, 334. Edmonson Island Case, 29. Edwards v. Rays, 318, 542, 543. V. Bowden, 306. V. Gary, 637. V. Bishop, 125, 126. T.Edwards, 627. V. Evans, 170. V. Smith, 496. V.Miller, 263. Edwards, etc. Co. v. Rank, 575. Edwardsville R. R. Co. v. Saw- yer, 45, 211, 215, 216. Eels V. Telegraph Co., 48. Bfflnger v. Hall, 601, 604. V. Kenney, 614. Egbert v. Greenwalt, 426. Eggleston v. Railroad Co., 41. Ehle's Estate, 435. Ehrman v. Hoskins, 372, 386. Eichart v. Schaffer, 628. Eiden v. Eiden, 496. Eiseley v. Spooner, 309. Eisenlord v. Clum, 404. Elder v. Bales, 400. V. McCJaskey, 549. Eldred v. Meek, 389. V. Hazlett's Adm'r, 560. Ellington v. Ellington, 503. Elliott V. Sleeper, 312. Ellsworth V. Freeman, 602. Ellwood V. Northrop, 317, 318. Elofrson v. Lindsay, 466. Blston V. Jasper, 357. Ely V. Yore, 635. Emerick v. Trevener, 516. Emerson v. Shaw, 423. Emerson v. White, 402. V. Simpson, 359, 361. V.Clayton, 134. V. Spicer, 171. V. Shannon, 351. V. Sturgeon, C34. Emerson's Appeal, 94. Emmons v. Bishop, 624. Emory v. Keighan, 145. Enders v. Sternbergh, 232. England v. Hatch, 238. English V. Powell, 501. V.Wright, 260. English's Adm'r v. Murray, 430. Enos V. Cook, 249. V. Buckley, 506. Emory v. Keighman, 25'7. Epstein v. Greer, 77. Erdman v. Corse, 230. Erck v. Church, 492. Erhardt v. Boaro, 96, 97. Ervine's Appeal, 323. Erwin v. English, 420. Escherick v. Traver, 262. Esker v. Hefferman, 143, Estes V. Neil, 549. Etz V. Daily, 43. Evans v. Erie Co., 526. V. Kunze, 133. V. Snyder, 270, 339. V. Stewart, 428. V. Templeton, 503 V.Webster, 293. Evansville, etc. Co. v. Winsor, 367. Everett v. Drew, 167. Ewald V. Corbett, 126, 227. Ewart V. Davis, 349. Ewing V. Cones, 186. V. Lutz, 187. V. Burnett, 477. Ezzard v. Mining Co., 17, 18, 21, 25. F. A. Hihn Co. v. Pleckner, 254. Fairbanks v. Long, 209, 249. Fairclaim v. Shamtitle, 161. Fairfield v. Barrette, 454. Faith V. Bowles, 360, 361. Falconer v. Roberts, 125. Fallon V. Chidester, 366. Faloon V. Simshauser, 487. Fanning v. Insurance Co., 221. Farley v. Parker, 232. Farnam v. Thompkins, 302. V. Hohman, 159. XXXll TABLE OF CASES. References are to pa^es. Farnam v. Childs, 217, 218. Parnham v. Jones, 351. V. Thompson, 3fil. Parnsworth v. Fowler. 566. Parnum v. Peterson, 318. Parrar v. Pessenden, 479. Parrior v. Houston, 331. Parwell v. Ro?:ers, 167, 317. V. Easton, 646. Fasburg v. Rogers, 46G. Paulcon V. Johnson, 573, 617. Faulkner v. Adams, 292. Pee V. Swingly, 146. Feibelman v. Assurance Co., 236. Feit V. Vanatta, 371, 380. Pelino T. Lumber Co., 146. Peliz V. Peliz, 504. Pell V. Young, 295, 340. Pelton V. Hill, 376. Pena v. Holme, 268. Penn v. Holme, 244. Ferguson v. Bartholomew, 612. Pernstler v. Seibert, 167. Field V. Providence, 39. V. Barling, 4. V. Boynton, 282. Pilbey v. Campau, 119. Piles V. Watt, 113. Pilkings V. Nunnemacher, 174. Pinck V. Ullman, 274. Finch V. Garrett, 250. V. Ullman, 491. Finley v. Babb, 238. Pinion V. Clark, 272. Fish V. Benson, 16. V. Toner, 579. Fisher v. Stevens, 219. V. Eslaman, 329, 338. Pisk V. Baker, 627. Fiske V. Chamberlln, 568, 570. Fitohburg R. R. v. Page, 460. Fitzgerald v. Quinn, 224, 327, 632, 637, 643. v. Shelton, 249. v.Brennan, 278. Pitzpatrick v. Fitzpatrick, 372, 386. Flannagan, Re, 315. Fleming v. People, 412, 418. Fletcher v. Holmes, 449. V. Brown, 589, 590. Flint V. Douglass, 601. Florence v. White, 481. Florida Ry. Co. v. Burt, 242, 243, 297. Florida Ry. Co. v. Hill, 41. V. Hughes, 41. V. Loring, 230, 231. Floyd V. Ricks, 290. V. Calvert, 421. Plynn v. Coffee, 431, 432. V. Detroit, 524, 525. Fogarty v. Stack, 311. Foley V. Insurance Co., 171. Fonda v. Sage, 59. Foot V. Murphy, 256. Poote V. Cobb, 295. Forbes v. Darling, 373. Force v. Stubbs, 59. Ford V. Harrison, 255, 276, 277. V. Wilson, 462, 465, 477. V. Doyle, 550. Fore V. Campbell, 636. Porey v. Bigelow, 478. Forrest v. Jackson, 505. Forsyth v. Rowell, 192, 193. Forsythe v. Hardin, 256. Fort Jefferson I. Co. v. Dupoy- ster, 318. Fort Smith v. McKebbin, 525. Port Dearborn Lodge v. Klein, 628, 634. Foster v. Morris, 91. V. Marshall, 125. V. Hackett, 127, 541. V. Townshend, 173. V. Stapler, 186, 237. V.Evans, 238. V. Waterman, 447. v. Wadsworth, 535. V. Hinson, 543, 545. Poulke V. Bond, 461, 503. Fountain v. Bookstaver, 144, 145, 147, 148. Fowler v. Simpson, 404, 405. v. Currie, 582. Fox V. Wharton, 144 Prakes v. Elliott, 125 Francis y. Francis, 431. Franklin v. Haynes, 540. Pratini v. Caslini, 409. Frazier v. Pulcher, 436. Freeman v. Brewster, 213, 221. V. McAninch, 543, 544. Freer v. Davis, 15, 97. V. Stotenbur, 162. French v. Pearce, 491, 492. V. Robb, 211. V. Frazier, 430. V. Goodman, 475. TABLE OF CASES. xxxm Eeferenoea are to pagea Fresno R. R. Co. v. South. Pac. R. R. Co., 53. Friberg v. Donovan, 283. Frink v. Roe, 273. V. Le Roy, 146. Frisbee v. Timans, 95. Frltsche v. Fritsche, 17, 18, 25, 28. Frontman v. May, 519. Frost V. Butler, 58. V. Deering, 290. V. Bank, 335. Fry V. Stowers, 283. Fryer v. Rockefeller, 298. Fugate V. Pierce, 219, 464. Fulkerson v. Mitchell, 211, 258. V. Holmes, 404, 405, 409. Fuller V. Swensberg, 502. Fuller-Warren Co. v. Harter, 575. Fulton V. Harmon, 97. V. Hanlon, 238, 315. Funk V. Stubblefleld, 112. V. Eggleston, 325, 391. Furgeson v. Jones, 444, 447, 448. Furguson v. Bond, 291. Furlong v. Cooney, 482. Fussell V. Gregg, 239. Gableman v. Peoria Ry. Co., 175. Gadberry v. Sheppard, 359. Gafford v. Strauss, 509, 510. ' Gage V. Abbott, 14. V. Chicago, 625. Gaines v. Kennedy, 339, 607. V. New Orleans, 598. Galbraith v. Fleming, 64, 131. Gale V. Hines, 125. V. James, 184. Galland v. Jackman, 483. Galloway v. Hamilton, 300. Galpin v. Page, 448. Gamble v, Daugherty, 192, 193, 539. Gambrill v. Lodge, 371. Gammon v. Ganfield, 218. Ganley v. Bank, 66. Gardiner v. Miller, 518, 519. Gardner v. Kersey, 572. V. Eberhart, 330. V. Grannis, 295, 590, 592. V. Tisdale, 28.^ V. Hersey, 31. V. Cemetery, 38. Garnhardt v. Finney, 166. Garrett v. Land Co., 479, 480. Garrett v. Christopher, 320. Garrick v. Chamberlain, 545. Garrigan v. Knight, 602. Garrison v. Hill, 450, 451. V. Savignac, 550. Garther Vi Lawson, 263. Gartrell v. Stafford, 486. Garvin v. Garvin, 334. Garwood v. Hastings, 200. Gary v. Woodham, 487. Gas Light Co. v. Railroad Co., 203. Gates V. Siebert, 382. Gatling v. Lane, 468. Gauch V. Insurance Co., 449. Gaus V. Railroad Co., 45, 46. Gause v. Perkins, 97. Gay V. "Walker, 310. v. Ellis, 518. Geer v. Mining Co., 295, 296. George v. McGovern, 128. V. McCullough, 184, 185, 187, 200. V.Thomas, 492, 494, 496. Georges v. Hufschmidt, 569, 580. Georgia Iron Co. v. Allison, 185. Gernet v. Lynn, 380, 504. Gibbs V. Sullens, 152. V. McGuire, 291. Gibbon v. Maxwell, 357. Gibson v. Roll, 346. V. Seymour, 373. v. Chouteau, 519. Gifford V. Choate, 390. V. Gifford, 508. Gilbert v. Peteler, 361. Gilchrist v. Middleton, 211, 226. Giles V. Little, 371. Gillespie v. Gillespie, 134. Gilman v. Judge, 627. V. Gilman, 597. V. Ketcham, 174. V. Donovan, 557. Gilmer v. Stone, 377. Giltinan v. Strong, 546. Gist V. Beaumont, 230, 459. Gittens v. Lowry, 465. Given v. Hilton, 373. Glacier v. Mining Co. v. Willis, 197. Gladwell v. Holcomb, 78, 79. Glaze V. Railroad Co., 519. Glover v. Thomas, 273. V. Wright, 496. Goddard v. Whitney, 370, 373. XXXIT TABLE OF CASES. References are to pages. Goff V. Roberts, 250, Goldsmith v. Smith, 542. Goldwater v. Burnside, 419. Goodall V. Henlvel, 193. Goodell V. Bates, 291. Goodenow v. Allen, 163. Goodhue v. Baker, 530, 532, 625. Goodman v. Winter, 307. V. Randall, 290. V.Nichols, 218, 219. V. Winter, 237, 238, 264. Goodtitle v. Alker, 42. V. Roe, 230. V. Tombs, 588. Goodwin v. Forman, 199. V. Wertheimer, 217. V. Smith, 420. V. Colby, 438. Gorder v. Plattsmouth Co., 301. Gordon v. Sizer, 28. V. Pearson, 125. V. Tweedy, 609, 611. Goshen v. Stonington, 418. Gossage v. Crown Point, 119. Gould V. Sternburg, 14. V. Hendrickson, 250, 253, 256, 329. Goulding v. Clark, 239. Gove V. Gather, 298. Gower v. Quinlan. 549. Grace v. Martin, 534. Grace Church v. Dobbins, 35. Graeme v. Cullen, 604. Graff V. Middleton, 321. Grain v. Aldrioh, 107. Grand Rapids v. Whittlesey, 50, 182 Grandin v. Hurt, 238, 242, 244. Grandona v. Lovdal, 36. Grandy v. Casey, 306, 310. Grant v. Fowler, 462. Forysth v. Rowell, 192, 193. Grassmeyer v. Beeson, 127. Graves v. Ewart, 365. V. Leathers, 317. v. Calwell, 305. V.White, 154. v. Atwood, 321. V. Deterling, 360. Gray v. Water Power Co., 303. v. Bartlett, 270. V. Givens, 130, 191, 240. V. Blanchard, 246. Grayson v. Weddle, 145. Greeley v. Spratt, 633, 636. Green Bay C. Co. v. Hewitt, 266. Green v. Jordan, 199, 220, 238, 240, 264, 479. V. Green, 355. V. Wilding, 356. V. State, 414. V. Couse, 458, V. Irving, 520. V. Biddle, 609. Greene v. O'Connor, 361. V. Almand, 405. I Greenhill v. Biggs, 500, 501. Greenhow v. James, 416. Greenleaf v. Brooklyn Ry. Co., 405, 406. v. Dubuque Ry. Co., 406, 407. Greenough v. Cass, 370. Greenwood v. Murray, 365, 366. Gregg V. Patterson, 604. Gregory v. Forbes. 210. V. Tomlinson, 253. Greino v. Munson, 515. Gresham v. Thum, 565, 566, 581. Gross L. Co. v. Coody, 306. Griffey v. Kennar.d, 587, 599. GritBn v. Sheffield, 80, 256. V.Hall, 104, 196, 306. V. Mulley, 255, 258. Griffith V. Hillard, 97. V. Frazier, 341. Grigsby v. Akin, 249. Grimes v. Harmon, 372, 375. Grimm v. Curley, 492. Grimmer v. Friederich, 382. Griscom v. Evens, 370, 371, 377. Griswold v. Bragg, 605. Groom v. Parables, 412. Groves v. Marks, 188. V. Culph, 387. Grubbs v. Boone, 263, 269, 271, 282. Grube v. Wells, 464, 491. Grundy v. Hadfleld, 102. Guild V. Richards, 359, 362. Guilmartin v. Wood, 255. Guinnip v. Carter, 87. Gunn V. Barrow, 167. Guyer v. Wookey, 110, 112. Gwynn v. McCauley, 337, 348. Haas V. Delorme, 484. Hacker v. Horlemus, 233. Hackett v. Marment Co., 245. Hackworth v. Zollars, 544. Haddock v. Railroad Co., 424. Hagan v. Ellis, 478. TABLE OF CASES. XXXV References are to pages. Hager v. Brainerd, 142. Hagey v. Detweiler, 532. Hagerman v. Hatzel, 144. Hagenbufk v. McClaskey, 224. Hahn v. Cotton, 587, 595. Haight V. Vallet, 298. Hale's Appeal, 395. Hall V. Lance, 149, 257. V. Gallemore, 235. V. Torrens, 609. V. Hall, 266, 609. V. Ashby, 318. V. Caperton, 454. V. Mooring, 464. V. Denckla, 507. V. Dexter, 571. Hallam v. Doyle, 535. Halland v. Challen, 59. Halsted v. Mullen, 283. Halvorsen v. Lumber Co., 282. Hamblln v. Bank, 260. Hamilton v. Wright, 465, 466. V. State, 523. Hamlin v. Express Co., 390. Hammann v. Mink, 630. Hammerslough v. Cheatham, 221. Hammond v. Stoy, 197. V. Johnston, 303, 307. V. Shepard, 522. V.Carter, 545, 628. Hanchet v. Whitney, 77. Hancock v. McAvoy, 17, 25, 28, 38. V. Lopez, 234, 277. Handlan v. McManus, 478, 492. Handley v. Wrightson, 380. Hanford v. Fitch, 507. Hanna v. Read, 545. Hannan v McNickle, 607. Hanson v. Armstrong, 105, 549. V. Eustace, 235. V. Johnson, 504. V. Armstrong, 568, 570. Haraden v. Larrabee, 380. Harbeck v. Harbeok, 421. Hardie v. Chrisman, 349. Hardin v. Osborne, 176. V. Forsythe, 251, 252. V. Gouverneur, 464, 480. Harding v. Larkin, 590. Hardwick v. Jones. 149. Hargus v. Goodman, 629. Harland v. Eastman, 75, 224. Harle v. McCoy, 152. Harlow v. Iron Co., 28, 30. Harlowe v. Hudgins, 293. Harman v. Harman, 413, 615. V. Oberdorfer, 294. Harmon v. Decker, 235. Harms v. Kransz, 461. 470, 477, 483. Harp V. Smith, 493, 495. Harper v. Strutz, 119. V. Ely, 143, 145. Harrell v. Bank, 244-, 296. Harriett v. Kinney, 261. Harriman v. Gray, 320. Harris v. Shafer, 306. V. Lester, 337. V. Harris, 412, 420. Harrison v. Taylor, 126. V. Hatcher, 231, 262. V. Simons, 312. V. Harrison, 389, 417. V. Lincoln, 423. V. McMurray, 557. V. Fleming, 608. Hart V. Smith, 350. V. McCallum, 513. Hartley v. Ferrell, 249. Hartman v. Nettles, 466. V. Wieland, 574, 617. Hartnett v. Wandell, 370. Hartshorn v. Dawson, 279. Hartung v. Witte, 497. Harvey v. Tyler, 103. V. Anderson, 233. v. Ball, 395. V. Harvey, 465. Haslett V. Grain, 611. Hasson v. Klee, 328, 457. Hatch v. Hatch, 399. Hatcher v. Briggs, 339. Hathaway v. Evans, 423. Hausee v. Mead, 212. Hawbecker v. Hawbecker, 441. Hawes v. Shaw, 287. Hawkins v. Chapman, 293, 309. V.Garland, 377, 378. Hawkins Point Light House, 40. Hawley v. Northamton, 371. V. James, 395. v. Twyman, 530. V. Simons, 548. Hayden v. McClaskey, 271. Hayes v. Livingstone, 269. V. Lienloken, 367. Haynes v. Boardman, 472. Hays V. Tilson, 587. V. Altizer, 636. XXX VI TABLE OF CASES. References are to pages. Hayward v. Cain, 330. Hazard v. Durant, 174. Hazel y. Hagan, 391. Heath v. White, 438. Heavilon v. Banls:, 572. Hecht V. Colquhon, 15. Heddleston v. Hendricl?:s, 522. Hedges v. Mace. 337. Hedriclt v. Hughes, 518. Heffner v. Heffiner, 418. Heidlebaugh v. Wagner, 375. Heinz v. Cramer, 210. Heisen v. Heisen, 287. Helfenstein v. Leonard, 228. Helm V. Wilson, 497. Helms V. Green, 315. Helton V. Asher, 235. Hemmingway v. Drew, 220. Hemphill v. Ross, 142. Henderson v. Coal Co., 159. V. Wanamaker, 255. V. Dennis, 270. V. Mack, 311. V. Allen, 639. Hendon v. White, 330. Hendricks v. Rasson, 509, 510. Hendrix v. Railway Co., 41, 53. Hendy v. Dinkerhoff, 575. Henley v. Wilson, 504. Hennessy v. Farrell, 145. Henry v. Carson, 69. V. Henry, 372. V. McNeal5^ 414. Henshaw v. Hunting, 522. Henszey v. Gross, 399. Hentig v. Pipher, 117, 243. Hentig v. Redden, 220, 542, 543. Hernden v. Vick, 328. Herrell v. Sizeland, 61, 73, 74, 79, 164. Herreshoff v. Tripp, 588. Herrick v. Morrill, 332. Herschbach v. Cohen, 629. Hess V. Meyer, 279. V. Rudder, 491. V. Sims, 564. Hessel v. Fritz, 569. Hewes v. Glos, 230. Hewitt V. Wis. L. Co., 628. Hibbard v. Poster, 100, 128. Hibemia Soc. v. Lewis, 144. Hickey v. Stewart, 254. Hicklin v. McClear, 462. Hicks V. Lovell, 81, 152, 154, 245. V. Skinner, 253, 416. Hicks V. Tedericks, 461, 463. V. Blakeman, 614. Higbee v. Rice, 126, 227. Higgins V. Dwen, 387. Hihn V. Mangenberg, 186, 195. High V. Pancake, 451, 452. Highstone v. Burdette, 503. Hignite v. Hignite, 499. Hildreth v. White, 197. Hill V. Atterburg, 161. V. Punkett, 245. V. Reynolds, 329. V. Gray, 500. V. Forkner, 588. y. Meyers, 592. Hillebrant v. Booth, 218. Hinchman v. Railroad, 107. V. Whetstone, 481. Hinckley v. Thatcher, 377, 378. Hines v. Good, 19, 20. V. Robinson, 21. V. Keighblinger, 291. Hinckley v. Greene, 503. Hinton v. McNeil, 582. Hiss V. McCabe, 298. Hitchcock V. Harrington, 149, 253, 260. V. Pratt, 644. Hitz V. Ahlgren, 431. Hoadly v. San Francisco, 522. Hoban v. Cable, 233. Hobart v. Sanborn, 143. Hobbs V. Beard, 234, 326. Hobby V. Bunch, 187, 202, 232, 542. Hoboken Laud Co. v. Hoboken, 182,272. Hochtedler v. Hochtedler, 375. Hockman v. McClanahan, 300. Hodges V. Eddy, 470, 503. Hodgkins v. Price, 162, 589, 590, 601. Hodson V. Van Possen, 139. Hoffert V. Miller, 356. Hoffman v. Port Huron, 307, 514, 516. V.White, 482, 492. V.Harrington, 631, 634. Hogan V. Elliss, 269. Hogans v. Carruth, 224. Hogey V. Detwiler, 495. Hoggin V. Lorentz, 199. Hogsett V. Ellis, 287. Holbrook v. Bowman, 520. V. Forsythe, 465. TABLE OF CASES. XXXVll References are to pages. Holtrook V. Campau, 119. V. Brenner, 274. V. Debo, 319. Holliday v. Dixon, 376. Hollingsworth v. Flint, 237. V. Bag-ley, 337. V. Sherman, 461. Holloran v. Holloran, 492. Holly V. Hawley, 502. Holman v. Elliott, 211, 215, 216, 226. V. Hopkins, 367. V. Bonner, 514. Holmes v. Coryell, 297. V. Johnson, 427, 430. V. Davis, 5S4, 590, 595. V. McGee, 607, 608. Holt V. Rees, 1S6. V. Anderson, 512. V. Adams, 606. Holtzman v. Douglas, 459, 476. Hooper v. Cummings, 124. V.Winston, 172. V. Scheimer, 245. Hoope's Appeal, 374. Hooten v. Comerford, 494. Hope V. Blair, 591, 595. Hopkins v. McLaren, 619. Hoppougli V. Struble, 265. Hopson V. Commonwealth, 380. Horbach v. Miller, 65. Home v. Smith, 575. V.Carter, 211, 258. Horner v. Railway Co., 361. Horning v. Sweet, 276. Horton v. Murden, 248. V. Sledge, 608. Hosack V. Rogers, 395. Hosford V. Johnson, 145. Hotaling v. Hotaling, 81. Hough V. Cook, 236. Houghton V. Potter, 641. House V. Reavis, 155, 239, 243. Houston V. Bryan, 305. V. Davidson, 440. Houx V. Batteen, 494. Hovey v. Hobson, 357. V.Chase, 357. How V. Morten, 578. Howard v. Kennedy, 549, 569. V. Reedy, 490. V. Carpenter, 80. V. North, 339. V. Bond, 340. Howbert v. Heyle, 365. i Howe V. Williams, 195. ! V. Butterfleld, 569. 1 Howell V. Leavitt, 144, 146. V. Rye, 205. Howland v. Blake, 291. Hoyt V. Southard, 102. V.Kimball, 359, 360. V. Newbold, 431, 433. Hubbard v. Godfrey, 230, 247. V. Stearns, 496. Hubbel V. Jloulson, 140, 147, 148, 507. V. Lerch, 205. Hudson V. Coe, 499. Hiierstal v. Muir, 566, 568. Huftalin v. llisner, 633. Hughes' Appeal, 171. Hughes V. Davis, 150, 251. V. McDivitt, 295. V. Watt, 329. V. Goodale, 347. V.Watson, 357. V. Anderson, 459, 477. V. Pickering, 487. V. Edwards, 607. V. Mount, 642. Hukill V. Myers, 166. Hull V. Rawis, 420. Hulme V. Montgomery, 403. Humbert v. Trinity Church, 463. Humble v. Spears, 255. Hume V. Hopkins, 235. Hummel v. Holden, 220. Humphrey v. Hurd, 507. Humphreys v. Wade, 332. Humphries v. Davis, 446. Hunt, Estate of, 380. ' Hunt V. Pond, 608. V. Wall, 505. V.Morton, 61, 74. V.Campbell, 192, 193, 240. V. Johnson, 406. V. Chosen Friends, 408. Hunter v. Hunter, 419. V. Chrisman, 627. Huntington, Re, 372. Huntly V. Holt, 542, 543. Hunt's Appeal, 421. Hurd V. Coleman, 114. V.Elizabeth, 174. V.Harvey Co., 224, 269, 544. V. Brisner, 349. Hurley v. Estes, 144. Hurst V. Sawyer, 228, 250. V. Dulany, 519. XXXVlll TABLE OF OASES. References are to pages. Hutchings v. Morrison, 492, 493. Hutchins v. Dresser, 170. V. Klmmell, 409, 412, 418. Hutchinson v. Coonley, 152. V. Ulrlch, 246. V. County Court, 529. Hutson V. Hutson, 501. Hutton V. Schumaker, 462. Hyatt V. Wood, 151. Hyde v. Mangan, 265. V. Boyle, 577. Hynes v. McDermott, 413, 418. Ide V. Ide, 371. Ihley V. Padgett, 356. 111. etc. Co. V. Bonner, 424. 111. Cent. R. R. Co. v. Hosklns, 41, 53. 111. Steel Co. V. Budzisz, 472. V. Bilot, 475, 476. 111. etc. Ry. Co. v. Wakefield, 482, 527.. Illinois Coal Co. v. Cobb, 116. Illinois, etc. R. R. Co. v. Hough- ton, 529. Improvement Co. v. Trustees, 14. Indiana R. R. Co. v. Allen, 53. V. Bird, 554. Ind. etc. Co. v. McBroom, 624. Indianapolis Union v. Cleveland Union, 195. Ingalls V. Newhall, 500. Inge V. Garrett, 199. Ingham v. Burnell, 174. Insurance Co. v. Needles, 174. V. Pollard; 405. v. Moore, 429. Integral Min. Co. v. Altoona Min. Co., 18, 20. Ireland v. Nichols, 166. Iron Mt. R. R. Co. v. Johnson, 637. Irving v. Cunningham, 569, 623. Irving V. Brownell, 463. Irvin's Appeal, 371. Irwin V. Miller, 480. Isaac V. Swift, 334. Isenhour v. Isenhour, 444. Ives, V. McNlcoU, 441. V.Lett, 619. Jacks V. ChatHn, 242, 458. V. Dyer, 584. Jackson v. Buel, 27. V. Hathaway, 42, 48. V.Miller, 74, 81, 82, 152. V. Langhead, 79. Jackson v. McLeod, 80. V. Hopkins, 83. V. Wheeler, 84. V. Livingston, 84. V. Stiles, 88, 161. V. Leek, 133. V. Foster, 142. V. Staokhouse, 142. V. Winkler, 144. V. Camp, 152. V. Moncrief, 153. T. McEvoy, 160. V.Allen, 161. V.Wilcox, 179. V. Winslow, 181. V.Jackson, 184, 416. V. Murray, 201. V. Tuttle, 201, 619. V. Ramsey, 219. V.Lodge, 222. V. Demont, 244. V. Burgatt, 261. V. Deyo, 262. V. Shepherd, 349. V. Silvernail, 359. V.Allen, 362. V. Housel, 384. V. King, 405. V. Boneham, 408, 429. V. Berner, 463. V. Johnson, 506. V. Houser, 516. V. Haviland, 549, 563. V. Hasbrouck, 577. v. Hawley, 582. V.Wood, 590. Jacobs V. Moseley, 495. Jacobson v. Miller, 628. Jamison v. Beaubien, 261. V. Smith, 427. V. Pettitt, 496. V. Graham, 639. Janes v. Williams, 366. Jarvis v. Lynch, 270. V. Grafton, 445. Jassey v. White, 391. Jenkins v. Railway Co., 255. V. Jenkins, 382. V. Drane, 438, 440. V. Means, 606. Jennings v. McComb, 165. Jerome v. Ross, 96. Jessup's Estate, 444, 447. John Hancock, etc. Co. v. Moore, 429, 434. TABLE OF CASES. XXXIX References are to pages. John Henry Co. v. Williamson, 117, 234. Johns V. McKibben, 467. Johnson v. Johnson, 77, 79, 164. V. Hardy, 101, 130. V. Schumacher, 104. V. Hardy, 104. V. Sandhoff, 149. V. Pontious, 155, 263: V. Douglas, 166. V. Pate, 200. V. Crookshanks, 200. V. Johnson, 202. V.Drew, 220, 268. V.Allen, 220, 268. V. Briscoe, 251. V. Cornett, 257. V.Watson, 263. V.Archibald, 279, 280. V. Douglass, 286. V. Shaw, 295. V.Williams, 320. V. Beazley, 341. V. Elwood, 349. V. McKay, 384. V. Lybrook, 403. V. Johnson, 418, 419, 423. V.Merithew, 427, 431, 435. V. Eliott, 507. V. Sandhoff, 507. V. Butt, 514. V. Vance, V. Fullerton, 568, 569, 570. V. Futch, 601. v.West, 636. Johnson's Appeal, 449. Johnston v. FitzGeorge, 483, 484. V. Fish, 574, 617. Jones V. Billstein, 119, 169. V. Smith, 143, 493. V. Hooper, 144. V. Shay, 163, 636. V.Walker, 191. V. Memmott, 193. V. Porter, 194. V.Bland, 232, 233, 242, 243, 369. V. Gui-lie, 290. V.Cohen, 315. V. Monroe, 317. V. Scott, 331. V. Robinson, 367. V. Bacon, 390. V. Jones, 406, 407, 422. V.Gilbert, 413, 417, 421. Jones V. Reddick, 413. V. Brandon, 454, 458. V. Pashby, 490, 495. V. Johnson, 505. V. Pelham, 515. V. Railroad Co., 534, 576. V. Adams, 573, 617. V. Hoard, 606. Jordan v. Surghnor, 227. V. Maney, 508. V. Chenoa, 523. Journell v. Leighton, 449. Jourolmon v. Massengill, 371 Joy V. Stump, 454. Judson V. Malloy, 106. Judy V. Citizen, 117, 633. V. Gilbert, 386. Justen V. Schaaf, 279. Justice V. Railroad Co., 676. V. Baxter, 610. Kahn v. Mining Co., 255. Karns v. Tanner, 27, 30. V. Olney, 348. Kaufman v. Breckenridge, V. Burgert, 389. Keane v. Cannovan, 102. Keathley v. Branch, 238. Keegan v. Geraghty, 444, 447. Keely v. Sanders, 350. Keen v. Breckenridge, 175. V. Schnedler, 490. Keichline v. Keichline, 292. Keil V. Healey, 356. ! Keiser v. Topping, 240. Keith V. Keith, 331, 504. Kellar v. Stanley, 505. Kelley v. Kelley, 228. V. McKeon, 237, 239. Kelly V. Donlin, 70. V. McGuire, 399, 406. Kellum V. Insurance Co Kelsey v. Hanmer, 235. Kelso V. Norton, 145, 149. Kendall v. Tracy, 609. V. Limberg, 623. Kendrick v. Latham, 473. Kennan v. Smith, 202. Kennard v. Harvey, 160. Kennedy v. Johnson,, 262. V. Holman, 210. V. Roundtree, 293. Kentfield v. Hayes, 118, 221 Kepley v. Luke, 458. V. Scully, 214. 372. 445, 160. xl TABLE OF CASES. Eeterences are to pages. Kern v. Howell,, 291, 294. Kerr v. Day, 150'. V.Nicholas, 606. Key V. Harlan, 367. Keys V. Mason, 153. Keyser v. Sutherland, 629. Kile V. Tubbs, 237. Kilgour V. Jockley, 83, 142. Killmer v. Wuchner, 375, 500. Kilpatriok v. Baltimore, 360. Kimball v. Gearhart, 249. V. Lohmas, 572. Kincald's Appeal, 38. Kincaid v. Natural Gas Co., 48. Kinaid v. Howe, 306. King V. Catlin, 27. V.Hyatt, 104, 127, 129, 130, 191. V. Robinson, 109. V. Ruckman, 150. V. Lagrange, 179, 180. V. Brigham, 279. V. Ackerman, 372. V. Utley, 374. V. Carmichael, 463, 503. V. Harrington, 606. Kingsley v. Jordan, 347. V. Broward, 382. V. Coal Co., 489. Kinney v. Slatery, 503. Kirk V. Bowling, 129, 130. V. Mattier, 26, 27, 30. V.Hamilton, 269, 270, 348. Kirkland v. Trott, 73. V. Cox, 167, 240. Kirkpatriok v. Clark, 167, 231, 261, 262. Kistler v. Hereth, 69. Kitchen v. Wilson, 185. Kitron v. Bull, 458. Klein v. Laudman, 419, 420. Kline v. Moulton. 169. Kllnkener v. McKeesport, 51, 182. Knight V. Leary, 517. V. Roche, 530, 532. Knowlton v. Smith, 494. Knox V. Jenks, 346. V.Dunn, 589. Koehler v. Ball, 336.' Koenigheim v. Miles, 307. Koenigs v. Jung, 496. Koon V. Nichols, 536, 541. Korn V. Cutler, 384. Kray v. Davis, 438. Kreitline v. Franz, 630. Kremer v. Chicago Ry. Co., 41. Krewsom v. Purdon, 235. Krider v. Milner, 491, 494, 496. . Kron V. Dennis, 94. ! Krueger v. Jenkins, 525. Kruse v. Wilson, 465, 472. Kuglin V. Bock, 271. Kuhn V. Smith, 76, 78, 79. Kunzie v. Wixom, 169. Kurtz V. Hibner, 372. Kyser v. Cannon, 532. Laberee v. Carleton, 361. Ladd V. Jackson, 69. V. Dubroca, 635. Lafayette v. Jenners, 44. Laflin v. Herrington, 625. La Follett v. Aiken, 173. La Fountain v. Dee, 501. Lake V. Hancock, 292. Lake Brie R. R. Co. v. Whitham, 273. Lamar v. Pearre, 505. Lambert v. Paine, 371. Lamore v. Winter, 605. Lampman v. Van Alstyne, 463. Lamson v. Ross, 590. Lancashire v. Mason, 252. Lancaster v. Washington, 427. Lancey v. Brock, 199. Lanctat v. State, 418. Land Co. v. Chrisman, 540. Landers v. Bolton, 298. Landry v. Landry, 236. Lane v. Abbott, 195. V. Queen City Co., 238. Langden v. Paul, 19. Langdon v. Sherwood, 244, 245. V. Potter, 471. Lange v. Jones, 15. V. Benedict, 343. Langford v. Poppe, 484, 612. Langley v. Voll, 339. Langworthy v. Myers, 462. Lankford v. Green, 565, 567. Lanier v. Allen, 96. Lantry v. Wolff, 229, 454. Laramore v. Minish, 460. Larkin v. Avery, 634. Larmour v. Rich, 372. Larned v. Hudson, 596. Larsen v. Johnson, 368. Larson v. Dickey, 350. Lasater v. Van Hook, 273. Latham v. Smith, 294. Lathrop v. Emig. Co., 224. TABLE OF CASES. xli References are to pages. Lathrop v. Young, 444. Lattie-Morrison v. Holladay, 114. Laughlin v. Barnum, 604. Laughran v. Smith, 165. Laurissini v. Doe, 244. Lawrece v. Peck, 217. Lawrence v. Tennant, 283. V. Grambling, 334. V. Davidson, 564. V. Rector, 599. Lawton v. Gordon, 586. Lay V. Filmore, 217. Lazar v. Caston, 194. Lea V. Slatterly, 211. Leach v. Hall, 428, 433. Learned v. Corley, 427, 433, 601. Leary v. New, 240. V. Pattison, 159, 641. V. Langsdale, 185. Leathers v. Gray, 371, 372, 373, 374. Leatherwood v. Fullbright, 188. Leaver v. Gauss, 322. Leavitt v. Leavitt, 74. V. School Dist., 552, 586. Lebanon M. Co. v. Rogers, 465. Lecompte v. Toudouze, 281, 493, 495, 497. Ledbetter v. Ledbetter, 221. Lee v. Simpson, 14. v. Harris, 18, 51, 182, , 522, 524. V. Cook, 224. V. Cleary, 255. V. Coal Co., 349. V. Ogden, 468. V. Thompson, 508. V. Mound Station, 524. V. Bouman, 607. Leggett V. Boyd, 406. Lego V. Medley, 303. Lehndorf v. Cope, 292, 293, 309, 310. Lemmon v. Hartsook, 530. Le Moyne v. Quimby, 168. Lennox v. Clark, 329. Leonard v. Plynn, 87, 208. V. Diamond, 244, 263. Lenninger v. Wenrick, 194, 196. Leport v. Todd, 516. Leprell v. Kleinschmidt, 33, 532. Leran v. Benton, 165. Leuders v. Thomas, 348. Levy V. Cox, 317. V. Griffiths, 391. Levy V. Yerga, 492. Lewis V. Watson, 214,- 273, 276, 290. V. Chapman, 332. V. Lewis, 359. V. Gorman, 400. V.Marshall, 408. V. State, 634. V. Brandle, 636. Lewon v. Heath, 119, 455. Libbey v. Young, 466. Liggett V. Lozier, 103. Lillibridge v. Tregent, 339. Limberg v. Higginbotham, 590. Lincoln v. Norton, 69. Lindenmayer v. Gunst, 486, 591. Linderman v. Berg, 160. Lindley v. Groffi, 499, 504. Lindsey v. Miller, 517. Lingen v. Lingen, 395. Links V. Conn. River Co., 175. Linnell v. Luford, 148. Linnertz v. Dorway, 269. Linthicum v. Thomas, 609. Lipscomb v. Postell, 546. Little V. Dodge, 297. V. Dusenbury, 175. V. Giles, 372, 378. V. Pherson,, 193. Littlefield v. Railroad Co., 527. Livingstone v. Tanner, 73, 76, 80, 584, 596. V. Gordon, 389. Livingstone County v. Morris, 194, 195, 196. Lochte V. Austin, 241. Locke V, Caldwell, 507. Lockwood V. Lockwood, 164. Loewe v. Reisman, 325. Loftis V. Marshall, 558. Logan V. Gardner, 356. V. Jelks, 454. Logan Co. v. Lincoln, 523. Lombard v. Congregation, 150. V. Kinzie, 36. V. Morse, 135. London v. Railroad Co., 341. Long V. Railroad Co., 103. V. Colton, 283. V. Wagoner, 306. V. Stapp, 503. V. Linn, 530, 533, 534. Longdon v. Clouse, 113. Longfellow v. Longfellow, 252. Longmire v. Pilkington, 171. slii TABLE OF CASES. References are to pages. ijopez V. jJownmg, 591. Lord V. Dearing, 595. Loring v. Arnold. 365. Losee v. McFariand, 102. Lothrop V. Michaelson, 602. Lott V. Payne, 29, 257. Lotz V. Briggs, 227. Louis V. Giroir, 195. Louisville R. R. Co. v. Massey, 27, 28. V. Soltweddle, 41. V. Koelle, 303. V. Philyaw, 472, 4S6. Lourance v. Goodwin, 529, 622. Love V. Watkins, 153. V. Scliartzer, 589. Lovely v. Speisshofer, 193, 200. Low v. Settle, 534. Lowe V. Emerson, 91, 92, 160, 252, 558. V. Foulke. 624. Lucas V. Daniells, 464. V. White, 513. Luce V. Dunham, 371. Ludeman v. Hlrth, 202, 334. Ludwig V. Stewart, 65. Luen V. Wilson, 273. Lum V. Reed, 239. Lumber Co. v. O'Neal, 324, 325. Lumsford v Turner, 91. Lund V. New Bedford, 98. Lungren v. Brownlie, 534. Lunquest v. Ten Byck, 601. Luppie V. Winans, 447, 448. Lyman v. Mower, 142. V. Babcock, 303. Lynch v. Lynch, 399. V.Miller, 367. V. Kirby, 204. Lyne v. Sanford, 344. Lynn v. Le Gierse, 316. Lyon V. Kain, 192. V. Hersey, 362. V. Ogden, 367. V. Mash, 391. V. McDonald, 538. Lytle V. Lytle, 579. M. & C. R. R. Co. V. Neighbors, 262. Mabie v. Whitaker, 126. Machier v. May, 68. Mack V. Witzler, 140, 144. V. Dailey, 154. Madland v. Benland, 350. Magaw v. Field, 378, Magee v. Blankenshir, 250. Maguiar v. Henry, 350. Mahaska County v. Ingalls, 282. Mahoney v. Middleton, 541, 542, 543. Malloy V. Malloy, 140. V. Bruden, 461, 479, 483. Malone v. Adams, 409, 411. Mandeville v. Avery, 87, 207. Manley v. Pattison, 427, 433. Manlove v. Burger, 173. Mcnn. V. Mann, 373. Manning v. Manning, 134, 568. Mansfield v. Place, 308. V. McGinness, 500. Mansur v. Straight, 184, 185, 190, 207. Mapes V. Scott, 540, 541. Maple V. Kussart, 348. V. Stevenson, 478. Marble v. Marble, 415. Mariner v. Coon, 334. Markham v. O'Connor, 270. V. Hufford, 389. Marks v. Robinson, 142, 143, 507. Markwell v. Thorns, 367. Marmaduke v. Tenant's Heirs, 539. Marsh v. Griffin, 473. Marshall v. Palmer, 101, 127, 130, 191. V. Shatter, 210. v. Barr, 239. V. Roberts, 321. Martin v. Thompson, 19. V. Railway Co., 59. V. Rector, 136. V. Fridley, 145. V. Blanchett, 165. V. Neal, 239, V. Bowie, 245, V. Durand, 596. Martinez v. Vlv€s' Succession, 426. Marvin v. Schilling, 169. Marx V. Hanthorn, 350. Mason v. Brook, 298. V. Wheeler, 325. V. Finch, 638. Massie v. Hiatt, 437. Mather v. Dunn, 100, 108. Mathes v. Dobschuetz, 575. Matthews v. Railway Co., 527, 528. V. Turner, 191. TABLE OF CASKS. xliii References are to pages. Matthews v. Capshaw, 323, 324. V. McDade, 325, 365. Matthews' Estate, 423. Mattis V. Boggs, 129. V. Robinson, 252. Mattocks V. Brown, 322. Masterson v. Cheek, 239. Mauldin v. Cox, 460, 509. May V. Railroad Co., 198. V. Le Claire, 320. V. Fletcher, 400. Mayer v. Ramsey, 222. Mayes v. Blanton, 339. May's Heirs v. Bennett, 68. Mayo V. Sprout, 570, 571, 580. Maywood v. Maywood, 49. Maxwell v. Chapman, 412. V. Camphell, 628. McAndrews v. O'Hanlin, 577. McArthur v. Clark, 200. McAulav V. Western Vt. R. R. Co., 41. McCall V. Carpenter, 245. McCarthy v. Brown, 73, 74. McCartney v. Aner, 642. McCarty v. McMullen, 632, 643. McCarver v. Doe, 590. McCaskill V. McKinnon, 300. MoCaslin v. State, 190, 572, 573. MoCaughey v. Schuette, 200. McCauley v. Pulton, 188, 213, 221. McClaskey v. Barr, 504. McClellan v. Kellogg, 464. McClelland v. Moore, 557. McClennan v. McCleod, 215, 216, 219. McCloskey v. Wingfield, 557. V. Hayden, 477. McClure v. McClure, 76. McCoal V. Smith, 237. McConnell v. Day, 258, 454. McCormick v. Huse, 195. V. Sullivant, 367. V.Wheeler, 553, 554. V. Paddock, 557. McCoun V. Hannah, 160. McCourt V. Eckstein, 33. McCoy V. Arnett, 604. McCraven v. Doe, 555. McCravey v. Remson, 285. McCray v. Lipp, 379. V. Humes, 499. McCready v. Lansdale, 214, 273, , 276. d McCready v. Sexton, 350. McCreery v. Everdlng, 568. McCulloh V. Price, 306. McCullough V. Dashiell, 54? McDaniel v. Johns, 322. V.King, 373, 386. McDevitt's Appeal, 370. McDonald v. Schneider, 256. V. Fox, 460, 464, 478, 490, 491. McDowell V. Sutlive, 500, 502. McGee v. Wallis, 339. V.Hall, 500. McGinn v. ToUey, 298. McGinnis v. Fernandes, 31, 75, 150, 251, 272, 572. McGlamore v. McCormick, 204. McGlynn v. Moore, 166. McGuire v. Brown, 438. McKay v. Williams, 155, 262, 263. McKee v. Lineberger, 243. McKelvey v. McKelvey, 370. McKendry v. McKendry, 134. McKibben v. Newell, 239. McKissick v. Ashby, 79. McLane v. Bovee, 220. McLean v. Bovee, 31, 572. V. Smith, 464, 473, 486. McLellan v. Omodt, 606. McLemore v. Durivage, 472, 473. McLeod V. Swain, 451. V. Bishop, 425. McMahon v. Russell, 140, 144. McMillen v. Wehle, 469. McMurray v. Day, 615. V. Stanley, 373. McNamara v. Seaton, 492. McNeely v. Langan, 474. McNeill V. Puller, 466, 469. McPhail V. Burris, 350. McPike V. Allmon, 555. McQuade v. Hatch, 412. McQueen v. Lampley, 254. V. Fletcher, 475. McRae v. McDonald, 324. McWhorter v. Hetzel, 275. McWilliams v. Ross, 403. Meacham v. Bunting, 504. Meagher v. Driscoll, 38. Medway v. Needham, 417. Meek V. Meek, 66. Meeker v. Daiton, 269. Meeks v. Kirby, 170. Megginson v. Megginson, 418. Meig's Appeal, 575. Melbane v. Melbane, 171. xliv TABLE OF CASES. References are to pages Melcher v. Flanders, 294. Melendy v. Barbour, 175. Melia v. Simmons, 341. Mellon V. Lemmon, 148. Meloy V. Collins, 313, 314. Melvin v. Martin, 446. V. Waddell, 516. Menaslia v. Lawson, 278. Monger v. Carruthers, 504. Mentzner v. Bauer, 174. Meraman's Heirs v. Caldwell, 538. Merchants' Bank v. Harrison. Merrill v. Hearing, 1S8, 245. V. Nelson, 312. V. Tobin, 477. Merritt v. Harris, 124. V. Thompson, 161. Mesklmen v. Day, 297. Messer v. Jones, 439, 440.' Messlck V. Thomas, 534. Metcalf V. McCutchan, 492. Metcalfe v. Brand, 107. Metheny v. Bohn, 404, 424, 425. Mettler y. Miller, 504. Mexia v. Lewis, 238. Meyer v. Hearst, 557. V. Lincoln, 525. V. Madreperia, 431, 432. Meyers v. Pope, 418. V. Phillips, 626. Mhoon V. Gain, 482. Michael v. Joy, 220. Michigan C. R. Co. v. McNaugh- ton, 185. Middeke v. Balder, 434, 435. Middleswarth v. Blackmore, 370. Milburn v. Milburn, 439. Miller v. Davis, 466. V. Rosenberger, 463. V.White, 413. V.Miller, 351, 352, 440, 442, 443. V. Havens, 286. V. Marlin, 112. V. Ewing, 120, 124, 506. V. Hoberg, 169, 170. V. Shriner, 190. V. Early, 204. V. Bonsadon, 252. V. Ingram, 589. V. Hardin, 273. V. Shaw, 312, 354. V. Cramer, 458, 475. V. Poster, 505. Millet V. Blake, 332, Mills V. Graves, 185, 238, 551. V. Traver, 195, 196. V. Penney, 282, 490, V. Heaton, 507. Milner v. Wilson, 641. Miner v. Beckman, 146. Mink V. State, 426. Minkhart v. Hankler, 185, 529, 534. Minot V. Prescott, 323. Minton v. Steele, 126. Mission v. Cronin, 327, 461. Mitchell V. Mitchell, 321. V. Warner, 20. V. Railroad Co., 53. V. Kingman, 109. V. Lines, 237, 238. V. Shoonover, 557. Mobley v. Bruner, 104, 130, 243, 244. Mode V. Long, 492. Moelle V. Sherwood, 320. Motfat V. Carrow, 380. Moffit V. Witherspoon, 410. Mohr V. Manierre, 345. Monroe v. Jones, 384. Montag V. Linn, 593. Montgomery v. Railway Co., 43, 44, 45, 46, 48. V. Bevans, 427. V. Whiting, 550. Moody V. Moody, 464. Moore v. Cable, 145. V. Cottingham, 243, 344. V.Pitts, 359. V. Byrd, 350. V. Luce, 504. V. Dixon, 646. Moorse v. Carson, 522. Morales v. Fisk, 203. Moran v. Moran, 357, 358. Moreau v. Detchmendy, 257. Morehouse v. Phelps, 244, 267. Moreland v. Brady, 385, 388. Morgan v. Morgan, 233. V. Blewett, 263. V. Bouse, 253. V. Moore, 272. V. Clayton, 320. V. Snodgrass, 354. V. Burrows, 387, 389. Morrill v. Manufacturing Co., 469. Morris v. Beebee, 161. TABLE OF CASES. ziv References are to pages. Morris v. Gill, 2G1. V. McClary, 476. Morris R. R. Co. v. Newark, 46. Morrison v. Robinson, 611. V. Bassett, 287. V. Sessions, SS3, 444. Morrison's Estate, 431. Morrow y. Morgan, 507. Morse v. Hayden, 389. V. Presby, 448. V. Hewett, 540. V. Marshall, 629. Morton v. Green, 262. V. Folger, 283. V. Lawson, 516. Moses V. Loomis, 166, 286. Mosheimer v. Ussleman, 426. Mosseller v. Deaver, 633, 634. Mott V. Hayeman, 20. Moulton V. McDermott, 104, 578. Mullen V. Reed, 381. Muller V. Benner, 110, 171. V. Blake, 636. Mulsford V. Tunis, 263. Munger v. Baldridge, 295. Munson v. Munson, 195. Murchison v. Warren, 623. Murdock v. Mitchell, 118. Murphy v. Bolger, 33, 34. V. Orr, 204. V. State, 418. V. Doyle, 475. V. Snyder, 643. Murray v. Quigley, 60. V. Baker, 68. V. Hoyle, 246. V. Allred, 489. V. Wells, 623. Musgrave v. Conover, 345. Mutter's Appeal, 375. Mutual Ben. Ass'n v. Firname, 436. Myers v. McGavock, 345. Myrick v. Wells, 234, 273. Naele v. Thompson, 238. Nagle V. Macy, 247. Nalor V. Cox, 37. Napton V. Leaton, 602, 611. Nash V. Sullivan, 598. Nashville Ry. Co. v. Hammond, 507. National Bank v. Corey, 189. v. Bank, 301. Neill V. Keese, 265. Nelson v. Triplett, 100, 263. V. Brodhack, 208, 211, 213, 454. Nelson v. Brush, 316, 318. V. Davidson, 506. Nessley v. Ladd, 515. Nethery v. Payne, 95. Nevins v. Gourley, 390. New Orleans v. Shakspear, 482. Newall V. Gravel Co., 96. Newell V. Nichols, 434, 435. V.Wright, 143. V. Whigham, 565, 566. Newlin v. Beard, 291. Newman v. Bank, 127, 128, 129. V. Wiiletts, 367. Newpoint v. Newpoint, 361. Newsom v. Guy, 218. Newton v. Leary, 16. V. Railroad Co., 215, 226. Nevitt V. Gillespie, 95. Nichol V. Thomas, 357. Nichols V. Shearon, 188. V. Emery, 322. V. Dissler, 336. V. Boston, 520. Nicholson v. Aronson, 476, 477. Nicklase v. Dickerson, 455, 470. Nicolai v. Davis, 522. Nicoll V. Railroad, 124. Nixon V. Porter, 296, 306. V. Noble, 640. Noble V. McParland, 126, 227. Noel V. Noel, 253. Nolan v.« Pelham, 247. Norberg v. Heineman. 92. Norman v. Norman, 416. Normant v. Eureka Co., 459, 460, 483. Norris v. Sullivan, 125, 126. V. Edwards, 429. North Brookfield v. Warren, 405. Northern P. R. R. Co. v. Lilly, 200. v. Townsend, 457, 527. V. Ely. 527, 528. Northrop v. Knowles, 409, 412, 414, 415. Norwalk Heating Co. v. Vernam, 32, 33. Nowlen v. Hall, 238. Nowlin v. Reynolds, 464. Noyes v. Hefferman, 483, 487. Nugent V. Powell, 443. O'Brien v. Wetherell, 358. V.Wagner, 361, 362. O'Boyle v. MoHugh, 460, 512. O'Connor v. O'Connor, 291. V. Huggins, 343. O'Gara v. Eisenlohr, 432. XiT TAELE OF CASES. References are to pages. O'Hara v. Richardson. 462, 476. O'Herron v. Gray, 348. O'Neal V. Boone, 468. Oak Dale Dist. v. Fo.2;en, 521. Oakes v. "Williams, 545. Oaksmith v. Johnston, 267, 518. Oates V. Beckworth, 69. Ohernalte v. Edgar, 492. Obert V. Hammel, 539, 555. Ochoa V. Miller, 365. Odle V. Odle, 15, 24. Odom V. Ruddick, 357. V. Weathersbee, 500. Oetgen v. Ross, 91, 550, 558, 626. Oftenheim v. Wolf, 427. Ogilvie V. Copeland, 215, 536. Oglesby v. Pearce, 145. V. Hollister, 500, 501. Oklahoma v. Hill, 636. Oldham v. Pfleger, 142, 147. Oldig V. Fisk, 4S2. Olewine v. Messmore, 461.' Oliver v. Railroad, 116. V. Vance, 400. Olsen V. Rogers, 279. Omaha, etc. Co. v. Kragscow, 233, 242. V.Parker, 473, 485, 486. Omaha Hotel Co. v. Kountze, 617. Oney v. Clendenin, 534. Opel V. Kelsey, 239. Orme v. King, 640. Orr V. O'Brien, 366, 524. Orthwein v. Thomas, 424, 438, 505, 506. Orton V. Noonan, 194, 212, 273. Osborn v. Bank, 179. Osborne v. Woodson, 22. V. United States, 190. V. Tunis, 300. Osburn v. Searles, 481. Osgood V. Abbott, 59, 359, 362. Ostrom V. San Antonio, 525. Otis V. McMillan, 252. Ousby V. Jones, 307. Overcash v. Ritchie, 130. Oyster v. Knull, 380. Oxenden v. Chichester, 388. Pace V. Klink, 446. Packard v. Moss, 466. Padgett V. Lavifrence, 305. V. Hawkins, 535. Page V. Tucker, 170. V. Kinsman, 252. V. Palmer, 359, 360. Page V. Branch, 499. V. Fowler, 573, 617. Paine v. Hutchins, 476. Palatine v. Kreuger, 43. Paldi V. Paldi, 230. Palmer v. Horn, 371, 378, 383. V. Farrell, 302. Y. Oakley, 347. V. Ford, 359. Paquet v. Railway Co., 45, 46. Parish v. Jackson, 609. Parker v. Hotchkiss, 626. V. Wulstein, 614. V. Chancellor, 295. V. Railroad Co., 313. V. Nichols, 346. V. Way, 426. V. Salmons, 511. Parkersburg I. Co. v. Schultz, 255, 454, 460, 467. Parr v. Van Horn, 195, 563. Parrat v. Neligh, 337. Parsons v. Moses, 604. V. Parsons, 448, 449. V. Winslow, 373. Patch V. White, 385. Patchen v. Kelsey, 224. Patten v. Scott, 213. Patterson v. Lynde, 174. V. Gaines, 412, 418, 438. Paul V. Fries, 238, 264. Pavey v. Pavey, 218. Payne v. English, 280. Peabody v. Hewett, 312, 426. Peacock v. Leonard, 633. Pearce v. Rickard, 379. V. Kyzer, 406, 407. Pearsall v. Kenan, 65. Pearson v. Herr, 643. V. Cox, 357. T. Pearson, 407. Pease v. Bridge, 312, 354. V. Kelley, 150. V. Hannah, 187. Peart v. Brice, 306. Peck V. Smith, 42, 43. V. Ashurst, 238. V. Lockridge, 469. Peden v. Railway Co., 359, 360, 361. Peece v. Allen, 263. Peerce v. Georger, 327. Pegues V. Warley, 473. Pella V. Schotte, 525. Pell V. Levett, 87. TABLE OF CASES. xlvii References are to pages. Pell V. Ulmar, 145. V. Mercer, 373. Pendley v. Madison, 120, 125, 505. Penn v. Heisey, 348. Pennegar v. State, 417. Penny v. Cook, 218. Pensoneau v. Bertke, 636. People V. Mariposa Co., 93. T. Mayor, 95, 596. V. Livingstone, 181. V. Denison, 181. V. Holladay, 220. V. Snyder, 294. V. Mayne, 406, 407. V. Sheppard, 406. V. Ratz, 407. V. lETjes, 412. V. Calder, 418. V. Congdon, 444. V. Gilbert, 519. V. Trinity Church, 520. Peoria, etc. R. Co. v. Tamplin, 466, 467. Pepin County v. Prindle, 246. Perciful v. Piatt, 100. 205, 238, 244. Perkins v. Fairfield, 3'47. V. Simonds, 403. Perot V. Cooper, 272. Perrine v. Bergen, 18, 567. Perry v. Tupper, 579, 580. V. Railroad Co., 340. V. Adams, 339. V. Foote, 207. Peter v. Byrne, 312, 354. Peterson v. Laik, 227. V. Lathrop, 546. Petrie v. Shoemaker, 172. Petroleum Co. v. Coal Co., 31. Pettengill v. Evans, 143. Pettigrew v. Dohbelaar, 306. V. Mills, 514. Pettit V. Black, 365. V. Railroad Co., 615. Pittsburg, etc. Ry. Co. v. Reich, 469. Pfeiffer v. Lindsay, 332. Phelan v. Smith, 126. Phelps V. Bates, 375. Philadelphia v. Railroad Co., 521. Phillips V. McConica, 445. V. Allen, 438. V. Fergusen, 378. V. Covert, 121. V. Hagart, 210, 329, 331. Phillips V. Blair, 222. V. Coffee, 301. Phillips' Estate, 373, 375. Phillpots V. Blasdel, 262. Philpot V. Lander, 167. Phyfe V. Riley, 144, 145. Pick V. Strong, 430. Pickett V. Nelson, 494. V. Doe, 504. Pierce v. Frace, 245. V. Brown, 83. Pierre v. Fernald, 125, 505. Pierson v. Conley, 475. Pinckney v. Burrage, 504. Piper V. Hoard, 69. V. Piper, 97. Pitkin V. Yaw, 186, 237. Pittinger v. Pittinger, 421. Pitts V. Melser, 365. Pittsburgh Ry. Co. v. Peet, 115. v. O'Brien, 224, 232, 242. v. Stickley, 527, 528. Pleasants v. Blodgett, 320. Plumb V. Tubbs, 58, 260, 358. Plume V. Seward, 247. Poe V. Bradley, 635. Polack V. Mansfield, 40, 114. Polk V. Rose, 349. Pollard V. Maddox, 303. V. Baylords, 619. V. Hanrick, 251. Ponder v. Cheaves, 516. Pope v. Cutler, 366. V. Harkins, 284. V. Benster, 335. v. Henry, 508. Porter v. Garrissimo, 113. V. Doe, 609. V. Purdy, 342. V. Miller, 467, 470, 476. Posey V. Hanson, 398, 431, 432. Post V. Pearsall, 26. V. Weil, 359. Postal Tel. Co. v. Eaton, 43, 48. Postel V. Palmer, 235. Posten V. Miller, 147, 507. Pott V. Pennington, 367, 368. Potter V. Adams, 235. V. Clapp, 421, 422. V. Cromwell, 575. Potts V. Clarke, 98. V. Coleman, 462. Powell V. Smith, 20. V. Powell, 418. V. Lawson, 550, 569. xlviii TABLE OF CASES. References are to pages. Power V. Lenoir, 347. V. Hafley, 445, 446. V. Kitching, 480. Powers V. Council Bluffs, 526. Pratt V. Pierce, 418. Preble v. Railroad Co., 460, 491. Prentice v. Wilson, 81, 82, 152. V. Stearns, 188, 267. V. Brewer, 220. V. Storage Co., 303. Prentiss v. Brewer, 265. Presbyterian Church v. Venable, 124. Prescott V. Nevers, 499. V. Wright, 577. Presley v. Stribling, 167. Prestman v. Silljacks, 252. Prevot V. Lawrence, 285. Prewitt V. Burnett, 642. Price V. Springfield Ass'n, 243, 344. V. Cooper, 255. V. Furman, 355. V.Cole, 373. V. Brown, 461. V. Hall, 504. V. Jackson, 520. V. Plainfield, 522. Primm v. Walker, 204. Pringle v. Dunn, 330. Prior V. Scott, 249. Probst v. Trustees, 246. Proctor V. Bigelow, 64, 131, 414. V. Putnam, 269, 271. Propst V. Mathis, 207. Pruden v. Pruden, 375. Pugh V. Reat, 624, 626. Purcell V. Goshorn, 312. Putnam v. Tyler, 255, 604. V. Pitney, 367. Pynchon v. Stearns, 310. Quan Wo Chung Co. v. Laumeis- ter, 58Q. Quicksilver Mining Co. v. Hicks, 22, 57. Quincy v. Railroad Co., 216, 587. Quindaro Tp. v. Squier, 526. Quinn v. Quinn, 445. Racine v. Crotsenberg, 50. V. Emerson, 279, 280, 282. Railroad Co. v. Beal, 360. Raley v. Guinn, 350. V.Umatilla County, 59, 359. Ralston V. Weston, 520, 522, 524, 525. Ralston v. Doe, 160. V. Miller, 282. Ramsey v. Glenny, 472, 473, 486, 498. Rand v. Meir, 390. Randall v. Sanderson, 33. V. Josselyn, 372. Randett v. Rice, 422. Randolph v. Land Co., 324. V. Casey, 466, 468, 469. Rankin v. Miller, 345. Rannels v. Rannels, 507, 508. Rasch V. Noth, 33, 34. Rash.'s Estate, 420. Ratcliff V. Iron Works, 233. Ratcliffe v. Marrs, 311. Rau V. Railway Co., 247. Rawson v. Putnam, 117. V. Taylor, 240. V. School District, 360, 361. Ray V. Gardner, 574, 617. Rayburn v. Elrod, 196. Raymond v. Morrison, 213, 459, 479. Rayer v. Lee, 487. Rayner v. Nugent, 38. Reagle v. Reagle, 509. Redden v. Metzger, 544. Reddish v. Smith, 134. Redfleld v. Parks, 517, 518, 519. Redgrave v. Redgrave, 413, 414. Reed v. Thompson, 350, 352. V. Ohio Ry. Co., 338. V. Douglas, 220, 543, 544. V. Tyler, 14. Reeder v. Purdy, 631, 634, 645. Reedy v. Millizen, 69, 432, 433. Reichert v. Railroad Co., 48. Reid v. Holmes, 557. v. Board of Education, 49. v. Walbaeh, 450. Reilly v. Blaser, 469, 539. V. Carter, 572. Reinders v. Koppelman, 372, 383, 444. Rennyson v. Rozell, 155. Republican Ins Co. v. Swigert, 173. Requa v. Holmes, 347. Reusens v. Lawson, 255. Reyes v. Middleton, 317. Reynolds v. Cook, 18, 25, 27, 30, 208, 218, 219. v. Pettyjohn, 173. v. McCurry, 355. TABLE OF CASES. xlix References are to pages. Reynolds v. Reynolds, 614. V. Lambert, 623. Rhawn v. Pearce, 174. Rhoades v. Higbee, 210. Rhodes v. Gimn,,218. Ricard v. Williams, 478. Rice V. Railroad Co., 275, 276. Rich V. Bolton, 77, 163. V. Keyser, 80. Richards v. Miller, 382. V. Smith, 187, 459, 477. V. People, 175. V. Insurance Co., 184. V. Crews, 187. Richardson v. Railway Co., 20, 120, 238. V. Friederitz, 167. V. Chickering, 279. V. Harvey, 285. Richter v. Beaumont, 111. V. Richter, 302, 310. Richwine v. Church,, 612. Ricker v. Cromwell, 370. Ricketts v. Railway Co., 362. Rickner v. Kessler, 375. Riddle v. Bush, 329. V. Littlefield, 162. V. Whitehill,. 500. Rider v. Maul, 493. Ridgley v. Stillwell, 77. Riggin V. Love, 311. Riggs V. Savage, 625. Rines v. Mansfield, 311. Ringhouse v. Keener, 429, 589, 591, 592, 594. Ringo V. Woodruff, 460, 462. Ripley v. Yale, 515. Rising V. Stannard, 80. Ritchie V. Railway, 154. V.Johnson, 550, 568, 571. Riverside Co. v. Townshend, 16, 214, 539, 644. Roane v. Baker, 295. Robbing v. Harris, 203. V.Moore, 460, 461. Roberts v. Lanam, 196, 197. V. Swearingen, 294. v. Mclntire, 354. V. Baumgarten, 460, 477. V. Morgan, 500. V. Roberts, 511. Robertson v. Guerin, 330. Robie v. Flanders, 131. Robinson v. Kime, 120. V. Roberts, 127, 128. Robinson v. Ryan, 148. V.Thornton, 255, 256. V.Holt, 287. V. Ingram, 359. V. Railroad Co., 389. V. Gleason, 389. V. Allison, 460. Roby V. Newton, 121. Rockwell V. Bradley, 142. Roderigas v. Sav. Institution, 343. Rodney v. McLaughlin, 500. Roe V. Malcom, 601. Rogers v. Brent, 237, 261. v. Bich, 291. V. Walker, 357. V. Rogers, 385, 387. V. Miller, 480. V. Brown, 71. V. Rippey, 91, 160, 558. V. Marshall, 94. V. Benton, 145, 146. V. Cady, 185. V. Miller, 213, 258. Rohn V. Harris, 504, 505. Rohr V. Alexander, 291. Rohrer v. Muller, 439. Rollins V. Henry, 94, 95. Rook V. Wilson, 389. Roosevelt v. Hungate, 273. Root V. McFerrin, 118, 346. Roots V. Beck, 229, 470. Roper V. McFadden, 251. Rose V. Rose, 422. Roseboom v. Roseboom, 390. Rosenblat v. Perkins, 165. Rosenthal v. Ogden, 302. Ross V. McCain, 510. V. Loomis, 429. V. Ross, 440, 442, 444, 446. V. Goodwin, 461, 472, 473. V. Irving, 605. Rotch V. Loring, 400, 450. Rothschild v. Williamson, 77. Roundtree v. Denson, 144. V. Little, 263. Rowan's Appeal, 444. Rowe V. Johnson, 131. V. Pecker, 320. V.Griffiths, 347. Rowell V. Klein, 31, 568. V. Jewett, 147. V. Doggett, 250. Rowley v. Stray, 399. Royal V. Lisle, 465. TABLE OF CASES. References are to pages. Royal V. Chandler, 482. Rueh V, Rock Lsland, 58. Rucker v. Dyer, 346. Ruddick v. St. Louis Ry. Co., 59. Rudicel v. State, 305. Ruffin V. Overby. 4C1, 470, 477. Ruffino's Estate, 413. Ruffners v. Lewis, 244. Ruggles V. Randall, 382. Rule V. Broacti, 345. Rullman v. Barr, 235, 326. Runyan v. Mersereau, 143. Runyon v. Hall, 579. Rupert V. Mark, 239. V. Penner, 307. Russell V. Lumber Co., 70. V. Lang, 70. V. Pabyan, 80. V. Hart, 367. V. Schuyler, 410. V. Hallett, 434, 435. V. Davis, 464. V. Maloney, 492. Y.Marks, 532. V. Mandell, 612. Rutter V. Small, 502. Ryan v. Duncan, 168. V. Anderson, 403. V. Kilpatrick, 469. V. Thomas, 553. Ryder v. Flanders, 346. Ryerss v. Rippey, 214. Sablns v. McGhee, 629. Sadtler v. Peabody, 477, 479. Safford v. Stubbs, 466. Sage V. Halverson, 285. V. Morosick, 476. Sager v. Galloway, 370. Sallee v. Arnold, 171. Salmer v. Lathrop, 306. Salmon v. Wilson, 226. Salmons v. Davis, 124, 125. Sampson v. Ohleyer, 550, 569. Sams V. King, 350. V. Sams, 441. Samuels v. Borrowscale, 292, 294. Sanchez v. Lonreyro, 632. Sanders v. Reed, 19. V. Peck, 542. Sands v. Davis, 503. Sandford v. Mangin, 239. V. Herron, 543, 549. San Francisco v. Calderwood, 25. V. Sullivan, 50, 182. V. Grate, 50, 51. Sartain v. Hamilton, 490, 608. Satterlee v. Bliss, 568. Sauers v. Giddings, 459, 460, 462, 476. Saunders v. Frost, 145. V. Silvey, 469. V. Webber, 569. Savage v. Dooley, 149. Savings Bank v. Hodgdon, 220. Sawyer v. Harrison, 173. v. Cox, 301. Scanlon v. Walshe, 424, 426, 439. Scarboro v. Scarboro. 511. Scarf V. Aldrioh, 345. Schafer v. Eneu, 383, 444. V. Hauser, 508. Scarfenburg v. Bishop, 297. Sohaub V. Griffin, 431, 432. Sohenck v. Kelley, 192. V. Sautter, 348. Schermerhorn v. Buell, 121. Schetter v. Southern, etc. Co., 606. Schields v. Horbach, 514, 516. Schiffer v. Adams, 184. Schley v. Pullman Co., 354. Schmidt v. Draper, 522. Schmisseur v. Beatrie, 420. Schneider v. Hutchison, 519, 520. Schoolfleld v. Rhodes, 269. Schoonmaker v. Doolittle, 75, 186, 202, 242. Schroeder v. Tomlinson, 504. Schultz V. Hadler, 1S7, 200. Schwallback v. Railway Co., 214, 273, 460. Scott V. Pettigrew, 279. V. Scott, 316, 416. V. Hillenberg, 424. V. Key, 442. V.Mills, 461, 479. V. Delany, 4''8 V. Nickum, 535. Scovill V. McMahan, 360, 362. Scranton v. Wheeler, 40, 179, 180. V. Ballard, 334. Screven v. Clark, 173. Scruggs V. Land Co., 471. Scully V. Murray, 74. Seabury v. Doe, 152. Seattle Bank v. Jones, 218. Secor V. Pestana, 61, 76. Seebrock v. Pedawa, 388. Seem v. McLees, 74. TABLE OF OASES. li References are to pages. Seigwald v. Seigwald. 390. Sell V. McAnaw, 276. Sellman v. Hardin, 273. Semple v. Cook, 471. ■V. Bank, 601. Sengfelder v. Hill, 94. Setzke v. Setzke, 626. Sewall V. Roberts, 444, 445. Seward v. Jackson, 194. Seymour v. Creswell, 155. ' V. School District, 482. Sexson v. Barker, 469. Sexton V. Hollis, 535. Shackelton v. Sebree, 321, 323. Shackleford v. Bailey, 241. Shaffer v. McCrackin, 335. Shahan v. Tallman, 184. Sharon v. Davidson, 100, 128. Sharp V. Thompson, 307. Sharpley v. Plant, 323. Shaw V. Tracy, 102, 108. V. Hill, 114, 263, 264, 532, 533, 534. V. Hersley, 133. V. Chambers, 269. V. Sohoonover, 460, 464. Shawhan v. Long, 269. Shaver v. McGraw, 114. Shearer v. Weaver, 447. Sheetz's Appeal, 376. Sheldon v. Mull, 477. V. Atkinson, 493. V. Van Vleck, 545, 628. Shelton y. Wright, 444, 445. Shepherd v. Nixon, 15, 24. Shepley v. Cowan, 517. Sheirburn v. De Cordova, 267. Sherin v. Larson, 128. V. Brackett, 239, 246, 461. Sherman v. Kane, 483, 496. Sherwood v. Baker, 344. V. Sherwood, 373, 386. Shields v. Lozear, 142, 143. Shiels V. Roberts, 460. Shore v. Miller, 303. Short y. Ramirez, 298. v. Sears, 339. v. Galway, 547. Shortall y. Hinkley, 318. Shorten y. Judd, 409. Shoudy v. Directors, 117. Shriver v. State, 436. Shroyer v. Nickell, 604. Shultes V. Sickles, 565. Shuman v. Shuman, 424. Shumway v. Phillips, 239. V. Holbrook, 365. y. Shumway, 629. Sikes V. Shows, 199. Silliman v. Cummins, 298. Silver v. Summer, 284, 636. Simmons v. Cornell, 522, 523. y. Lindley, 187. Simon v. Richard, 462, 464. Simpson v. Blaisdell, 303, 308. Sims v. Cooper, 74, 75. v. Rickets, 134. y. Hodges, 367. y. Conger, 371, 374. y. Chattanooga, 522, 523. Simplot V. Railway Co., 524. Sinclair v. Stanley, 634. Singen y. Singen, 444, 446. Sioux City R. R. Co. v. Singer, 58, 59, 260, 358. Siren, The, 178. Sisson y. Cummings, 103. Skinner v. Hodge, 203. v. Harrison, 371. v. Hannan, 564. Skipwith v. Martin, 455. Slate y. Bisenmeyer, 643. Slater y. Breese, 195. Slayton v. Singleton, 367. Slocum v. Bracey, 235. y. Compton, 534. Small y. Proctor, 56, 260. y. Small, 135. y. Smith, 175. v. Slocumb, 293. Smeberg v. Cunningham, 43. Smith v. Wiggin, 32. y. Burtis, 56. y. Littlefield, 78, 81. y. Tankersley, 104, 127. y. Smith, 134, 272, 417, 432. y. Gorman, 135. V. Stewart, 154. v. Kyler, 190, 203. v. Schweigerer, 205. v. Lindsey, 214, 274, 276. v. McCann, 249, 267. y. Barrie, 260, 358. V. Laatsch, 273, 274, 275. y. Headrick, 283. y. Garden, 298. y. Van Gilder, 298. V. Gillum, 304. T.Crawford, 306. V.Crosby, 332, 333. lii TABLE OF CASES. References are to pages. Smitli V. Wildman, 344. T. Howard, 345, 346. V. Dibrell, 348. V.Bell, 370. 373. Y. Usher, 372. V. Kelly, 395, 440, 443. v. Dodd, 396. V. Patterson, 405. -V. Chapell, 417. V. Knowlton, 432. V. Croom, 434. V. Derr's Adm'r, 444, 446. T. Kelley, 446. T. Cornelius, 457. V. Keyser, 466. V. Purguson, 468. T. Young, 471. V. Chapin, 473. V. Water Co., 500. V. Wehrle, 513. V. Hitchcock, 515. V. McCorkle, 517, 518. V. Cornelius, 521. T. Sherwood, 537. V. Shakleford, 542. V.White, 567. V. Pretty, 577. V. Benson, 590. V. Wundernch, 591. V. Hollenhack, 641. Smither v. Plournoy, 185. Snell V. Harrison, 591. V. Mecham, 609. Snoddy v. Bolen, 43, 49. Snodgrass v. Andross, 218. V. Knight, 291. Snowden v. Tyler, 14, 15. V. Rush, 480. Snyder v. Hopkins, 96. V. Parker, 272. Sohier v. Trinity Church, 38, 360. V. Coffin, 317. Sonoma Water Co. v. Lynch, 232, 301. Soper v. Guernsey, 248. V. Brown, 379. Soukup V. Investment Company, 352. Soule V. Barlow, 464. South Cal. Ry. Co. v. Slauson, 53. South Park Com'rs v. Gavin, 106, 216. South Milwaukee Co. v. Harte, 218. Southerland v. Merritt, 609. Southern P. Ry. Co. v. Hood, 41. V. Hyatt, Sowers v. Peterson, 127. Sparks v. Pierce, 517. Sparrow v. Rhoades, 209, 230, 231, 249. V. Kingman, 253, 260. V. Hovey, 462, 464. Spaur V. McBee, 265. Spear v. Fuller, 58. Spears v. Burton, 420. Spect V. Spect, 146, 149. V. Gregg, 227, 273, 276, 359. Speidel v. Henrici, 514. Speight v. Jenkins, 189. Speirs v. Duane, 117. Spencer v. Railroad Co., 45, 46. V. Roper, 432. Sphung V. Moore, 195. Splahn V. Gillespie, 329. Sprague v. Wells, 205. Spriggs V. Moale, 402, 432. Spring V. Kane, 345. Springer v. Brattle, 320. V. Shavender, 340, 341. Springs v. Schenck, 73, 75, 287, 476, 514. St. Amand v. Long, 203. St. Croix, etc. Co. v. Ritchie, 461. St. Johnsbury R, R. Co. v. Wil- lard, 116. St. Louis V. Risley, 240. St. Louis, etc. Co. v. Wyman, 618. St. Luke's Home v. Ass'n for Fe- males, 378. St. Paul Ry. Co. v. Olsen, 69, 70. St. Paul V. Railway Co., 484, 519, 520. Stackpole v. Healy, 42, 43, 48. Staigg v. Atkinson, 372. Stalford v. Goldring, 273. Stambaugh v. Snoblin, 65. Stanoill v. Gay, 338. Stanley v. Sullivan, 144, 339. V. Schwalby, 521. Stans V. Bailey, 414. Staples V. Fairchild, 342. Star Brewery v. Primus, 361. Stark V. Barrett, 100, 192. V. Starr, 465, 601, 614. Starkweather v. Bible See, 387. Stark V. Clegg, 224, 230. State V. Aredge, 181. V. Shields, 181. V. McGlynn, 366. TABLE OF CASES. liii References are to pages. State V. Melton, 409. V. Goodrich, 412. V.Williams, 412. V. Schweiter, 413. V. Abbey, 418. V. McDowell, 439. ^V. Clinton, 444. V.Trenton, 522. V. Poster, 560. V. Staed, 566. V. Passmore. 590. V. Carr, 623. Stearns v. Harman, 24, 102, 103. V. Harris, 58. V.Allen, 445, 448, 449. Steele v. Gellatly, 513. V. Boley, 518, 519. Stehman v. Crull, 239. Steinman v. Vicars, 101. Stephens v. Moore, 517, 518, 519. V. Koga, 94. Stephenson v. Wilson, 485. Stettnische v. Lamb, 487. Stevens v. Murphy, 352. v. McNamara, 432. Stevenson v. Mudgett, 202. V. Superior Court, 340. V. Scott, 539. Stewart v. Garrett, 38. V. Patrick, 135, 136. V. Tucker, 461. V. Stewart, 483, 484. V. Race, 578. Stiff V. Cobb, 510. Stinson v. Ross, 330. Stockbridge v. Stockbridge, 431. Stocker v. Green, 211. Stookwell V. Phelps, 574, 617. Stoddard v. Chambers, 245. Stoffel V. Schroeder, 320. Stokes V. Van Wyck, 371, 373. Stolz V. Drury, 625. Stone V. Perkins, 269. V. Sledge, 312. V. Montgomery, 354. Storch V. Carr, 591. Stoudenmire v. Brown, 350. Stout V. McPheeters, 240. Stowell V. Spencer, 232, 244, 296. Strean v. Lloyd, 93. Stribling v. Prettyman, 161. Stringfellow v. Railroad Co., 517. Strode v. McGowan, 438. Strong V. Crosby, 165. V.Powell, 461. Strother v. Lucas, 245. Stroud v. Springfield, 283. Stuart V. Allen, 168. V. Lowry, 200. V. Mays, 315. Stubblefield v. Borders, 208, 209, 211, 249, 468. Studstill V. Wilcox, 508, 509. Stumpf V. Osterhage, 623. Stuphen v. Ellis, 366, Sturgis V. Work, 372, 376, 387. Sturtevant v. Randall, 544. Sullivan v. Eddy, 256. V. Tichenor, 522. Sulpher Mines Co. v. Thompson, 328, 457. Sumner v. Stevens, 465, 508. Sumwalt V. Tucker, 143. Sunderland's Estate, 440, 445. Supervisors v. Herrington, 252. V.Ellison, 641. Sutherland v. Cleveland, 535. Sutton V. Casseleggi, 161, 504, 515. V.Aiken, 240. V. Pollard, 454. Suydam v, Thayer, 370, 372. Swan V. Clark, 165. V. Munch, 477, 483, 486, 487. Swann v. Gaston, 519. Swaynie v. Vess, 190, 207. Swayze v. Burke, 267. Swlcard v. Hooks, 296. Swift V. Mulkey, 466. Symmonds v. Clay Co., 181. Talamo v. Spitzmiller, 165, 166. Taliaferro v. Butler, 475. Tallman v. Becker, 630. Talum V. St. Louis, 257. Tarpey v. Salt Co., 162. Tate V. Foshee, 495. Tatten v. James, 256. Taubenhan v. Dunz, 373. ' Taylor v. Gladwin, 18, 28. V. Collins, 96. V. Taylor, 134, 201. V. O'Neil, 191, 193. V. Castle, 207. V.Hill, 227. V. Fomby, 278, 279, 281, 490. V.McIrvin, 326. V. Sutton, 362. V. Maris, 372. V. Tolen, 378. V. James, 589. A^ TABLE OF CASES. References are to pag^es. Taylor v. Scott, 632, 642. Teabout v. Daniels, 465. 473. Telfener v. Billard. 12T. 128. Templeton v. Lowry, 613. V. Luckett, 295. V. Twitty, 505. Ten Broeck v. Orchard, 217. Tennessee, etc. R. R. v. East Ala- bama Ry., 17, 25, 52. Terre Haute R. R. Co. v. Rodel, 41, 43, 53, 116. Terrell v. Allison, 140. Terry v. Rosell, 143. V. Rodahan, 236, 250, 325, 451, 482, 536. Teter v. Teter, 421. Titherow v. Chambers, 189. Tevis V. Ellis, 579. Tex V. Pflug, 492. Thames v. Jones, 127. Thaxter v. Inglis, 270, 281. Thayer v. United Brethren, 285, 288. Thibodeau v. Maggioli, 523. Thoen v. Roche, 281, 282. Thomas v. Hunt, 43, 47. V. Quarles, 615. V. Simpson, 131. V. Thomas' Bx'r, 604. V. People, 340, 341, 342. V. Thomas, 370, 417, 609. V. Lines, 372. V. Burnet, 473, 486. V. Davis, 575. Thomasson v. Wilson, 160. Thompson v. Thompson, 58, 508, 509. V. Read, 65. V. Lovrein, 354. V. Pioche, 462. V. Kauffelt, 487. V. Simpson, 504. V. Brannan, 530. V. Smith, 575. V. Sorenberger, 642, 644. Thomsen v. McCormick, 558. Thomdell v. Morrison, 413. Thorne v. Wilson, 29. V. Hammond, 153. Thornton v. Thornton, 133. V. Baker, 344. V. Trammell, 361. T. Bank, 500. Thorp V. Coal Co., 320. Thurber t. Conners, 14. Thurmond v. Brownson, 184. Tibbetts V. Langley, 512. Tice V. Fleming, 606. Tierny v. Brown, 197. Tilghman v. Little, 239. Tilley v. Bridges, 337. Tillinghast v. Coggeshall, 403. Tillman v. Davis, 379, 400. V. De Lacy, 575. Tillmes v. Marsh, 28, 29. Tilton V. Cofield, 114. Tindal v. Wesley, 40, 179, 181. Tioga v. South Creek, 426. Tisdale v. Insurance Co., 429, 430. Tobey v. Secor, 187, 245, 485, 493. Todd V. Philhour, 331. Tolbert v. Horton, 612. Tolman v. Sparhaw, 269. V. Race, 623, 624. Tomlinson v. Matthews, 300, Tongue v. Nutwell, 591, 604. Toomer v. Randolph, 143. Tormey v. Pierce, 204. Torrance v. Betsy, 237. Torrey v. Torrey, 76. v. Forbes, 216, 219. Torry v. Black, 110, 172. Tourtelotte v. Pearce, 459, 475. Towne v. Bowers, 124. Townsend v. Downey, 367. V. Radcliffe, 379, 400. Townsend Sav. Bank v. Todd, 202. Tracey v. Harmon, 194. V.Roberts, 346, 347, 348. V. Newton, 493. Trapnall v. Hill, 227. Trask v. Trask, 110. Treadway v. Wilder, 518, 519. Trenough v. Gordon, 255. Tripe v. Marcey, 607. Tripner v. Abrahams, 587. Trubee v. Miller, 591. Truelock v. Taylor, 265. Truett V. Adams, 303. Trufant v. Hudson, 479. Trull V. True, 236. Truman v. Love, 291. Trumbull v. Simmons, 263. Trustees v. Jennings, 75. V. Meetze, 75. Tucker v. Shaw, 234. V. Hamilton, 247. V. Smith, 2S0, 282, 283, 492. V. Whitehead, 366. TABLE OF CASES. iv Beferences are to pages. Tucker v. Hamilton, 597. Tully V. Davis, 298. Turner v. Rives, 194, 196, 198. V. Baker, 270, 496. V. McDonald, 272. V. Scott, 322. V. Hart, 472, 473. Tuxburg V. French, 372. Twining v. Burlington, 517. Twoliig V. Learner, 469. Tyler v. Davis, 232. V. Hall, 269. V. Reynolds, 444, 447. Ubrick v. Beck, 118. Udell V. Peak, 479, 515. Ulman v. Clark, 95. Underwood v. Campbell, 290. Unger v. Mooney, 502. Union Petroleum Co. v. Bliven Co., 25. Union Bank v. Powell's Heirs, 119. v. Manard, 273. Union Pac. R. Co. v. Reed, 326. Union Township v. Bayliss, 644. Union Trust Co. v. Weber, 172, 173. United States v. Smith, 418. V. Slaymaker, 582. V. Hoar, 519. V.Lee, 177, 179, 556. United Copper Co. v. Franks, 291. Updegrafe v. Trask, 119. Uppfalt v. Nelson, 221. Uptagraft v. Smith, 523. Ury V. Houston, 340. Utassy V. Giedinghagen, 238. Van Auken v. Munroe, 116. Van Buren v. Olmstead, 145. Van Deusen v. Sweet, 357. Van Eman v. Walker, 641. Van Matre v. Sankey, 352, 446. Van Nostrand v. Moore, 375, 376. Van Sickle v. Gibson, 399, 400, 423. Van Voorhis y, Brintnall, 416, 417. Valentine v. Mahoney, 558. Vance v. Anderson, 82. V. Schroyer, 187, 197. V. Johnson, 516. V. Schuyler, 625. Vanclev-e v. Green, 161. Vandall v. St. Martin, 472. Vanderburg v. Williamson, 347. Vandervoort v. Gould, 509, 584, 595, 596. Vason V. Ball, 140. Vaughn v. Vaughn, 602. Vennum v. Vennum, 639, 640. . Verdery v. Railway Co., 472, 473. Vess v. State, 632. Vicksburg v. Marshall, 523. Vier V. Detroit, 525. Vincent v. Corbin, 74. V. Starks, 110, 171. V. Kalamazoo, 525. Visalia v. Jacobs, 51, 523. Voight V. Ruby, 238. Voll V. Hollis, 632. V. Butler, 637. Vorce V. Page, 92. Voris V. Renshaw, 359. Voss T. King, 233, 287. Vreeland v. Ryerson, 202. Vroman v. Dewey, 578. Wade V. Doyle, 211. V. Thompson, 274, 276, 277. V. Llndsey, 318. Waddy v. Newton, 30. Wadsworth v. Murray, 373, 381, 382. Wager v. Railroad Co., 43, 48. Wait V. McNeil, 623. Waite V. Coarcy, 433. Wakefield v. Van Tassell, 58, 263. Waldron v. Waldron, 372. Walker v. Armour, 623, 625. V. Arnold, 607. V. Walker, 607. V. Beauchler, 605. V. McGill, 644. V.Miller, 176. V. Kynett, 188. V. Engler, 286. V. Pritchard, 370. V. Simpson, 493. V.Mitchell, 584. V. Lawler, 603. Wall V. Wall, 341. Wallace v. Hall, 645. V. Jones, 274. V. Berdell, 294, 589. Wallace's Case, 414. Wallace's Lessee v. Lewis, 356. Wallbrum v. Ballem, 490. Wallingford v. Hearl, 505. Wallis V. Wilkenson, 202, 209, 211, 226. Walls V. Erdel, 150, 251. Ivi TABLE OF CASES. References are to i-e.gts- Walton V. Follansbee, 204, 244. Ward V. Cochran, 452. V. Dulaney, 417. V. Ward, 291. V. Edge, 478. V. Lumber Co., 233, 301. V. Farmer, 502. V. Nestell, 510. Ware v. Barlow, 468. Warner v. Hale, 74. T. Sharp, 331. Warren v. Tobey, 118. V. Prescott, 444, 445, 446. V. Prederichs, 473. Washburn v. Cutter, 470. Washington v. Hosp, 349. v. Bank, 409. Water Co. v. Mooney, 213. Waterman v. Andrews, 302. Waters v. Lilley, 26. V. Bishop, 370. Watkins v. Jerman, 144, Watrous v. Morrison, 258, 279, 281, 490. Watson V. Trustees, 578. V. ManclU, 468. V. Atwood, 349. V. Tlndall, 427, 432, 507. V. Jeffrey, 458. Watts V. Witt, 230, 231. V.Cook, 347. V. Owens, 426. V. Dull, 444, 447, 448. Weatherford v. Weatherford, 418. Weaver v. Rush, 243, 249. Weber v. Anderson, 472. Webb v. Butler County, 523. V. Hall, 357. V. Richardson, 423. V. Demopolis, 522. Webber v. Clarke, 460. Webster v. Morris, 378. Weeks v. Hahn, 169. V. Cornwell, 371. Welgold V. Pross, 229. Weiler v. Monroe County, 235. Weinberg v. State, 423. Weir v. Simmons, 359. Weisbrod v. Railway Co., 29. Welborn v. Anderson, 470. Welch V. Huse, 370. Weld V. Johnson, 221, 346. Wells V. Bailey, 37. V. Steckelberg, 120, 124, 193 238. Wells V. Van Dyke, 146. V. Atkinson, 297. V. Austin, 454, 455. V. Rice, 507. V. Newsom, 607. V. Lammey, 630. Welsch V. Bank, 391. Wendell v. Van Rensselaer, 270. Wenner v. Thornton, 337. Wenning v. Teeple, 420. Wentworth v. Wentworth, 428. West V. West, 209, 211. V. Jordan, 557. West Covington v. Freking, 50. West Chicago Park Com'rs v. Coleman, 127. Western tJ. B. Co. v. Thurman, 243. Westfelt V. Adams, 188. Westlake v. Koch, 43. Westmoreland, etc. Co. v. De Witt, 489. Wetherbee v. Dunn, 550, 571, 573. Wettig V. Bowman, 480. Wharf Co. v. Simpson, 96. Whately v. Newsom, 332, Wheeler v, Merriman, 606. v. Clutterbuck, 399, 400. V. Byerss, 91. V. Laird, 508. V. Single, 294. V.Taylor, 461, 500. Wheeling v. Campbell, 525. Whelen's Estate, 376. Whidden v. Lumber Co., 326. Whissenhunt v. Jones, 273. Whitaker v. Shooting Club, 462. Whitcomb v. Rodman, 372, 387. White V. White, 29, 400, 413, 414, 416. V. Clawson, 69. V. Rittenmeyer, 149. V. Livingston, 152. V. Hakeman, 194. V. Moss, 203. V. Hopkins, 321, 322. V. Luning, 33b. V. Flynn, 350. V. Holland, 372. V. Holton, 384. V. Mann, 427. V. Spreckels, 493. V. Moses, 608, 609. V. Stokes, 610, 612. V. Poorman, 621. TABLE OF CASES. ivn References are to pages. White Crow v. White King, 336. Whitehead v. Shattiiok, 15, 24. Whiting V. Nicoll, 431, 432. V. Edmunds, 516. Whitlow V. Echols, 204. Whitman v. Henneherry, 295, 296, 411. V. State, 424. Whitney v. Goddard, 68. V. Buckman, 94, 95. V. Gunderson, 518. V. Higgins, 547. V. Richardson, 601, 606. Whittier v. Stege, 152. Whitworth v. Wotford, 94. Wickersham B. Co. v. Rice, 533. Wieland v. Kobick, 215, 226, 229. Wiggin V. Perkins, 370. Wiggins V. Railroad Co., 115, 360. Wilcke V. Wilcke, 400, 449. Wllkerson v. Clark, 374. Wilkins v. Walker, 400, 450. V. Allen, 372. V. French, 149. V. Pensacola, 258, 515. V. Yo^ng, 303, 308, 392. Wilkinson v. Pilby, 348. Willamette R. E. Co. v. Hendrix, 331. Willamette, etc. Co. v. Gordan, 365. Willard v. Masterson, 316. Williams v. Deriar, 77, 164. V. Bradbury, 87. V. Johnson, 92. V. Forbes, 151, 152, 153. V. Peters, 155, 262. V. Bruton, l6i; V. Vanderbilt, 166, 285, 615. V. Hartshorn, 185. V. Amory, 253, 401. V. Murphy, 265, 268. V. Wait, 284, 285, 288. V. Baker, 291. V. Conger, 296. V. Bently, 309. V. Baynes, 332. V.Morton, 346, 348. V. Ried, 446. V. Underbill, 352. V.Lodge, 370, 371. V. Vreeland, 373. V. Herrick, 414. V. State, 423. V. Wallace, 460. Williams v. Scott, 465, 466. V. Eikenberry, 483. V. Courtney, 512. V.Williams, 513. V. St. Louis, 522. V. Milligan, 535. V.Kelso, 540, 564. V. McGaffigan, 636. Williams' Estate, 304, 451. Williams, In re, 366. Williamson v. Woodman, 348. V. Williamson, 371. V. Russell, 579. V. Jones, 614. V. Wachenheim, 627. Willingham v. King, 436. Willington v. Gale, 149. Willis V. Jenkins, 387: Wills V. Gas Co., 286. Willson V. Cleveland, 218. V. Watkins, 515. Wilmarth v. Woodcock, 496. Wilmington R. R. Co. v. Gamer, 190. Wilmore v. Stetler, 348. Wilmot V. Railroad Co., 527. Wilson V. Arentz, 132. V.Wilson, 135, 322. V. Glenn, 155, 224, 242, 264. V.Pine, 247. V.Albert, 250. V. Braden, 256, 533. V. Cochran, 303. V. Holt, 304. V. Carrico, 321, 323. V. McKenna, 351. V. Brownlee, 429. V. Blake, 460, 477. V. McBwan, 461. V.Williams, 463. V. Johnson, 466, V.Atkinson, 469, 476. V. Hunter, 491, 492. V. Campbell, 508. V. McCrillies, 529. V. State, 569. Windom v. Brown, 234, 235, 326. Wineman v. Grummond, 280. Wing V. Cooper, 140. V. Dodge, 337. Wingler v. Simpson, 493. Winkler v. Miller, 320. Winkley v. Kaime, 388. Winslow V. Cooper, 269. Winstanley v. Meacham, 192, 240. Iviii TABLE OF CASES. References are to pages. Winter v. Lodge, 433. Winters v. Haines, 500. V. De Turli, 512. Wisdom V. Reeves, 296, 585. Wise V. Wynn, 411. V. Burton, 606. Wiseman v. Railroad Co., 235. Wishart v. McKnight, 472. Wistar v. Scott, 379. Witbecl^ V. Van Rensselaer, 563, 567. Withers v. I^arrabee, 79, 165. V. Patterson, 340. Wolcott V. Wolcott, 366. V. Townsend, 590. Wolf V. Poundsford, 560. V. Holton, 606. Wolfe V. Sullivan, 522. Womack y. Powers, 642. Wood V. Jackson, 222. V. Mathews, 365. V. White, 387. V. Willard, 490. V. Conrad, 609. V. Morton, 9, 74. V. Wood, 134. V. Eckhouse, 209, 249. Woodbury v. Willis, 98. Woodhull V. Rosenthal, 18, 589. Woodruff V. Neal, 43. Woods T. Hull, 455, 470. y. Bonner, 296, 297. V. Hildebrand, 140. V. Montev.-allo Co., 235, 462, 475. Woodward v. Brown, 74. V. Cone, 159. V. Sartwell, 332. Woodward v. Seaver, 354. Woodward, In re, 371. Woodward v. Blue, 424, 425, 439. Woodworth v. Payne, 359. Woolsey v. Williams, 429. Worcester v. Lord, 459, 462, 490. Work V. CoT/hick, 300. Worth v. Worth, 372. Worthing v. Webster, 349, 351. Worthington v. Hiss, 598. Worthley v. Burbanks, 476, 487. Wright V. Carter, 43. v. Tichenor, 66. v. Moore, 81, 153. 154. V. Wright, 134, 291. V. McCormick, 234, 277. v. Westbrook, 391. V. Hicks, 425, 426. v. Stice, 481. Wyatt V. Tisdale, 520. Wyeth V. Stone, 383, 445. Wylie V. Lockwood, 371. Wythe V. Meyers, 585. Yarnall's Appeal, 374. Yates V. Paddock, 131. V. Houston, 419, 423. V. Warrenton, 522. Yetzer v. Thoman, 492. Youn V. Pittman, 205. Young V. Smith, 287. V. Shulenberg, 404, 406. v.Barr, — . Zabriskle v. Meade, 330. Zachman v. Zachman, 426. Zander v. Blatz Brewing Co., 34. Zillmer v. Landguth, 389. Zwietusch v. Watkins, 612. A TREATISE ON THE ACTION OF EJECTMENT CHAPTER I. PRELIMINARY VIEWS. 1. Introductory. 2. Real actions at common law. 3. Requisites of real actions. 4. Ejectment. 5. Origin and history. 6. Nature of the ancient rem- edy. 7. Enlargement of the rem- edy. § 8. Development of the action. 9. Rolle's system of fictions. 10. Present condition of the action. 11. Trespass to try title. 12. Action to quiet title. 13. Forcible entry and de- tainer. § I. Introductory. — Sir William Blackstone, at the con- clusion of his admirable essay on possessory actions/ aptly says, that, in the consideration of the subject, he had been "un- avoidably led to touch upon much obsolete and abstruse learn- ing, as it lies intermixed with, and alone can explain the reason of, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is im- possible to form any clear idea of the meaning and connection of those disjointed parts which still form a considerable branch of the modern law." So, in the present work, the writer has had frequent occasion to allude to the procedure and methods of the obsolete systems of former years, yet, believing with the illustrious author just quoted that a knowledge of the past is essential to a just comprehension of the methods of the present, he is induced to hope that the indulgent reader will find this no -3 Blk. Com. 196. 2 PEELIMINAEY VIEWS. [§ 2. defect in a work which assumes to be an exposition of modern law, and that the historical side lights which have been thrown on many phases of our subject will increase, rather than de- tract from, the general interest. Therefore, before entering upon a discussion of the principles and rules which control the modern action of ejectment, or its statutory substitutes, it may be well to brief!}' recite the steps which have led up to present methods. This will enable us to obtain clearer perceptions of the law as it is and will furnish a key to some of the histori- cal allusions which the author, in the development of his sub- ject, has deemed necessary or expedient. § 2. Real Actions at Common Law. — In the early stages of the law of Real Property, as administered by the English courts, there were a large number of what were known as real actions, which varied greatly accordinr tn the nature of the thing sought to be recovered and the title or estate upon which the claim of the demandant was based.^ These actions were divided into two general classes termed respectively posses^:' --y and proprietary.^ The former lay whenever a party in posses- sion of lands was disseized or ousted, or where, having the right to possession he was kept out of same, in either which event he was permitted to bring his action by writ of entry for the purpose of restoring such possession.* In time the writ of entry in all of its forms, and there seem to have been a large number of them, became merged into or superseded by the action of ejectment, and thereupon disappeared. It remained long in use, however, and appears to have been extensively em- ployed in this country during the colonial era, and even after the Revolution we may find traces of it in several of the east- ern states. But there would often occur cases where the claimant had lost his right of possession, leaving in him only a naked right ^ to sue for the purpose of establishing the valid- 2 See 1 Roscoe, Real Actions, though Blackstone asserts that 3, et seq. See also an excellent they were in use during the time summary in Prof. Martin's Civil of the Saxons. See 3 Blk. Com. Procedure, 104. 184. This, however, is only con- 3 Styled in the legal language jecture. As a matter of fact we of the times droitural. know very little of English law i Writs of entry were probably prior to the time of Edward I. invented during the early part s a jus raerum, or mere right, of the reign of Henry III, al- as it seems to have been termed. § 3.] PEELIMINAEY VIEWS. 3 ity of his proprietary interest. Thus, it is said, if a man be disseized the law gives him the right of recovering the land immediately, either by entering upon the tortious possession of the disseizor, or by bringing a possessory action; if, however, he should neglect to pursue this right, and the disseizor should die, having been in possession for the prescribed statutory period," the heir of the latter would thereby acquire an appar- ent right of possession, and this right he could not be deprived of save by process of law. In such event the disseizee would therefore be driven to a writ of entry. Should he still neglect to avail himself of this latter remedy, within the period limited by law, his only resort would be his right of property (jus pro- prictatis) , and this he might assert by bringing a writ of right.' This latter writ remained in use in England until very recent times and was formerly much employed in the United States when the action of ejectment was still of a strictly possessory character. By a statutory provision in most of the states the action of ejectment may now be brought in the same cases in which the writ of right was formerly allowed, while in some jurisdictions it is expressly declared to be a substitute for that ancient remedy.^ § 3. Requisites of real actions. — The division of actions, into writs of entry and writs of right, was based on the dis- tinctions made by the medieval English lawyers between pos- session as an actual occupancy, the right of posession without actual occupancy, and the right of property without either the right of possession or an actual occupancy, and the writs were framed to meet the varying exigencies which these conditions might produce. But in every event the claim of right was re- quired to be founded on a freehold estate. Thus the writ of entry could be predicated on no estate for less than life and it seems the writ of right could only be brought by one who had or claimed an estate in fee, and in both cases the writ would lie 6 By tlie statute 32 Hen. VIII, 8 This was one of the provis- ■c. 35, this period was fixed at ions of the Revised Statutes of live years. New York, which was subse- T 1 Roscoe, Real Actions, 19 ; quently adopted by a large num- Co. Litt. 266o; Gilb. Ten. 20; 2 ber of states. Blk. Com. 197. 4- PEBLIMINARi' TIEW& [§ 4 only for land or something of a corporeal nature such as might be demanded in a prwcipe. It is further to be observed that not only was the demandant in a real action required to have a right to the freehold, and not merely a right to a chattel inter- est, as a term of years, but, in general, the writ could only be brought against the actual tenant of the freehold and not against a tenant for years or other person having only a chattel interest. The writ of entry served only to restore possession. The action decided nothing with respect to the right of property, or actual ownership, and even though the demandant was restored to the position he occupied before the ouster this was without prejudice to the right of ownership and the dispossessor might still assert any legal claim that he might have, notwithstanding such recovery. The writ was applicable, however, to all cases of ouster, with a few inconsequential exceptions, and seems to have been the generally observed remedy to recover possession, when wrongfully withheld from the owner.^ The writ of right seems to have been final, but, as before stated, this lay only for the recovery of lands claimed in fee which were unjustly withheld from the true owner. The dt- mandant was obliged to allege and prove a seizen, either in himself or the person under whom he claimed, and where this was denied the issue of title was raised and determined. These writs, in their various forms, were the only remedies for the recovery of lands. It will be seen that they involved only the freehold, and hence were inadequate for the assertion of many forms of possessory rights. As a consequence the holders of inferior interests were obliged to seek other means of redress when their possession was invaded. The most nat- ural would be an action of trespass against the wrongdoer and from this action of trespass has resulted a form of legal relief which has finally superseded all of the older forms above men- tioned. The development of this action will be shown in the subsequent paragraphs. § 4. Ejectment. — The evolution of the action of eject- ment from its primitive form as a mere action of trespass, en- s 3 Blk. Com. 18?. §5.] PEELIMINAET VIBWS. 5 abling a lessee of lands to recover damages when ousted of his possession, through a series of most ingenious fictions, which were afterwards added to enable him to recover possession as well, until its final establishment as the proper method of try- ing all disputed titles to real propert)^ presents to the student of legal science one of the most interesting studies that the histor)' of the law affords. Few remedies have passed through so many changes of form, both in pleading and practice, and yet retained the same distinctive character that marked their origin. It is true, that in some states the action, eo nominee, is now unknown, yet the right to recover the same estates, rights, and interests in lands remains and is enforced by action as be- fore, and the action to be brought is still an action at law as distinguished from a suit in equity, while in all the forms of the remedy, as they are now used in practice, the essential principles are the same. § 5. Origin and History. — During the early stages of English legislation succeeding the Norman conquest, war, and its attendant consequences, formed the primary object of the law-maker's attention. Provision was indeed made for the feudal lords, by the adoption of writs of entry and of right, but the interests of the inferior tenantry were entirely disre- garded, and the remedies for the recovery of lands altogther confined to freehold titles vested in the superior landholders. Vassals were seldom permitted by their lords to enjoy any in- terest in the lands' they occupied, and where grants of the pos- session were given for a determinate period such grants were not considered as transferring to the grantee any title to or interest in the land, but merely as constituting personal agree- ments between lord and vassal. The ancient writ of covenant seems to have been the first remedy introduced for a dispossession, and although this orig- inally provided only for a recovery of damages it was subse- quently adapted for the recovery of the term as well.^" But this writ was available only against the lessor for an ouster or breach of the original contract, and the tenant was still left without any means of redress when dispossessed by a stranger 103 Blackstone, Com. 158; Gilb. Eject. 2. 6 PEELIMINAET VIEWS. [§ £. claiming under a title superior to that of the lessor, or by a person claiming under a subsequent feoffment from such lessor, and though in the latter case the tenant might still recover damages for the injury he had sustained, he had no means of regaining possession of the land from which he had been ousted. ^^ Thus matters remained until the time of Henry III, when a full remedy was provided for a termor who was dispossessed by any person whomsoever claiming under the title of the lessor.^^ This remedy, called the writ of quare ejecit, enabled the plaintiff to recover both damages and his term, if the term were unexpired, but its greatest advantage was in the power it conferred of proceeding against third persons as well as against the original grantor. Notwithstanding this favorable change, however, the tenant was still without remedy when dispossessed by a mere stranger, or one not claiming under his grantor, and though he might, when so dispossessed, throw himself on the protection of his grantor, and leave his lord to recover by a real action both the freehold and possession, yet in process of time the vassal demanded a remedy for himself. This, it seems, was accorded to him during the reign of Ed- ward II, or the early part of that of Edward III, ^^ when a writ, called ejectione UrmcE, was invented, which gave a lessee for years a somewhat imperfect remedy against all persons whomsoever who ousted him of his term, and this writ may fairly be said to be the foundation of the modern remedy by ejectment. § 6. Nature of the Ancient Remedy. — The new writ wa.<~. a writ of trespass in its nature, and the process upon it was by attachment, distress or outlawry. It called upon the defend- ant to show, wherefore, with force and arms, he entered upon certain lands which had been demised to the plaintiff for a term then unexpired and ejected him from the possession thereof; and comprised all cases, except where the lessor himself ejected the lessee and subsequently enfeoffed another. In this latter iiBraoton, b. 4 f. 220; 3 Black. 123 Reeve's Hist. Eng lisw. Com. 200; Adams, Eject 3; Gilb. 29. Eject. 2. 13 3 Reeve's Hist. Eng. Law, 29. § 7.] PEELIMINAET VIEWS. ? case the old writ of qiiare ejecit was resorted to, as the second lessee, coming into possession through a title and under a claim of right, could not be said to be a trespasser. Even the lessor was liable to be sued upon this new writ, notwithstanding the old doctrine that a man could not enter vi et armis into his own freehold, but the plaintiff, not possessing a freehold interest, could assert title, in this action, only so far as to give him damages for the injury but not to restore to him the possession of the term.^* § 7. Enlargement of the Remedy. — ^With the decline of the feudal policy and the advancement of agriculture the value and importance of inferior estates were greatly enhanced and they began to become objects of legislative regard. A more effective protection was demanded for lessees for years, and it became customary for leaseholders, when disturbed in their possessions, to apply to courts of equity for redress, and to prosecute suits against the lessor himself to obtain specific per- formance of the terms of the grant, or against strangers for perpetual injunctions to quit the possession, and, it seems, these courts would then compel a restitution of the land.^° The common-law courts soon adopted this method,^^ not by the in- vention of a new writ, but by adapting the one already in ex- istence to the altered circumstances, and by introducing a species of remedy neither warranted by the original writ nor demanded in the declaration, to wit: a judgment for the re- covery of the term and a writ of \ possession thereupon." i*Fitz. Nat. Brev. 505; Ad- said by one of the judges, that ams' Eject. 8; 3 Reeve's Hist, damages only can be recovered Eng. Law, 29. in ejectment; and an entry of a 16 Glib. Ejectment, 2; Adams, judgment is still extant, given Eject. 8. in the latter of those years, that 16 It is singular that neither the plaintiff in ejectment shall the causes which led to this im- recover both his damages and portant change, nor the princi- his term. It is said, indeed, in pies upon which it was founded, argument, as early as the year are recorded in any of the legal 1458, that the term may be re- authorities of those times. It covered in ejectment, but no rea- ls difHcult, if not impossible, to son is assigned for the asser- ascertain with accuracy the pre- tion, nor is any decision upon cise period when the alteration the point on record until the itself took place; although it oer- time of the entry already men- tainly must have been made be- tioned. Adams, Eject. 8. tween the years 1455 and 1499, " 3 Black. Com. 200; 3 Reeve's since, in the former year, it is Hist. Eng. Law, 391. This PEELIMINAET VIEWS. [§8- The effects produced by this alteration were highly import ant. The new efficacy thus given to the action of ejectment soon caused the disuse of the old real actions, and it became gradually the regular mode of proceeding for the trial of all possessory titles, and thus the use of the action, as well as its nature, were completely changed.^* § 8. Development of the Action — Introduction of Fic- tions. — The proceedings in the action, as originally admin- istered in the trial of disputed titles, were very simple and reg- ular, differing but little from those previously in use, when ejectment was brought to recover damages for an actual tres- pass. But the exigencies of the times, and the subtleties of courts, soon caused the introduction of a number of technical complications which succeeding j^ears developed into a series of most remarkable and ingenious legal fictions. The right to the freehold could only be determined in an indirect manner. It was a term which was to be recovered by the judgment of the action, and it was therefore necessary that a term should be created; and as the injury complained of in the writ was the loss of possession, it was also necessary thai the person to whom the term was given should be ejected from the lands. In order to obtain the term, therefore, the party claiming title entered upon the disputed premises, accompanied by another person, to whom, while on the lands, he sealed and change seems to have occurred made is extant; hut from the in- during the reign of Edw. IV, and numerahle difficulties which at- in the time of Elizabeth had be- tended real actions, it is not sur- come a common method for the prising that the freeholder trial of titles to land. should have taken advantage of 18 That an action of ejectment, any fiction which enabled him by means of this alteration in to avoid them; and as the court its judgment, might restore of common pleas possessed an termors to possession who had exclusive right of judicature in been actually ejected from their matters of real property, it is lands, is sufficiently obvious; probable that the experiment but it is not, perhaps, so evident originated in the court of king's how the same proceeding could bench, as an indirect method of be applicable to a disputed title giving to that court a concurrent of freehold, or why, as soon after jurisdiction with the common happened, the freeholder should pleas. But, however this may have adopted this novel remedy, be, the experiment succeeded. No report of the case in which and the uses of the action, as this bold experiment was first well as its nature, were changed. § 8.] PEELIMINAET VIEWS. 9 delivered a lease for years. This entry was necessary to avoid the effect of the old law of maintenance,^" and it was from the necessity of this entry that the remedy was confined to claimants who had a possessory title or a right of entry upon the lands, a feature which the action has always retained and which constitutes one of its present chief characteristics.^" The lessee of the claimant, having acquired a right to the pos- session by means of the lease just mentioned, remained upon the land, and the next person who came upon the freehold animo possidendi, or, according to some of the old authorities, even by chance, was accounted an ejector of the lessee, and a trespasser on his possession. A writ of trespass and ejectment was then served upon the ejector by the lessee. The cause then regularly proceeded to trial, and, as the lessee's claim could only be founded upon the title of the lessor, it was necessar\' to prove the lessor's interest in the land to enable the plaintiff — the lessee — to obtain a verdict. The claimant's title was thus indirectly determined, and though the writ of possession issued in the plaintiff's name, yet, as he prosecuted the suit only as the lessor's friend, he would immediately give up to the lessor the possession of the land. During the earlier stages of the action, this mode of proceed- ing was attended with no evil consequences. The party pre- viously in possession, was, in contemplation of law, always upon the land and certainly animo possidendi, and the friend of the claimant was allowed to consider him an ejector, and make him the defendant in the action. But when the remedy came into more general use these methods were found to be produc- tive of considerable evil. Thus, it was found that the claimant might conceal the proceeding from the person actually in pos- session by procuring a second friend to enter upon the land and expel the lessee immediately after the execution of the lease. The lessee might then commence his suit against this ejector, and the real party in interest, the person in actual possession. 18 According to this law it was inal possession, talven only for a penal offense to convey a title the purpose of trying the title, to another when the grantor was sufficient to excuse him himself was not in possession, from the penalty of the offense, and it seems at one time to have 20 Wood v. Morton, 11 111. 547. been doubted whether this nom- 10 PEELIMINAET VIEWS. [§ 9. be ousted without an opportunity to defend the title. To check this evil a rule of court was made requiring the plaintifl, before proceeding against such third party, to give notice to the per- son in possession of the pendency of the proceeding, and it was the practice of such person, if he claimed any title to the land, to apply for permission to defend, which was always granted, although the suit proceeded in the name of the original defend- ant. Through the alteration in the manner of proceeding, oc- casioned by this rule, it soon became the general practice to have the lessee ejected by some third person, since called the casual ejector, and to give notice to the person in possession, instead of making him, as before, the trespasser and defendant. The time when this rule was made is not known, but it is sup- posed to have been adopted soon after the remedy grew into general use. It seems to have been the first instance in which the courts interfered in the practice of the action and is further remarkable as the foundation of the fictitious system by which it was afterward so long conducted. § 9. RoUe's system of Fictions. — ^The action seems to have continued in the condition just noted until the time of the English commonwealth, when the trouble and inconvenience occasioned by the observance of the different formalities pro- duced the invention, by Chief Justice Rolle, of the Court of ITpper Bench, of a new method of proceeding which at once superseded the former practice and became the basis of the subsequent form of the action. By this new method was in- troduced the series of legal fictions which so long distinguished the proceeding. All of the prior forms, as just described, were dispensed with. No actual lease was made ; no actual entrv by the plaintiff nor actual ouster by the defendant was effected ; the plaintiff and defendant in the suit were merely fictitious names ; and all the preliminaries, which by the former practice were required to be actually complied with, were only feigned. In this new proceeding it was stated that a lease for a term of years had been made, by one who claimed title, to the plaint- iff in the action ; that the plaintiff entered thereunder and that the defendant, the casual ejector, ousted him, for which ouster the action was brought. After the action had been com- menced, the casual ejector, or nominal defendant, sent a writ- §9-] FEEUM.INi.ET "VIEWS. 11 ten notice to the person in possession informing him of the pendency of the action and also transmitted a copy of tlie de- claration, with the assurance that he, the defendant, had no title to the lands in dispute and would make no defense to the action. At the same time he advised the person in possession to appear and defend his title, otherwise he, the casual ejector, would suffer judgment to be had against him. Upon receipt of this notice the person in possession was allowed a limited time in which to make an application to be substituted as de- fendant in place of the casual ejector, and upon his default judgment was rendered against the casual ejector and the real party in interest ousted of his possession by the sheriff. Should the person in possession be admitted to defend, it was upon a condition that he admit or confess all of the ficti- tious steps, as the making of the lease, entry, ouster, etc., whereupon the tenant, or person in possession, was substituted for the fictitious defendant and the trial proceeded on the merits. ^^ 21 The following terse and very clear summary of the action as it existed and was administered in England in the year 1812 is given hy Mr. Adams in his trea- tise on Ejectment, published in that year: "A., the person claiming title, delivers to B., the person in pos- session, a declaration in eject- ment, in which C. and D., two fictitious persons, are made re- spectively plaintiff and defend- ant; and in which C. states a fictitious demise of the lands in question from A. to himself for a term of years, and complains of an ouster from them by D. during its continuance. To this declaration is annexed a notice, supposed to be written and signed by D., informing B. of the proceedings, and advising him to apply to the court for permis- sion to be made defendant in his place, as he, having no title. shall leave the suit undefended. Upon the receipt of this declara- tion, if B. does not apply within a limited time to be made de- fendant, he is supposed to have no title to the premises; and upon an affidavit that a declara- tion has been regularly served upon him, the court will order Judgment to be entered against D., the casual ejector, and pos- session of the lands will be given to A., the party claiming title. When, however, B. ap- plies, pursuant to the notice, to defend the action, the courts annex certain conditions to the privilege. Pour things are nec- essary to enable a person to sup- port an ejectment, namely, title, lease, entry, and ouster; and as the three latter are only feigned in the modern practice, C. (the plaintiff) would be nonsuited at the trial if he were obliged to prove them. The courts, there- 12 PEELIMIXAEY VIFWS. [§ 10. This was, substantially, the action introduced into the Amer- ican colonies as a part of the law and procedure of the mother country, and which continued, with only slight alterations, dur- ing many years of national existence, finding expression in some states as late as the year 1848. § 10. Present condition of the Action. — When the ag- gressive spirit of legal reform in the United States commenced .to manifest itself, during the earlier part of the last century, this action was one of the first to feel its influence. The ficti- tious introduction was found to be only a clog and hindrance, in no way necessary or even conducive to a complete adminis- tration of justice, and notwithstanding the system possessed many and obvious advantages over any previous method, it wa? still imperfect and deficient in many important particulars. Then followed a general abolition of the old fictions ; additional legislation supplied the defects and widened the scope of the remedy, which finally came to be administered through the medium of the ordinary forms of practice, differing in no ma- terial respect from other civil actions. In simplicity and directness the modern action greatly re- sembles the original form of the remedy prior to the introduc- tion of fictions ; all useless procedure has been abolished, and the practice reduced to a regular and settled system, which, while differing somewhat in the method of its application ac- cording to the statutory policy of the locality, is remarkablv uniform throughout the entire country. As a rule, the old fore, compel B., if made defend- Tliese conditions being complied ant, to enter into a rule, gen- witli, the declaration is altered, erally termed the consent-rule, by making B. the defendant l~n- by which he undertakes that at stead of D., and the cause pro- the trial he will confess the ceeds to trial in the same man- lease, entry and ouster to have ner as in other actions." been regularly made, and rely This, it would seem, continued solely upon the merits of his to be the practice in England title; and, lest at the trial he until the year 1852, when it was should break this engagement, abolished by the Common Law another condition is also added, Procedure Act, and a new action that in such case he shall pay was created substantially the the costs of the suit, and shall same as that which now pre- allow judgment to be entered vails in the United States, against D., the casual ejector. § 11.] TEKLIMINAET VIEWS- 13 name has been retained to designate the statutory actions sub- stituted for the common-law remedy, and even where attempts have been made to fasten upon it a new title the old name is still employed by the practitioner upon all ordinary uccasions. The basis for the modern action, as now administered in a majority of the states, is the procedure promulgated by the Revised Statutes of the State of New York in the year 1830. The new practice thus introduced was adopted in its entirety by, a large number of then existing states, as well as by others which were subsequently created, and the verbiage of the or- iginal enactments has been preserved with but little change. Even in those states where reformed codes of civil procedure were afterward adopted, whereby the distinctions of law and equity were ostensibly abrogated and the old forms of action abolished, the action of ejectment remains much as before. A survey of the legislation of the states discloses the fact that in the so-called code states the general features of the action are the same as in the common-law states. In some instances its scope has been broadened by the admission of claims and de- fenses based upon equities, but this is the most marked de- parture. In essential structure the action is the same in all of the states and presents the most perfect piece of uniform legis- lation that we possess. § II. Trespass to try Title. — In the year 1791 the State of South Carolina instituted a new remedy for the recovery of possession of lands and the determination of disputed titles, by an adaptation of the old action of quare clausum fregit. In this action the defendant was always permitted to justify his entry by a plea of free hold {libenim tenementum) in himself, or in some other person under whose authority he assumed to act, which conferred a right of immediate possession. In this way the title of a freehold was directly put in issue, but, as the action was distinctly one of tort, the only recovery by the plaint- iff was for damages. The new remedy, in practical effect, ex- tended the old action of trespass to wrongs theretofore re- dressed by the action of ejectment and gave to the successful plaintiff, who had been ousted by the trespasser, not only his damages but a writ of possession as well. A technical tres- pass, however trifling, was sufficient evidence on which to main-' 14 PEELIMINAET VIEWfc. [§ 12. tain the action, and the judgment rendered concluded the parties with respect to title. ^^ This form of action was subsequently introduced into several other states but at present obtains only in the State of Texas, having been superseded in the state of its origin, and other lo- calities, by the modern statutory action of ejectment. While the scope of the remedy is very broad, combining many of the incidents of the equitable action to quiet title, yet the essential principles of the action of ejectment are preserved, and, it would seem, the settled and long, established rules of ejectment are still of controlling efficacy.^^ § 12. Action to quiet Title. — In a majority of the states there is now provided a statutory action to quiet title and re- move clouds. In most cases the action will lie whether the lands in controversy are improved or vacant, but in order to maintain the suit it is generally essential that the claimant shal be in the actual or constructive possession thereof.^* In those states where the fundamental distinctions between law and equity are preserved the action is instituted by a bill in chancery while in those states which have ostensibly abolished the dis- tinctions the suit still partakes of an equitable nature and is governed by equitable principles. It is founded on the inher- ent jurisdiction of equity to quiet title and is intended to reach persons out of possession who cannot be compelled to assert or defend their right at law.^^ It will be seen, therefore, that while there are points of re- semblance between ejectment and the equitable remedy to quiet title, and while the ultimate object of the two suits is much the same, that is, the determination and settlement of conflicting claims of title, there is yet a wide difference be- tween the methods employed. Nor is the statutory proceeding to quiet title in any sense a substitute for the action of eject- ment.^" It is designed only for the relief of persons, who, 22 Martin, Civil Procedure, 147. 25 Barron v. Robbins, 22 Mich. 23Thurber v. Conners, 57 Tex. 22; Reed v. Tyler, 56 111. 288; 96 Improvement Co. v. Trustees, 37 i*Gage V. Abbott, 99 111. 366; N. J. Eq. 266. Gould V. Stemburg, 105 111. 488; 20 Snowden v. Tyler, 21 Neb. Lee V. Simpson, 29 Wis. 333. 199; Davis v. Settle, 43 W. Va' 17, § 13.] PEELIMmAEY VIEWS. 15 being in peaceable possession, have no means of contesting an adverse claim by a suit in due course of law, and courts are generally strenuous in their insistence that a claimant resorting to this remedy must bring himself fully within the spirit as well as the letter of the statute. Thus, if the lands in controversy are vacant or unoccupied, then, notwithstanding the claimant has a constructive possession, he will still be required to resort to ejectment for a determination of his rights. The only ques- tion in such a case being one of title, he has a full, complete, and adequate remedy at law." It is true, as e general proposition, that when a court of equity has taken jurisdiction for one purpose, it will retain the case to do complete justice between the parties, even to the ex- tent of determining legal rights. But this practice, which grew out of the equitable doctrine of discovery,^* will not be extended to determine the legal title to land when it is in dis- pute and a trial by jury is necessary by reason of controverted questions of fact.^' The rule is well settled that equity has no jurisdiction to settle the title and bounds of lands between ad- verse claimants, unless the plaintifif has some equity against the person claiming adversely to him, and will never assume juris- diction to try conflicting titles, upon the sole ground of re- moval of a cloud from title, if the adverse claimant is in actual possession.^" § 13. Forcible Entry and Detainer. — In all of the states the statute provides a civil action for the restitution of pos- session of lands that have been forcibly entered and occupied, or which are unlawfully detained after a lawful right of entry and occupation has expired. It is a summary remedy for the dispossession of a person who has forcibly entered upon the possession of another, or forcibly detains such possession from him, and the only question to be tried is the fact of disposses- 27 Shepherd v. Nixon, 43 N. J. 29 Freer v. Davis, 52 W. Va. 1, Eq. 627; Whitehead v. Shattuok, 94 Am. St. Rep. 895, 43 S. E. 138 V. S. 150; Odle v. Odle, 73 Rep. 164. Mo. 289; Hecht v. Colquhoun,' so Lange v. Jones, 5 Leigh 57 Md. 563. (Va.), 192; Davis v. Settle, 43 28 Story, Eq. Jur., §§ 64&-74. W. Va. 17; Snowden v. Tyler, 21 Neb. 199. 16 PEELIMINAET VIEWS. [§ 13. sion. It is the nature of the entry or detainer which consti- tutes the cause of action, and not the title, or claim of title, which the respective parties may have in or to the lands in controversy.^^ It follows, therefore, that in an action of this kind no question of title can arise,^^ and that a judgment ren- dered therein is not evidence of title.^^ 31 Carter v. Dorn, 36 Wis. 289. as Fish v. Benson, 71 Cal. 428, 32 Newton v. Leary, 64 Wis. 12 Pac. Rep. 454. 190; Riverside Co. v. Towns- liend, 120 111. 9. CHAPTER II. FOR WHAT THE ACTION LIES. 14. General principles. 15. Chattels. 16. Water. 17. Tenements and heredita- ments. 18. Lands in hostile posses- sion. 19. Partial possession. 20. Vacant or unoccupied lands. 21. Incorporeal hereditaments. 22. Easements. 23. Land subject to easement. 24. Parts of buildings. 25. Mines and subterraneous deposits. 26. Growing crops. 27. Overhanging root 28. Protruding trees. 29. Accretions. 30. Burial lots. 31. Land in possession of gov- ernment. 32. Land occupied by semi- public corporations. 33. Streets and highways — In- dividual rights. 34. Continued — The rule and its exceptions. 35. Continued — Entry under municipal license. 36. Continued — Incidental (luestions. 37. Continued — Extent of re- covery. 38. Dedicated streets. 39. Streets and highways — Municipal rights. 40. Continued — Parol dedica- tion. 41. Turnpikes and toll roads. 42. Rights of way — Qa-osi-pub- lic. 43. Recovery of right of way by land owner. § 14 General Principles. — By the rule of the common law ejectment will not lie for anything whereon an entry cannot be made, or of which the sheriff cannot deliver possession.^* This rule, in its practical application, is still of controlling force and efficacy and is frequently invoked in controversies aris- ing out of disputed possession, but local legislation in all of the states has done much to extend the common-law scope of the remedy, while judicial construction has still further tended to expand the basis upon which the action rests. The underlying 34 Hancock v. McAvoy, 151 Pa. St. 460; Bzzard v. Mining Co., 74 Ga. 520; Tennessee, etc. R. R. V. East Alabama Ry. Co., 75 3 Ala. 516; Pritsche v. Fritsche, 77 Wis. 270 ; Burke v. Water Co., 176 III. 555; Beatty v, Gregory, 17 Iowa, 109. 18 FOE WHAT THE ACTION LIES. [§ 14. principle of tlie ancient rule has been preserved, however, and forms the foundation for all of the varied phases which the ac- tion may assume, and while, as a general proposition, such ac- tion now extends to all rights and interests in land, it must still be understood that the rule has reference only to property, in its own nature, capable of physical detention or possession. The right or interest to be recovered must be of a corporeal nature as distinguished from a mere easement or other purely incorporeal hereditament.^'* But where the object of recovery possesses a tangible existence and is capable of physical de- livery, the action ma}^ be maintained notwithstan,ding that the right or interest shown may, under the strict rules of law, amount to no more than an incorporeal hereditament.'"' It is further to be observed, that it is the character of >the property, or interest, which fixes the right to recover in this form of action rather than the ability or non-ability of the sher- iff to deliver possession by some physical act, and it is no objec- tion to a recovery that the land in controversy is inaccessible at the time of. judgment, so that the sheriff cannot, in fact, de- liver possession. If the property is in itself capable of physi- cal detention or possession the action will lie, for delivery by the sheriff is but a subsequent incident following upon the judicial determination of the title. ^'^ It would seem, however, that even at common law an ease- ment, or incorporeal privilege, might be recovered in an eject- ment brought for the lands to which it was appendant or ap- purtenant, provided it was mentioned in the description of the premises. The reason for this would seem to be that as he who has possession of the land has also possession of the ease- ment, the sheriff, by giving possession of the one executes the writ as to the other. This was frequently held in the case of 35 Childs v. Chappel, 9 N. Y. as See Reynolds v. Cook, 83 246; Taylor v. Gladwin, 40 Mich. Va. 817; Integral Min. Co. v. Al- 232; Caldwell v. Pulton, 31 Pa. toona Min. Co., 75 Fed. Rep. 379. St. 483; Dark v. Johnson, 55 Pa. 37 Woodhull v. Rosenthal, 61 St. 164; Ezzard v. Mining Co., N. Y. 382; Perrine v. Bergen, 14 74 Ga. 520; Fritsche v. Fritsche, N. J. U 35£, 77 Wis. 270; Lee v. Harris, 206 111. 428. § 15.] tOR WHAT THE ACTION LIES 19 commons and of those forms of incorporeal hereditaments that usvially pass under the name of profits a prendre.^^ § 15. Chattels. — The action of ejectment lies only for the recovery of land or for something so annexed to land as vir- tually to become a part of it. In its inception it was strictly a real action, as distinguished from a personal action, and this es- sential character it has always retained, notwithstanding the practical abolition of old forms. There are many things, how- ever, that fall within the generic name "land" besides the soil. Thus, houses, and erections of all kinds, while in place, are as much land as the ground on which they rest, and, in the old practice, might be specifically declared for. In modern prac- tice, and under our improved methods of land parceling, this is no longer done, a recovery of the described tract including also a recovery of everything annexed to it. If a house, or other annexation, be severed from land, either actually or construc- tively, it may, and for most purposes generally does, assume the character of a chattel, and may be recovered in an action of replevin. As the possessor of land may always bring replevin for chat- tels severed from the freehold, and as the ownership of land draws to it the constructive possession, so it is always permissi- ble for a plaintiff in replevin to show his ownership of the chat- tel by showing his ownership of the land from which it was severed.^" But this rule can be invoked only where the right of possession is conceded and the title to the land is not drawn in question.*" Hence, if the defendant has, or had when the chattel was severed from the freehold, an adverse possession of the land under a claim of title, replevin will not lie to recover 83 Hence, ejectment has been gree of possessory interest, and lield to lie for first grass {prima such interest could be recovered tonsura), aftermath, pasture for if withheld or detained by an- cattle or sheep, the privilege of other. See Adams, Eject., chap, mining coal, or of drawing brine II, for citation of ancient Eng- from a salt well for the purpose lish cases. of evaporation. A right of fi=!h- as Langden v. Paul, 22 Vt. 205; ery was also held to be within Sanders v. Reed, 12 N. H. 558; the scope of recovery in eject- Martin v. Thompson, 62 Cal. 618. ment. In all of these matters ^o Hines v. Good, 128 Cal. 38, the law recognized a certain de- 60 Pac. Rep. 527, 79 Am. St. 22. 30 FOE WHAT THE ACTION LTBf, [§ 16. possession by one claiming to be the true owner of such land. The reason for this is that title to land cannot be litigated in an action of this kind.*^ § i6. Water. — It is laid down in the old books that eject- ment will not lie for a water-course, or rivulet, even though its name be mentioned, because, it is said, it is impossible to give execution of a thing which is transient, and always running.*^ When, however, the ground over which the rivulet coursed was the property of the claimant he was permitted to maintain his action and the rivulet might be recovered by laying the action for "so many acres of land covered with water." *^ But, it seems, an ejectment might always be maintained for a pool, or pit of water, because these words were held to com- prehend both land and vv'atfer, and, hence, as denoting objects of legitimate ownership. It is doubtful, however, whether eject- ment would lie for such things at the present time and under the modern practice. As a general proposition, there can be no property in water in the ordinary meaning of that term. About the full extent of proprietary interest that can be ac- quired is a usufructuary right; that is, a right of use in con- nection with land, and, except as it may constitute an incident of land, it does not seem that water may be recovered in this form of action.^* But in some of the states, particularly those where water is employed for purposes of irrigation or hydraulic works, it has been held that the action will lie for a ditch,*" and under the late modern doctrines now promulgated in some localities, per- mitting actual and exclusive appropriation of water, the rea- sons of the common-law rule denying a remedy by ejectment would seem to be inapplicable. Where the controversy relatts only to the right of use of water, as where there has been an alleged wrongful diversion, 11 Anderson v. Hapler, 34 111. « Adams, Eject. 18. And see 436; Hines v. Good, 128 Cal. 38; Mitctell v. Warner, 5 Conn. 497. Powell V. Smith, 2 Wis. 126; ** Richardson v. Railway Co., Mott V. Hayeman, 8 Cow. (N. Y.) 169 XT. S. 128. 220. 45 Integral Min. Co. v. Altoona 42 Challenor v. Thomas, Yelv. Min. Co., 75 Fed. Rep. 379. (Bng.) 143. § 17.] FOE WHAT THE ACTION LIES. 21 notwithstanding questions of title may be incidentally involved, ejectment will not lie. Such rights cannot be properly deter- mined or settled in an action of this kind and the appropriate remedy is an action on the case.*'' So, too, where there has been an invasion of proprietary right in land by the use or misuse of water, as where one having a right to use the water of a stream in mining operations is prevented by a lower proprietor who builds a dam whereby the water is thrown back upon and sub- merges the land on which the mining right is situated, eject- ment will not lie. In a certain sense there would be a hostile occupation of the upper proprietor's land, or, at least, a de- privation of use, but the remedy would be by action on the case and not by ejectment." This follows from the fact that eject- ment only lies for something whereof the sheriff may deliver possession, and, in a case of this kind, where neither the water nor the land it covers is in the possession of the defendants, it would be impossible for the sheriff, in the execution of a writ, to deliver possession by reducing the water to its former level. § 17. Tenements and hereditaments. — From what little we can learn of the legal system of England immediately pre- ceding and for some years succeeding the Norman conquest, it would seem that the classifications of the Civilians were to some extent employed and that land was known as immovable prop- erty. But, with the extension of feudalism over the country, a new terminology was introduced and after a time lands came to be known as tenements and hereditaments, and these names have remained in the language of the law until the present day. The elementary writers still continue to preserve the old, obso- lete, and now comparatively meaningless terms of the medieval lawyers, and the current books give the old definitions of lands, tenements and hereditaments. In the legal system of the United States the two latter expressions are without any special signification. They are, in fact, but archaic survivals and their interest is almost wholly antiquarian. But in the old -days, when to some extent they possessed specific meanings, it was held that ejectment would not lie for 40 Hines v. Robinson, 57 Me. 47 Ezzard v. Mining Co., 74 Ga. 329; Biglow v. Battle, 15 Mass. 520; Burlie v. Water Co., 176 III. 313. 555. 22 FOE WHAT THE ACTION LIES. [§§ 18, 19. a tenement, because many incorporeal hereditaments were in- clnded in that appellation, and therefore the description was not certain enough.*^ An early American case, however, held to the contrary,*" and if the legal lexicographers would tell us just what the word "tenement" means in modern law, it might be that an action would lie for this particular species of real property. If a tenement is only something held, then every- thing that may be the subject of ownership is included in the term. The word "hereditament" has scarcely any more legal mean- ing than its companion word "tenement." In its original appli- cation it did not refer exclusively to land but comprehended several forms of chattels, usually known as heirlooms. The learning of the books with respect to these terms, so far as they may be employed in controversies relating to land, is practically valueless. It is still customary for the pleader to declare for the possession and recovery of "the following" lands, tenements and hereditaments" but the words, in this connection, are merely terms of art. § i8. Lands in hostile possession. — The action of eject- ment will always lie for the recovery of lands, at the time, in the hostile possession of another. If such possession consists of an actual and exclusive occupany no question in this respect can arise. By actual occupation is meant a subjection to the will and dominion of the adverse claimant, and this is usually evidenced by personal presence, either by such claimant or those who assume to represent him; by enclosure of a substantial character ; by cultivation, or such other use as the land may be susceptible of, depending upon its particular location and qual- ity ; and by other continuous acts of ownership.^" § 19. Partial possession. — As the primary object of the action of ejectment is to recover possession it follows, on prin- ts Doe V. Denton, 1 T. R. 11. house. 'Bradbury v. Yeomans, 1 An ejectment for a tenement, Sid. 295. with other words expressing its 49 Osborne' v. Woodson, 1 meaning, as a messuage or tene- Hawy. (N. C.) 24. ment, Itnown as the Black Swan, so Coryell v. Cain, 16 Cal. 567; was held good, as the addition Quicksilver Mining Co. v. Hicks, reduced it to the certainty of a 4 Sawyer (C. Ct.) 68S. § 20.] 70K WHAT THE ACTION LIBS. 23 ciple, that the action will not lie, if, at time of its commence- ment, the plaintiff is in possession of the demanded premises. The integrity of this rule has been in some measure affected by statutory provisions providing for the maintenance of the action for vacant or unoccupied lands, to which a claim of title has been asserted by persons not in the actual occupancy of the same, but, usually, if the owner is in possession and his title is menaced by liostile claims his only remedy is by an action quia timet in equity, or by such other anticipatory remedy as the law may provide. A different question is presented, however, where the owner's possession is only partial, as where some other person is in pos- session of a portion of the premises or where such person is potentially in possession of all of the land for a special purpose, notwithstanding the owner is also in the general occupancy. Under such circumstances ejectment will lie against the in- truder. °^ § 20. Vacant or unoccupied lands. — The original scope of the action of ejectment comprehended only the recovery of lands at the time in the actual hostile possession of another. But with the development of the remedy and its general adapta- tion as a method of adjusting title as well as of determining possessory rights, the legislature early intervened to supply the deficiencies of the common law by permitting it to lie for un- occupied as well as occupied lands, as against all who might be exercising acts of ownership therein or claiming title thereto. The object of this radical departure from the old rule was to enable parties, while their witnesses were still alive and at com- mand, to settle conflicting rights between themselves and other claimants, without being obliged to take possession and then wait for an action to be commenced by the other parties. The wisdom of the change has been abundantly demonstrated by Bi Thus, where parties entered standing the owner was also in into possession of land for the possession, he might recover in purpose of boring for oil under ejectment. Buchanan v. Haz- a lease which was void and in- zard, 95 Pa. St. 240.. And see capable of subsequent ratifica- Colorado, etc. R. R. Co. v. Smith, tion, it was held that, notwith- 5 Colo. 160. 24 FOE WHAT THE ACTION LIEP. [§ 20. years of use and the provision has been incorporated into the statutes and codes of nearly every state. But while the law as above stated is well settled its applica- tion, nevertheless, involves several seeming anomalies. If ejectment was primarily an action to quiet and confirm title the wisdom of the law would be apparent, and in those states where law and equity are administered in the same action possibh- there is no incongruity in bringing suit to recover possession of lands upon which a peaceable entry can be made and which, at the time, are not actually in the hostile occupation of another. In effect, however we may otherwise regard it, the law cer- tainly gives a right of action against a party out of possession who only claims title to the land, and, where practical construc- tions have been given to it, this has been conceded.^' Looking at our subject from the point of view last presented it might seem that where neither party is in actual occupancy of the land and both claim under written muniments, the proper remedy would be a bill to quiet title by removing a cloud. In- deed, this is the usual remedy against a defendant out of pos- session. There can be no question but that the jurisdiction of equity will always attach, in a proper case, to remove a cloud from the title of the true owner of land. Thus, if the wrong- ful claim is founded in either fraud or mistake and the rightful owner is so situated that he cannot bring ejectment, a court of equity will assume jurisdiction and grant rehef. But the rule is equally well established that where the question involved is purely one of title it can be settled only at law and in the action of ejectment, or its statutory substitute, under the enlarged scope of which persons out of possession, who set up false claims, may now be compelled to submit their claims to test, and thus the title is quieted at law by a verdict and judgment that is conclusive upon all the parties.^' Nor is it necessary that the adverse claim should be asserted by writing or rest on documentary evidence. It is sufficient 52 See Banyer v. Empie, 5 Hill 53 Stearns v. Harman, 80 Va. (N. Y,), 48; Converse v. Dunn, 48; Anderson v. Courtright, 47 166 111. 25; Burchard v. Roberts, Mich. 161; Shepherd v. Nixon, 70 Wis. Ill; Anderson v. Court- 43 N. J. Eq, 627; Whitehead v. right, 47 Mich. 161. Shattuck, 138 U. S. 150; Odle v. Odle, 73 Mo. 289. § 21.] JOfi WHAT THE ACTION LIES. 25 that it has been manifested by words merely.^* A parol claim of title is a menace to property and a party should not set up such a claim unless he is prepared to defend it. The claim, however, must be made seriously and in such a manner as to indicate an intention to assert it. A mere idle declaration that a person owns land is not enough. '^^ § 21. Incorporeal Hereditaments. — As has been shown, it was a fundamental rule of the action at common law, that ejectment would lie only for a corporeal hereditament — some- thing of which there could be an actual delivery of possession — ■ and for this reason it was not maintainable for anything which passed only by grant. This rule has frequently been asserted in American cases and the decisions are numerous that the action will not lie to recover a mere easement.^" But the rule was infringed in England as early as the time of Henry VIII, when a statute was enacted permitting the re- covery of tithes by this form of action, and since then there has been a marked departure from the strictness observable in the ancient common-law rules. In the United States, where the distinction between those things which lie in livery and those which lie in grant was never very strongly defined, and where such distinction, in its original signification, has long ceased to exist, much lattitude has been displayed; and while courts, in many instances, have declared that the action will only lie for something whereon an entry can be made, yet the trend, both of judicial decision and legislative enactment, has been to ex- tend the scope of the remedy to nearly every interest in land, or right arising out of same, even though such interest or right may be but an incorporeal hereditament.^^ BiBanyer v. Empie, 5 Hill Calderwood, 31 Cal. 589; Taylor (N. Y.), 48. V. Gladwin, 40 Mich. 232. 65 Banyer v. Empie, 5 Hill s? Thus, the grant of a right (N. T.), 48. to quarry and remove limestone 50 See Lee v. Harris, 206 111. from land for a specific purpose, 428; Hancock v. McAvoy, 151 Pa. though passing only an incor- St. 460; Dark v. Johnson, 55 Pa. poreal hereditament, has been St. 164; Child v. Chappell, 9 N. held such an interest in the land Y. 246; Fritsche v. Fritsche, 77 as would constitute a foundation Wis. 270; Tennessee, etc. R. R. for an action of ejectment. Rey- Co. V. East Alabama Ry. Co., 75 nolds v. Cook, 83 Va. 817. Com- Ala. 516; Ezzard v. Mining Co., pare Union Petroleum Co. v. 74 Ga. 520; San Francisco v. Bliven Co., 72 Pa. St. 173. 26 FOK WHAT THE ACTION IlEt-. [§ 25. It would seem also, that in England, where the rule was quite strictly applied, although the action would not lie for a mere incorporeal hereditament to be recovered by itself, yet, where it was appurtenant, it could still be recovered in an ejectment brought for the lands to which it was attached. Thus, it was permitted to sue for land and for a common appendant or ap- purtenant.^^ A right to the grass or herbage of land was also sufficient to support the action, upon the theory that he who has a grant of the herbage has a particular interest in the land while the right exists, and an intrusion thereon would be a tres- pass. In such event the action would not be brought for the land generally but for the particular interest the demandant had in the land or for the thing which gave him, for the time being, a right to its possession. Nor is there any incongruity or inconsistency in this. It is generally admitted that a profit a prendre is something more than an easement ; that it contemplates a participation in the profits or products of land, whereas the strict and technical definition of an easement excludes a right ,to the products or proceeds of land, being a mere right of convenience without profit. While the distinction between a profit a prendre and an easement is not always palpable, yet when the privilege is not granted in favor of some dominant tenement it cannot be said to constitute an easement in the proper acceptation of that term, but is rather an incorporeal right of property in the land itself.'^" The principle involved in the phase of our subject now under consideration seems to have been recognized and applied in this country at a comparatively early day, and a number of cases sustaining the right of a person, not the owner of the fee, to sue for and recover things attached to the land may be found in the old books. '^ In the modern cases the principle has fre- 5s 2 Roscoe, Real Actions, 487; erect buildings upon it, under a Adams, Eject. 17. contract that when the buildings 60 Post V. Pearsall, 22 Wend, are completed, he will either pay (N. Y.) 425; "Waters v. Lilley, 4 for them or convey the land at Pick. (Mass.) 145. And see Kirk his election, ejectment will lie V. Mattier, 140 Mo. 23. upon ouster of the builder before 00 Thus it was held that, if the such election is made. And if a owner of land allows another to creditor of him who owns the § 21. J JOR- WHAT THE ACTION LIES. 27 quently been invoked to protect the rights of Hcensees. Thus, where a party enters under an instrurrient in the nature of a lease, although amounting only to a license in fact, he takes such a qualified possession as may be essential to the purposes of the lease, and for a wrongful ouster may bring ejectment."^ The rule first stated, however, must be taken as the generally received doctrine on this subject, and so strictly has this rule sometimes been construed that rights appurtenant to the princi- pal thing sought to be recovered have been held to be excluded by its operation. Thus, minerals in place may be a proper sub- ject for an action of ejectment, but where the recovery sought is not only for the mineral interest in the land but also for the mining rights therein or appurtenant thereto it has been held that these latter, being strictly incorporeal in their nature, can- not be included in the verdict.''^ The theory upon which these decisions proceed is, that rights of way over the surface, the right to dig and drive slopes and entries, and other- matters of like nature, are strictly intangible and hence incapable of being delivered by the sheriff or of possession by the owner, and that while they are rights for which an action at law for damages will lie in case of denial or interference, or which would be considered by courts of equity, yet from their very nature they cannot be recovered in an action of ejectment."^ fee levy an execution on the land 6i So held where one entered and do not include the buildings under a lease to operate for oil in the appraisement, eieotmeijt (Kams v. Tanner, 66 Pa. St. will lie by the the creditor of the 297), and under a right to quarry builder, who has levied an exe- and remove stone (Reynolds v. cution on any section of the Cook, 93 Va. 817) ; under a right buildings. King v. Catlin, 1 to raise minerals. Kirk v. Mat- Tyler (Vt.) 355. If a grantor tier, 140 Mo. 23, 41 S. W. Rep. reserve to himself, his heirs and 252. assigns, forever, "the right and 62 Louisville, etc. R. R. Co. v. privilege of erecting a mill-dam Massey, 136 Ala. 156, 33 South, at a certain place described, and Rep. 896, 96 Am. St. Rep. 17. to occupy and possess the said es Thus a lease giving to a premises without any hindrance lessee, to the extent of an undi- or molestation from the grantee, vided interest, the right to enter or his heirs, etc.," he has such upon lands and open and work an Interest in the land reserved such mines as he may think as will support an ejectment, proper, and the right to cut wood Jackson v. Buel, 9 Johns. (N. Y.) and timber needed in his mining 298. business, gives only a mere in- 28 FOE WHAT THE ACTION TIES.. [§g 22, 23. § 22. Easements. — While the tendency is toward a lib- eral application of the rules relating to ejectment, and while many things that might fall within the strict definition of an incorporeal hereditament are now permitted to be recovered in this form of action, yet with respect to mere easements which carry no rights in the soil it would seem that the ancient rules are still in force in all or a majority of the states. Thus, it has frequently been held that ejectment cannot be maintained to' re- cover a right of way across the lands of another."'' This fol- lows from the nature of both the original action and its statu- tory substitute, and the rule applies equally whether the action is brought by or against the holder of the easement. In the latter case, while the land is tangible and something of which possession may be delivered by the sheriff, yet the mere enjoy- ment of the easement does not constitute an occupation of the premises, neither is the claim of easement a claim of interest in land, or of title thereto, within the meaning of the statute. The question has been complicated to some extent by a failure to distinguish between public and private ways, or between mere easements and that form of property which is generally de- nominated a public use. The latter are not easements in the proper acceptation of the term and by excluding them from con- sideration as such much confusion may be avoided. This phase of the subject will receive attention in another place in con- nection with its cognate matters. § 23. Land subject to easement. — The mere fact that the land in controversy is subject to an easement forms no bar to its recovery by the owner of the fee,'^^ and it is of no conse- quence whether the easement be public or private.^" In the event of a judgment for recovery the sheriff may give possess- rorporeal right, too indeflnite to 232; Child v. Chappell, 9 N. Y. be enforced in ejectment. Har- 246; Hancock v. McAvoy, 151 Pa. low V. Iron Co., 36 Mich. 105. A St. 460; Louisville, etc. R. R. v. right to use a wharf for loading, Massey, 136 Ala. 156. etj., is an easement for which «5 Blake v. Ham, 53 Me. 430 ; ejectment will not lie. Child v. Gardner v. Tisdale, 2 Wis. 153; Chappell, 9 N. Y. 246. Gordon v. Sizer, 39 Miss. 805. 64 Fritsche v. Fritsche, 77 Wis. ec Tillmes v. Marsh, 67 Pa. St. 270; Taylor v. Gladwin, 40 Mich. 507. § 24.J FOE WHAT THE ACTION LIES. 29 sion subject t8 the easement. °^ The question generally arises where the owner of the easement also claims some right or interest in the land over which the easement extends, or has taken exclusive possession thereof, and, when such is the case, ejectment seems to be a proper, if not the only, remedy."' § 24. Parts of Buildings — Upper chambers. — At the present time the action of forcible entry and detainer will gen- erally furnish an efficient and speedy remedy for the recovery of detached buildings, parts of buildings, rooms and chambers. But where the question involved in the detention is one of title this remedy cannot be pursued, and recourse must be had to ejectment. It has always been held that the action will lie for detached buildings or for rooms in buildings, and the old cases show many examples of recoveries of this species of property. It is sufficient if the particular thing sought to be rr covered is so described or jjointed out that the sheriff has certainty enoilgh to direct him in the execution of the judgment. While actions of this kind are now comparatively rare, yet there would seem to be no technical difficulty in prosecuting such an action, and it has been held that the demise is properly laid in the usual terms employed when declaring for the recovery of land."' A question of greater difficulty is presented where a right is given to build an upper story upon a building belonging to the owner of the land whereon it rests. It has been held, in a case of this kind, that such a grant, even though made in perpetuity, creates only an easement — a mere use — and does not convey such a right as will enable the grantee to maintain a action of ejectment.'''' 67 Tillmes v. Marsh, 67 Pa. St. was the owner and seized and 507; Weisbrod v. Railway Co., 21 possessed of certain premises, Wis. 602; Edmonson Island Case, and that the defendant unlaw- 42 Fed. Rep. 15; Bank v. Mor- fully entered the second story rison, 88 Me. 162. thereof and ousted and ejected 68 Bank v. Morrison, 88 Me. the plaintiff therefrom, and has 162, 33 Atl. Rep. 784; Lott v. ever since withheld the posses- Payne, 82 Miss. 218, 33 South. sion thereof from him, was held Rep. 948, 100 Am. St. Rep. 632. sufficient. See also White v. 68 See Brady v. Kreuger, 8 S. White, 16 N. J. L. 292; Asheville Dak. 464, 59 Am. St. Rep. 771. v. Aston, 92 N. C. 578. In this case a complaint alleging 70 Thorne v. Wilson, 110 Ind. that plaintiff at a given time 325, 11 N. E. Rep. 230. 30 FOE WHAT THE ACTION LIES. [§ 25. § 25. Mines and Subterraneous deposits. — It is well es- tablished that metals, coal, and other minerals, while in place, are fully included in the comprehensive term "land," and that grants and conveyances of the sub-strata may now be made with'the same effect as grants "of the surface. Under the early rules of the common law this could not be done, as livery of seizin was an indispensible requisite and in the case of un- opened mines, at least, there could be no livery. Hence, pro- prietary rights of this character were generally regarded as incorporeal hereditaments in the nature of a license. But it would seem that at a comparatively early day ejectment would lie for a mine,^^ which was not regarded simply as a bare profit a prendre, but as comprehending the soil itself and hence capa- ble of being delivered in execution ; and it would seem that this became the settled rule even though the claimant's rights were those of a mere licensee, without any title to the soil, for the mine being of a tangible nature and fixed in a certain place, the sheriff would experience no difficulty in making an actual de- livery of possession.'^ The main idea expressed in the foregoing has been retained in the modern phases of the action and the old distinctions of "corporeal" and "incorporeal" are of but little moment in de- termining the right of the claimant to maintain the action. The, test seems to lie rather in the ability or non-ability of the sher- iff to deliver possession by some physical act. In a number of instances courts have refused to distinguish between rights con- ferred by absolute conveyance and rights derived from a mere license, for even though it be conceded that the right to dig and remove minerals is only an incorporeal hereditament, yet, if the licensee has entered into possession, and particularly where he hag expended labor or money, he has such an interest in the land as will enable him to maintain ejectment.''^ But, until the licensee has taken possession of some part of the land the trend of opinion would seem to indicate that he has only an indefinite right, for the recovery of which ejectment will not lie.''* 71 See Comyn v. Kineto, Cro. 116; Reynolds v. Cook, 83 Va. Jac. 150. 817; Karns v. Tanner, 66 Pa. St. T3Waddy v. Newton, 8 Mod. 297; Kirk v. Mattier, 140 Mo. 23. iBng.) 275. 74 Harlow v. Iron Co., 36 Mich. 73Beatty v. Gregory, 17 Iowa, 105;.Beatty v. Gregory, 17 Iowa, § 26.] TOE "WHAT THE ACTION LIES. 31 § 26. Growing Crops. — It is a well established principle of law that the term "land" is of indefinite signification embrac- ing not only the substance of the soil but its natural increment as well. Hence, anything growing upon or affixed to the land passes as an integral part of the realty. It is true, that, for some purposes, growing crops may be con- sidered personal property, to be recovered by an action in proper form, yet, as between the successful plaintiff in an action of ejectment and the evicted defendant, they are unquestionably ,a part of the land,'''' and pass with the recovery to the prevailing party.''" The reason of the rule seems to rest upon the fact that in law the defendant is treated as a trespasser and hence with- out any right to plant or cultivate, and even though the crop may have been harvested the rights of the plaintiff will not be impaired and he may still overtake and possess himself of it. This latter doctrine grows necessarily out of that first stated for if the crop in place belonged to the owner of the soil the wrong- ful act of severing it could not destroy such ownership. Nor will the further fact, that the successful plaintiff may have his action for mesne profits effect his right of ownership to crops grown on the land wrongfully withheld from him.'^ With respect to the foregoing there are no substantial differ- ences of opinion. A difficult question is presented, however, when we come to consider the right to sue for possession for the purpose of cultivating or harvesting a crop. It is common for parties to enter into agreements for the cultivation of land "on shares," that is, one person contributing the use of land while another plants and cultivates the crop, which, when harvested, is divided between them. It is well settled that such an agree^ ment does not create a tenancy of any kind on the part of the cultivator. At best, he is only a tenant in common of the crop, which is generally regarded as personalty, and the legal pos- session of the land is in the owner.'^ But there may be a law- 116; Petroleum Co. v. Coal Co., 664; Carlisle v. Killebrew, 89 89 Tenn. 381. And see Caldwell Ala. 329. V. Fulton, 31 Pa. St. 475. tt MoGinnis v. Fernandas, 135 75 Altes v. Hinokler, 36 111. 275. 111. 69. "8 McGinnis v. Fernandes, 135 ts Bradish v. Sohenck, 8 Johns. 111. 69: McLean v. Bovee, 24 "Wis. (N. Y.) 151; Aiken v. Smith, 21 295; Rowell v. Klein, 44 Ind. Vt. 172. 290; Gardner v. Hersey, 39 Ga. 32 FOE WHAT THE ACTION LIES. [§ 27. ful occupancy of land without any estate or interest in the occu- pier and this right was early recognized and protected by the courts which permitted an action of ejectment to be brought for its infringment. Thus, if a man had a grant of first grass grown on land in each year, he might maintain ejectment against anyone who withheld it from him. This was upon the principle that the party entitled to the profits of the land for the time being was also entitled for the same time to the land itself. Reasoning from this principle it would seem that a cropper, notwithstanding his interest is in the crop and not in the land, is yet entitled to such a possession as will enable him to cultivate and harvest the crop, and that if this right is denied it may be asserted by ejectment. The question does not seem to have been raised in the modern decisions. At least, no example has come under the observation of the writer. § 27. Overhanging roof or other projections. — Not the least among the invasions of proprietary right to which the land-owner in populous localities is often subjected, are the en- croachments made by the projecting parts of buildings in the possession of adjoining proprietors. At first blush the ques- tions raised by such encroachments would appear to be simple and easily solved but a review of the authorities leaves them in much doubt and uncertainty. The cases bearing directly upon the point are few in number and contradictory in character and no general rule can be predicated upon them. It will be remembered that the underlying rule of ejectment is that the action is maintainable only for the recovery of the possession of real property, upon which, in point of fact, an en- try can be made, or of which there can be an actual delivery of possession. Now, in view of this rule, there is much show of reason in the contention that has at times been made that, un- less the interest is of such a character that it can be held and enjoyed, and the possession thereof delivered in execution of a judgment for its recovery, the action of ejectment will not lie, and that, in case of an invasion or injury of the nature we are now considering, the only remedy is an action on the case as for a nuisance.'^ 79 See Aiken v. Benedict, 39 v. Sanderson, 111 Mass. 114; Barb. (N. Y.) 400; Smitli v. Norwalk Heating Co. v. Vernam, Wiggin.; 48 N. H. 109; Randall 75 Conn. 662. § 27.] FOE AVHAT THE ACTION LIES. 33 It becomes a nice question, therefore, as to whether a pro- jection from the land of one party over that of another will con- stitute an ouster of the latter's possession of his land, or a mere intrusion upon and interference with a right incident to his en- joyment of the same. The question can best be answered by a reference to fundamental principles. It is beyond dispute that land, in its legal signification, has an idefinite extent, upwards as well as downwards, and that the term includes not only the face of the earth, but everything under it or over it. This, at least, is the old and long established doctrine relating to the ownership of realty and while the integrity of the doctrine has, to some extent, been assailed in recent years, it is still of con- trolling efficacy in the settlement of most questions in which it is involved. Hence, it would seem, that if one party building upon his own land encroaches upon the adjoining land of his neighbor, no question should arise as to the right of the latter to maintain ejectment against the former, and, upon principle, it would further seem, that it is immaterial whether the en- croachment is upon the surface of the soil, above it, or below it. In no event should a land-owner be obliged to submit to invasion or compelled to part with his property, or any portion thereof, upon the mere payment of damages by a trespasser. It has been held, in some instances, that an overhanging cor- nice is not such a disseizin as will permit the maintenance of the action of ejectment,^" and eaves and gutters have been held to come within the same inhibition, ^^ the theory being that the possession of the adjoining proprietor remains Unaffected, ex- cept that it is rendered less beneficial. ^^ But the better consid- ered rule would seem to be that a party is liable in this form of action for a projection of his own roof over another's land,^^ or for any projection of the side of a building which, in legal effect, invades the property of another.^* And this rule, not- 80 Randall v. Sanderson, 111 Noth, 99 Wis. 285. 40 L. R. A. Mass. 114; Vrooman v. Jackson, 577. 6 Hun (N. Y.), 326. See, also, S2 Norwalk Heating Co. v. Ver- Leprell v. Kleinschmidt, 112 N. nam, 75 Conn. 662. Y. 364, where the question was ss Murphy v. Bolger, 60 Vt. left undetermined. 723. 81 Aiken v. Benedict, 39 Barb. 84 in McCourt v. Eckstein, 22 (N. Y.) 400. And see Rasch v. Wis. 153, it was held that, where 3 84 FOE WHAT THE ACTION LIES. [§ 27. withstanding that it has failed to obtain universal recognition, certainly seems to be founded in legal reason and good morals. We can readily conceive of cases where the projecting side of a building, like an overhanging cornice, or a bay window, would be of so great inconvenience to the owner of land thus intruded upon that a judgment for damages would afford no adequate compensation, while according to the well settled rules of law relating to land such an erection would create a disseizin rather than a mere infringement of a right. If we are to regard the reason of the remedy as now administered, both in this country and England, then it is by no means essential to its maintenance that the intruding object should actually rest upon the soil, for as the law gives the land-owner an unlimited dominion from the zenith to the nadir there is no reason, resting on principle, why the action should be allowed with reference to one part of his property and denied as to another.^'' Nor are there any more or greater difficulties in framing a declaration against a pro- jection above the soil than one upon it, neither can there be any question with respect to the ability of the sheriff to deliver pos- session under a writ.*" Where a party occupies to the line of his land, then, notwith- standing his neighbor's eaves or roof may project over same, if no inconvenience is thereby occasioned, it has been held that ejectment will not lie for the intrusion,*^ and if a foundation wall encroaches on the land of another while this might be re- garded as a disseizin, yet if the owner of the land so intruded upon extends his own building to his line, and rests upon such wall, he thereby elects to treat the intrusion as a mere trespass and cannot maintain ejectment therefor.** It will be seen, however, that the question is one of doubt. In those states where it has been specifically passed upon the local rule will furnish a guide. In other states, where it is still some of the slones of defend- ss Chamberlin v. Donoliue, 41 ant's foundation wall projected Vt. 306. eight inches over plaintiff's land, se Murphy v. Bolger, 60 Vt. the plaintiff might treat this as 723. a disseizin, rather than a tres- st Rasch v. Noth, 99 "Wis. 285, pass, and might maintain eject- 40 L. R. A. 577. ment therefor. But compare ss Zander v. Blatz Brewing Rasch V. Noth, 99 Wis. 285. Co., 89 "Wis. 164. § 28.] FOE WHAT THE ACTION LIES. 35 Open, the analogies and general principles of law must be re- lied upon in arriving at a determination. The circumstances of the pnrticular case will, in some instances, serve to indicate the policy to be pursued and the character of the relief that should be granted. Where the invasion complained of was caused by prior acts of the plaintiff, or those under whom he claims, a different case is presented and different rules will apply. Thus, if a vendor grants lands on which is a house, with cornice and eaves pro- jecting over land retained by him, the grant carries by implica- tion the right to retain the projections in the position they were at the time of the grant. ^^ In such event an easement is cre- ated and the burden thereof will continue to impress the land of the grantor, either in his own hands or those of a purchaser from him, in virtue of the oft repeated rule, that where a con- tinuous and apparent easement or servitude is imposed by the owner of land upon one part thereof for the benefit of another part, and the portions are subsequently conveyed to different persons, the purchaser of the servient property, in the absence of an express agreement to the contrary, takes it subject to the easement. § 28. Protruding Trees.. — Closely connected with the general subject discussed in the foregoing paragraph, and bearing a strong analogy thereto, is the question presented where trees, or branches thereof, growing upon the land of one proprietor, protrude upon or overhang the land of another. There is no distinction in principle between artificial erections which encroach upon an adjoining proprietor and natural in- crement suffered or directed to interfere with his possessory rights or enjoyment of property. It is true that a remedy as for the abatement of a nuisance may be resorted t6 by the in- jured proprietor and he may, in proper cases, relieve himself in a summary manner by cutting off the overhanging branches which interfere with his light, air, or view. To this extent the law is well settled and the cases sufficiently numerous to fur- nish precedents for nearly every exigency that may arise. In- deed the only questions which seem to present themselves in 89 Grace Churcli v. Dobbins, 153 Pa. St. 294. 36 FOE WHAT THE ACTION LIBS. [§ 29. this phase of the subject have reference to the matter of notice, with a preponderance of authority sustaining the position that a land-owner may himself abate a nuisance produced bv over^ hanging trees by removing the projecting parts without notice when the adjoining owner knows, or should know, that they in- terfere with the full enjoyment of his neighbor's land."" The writer has not been able to find a direct authority with respect to the right to bring ejectment for an invasion of this specific character and the question, when it may arise in prac- tice, must be settled by a resort to the general principles govern- ing the action. § 2g. Accretions. — The rule is general and well settled that accretions of any kind formed upon or against land belong to the owner of such land, who holds same as an incident to the fee. It is a further rule that, when formed, an accretion be- comes subject to the same conditions, rights and butdens as the principal to which it is an incident and partakes of the same nature. Hence, if an action lies to recover the principal the incident will accompany it without special mention, and what- ever tends to defeat an action for the recovery of the principal will operate equally upon the incident. These are the gen- erally received doctrines and no question can ordinarily arise upon them."^ It is a familiar principle of elementary law that the owner of land bounded by water, acquires, as an incident of his owner- ship, whatever increase the land may sustain by gradual and imperceptible accretion. This increase he obtains without price, and the land so formed is held under his title to the contiguous land. On the other hand, he assumes the risk of having his land washed away by the action of the water, and when this occurs it becomes lost. In those states where the riparian pro- prietor owns only to the water's edge, this will mark the hmit of his title, and his line remains always at the water's edge, wherever that may be. As the waters recede and accretions form against his land, his line expands ; as the waters encroach 90 See Cooley on Torts, 567; m See Cobb v. Lavalle, 89 111. "Wood on Nuisances, § 112, and 331; Lombard v. Klnzle, 73 111. cases cited. Also Grandona v. 446. Lovdal, 70 Cal. 161. § 29.] rOH TfVHAT THE ACTION LIKS. 37 upon and wash away his land, his line contracts."^ The only way in which he may regain ownership of land lost by erosion, and whose situs is submerged by water, is by the process of accretion to his shore line.^^ The question of ownership becomes important where title is asserted to tracts that have reappeared after subsidence and im- mersion. So long as a vestige of the original tract remains the alluvion formed against it becomes again a part of it. Upon this point there does not seem to be any dispute.^* But sup- pose the entire tract is washed away by the action of a river, which for a time flows over and completely covers the situs of the original land. In such event, under the authorities we are now considering, the title to the tract becomes extinguished, or, by some process which the authorities do not clearly explain, has become vested in the sovereignty of the state. Now let us further suppose that by a gradual subsidence of water, or by an equally gradual upheaval of land, the tract becomes dr}^ land again, and is claimed by the former proprietor in virtue of his original grant. In such case, will the claimant become clothed with his former title and may he maintain ejectment for the land? It seems not. This follows from the rule that al- luvial formations inure to the benefit of the owner of the coter- minous land, and where land not originally riparian becomes so, through gradual changes of the shore line caused by the washing away of intervening land, the right of accretion at- taches thereto with the same effeect as if it had always been riparian. ^^ A more perplexing question is presented where only a part of a tract is washed away and after a time land commences to reform within the lines of the original grant but not against the shore line, as where an island appears in the stream. If we apply the rule, that the water's edge is the boundary of a 95 Cox v. Arnold, 129 Mo. 337; os Cox v. Arnold, 129 Mo. 337. Welles V. Bailey, 55 Conn. 292; s^Nalor v. Cox, 114 Mo. 232; Chicago, etc. Canal Co. v. Kinzie, Camden, etc. Land Co. v. Lippin- 93 111. 415; Boorman v. Sun- cott, 45 N. J. L. 405. nucts, 42 Wis. 233; Camden, etc. 95 Welles v. Bailey, 5i Conn. Land Co. v. Lippencott, 45 N. J. 292. L. 405. 38 FOE -WHAT THE ACTION t.ieS [§ 30. riparian proprietor, then we must say that notwithstanding such island is within the boundaries of the original tract yet, not having formed against the upland, it cannot be claimed by virtue of the original investiture. In such a case the mere production of a deed showing the former grant would be in- sufficient to prove title, and if no other right to the possession of the land could be adduced an action for the recovery thereof would fail.''^ On the other hand, where the common-law rule respecting ownership on non-navigable streams prevails, an island forming opposite the upland would belong to the adjacent proprietors and the right of property would be determined by the thread of the stream. In such event the general rules of title would ap- ply and the riparian proprietor, for any encroachment, might bring ejectment as in other cases. § 30. Burial lots and rights of interment. — The exact character to be accorded to cemetery grounds does not seem to be wholly settled and some diversity of opinion exists with respect to same. Usually, the only rights conveyed or assured by a deed of a cemetery lot is the privilege to make interments in the land described, exclusive of others, so long as the ground shall be devoted to burial purposes. This, it would seem, is not a grant of any interest in the soil. At best, it is only the grant of a license, an incorporeal hereditament,"'' and while the licensee could, perhaps, maintain trespass for an invasion or dis- turbance of his rights,"* yet the authorities, in the main, seem to hold that a right of sepulture, however exclusive, is not such an interest in land as will support an action of ejectment."' The cases in which the question has been presented, seem, for the most part, to have been between lot-owners and the 90 Cox v. Arnold, 129 Mo. 337, Gardner v. Cemetery, 20 R. I. 50 Am. St. 450. 646. !>f Stewart v. Garrett, 119 Ga. 98 Meagher v. Driscoll, 99 386, 46 S. E. 427; Hancock v. Mass. 281; Stewart v. Garrett, McAvoy, 151 Pa. St. 460, 18 L. 119 Ga. 386. k. A. 781; Kincaid's Appeal, 66 99 Craig v. Church, 88 Pa. St. Pa. St. 411; Rayner v. Nugent, 42; Hancock v. McAvoy, 151 Pa. CO M(?. 515; Cemetery Co. v. Buf- St. 460; Gardner v. Cemetery falo, 46 N. Y. 503; Sohier v. Co., 20 R. I. 646. Trinity Church, 109 Mass. 1; § 31.] FOE WHAT THE ACTION LIES. 39 cemetery authorities, and the rule finds its strongest reason in those cases where the cemetery grounds are owned and con- trolled by a private company which is charged with certain duties relative to the care of the general property. Under such circumstances it will readily be seen that to permit every lot-owner to harass the company with an ejectment suit would utterly subvert the general purpose of the cemetery and dis- able the company to perform the duties imposed upon it. While conceding the right of the lot-owner to the exclusive use of his lot for the purposes of sepulture, yet such right is not incon- sistent with the continued possession of the company, and so long as nothing is done to exclude him from the full enjoyment of such right no action should lie. But such right is essentially a real property,^ and notwith- standing it is customary to regard it as an incorporeal heredit- ament it possesses many of the attributes of a corporeal right. Where the deed of conveyance purports to convey a fee, and, generally, whatever may be the words of limitation if the grant is for rights of burial in perpetuity this will be the case, then a substantial right of property becomes vested in the lot- owner. It is true the use is limited and of a special character, but within this limit, it has been held, the right of possession is perfect, and the fact that the company has the care, manage- ment and general superintendence of the cemetery of which the lot forms a part is not incompatible with such possession. Hence, for any invasion of such possession an action for re- dress will lie,^ and possibly, as against a stranger, it might take the form of ejectment. In some of the cases a tinge of sentiment may be perceived and it has been held that by the employmen;t of a quaint fiction we may regard the fee of a burial lot as belonging to the dead, and, hence, that it would be a desecration of the hallowed pre- cincts to send the sheriff with a writ of possession to disturb the serenity of the place. § 31. Land in possession of the government. — The mere fact that the land in controversy is in possession of the govern- 1 Field v. Providence, 17 R. I. 2 Cemetery Co. v. Buckmaster, 803. 49 N. J. L. 449. 40 FOE WHAT THE ACTION LIES. [§ 32. ment by its officers or agents does not preclude an action of ejectment by one claiming the superior right and a person so in possession, when sued in this form of action, must show that the right of the government is paramount to the right of the plaintiff, or judgment will go against him.^ Where the question at issue is one of title the action proceeds as in other cases and the right is determined from the showing of both parties. But the government may be in rightful pos- session of lands to which it does not assert title, and when this appears the question of title becomes immaterial. Thus, the title of a riparian owner to submerged lands along navigable waters, and his right of access thereto, are subject to the para- mount right of the United States to use the lands, without com- pensation to the owner, in such manner as may be deemed nec- essary in aid of navigation. For this purpose it may assume possession of submerged lands and erect piers or other im- provements necessary to protect navigation, and the land-owner is without a remedy.* § 33. Lands occupied by semi-public corporations. — Cor- porations engaged in conducting what are popularly known as public utilities are given certain rights by the state which or- dinarily are not enjoyed by other corporations or by natural persons. Among these is the right of exercise, by deputation, of the eminent domain of the state. This includes the right to enter upon and appropriate the land of the citizen against his will, and where the corporation, to whom the exercise of this extraordinary right has been delegated, proceeds according to the directions of the statute the citizen is powerless to stop it and may not interfere with its operations. But if a railroad company, without condemnation proceed- ings, enters upon land, and, without the consent of the owner, constructs its roadway thereon, it is not distinguishable from any other trespasser, and the owner may treat it as he would any intruder, and bring his action either for trespass or eject- 3 Tindal v. Wesley, 167 U. S. i Scranton v. "Wheeler, 113 204; Scranton v. AVlieeler, 113 Mich. 565, 67 Am. St. 484; same Mich. 565; Polacls v. Mansfield, case, 57 Fed. Rep. 803. And see 44 Cal. 36. Hawkins Point Light House, 39 Fed. Rep. 77. § 33.] FOE WHAT THE ACTION UV&Fm il ment." There is, however, a qualification of this rule, where, as in the case of a railroad, the intruder may justify its tres- pass by a tender of compensation, and it has been held in a case similar to that under consideration, that if the owner of the land has knowledge that the company is proceeding to con- struct its road over his land, and allows it to do so, thereby in- volving the expenditure of large sums of money for such pur- pose, while he may still bring ejectment, yet, if the company )? then willing and offers to make just compensation for the land taken, the owner will be estopped from ousting it or inter- fering with its possession.' It would seem also, that a land-owner who surrenders pos- session of his land to a railroad company, without prepa3'ment, and by express or implied acquiescence induces the company to expend money in constructing and equipping its road, is thereby estopped from denying the right of the company and cannot afterward maintain ejectment for the recovery of pos- session. His remedy is confined to damages and compensation on account of the location and operation of the road.' The ac- quiescence, in such case, is not a waiver of the right of com- pensation but estops the owner from retaking the land or re- covering it in ejectment.' § 33. Streets and highways — Individual rights — Abutters. It is laid down in the old books that the owner of the soil may maintain an ejectment for land which is part of the king's high- way, because, though the public have a right to pass over it, ,yet the freehold and all the profits belong to the owner. The 6 Southern Ry. Co. v. Hood, v. St. Louis, etc. R. R. Co., 34 126 Ala. 312, 2S South. Rep. 662, Kan. 158; Kremer v. Chicago, 85 Am. St. 32; Daniels v. Chi- etc. Ry. Co., 51 Minn. 15; Flor- cago, etc. R. R. Co., 35 Iowa, 129; ida, etc. R. R. Co. v. Hughes, Terre Haute, etc. R. R. Co. v. 105 Ga. 1, 70 Am. St. 17, 30 S. E. Rodel, 89 Ind. 128; Kremer v. Rep. 972. Chicago, etc. Ry. Co., 51 Minn. 7 Louisville, etc. ' Ry. Co. v. 15; Eggleston v. Railroad Co., Soltweddle, 116 Ind. 257, 9 Am. 35 Barb. (N. Y.) 162; 111. Cent. St. 852; McAulay v. Western Vt. R. R. V. Hoskins, 80 Miss. 730. R. R., 33 Vt. 311. 6 Southern Ry. Co. v. Hood, s Hendrix v. Railway Co., 130 126 Ala. 312; Florida, etc. Ry. Ala. 205, 89 Am. St. 27, 30 South. Co. v. Hill, 40 Pla. 1, 23 South. Rep. 596. Rep. 566, 74 Am. St. 124; Cohen 42 FOE WHAT THE ACTION LIES. [§ 33. only limitation upon this right seems to have been that the land should be recovered and possession thereof given, subject to the public easement." This doctrine was received by the courts of the colonies and afterward reaffirmed by the tribunals of the States, and was for many years administered without a ques- tion.^" The location of a highway over the land of a citizen was always held to confer nothing more than a mere right of way. The title of the original proprietor was not affected ; he was at liberty to use the land in any manner not inconsistent with the public right, and if disseized might bring ejectment for its recovery. ^^ But at the present time the question, as to whether eject- ment will lie at the suit of an individual for the recovery of land embraced within the lines of a public thoroughfare, which is in the wrongful occupation of a third person, is one that in- volves much technical difficulty. The answers that have been returned to the question by the courts to whom it has been pre- sented are not in accord, nor are the same reasons always as- signed in the concurring decisions. It is generally conceded that the owner of lands abutting upon a public way of any kind has certain rights therein pecu ■ liar to himself, and which are not possessed by the public gener- ally, and for a violation of which he may maintain an action in his own name, notwithstanding the wrong may also effect pub- lic interests. If his access to the way is obstructed there would seem to be no question as to his right to recover damages from the person causing the obstruction for the private injury he has sustained. But the injury may be of such a character that the mere assessment of damages will not afford an adequate remedy and the expulsion of the intruder will alone satisfy the requirements of complete justice. It is contended in some of the cases that this cannot be done under the rules of law; in others that it may. The answers depend, in large measure. Goodtitle v. Alker, Burr. n See Jackson v. Hathaway, (Eng.) 133. 15 Johns. (N. Y.) 447; Peck v. 10 See Stackpole v. Healy, 16 Smith, 1 Conn. 103 ; Stackpole v. Mass. 35; Boiling v. Petersburgh, Healy, 16 Mass. 35; Boiling v. 3 Rand. (Va.) 563. Petersburgh, 3 Rand. (Va.)' 563. § 34.J IffOR WHAT THE ACTION LIES. 43 upon the legal character accorded both to the injured land- owner and the intruder, as well as to the public. § 34. Continued — The rule and its exceptions. — It is an established inference of the common law that the owners of lands abutting upon a public highway are also the owners of the fee of the highway, and, hence, are entitled to use the sam.e for any purpose not inconsistent with the public rights. In such view the rights of the public are regarded as of no higher dignity than a mere easement,'-^ and it seems there is no dis- tinction in this respect between the streets of a city or the highways in the country.^' The statute, in come of the states, has somewhat disturbed this inference by providing for a vest- ing of the fee in the mvmicipality in certain classes of dedica- tions, but with this exception the common-law rules remain in- tact, and, where the rights of the public are not involved, it has repeatedly been held that the adjoining owner has such an in- terest in the land lying between his lot and the centre of the street as will entitle him to maintain ejectment against one who ousts him of such use and possession.^* A contrary rule has been announced in a few cases,'-^ but the volume of author- ity sustains the doctrine first stated, that one who has a free- hold of land over which a highway has been laid may recover in ejectment for encroachments made thereon.^" The reasons for this are apparent. Should a contrary rule be allowed to prevail, then, as pertinently observed by Gray, J.,'^' "any erec- tion short of a nuisance may be made on the roadside in front of the owner's domicile, and the owner would be without com- 12 Palatine v. Kreuger, 121 Thomas v. Hunt, 134 Mo. 392, 35 111. 72; Snoddy v. Bolen, 122 Mo. S. W. Rep. 581; Woodruff v. 479, 24 L. R. A. 507. Neal, 38 Conn. 165. 13 Bissell V. Railway Co., 23 is See Cincinnati v. White, 31 N. Y. 61. But compare Mont- TJ. S. 431, 8 L. Ed. 452; Peck v. gomery v. Railway Co., 104 Cal. Smith, 1 Conn. 103. 186. 16 In addition to cases already 14 Wright V. Carter, 27 N. J. cited, see Stackpole v. Healy, 16 L. 83; Smeberg v. Cunningham, Mass. 33; Westlake v. Koch, 29 96 Mich. 378, 56 N. W. Rep. 73; N. Y. Supp. 283; Carpenter v. Wager v. Railroad Co., 25 N. Y. Railroad Co., 24 N. Y. 655. 526; Terre Haute, etc. Ry. Co. v. it Etz v. Daily,. 20 Barb. (N. Rodel, 89 Ind. 128; Postal Tel. Y.) 32. Co. V. Eaton, 170 111. 513; 44 FOB WHAT THE ACTION LIBS. [§ 31. plete redress, and the lawless occupant would hold it until the use of the whole road as a highway should be discontinued, un- less the public authorities should see fit to remove him." This is the prevailing doctrine, although, as before remarked, in a few instances it has been held that ejectment will not lie as a remedy to the abutting owner for special injury caused by the permanent obstruction of the highway by a third party. This right has been denied on the ground that a person invok- ing this form of remedy seeks to be put in actual possession of the land and that the private right of possession being in direct hostility with the public use, the effect of a recovery would be to subject him to indictment for a nuisance, the taking posses- sion subject to the public use being utterly impracticable.^^ While the foregoing contention is not without much force, particularly if we shall regard the public use as being some- thing more than a mere easement, and, in any event, as pos- sessing special features quite distinct from an easement proper, yet neither the reasonings nor the results of this line of cases have secured an acceptance by courts and legal writers, and the proposition first stated must be regarded as expressive of the generally received views. A different question may arise where the entry is made under k municipal authorization and in states where the exclusive con- trol of a highway is regarded as a paramount right. This phase of the subject will be considered in the succeeding para- graph. In some cases also the question will be complicated by opposing views with respect to the essential character of high- ways in the country and streets in the city. It is maintained in some of the decisions that there is a wide distinction between the two classes of ways as to the mode and extent of the enjoy- ment, and, as a sequence, in the extent of the servitude in the land upon which they are located.^' But, while these distinc- tions may be allowed effect in some cases, particularly when the intrusion is justified by a municipal license, yet ordinarily where the intruder is a naked trespasser the distinction is im- material. 18 See Cincinnati v. "White, 31 lo Montgomery v. Railway Co., U. S. 431, 8 L. Ed. 452, the lead- 104 Cal. 186; Lafayette v. Jen- ing authority in support of this ners, 10 Ind. 74. proposition. § 35.] FOE WHAT THE ACTION LIE& 45 § 35- Continued — Entry under municipal license. — An interesting phase of the general subject discussed in the pre- ceding paragraph is presented in those cases where the intru- sion upon and occupation of a public thoroughfare is by virtue of a license from the municipal authorities. The question, in its practical aspects, is generally raised in the location and oper- ation of railways, and most of the decisions in which the ques- tion is involved relate to occupations of this character. Us- ually, where one enters upon a public street and occupies the same, or a portion thereof, without authority from the munici- pality, an action of ejectment will lie at the suit of the abutting proprietor. This doctrine proceeds, in part at least, upon the theory, that, as the intruder does not justify under one having a right to possession it matters not to him that another than the plaintiff may have a better right. But, it is contended, where the entry is under a license from the constituted author- ities of the public the theory fails, and, as a necessary incident, the right to maintain the action ceases. Under the decisions which sustain this view the ownership of the street becomes an immaterial circumstance, and notwith- standing the abutter may have title to the fee yet this is sub- ject to the paramount right of the public, through its duly con- stituted agents, to the superintendence and control of the land as a public way. In pursuance of this right the authorities may permit travel upon the public roads in any manner they may see fit and where a railroad company has constructed its track upon and along a public highway, under a municipal per- mission, such use and possession is a matter which rests wholly between the authorities and the company, and the right to so occupy and use cannot be questioned in an action of ejectment by the owner of the land over wliich the public road has been established.^" This is upon the principle that when a way is dedicated to public use it involves use for all legitimate pur- poses, including such methods for the transportation of pas- sengers and freight as modern science and improvements may 20 Bdwardsville R. R. Co. v. Paquet v. Railway Co., 18 Oreg. Sawyer, 92 111. 377; Spencer v. 233; Gaus v. Railroad Co., 113 Railroad Co., 23 W. Va. 406; Bar- Mo. 308; Montgomery v. Railway ney v. Keokuk, 94 U. S. 324; Co., 104 Cal. 186. 46 FOE WHAT THE ACTION LIES. [§ 36. have rendered necessary, subject only to municipal control and limitations." It is further held, in support of the principle, that the establishment of a public highway practically divests the owner in fee of the land upon which it is laid out of the entire present beneficial interest of a private nature which he has therein, leaving in him nothing but the possibility of a re- investment of his former interest in case the highway should be discontinued. This, to a large extent, is a denial of the an- cient doctrines concerning the ownership of the fee of public ways and its incident doctrine of diversion, but, it is contended, while the old doctrines may have been applicable where the ownership was merely burdened by a right of way over the land it does not apply to the modern idea of land devoted ex- clusively to the purposes of a public thoroughfare. In the modern instance, where the control of the way is committed to legally constituted authorities, charged with the duty of main- taining it for exclusively public purposes, the old doctrine, it is said, "becomes a vague theory and should be laid away among the antiquities of the past age."^^ It would seem therefore, under the policy we are now con- sidering, that the holder of title to a public highway, the pos- session of which is held by the public, as against one who has taken no possession thereof, and is only in the exercise of an easement therein which has been conferred by the municipal authorities in pursuance of their power, and which is valid as to the public, and will expire with the easement of the public, will not be permitted to maintain ejectment for a violation of his property rights, if any, but will be remitted to an injunction to restrain, or, if the injury is consummated to an action for damages, or to proceedings to abate as for a nuisance, as the case may be.^' § 36. Continued — Incidental questions. — Involved in the general question of the right to recover a highway in ejectment, are several minor questions growing out of the statutory policy 21 Montgomery v. Railway Co., ris, etc. R. R. Co. v. Newark, 10 104 Cal. 186. N. J. Eq. 352. 22 Paquet v. Railway Co., 18 23 Montgomery v. Railway Co., Oreg. 233. And see Spencer v. 104 Cal. 186; Gaus v. Railroad Railway Co., 23 W. Va. 406; Mor- Co., 113 Mo. 308. § 37.] JOR \?HAT THE ACTION LIES. i7 of the states with respect to mesne profits, allowances for bet- terments, etc. These are sometimes urged as additional rea- sons, why the action should not be permitted to lie in this class of cases. Thus, where the statute permits the plaintiff to re- cover rents or the defendant to recover for improvements, such provisions appear to be, and indeed are, inconsistent with the rights and obligations of an abutting owner. But these ques- tions, while at first blush formidable, are really of no moment when the legal character of the parties is carefully considered. It is this character and the rights which it involves, that must determine the proper elements of damages. Therefore, it is said, as the owner, in a case of this kind, could not himself ap- ply the land to uses inconsistent with the rights of the public, neither could he authorize others so to do, and hence the rental value could not be recovered by way of damages. So, on the other hand, as the obstructions placed in the street would con- stitute a public nuisance the defendant could not recover their value under the name of improvements. Nor could the erection of such "improvements" be attended with the good faith which is necessary to enable a defendant in ejectment to recover their value. ^* And so both of these questions are disposed of in such a manner as to, relieve the court of any embarrassment in pronouncing a judgment of recovery on the main issue. § 37. Continued — Extent of recovery. — The question now under discussion, that is, the extent of recovery that will be permitted in case of highways, will arise most frequently, perhaps, in the matter of encroachments by quasi-public cor- porations, particularly those engaged in the building and oper- ation of railroads, or other public utilities, and, in such cases, the solution will often be difficult. It would seem, however, that there is no difference, in principle, between the acts of in- dividuals and of corporations, and where a plaintiff establishes a prima facie right to the soil of a street, subject to the public uses, he may maintain an action against any person, natural or juristic, who, without legal right, encroaches upon his free- hold.^'' The recovery in such case is, of course, subject to the ''* Thomas v. Hunt, 134 Mo. 25 As where a railway company 392, 32 L. R. A. 857. laid tracks in a public street and 48 FOE WHAT THE ACTION IIES. [§ 38. way but the mere fact that the fee is burdened by the public use will not effect his right to maintain the action. The decisions which support this doctrine all rest upon the ancient formula that the owner of soil over which a highway is located is entitled to everything connected with the land for all purposes not inconsistent with the right of the public to a free and unobstructed use of the road or of properly fitting it for the passage of travelers.^'' There are decisions which maintain that there is an essential difference between urban and suburban highways, and that the rights of abutters are much more limited in the case of urban streets than they are in the case of suburban ways,^'' but there is no good reason for the distinction and, in other cases, courts have refused to make any.^* § 38. Dedicated streets. — The American law of public ways has introduced a new and perplexing feature in what is known as statutory dedication. At common law it is well settled that dedications and condemnations to public uses ex- tend only to the use, the owner having the right to the land for all purposes not inconsistent therewith. While this use pos- sesses many features distinct from an easement yet courts and writers seem to be fairly united in classing it as such and the decisions proceed upon the general theory of easements. As title to the fee and title to an easement vested in different per- sons may each co-exist in the same thing without in any way conflicting with each other, we can readily understand the rea- in front of plaintiff's land under a like holding was liad witli re- a permit from the city council, speot to a telegraph line con- hut without complying with the structed and maintained upon a general law or paying compensa- public highway, tion to the land, owner; held, 26 Cole v. Drew, 44 Vt. 49. And that the use of the street by the see Eels v. Telegraph Co., 143 railroad was a new use, impos- N. Y. 133, 38 N. E. Rep. 202; ing an additional burden on the Reichert v. Railroad Co., 51 Ark. land; that same was a continu- 491, 11 S. W. Rep. 696. ing trespass for which ejectment =? See Kincaid v. Natural Gas would lie. Wager v. Railroad Co., 124 Ind. 577; Postal Tel. Co. Co., 25 N. Y. 526. And se.e Jack- v. Baton, 170 111. 513; Montgom- son V. Hathaway, 15 Johns. (N. ery v. Railway Co., 104 Cal. 186, Y.) 447; Stackpole v. Healy, 16 43 Am. St. 89. Mass. 35. In Postal Telegraph ' ss Bissell v. Railway Co. 23 Cable Co. v. Eaton, 170 111. 513, N. Y. 61. § 39.] FOE WHAT THE ACTION 'LIES. 49 sonings of the courts when they decide that each owner should have all renxedies necessary and appropriate for securing their enjoyment, and hence, that when the right of the owner of the fee is invaded by a third person the wrong should be abated by that form of action which seems best suited to afford complete redress. But the statute now in force in many states provides in terms that when a dedication is made in a certain manner, as by plat duly acknowledged and filed, it shall operate as a conveyance to the municipality of the fee of such parcels as are therein ex- pressed to be or are intended for public use. This grant is visually qualified, however, by a proviso that the land shall be held by the municipality in trust and for the uses named or in- tended and for no other use or purpose. In construing these statutes the courts have uniformly held that a fee passes by the dedication,^^ but certainly not a fee in the usual and ordinary legal acceptation of that term.^° In fact the interest thus con- veyed is practically a new form of estate for which neither courts nor legal lexicographers seem, as yet, to have been able to find a name. Nor are the courts agreed upon the ultimate disposition of the title in case of vacation, and it is this feature which presents the greatest technical difficulty in determining the right of an abutting proprietor to maintain an action of ejectment. It is contended in some of the decisions that the statute has not materially affected the operation of the ancient rule that abutting proprietors own to the centre of the street. While it is conceded that by the act of dedication a fee passes out of the dedicator and vests in the municipality, yet this is but a trust, the effect of which is to secure to the public an easement, and to the abutting owners, respectively, the beneficial right in the land to the centre of the way.^^ § 39. Streets and Highways — Municipal rights. — It has been held in a number of instances that a city, or municipal cor- 20 Reid V. Board of Education, 31 gee Snoddy v. Bolen, 122 73 Mo. 304; Maywood v. May- Mo. 479, 24 L. R. A. 507; Thomas wood, 118 111. 61. V. Hunt, 134 Mo. 392, 32 L. R. A. 30 Field V, Barling, 149 111. 857; Chicago, etc. Ry. Co. v. 556. Quincy, 136 111. 563. 4 50 FOE ■WHAT THE ACTION LIES. [§ 39. poration, has no such a valid subsisting interest in the lands embraced in its streets as will authorize it to maintain an ac- tion of ejectment therefor.^^ But this doctrine has been denied in other cases and the contrary rule announced that such ac- tion will lie to recover possession of streets, to the use of which the city is entitled. ^^ The volume of authority seems to favor the latter proposition, and, except in case of a turnpike in con- trol of private parties, the general rule would seem to be that a right to maintain ejectment against persons encroaching upon a public highway is lodged in and may be exercised by the i'ocal municipal authorities. The differences of opinion which seem to exist, with respect to the exercise of the right on the part of the municipal author- ities, grow out of the application of the old rules that the in- rierest of the city is an easement and that ejectment will not lie ior a mere easement ; hence, as no delivery can be made, no re- covery can be had.^* The vice of the reasoning in this class of cases seems to lie in the misuse or misinterpretation of the word 'easement." In legal strictness the right of the public to oc- cupy a street or highway is not an easement, but a distinct species of property which we may classify as a "public use." Incident to the same is the right of the municipality to regulate such use, and for such purpose it requires and is accorded the possession and control of the soil. Under such circumstances it is immaterial whether the fee be vested in the municipality or retained by an individual, and the recovery, if any is had, mu,st be for the land itself and not for some intangible or naked right annexed to the land. Even though it be conceded that ownership is vested in an individual and that all that is held by the public is a use, yet, b)' the act of dedication or condem- nation in addition to the right of use there passes such an in- terest in the land as may be necessary for the enjovment of that use by the public,^^ and this right of possession, use and S2 Grand Rapids v. Whittlesey, 182 111. 382; Lee v. Harris, 206 33 Mich. 109; West Covington v." 111.428. Preking, 8 Bush (Ky.), 121; Ra- 34 Racine v. Crotsenberg, 61 cine V. Crotsenberg, 61 Wis. 481. Wis. 481; Grand Rapids v. Whit- 33 San Francisco v. Sullivan, tlesey, 33 Mich. 109. 50 Cal. 603; Visalia v. Jacob, 65 as San Francisco v. Grote, 120 Cal. 434; Chester v. Railroad Co., Cal. 59, 41 L. R. A. 335; Paquet §§ 40-42.] FOE WHAT THE ACTION LIES. 51 control, has frequently been declared to be a legal and not a mere equitable right. ^^ Where the fee of a public street is vested in the municipality ejectment may always be resorted to as a proper remedy to re- cover same from one who encroaches thereon.^' This never seems to have been doubted. § 40. Continued — Parol dedication. — The rule is well settled that in ejectment the legal title to land cannot be shown by parol, and this rule raises an interesting question where a municipality resorts to this form of action to recover posses- sion of land claimed under a dedication resting wholly in parol. It has been held, in a suit against the owner of the fee, that where a dedication can be shown only by parol testimony of the acts and declarations of the owner and the use of the land by the public, the title is insufficient to support the action. '' § 41. Turnpikes and Toll Roads. — Even where it is con- ceded that the right to maintain ejectment against persons en- croaching upon a public highway belongs to the local munici- pal authorities having charge of the road, the right is denied in the case of a turnpike or toll road in the control of a private corporation. This has been held to be the rule even though the municipality may have over the road certain prescribed powers, which, if possessed over an ordinary highway, would create, by implication, a right to maintain the action.^^ § 42. Rights of way — Quasi-public. — Closely connected with the subjects discussed in the paragraphs immediately pre- ceding, are the privileges secured to common carriers in special rights of way. It is undeniable that a mere right of way has ■ever been regarded as an easement, and is always cited in the elementary books as a conspicuous example of an incorporeal hereditament. But the old ideas respecting rights of way have V. Railway Co., IS Oreg. 233; 111. 382; Lee v. Harris, 206 111. Klinkener v. McKeesport, 11 Pa. 428. St. 444. 38 San Francisco v. Grote 30 Chicago v. "WrigM, 69 111. (Cal.), 36 L. R. A. 502, 47 Pac. 318; Visalia v. Jacob, 65 Cal. 938. And see San Francisco v. 434; San Francisco v. Grote, 120 Grote, 120 Cal. 59, 41 L. R. A. Cal. 59; Church v. Hoboken, 33 335. N. J. L. 13. 39 Chambersburg v. Manko, 39 37 Chester v. Railroad Co., 182 N. J. L. 496. 52 FOE WHAT THE ACTION LIES. [§ 43. been materially modified . in recent years and much of the old doctrine has been rejected. The introduction of new methods of travel, and particularly the building of railroads, has ne- cessitated changes in the old law and the application of dif- ferent principles from those in force when ways first became subjects of legal cognizance. Particularly is this true of the law relating to highways. The railroad, in legal contemplation, is a public highway, but it is not a highway in the old sense of the term. So too, the right of passage over the land comprised in the road is still an easement, yet in differs in many respects from the old defin- ition. In the solution of the questions raised by an intrusion upon a right of way we find a new element for which the old law makes no provision, and with respect to which the old pre- cedents do no.t apply. The operation of a railroad necessarily contemplates that the operator shall take and keep an actual possession of the right of way, and, to render such operation safe and effective, such possession must be exclusive of all other persons, except where such right of way may cross another highway. This right of possession, which is included in the grant or condemnation, is something more than a mere easement as that term is usually defined. It is, in fact, a substantial right of property, for which the law as yet has failed to give us a distinct name. It is not in all respects, a public use, since it is held by a private cor- poration for purposes of pecuniary gain, but being for public utility it partakes of the nature of a public use and the fran- chise is granted upon this idea. At all events a right of pos- session, lawfully acquired, has been held to constitute a legal right sufficient to support an action of ejectment against any person intruding upon^the right of way."*" § 43. Recovery of right of way by land ovk^ner.— As we have seen, a railroad, in one sense, is a public highway, and the construction thereof over land by the consent of the owner, or after condemnation, as the case may be, is a virtual dedica- te Cent. Pac. R. R. Co. V. Ben- Ry. Co., 75 Ala. 516; Burton v. ity, 15 Saw. (C. Ct.) 118; Ten- Laughrey, 18 Mont. 43. nessee, etc. R. R. Co. v. East. Ala. § 43.] FOE WHAT THE ACTION LIES. 53 tion of the land to a public use. In such event the operation of the road is in the interest of the public and cannot be inter- rupted by an action to recover possession of any part thereof in the interest of a private person.*^ Where the company has entered upon land without right it occupies no better position than any other trespasser, and eject- ment will lie to recover possession by the land owner. ''^ In some of the cases, however, distinctions are made, or at- tempted, between entries by a company possessing a franchise as a common carrier and mere naked trespassers, and where the company offers to make compensation the right of recovery will be denied.*^ This phase of the subject will be more fully treated in others parts of the work. It has further been held that in case of an unlawful entry the land owner should at once peremptorily forbid such entry if he intends to dispute it, and that by mere inaction, where he is cognizant of the fact, he may be considered as having condoned the injury and will be precluded from treating the company's possession as tor- tious.** Where the company enters by consent of the land owner, or under agreements for compensation, or by virtue of any other stipulation or promise on the part of the company, then, not- withstanding a failure to comply with such agreements or stip- ulations, the remedy of the land owner will be confined to an action for compensation.*^ In all cases acquiescence for a con- siderable period after the railroad company has entered upon its duties will defeat an action to recover possession.*" 41 South. Cal. Ry. Co. v. Slau- a Mitchell v. Railroad Co., 41 son, 138 Cal. 342, 94 Am. St. 58, La. Ann. 363, 6 So. 522; Cairo, 71 Pac. 352. etc. R. R. Co. v. Turner, 31 Ark. 42 111. Cent. R. R. Co. v. Hos- 494; Indiana, etc. R. R. Co. v. Wns, 80 Miss. 730, 92 Am. St. 12, Allen, 113 Ind. 581; Fresno St. 32 So. 150; Daniels v. Railroad R. R. Co. v. South. Pac. R. R. Co., 35 Iowa, 129; Terre Haute, Co., 135 Cal. 202. etc. R. R. Co. V. Rodel, 89 Ind. is South Cal. Ry. Co. v. Slau- 128. son, 138 Cal. 342, 94 Am. St. 58, 43 Hendrix v. Railway Co., 130 71 Pac. 352. Ala. 205, 89 Am. St. 27, 30 So. « Fresno St. R. R. Co. v. 596. South. Pac. R. R. Co., 135 Cal. 202. CHAPTER III. WHEN THE ACTION MAY BE BROUGHT. 44. Generally considered. 45. Disseizin of plaintiff. 46. Defendant's possession. 47. Condition broken. 48. Remainders. 49. Reversions. 50. Leaseholds. 51. Continued — Forfeitures. 52. Continued — Statutory pro- visions. 53. Dower. 54. When right of entry is lost § 55. 56. 57. 59. 60. 61. Statutes of limitation. Within -what time action must he brought. When right of action ac- crues. Persons under disability. Heirs and successors of persons under disabil- ity. Prevention of suit by par- amount authority. Lands sold for taxes. § 44. Generally considered. — In the chapter immediately preceding an attempt has been made to show the specific thing — the corpus — that may be recovered in an action of ejectment. The present chapter will be devoted to a brief consideration of those matters which permit the institution and maintenance of the action. This will include both the cause of action and the time within which suit must be brought. The treatment is necessarily brief from the reason that most of the topics will receive attention in other connections during the progress of the work. As ejectment is now a statutory action in all of the states it follows that reference must be made to the statute to determine when the action lies. With the exception of the periods lim- ited for an entry upon lands the statutory provisions are meagre and general in their statements. When the old action was abolished by the legislature of New York and a new pro- cedure was authorized by the revised statutes of that state in the year 1830, it was enacted, that, "the action of ejectment is retained, and ma}^ be brought in the cases and the manner here- tofore accustomed, subject to the provisions hereinafter con- § 44. J WHEN THE ACTION MA.Y BE BROUGHT. 55 tained," and this clause, with scarcely any alteration, wa? adopted by the other states and still forms the opening section of the act concerning ejectment in most of the codes of the present day. The same law also provided that the action may be brought "in the same cases in which a writ of right may now be brought by law, to recover lands, tenements or heredita- ments ; and by any person claiming an estate therein, in fee oi for life, either as heir, devisee or purchaser," and this clause has also shown a wonderful persistency of survival as may bt seen by reference to local statutes. The scope of the clause has been generally extended to include estates for years, but otherwise it has been re-enacted without material alteration. The original act further permitted the recovery of dower in , this form of action, but this provision, except in a few states has been rejected. In the states carved out of the public domain a further prO' vision has been added for the benefit of persons who have aC' quired possessory rights from the United States or from th« state, and which permits actions to be brought by such per- sons against those who have invaded the rights so acquired. This is practically the full extent of the statutory provision? upon the subject, from which it will be seen that the rules, def- initions and formula of the common law are still of much ef- ficacy and in many cases must still be resorted to for the de- termination of such questions as may arise. As the person in possession of lands is presumed to be the owner thereof, until the contrary has been shown, it follows that the claimant in ejectment must show a superior title w himself in order to recover from the defendant, and, in ad- dition, must have a right to the present possession. That is, he must have a right of entry upon the lands in controversy at the time of the demise laid in the declaration, and whatever takes away this right of entry will deprive him of his remedy by ejectment, notwithstanding he has the legal title. Again, to maintain the action the claimant must not only have a right of entry, or right to immediately possess and en- joy the land in question, but such possession must be wrong- fully or unlawfully withheld from him, and, generally, these facts are matters both of allegation and proof. When both of 56 WHEN THE ACTION MAT BE BKOrGHT. [§§ 45, 46. these facts appear, and the action is brought in apt time, a prima facie case is presented. The time within which the action must be brought is fixed b)' statute in all of the states. This statute, in its essential fea- tures, is modeled after the English statute of ci James I., but the periods of limitation are widely variant and are often made to depend on special circumstances. The effect of limitation upon title will not be touched, that phase of the subject being reserved for more ample treatment in connection with adverse possession. § 45. Disseizin of Plaintiff. — To authorize the institu- tion of an action of ejectment the plaintiff must have been wrongfully disseized of the lands in controversy, which, at the time suit is commenced, must be held by another in hostile pos- session. The old writers distinguished between a disseizin and a dispossession, holding that the former is where an estate is acquired by wrong and injury, while a dispossession may be either right or wrong,*^ but at present whatever of special tech- nical significance the word "seizin" formerly possessed is lost. Disseizin and dispossession have come to mean pretty much the same thing, and for all practical purposes they are interchange- able terms. *^ It is immaterial how the adverse claimant may have entered and it is enough that he wrongfully withholds the possession. His original entry may have been rightful while his subsequent possession may have developed into a tortious holding, or he may have been a trespasser from the start. In any event, his wrongful detention of the possession is the grav- amen of the action and when this is shown the right of the plaintiff to bring suit is established. § 46. Defendant's possession. — As previously stated, to maintain the action of ejectment it must be shown that the lands in controversy, at the time suit is commenced, are in the hostile possession of another. This ancient rule has been much relaxed in modern times by legislative enactment as well as ju- dicial construction, but the essential idea has been retained and still forms a salient feature of the action. That is, there must « Per Kent, J., in Smith v. «« Small v. Procter, 15 Mass. Burtis, 6 Johns. (N. Y.) 217. 498. § 47.] WHEN THE ACTION MAT BE BROUGHT, 57 be a deprivation of possession of some sort, even though it is only constructive, or such assertions of title, in the case of un- occupied lands, as amount to a denial of a, right of entry. Where the defendant is in the actual, open, exclusive pos- session of the land, no question as to the right to institute the action can arise, but, as a general proposition, any subjection of land to the dominion of an individual, who claims as owner, will constitute a hostile possession sufficient to enable an ad- verse claimant to maintain ejectment against him. Actual oc- cupation in person, or by agent or servant, is not essential, for, ■as just remarked, possession of land consists in subjecting it to the will and dominion of him who claims the right to exer- cise acts of ownership, and this may be evidenced in many ways.*" What particular things are indicative of possession cannot be stated by an inflexible rule, but will vary with local- ity, the nature of the land, and the uses to which it may be ap- plied.^o § 47. Condition broken. — Ejectment will generally lie for condition broken, where such condition has been preserved by deed. It is fundamental that a grantor may annex to his grant any condition that he may see fit so long as the bene- ficial enjoyment of the estate conveyed is not materially im- paired, and where contracts of this kind are freely and volun- tarily entered into they will be enforced by the courts. About the only restriction upon this right is, that such conditions shall not be in violation of public policy or subversive of public interests. The subject will necessarily present itself in other parts of this work in connection with other nearly related sub- jects, and, for this reason, can only receive passing notice here. Suffice it to say, that if a condition is imposed in good faith, violates no principle of public good, and is not repugnant to *9 Quicksilver Mining Co. v. rant ejectment. Quicli:silver Hicks, 4 Sawyer (C. Ct.), 688; Min. Co. v. Hicks, 4 Sawyer (C. Courtney v. Turner, 12 Nev. 345. Ct.), 688. The driving of piles 60 Maintaining a bridge, one into the ground covered by a end of which springs from a mill-pond belonging to another small strip of land on the bank has been held to constitute a of a creek, under a claim of own- disseizin. Boston Mill v. Bul- ership of the strip, is sufficient finch, 6 Mass. 229. evidence of possession to war- 58 WHEN THE ACTION MAY BE BEOUGHT. [§ 47. the estate granted, it will be valid and enforcible, and, if ac- companied by a proviso of forfeiture and re-entry, ejectment will lie for the recovery of the land after a breach. ^^ The legal effect of a condition subsequent is to work a for- feiture in case it is violated. At common law, however, the condition was not self-executing but required some action on the part of the grantor, evincing an intention on his part to take advantage of the forfeiture, and, unless he was actually in possession, this was accomplished by a re-entry upon the land conveyed. The earlier cases in this country follow the common-law rule and announce the doctrine that re-entry for breach of a condition subsequent is necessary to defeat an es- tate of freehold which has once vested, and that a forfeiture cannot be effected merely by bringing an action for the re- covery of possession.^- Under this doctrine it will be seen that ejectment will not lie until there has been an actual re- entry. But later statutory enactments, defining the character of the action of ejectment and providing for the interests that shall be sufficient to sustain it, have materially altered the old rule by removing much of the reason which occasioned it, and it is no longer necessary that the common-law ceremony of a re-entry shall be performed as a condition precedent to the prosecution of an action to recover possession of lands af- fected by a forfeiture."^ Where the condition is express it is not necessary, as a gen- eral proposition, that the right of re-entry should, be reserved in the deed of conveyance, as such right follows as a neces- 61 Certain lots were sold with Martin v. Railway Co., 37 W. a condition whicli provided that Va. 349, 16 S. E. Rep. 589. no building should ever be 52 See Spear v. Fuller, 8 N. H. erected thereon in which grain 174; Thompson v. Thompson, 9 was handled, and that no grain Ind. 323; Frost v. Butler, 7 should ever be handled on the Greenl. (Me.) 225. land. In case of breach the bs Plumb v. Tubbs, 41 N. Y. land to revert to grantor. A 442; Cornelius v. Ivins, 26 N. J. grain elevator was subsequently L. 376; Ruddick v. Railway Co., erected by the grantee; held, 116 Mo. 25; Sioux City, etc. R. that ejectment would lie. Wake- R. Co. v. Singer, 49 Minn. 301; field V. Van Tassell, 202 111. 41, Ruch v. Rock Island, 97 U. S. 66 N. E. 830, 95 Am. St. 207; 693; Stearns v. Harris, 8 Allen (Mass.), 597. § 48.] WHEN THE ACTION MAY BE BROUGHT. 59 sary incident and binds the land into whosoever hands it may come,^* and when the condition is broken ejectment for pos- session will lie.^^ But, in order to maintain the action the grant must be strictly upon condition, for mere provisos, re- strictions, or collateral contracts will not confer the right to sue for recovery on breach or non-observance. The remedy, in such case, is by suit for specific performance or an action for damages. § 48. Remainders.- — The general rule is, that no cause of action accrues to a remainderman until the death of the life tenant or other determination of the precedent particular es- tate, and, as a right of immediate possession is an indispensible requisite to the maintenance of the action of ejectment, it fol- lows that suit cannot be brought by the owner of the remainder so long as the precedent estate exists. The statute, in some states, has modified the doctrine above stated and while it has not given a remainderman a right to bring a possessory action has yet conferred upon him a power to test the validity of conflicting claims by action, during the pendency of the precedent estate. The action given has no real analogy in the law. It resembles, in some respects, the equitable proceeding of quia timet, but as that action can only be brought by one in possession, ^"^ the resemblance is not per- fect. Its object seems to be to provide a speedy way for set- tling disputed questions of title by one out of possession, and without right of present entry, both as against those in pos- session and others, and it seems to proceed upon the theory that the welfare of those interested, as well as the public in general, will be best subserved by providing a means whereby appre- hended litigation affecting the use and enjoyment of land may be at once settled.^^ Where this law obtains action may be 51 Osgood V. Abbott, 58 Me. 73; Singer, 49 Minn. 301; Martin v. Bowen v. Bowen, 18 Conn. 535; Railway Co., 37 W. Va. 349. Fonda v. Sage, 46 Barb. (N. Y.) se Clay v. Hammond, 199 111. 109. 370. 55 Ruddick V. St. Louis, etc. st Murray v. Quigley, 119 Iowa, Ry. Co., 116 Mo. 25; Raley v. 6, 92 N. W. Rep. 869, 97 Am. St. Umatilla County, 15 Oreg. 172; 276. And see Force v. Stubbs, Sioux City, etc. R. R. Co. v. 41 Neb. 271; Halland v. Challen. 110 U. S. 15. 60 WHEN THE ACTION MAY BE BROUGHT. [§§ 49, 50. brought at any time without respect to the matter of possession, and it has been held that where there is no disability, and where the facts upon which the apprehended litigation will rest are fully known, such questions must be settled within the statu- tory period.''^ At common-law a forfeiture might be declared against life tenants by curtesy or dower, and this right has not been alto- gether abrogated by modern codes. The courts, however, show a reluctance in enforcing this right and generally a re- mainderman is not entitled to claim immediate possession as a result of a forfeiture unless there has been both permissive and voluntary waste committed wantonly and in a manner showing an utter disregard of the rights of the next taker. § 49. Reversions. — The general rules respecting remain- ders apply with equal force to reversions, and until the falling in of the estate in reversion no action can be maintained by the person holding the reversionary rights. If the reversion may be accelerated by forfeiture, as is sometimes the case, the ac- tion for recovery may be brought on the forfeiture in the same manner as other, actions for a breach of condition subse- quent. Rights of action for the recovery of a reversion occur most frequently in the case of leases for years, and this phase of the subject will receive attention in the succeeding para- graph. Where no question of forfeiture is involved the general rule is as first stated and until the determination of the particular estate the reversioner, having no right of entry, can maintain no action for the recovery but is limited to his action for waste, or such other actions as the law may provide for the protection of his reversionary interests. § 50. Leaseholds. — The earlier works on the subject of ejectment, both in England and America, devote much space to the relation of landlord and tenant and to the application of the remedy in the solution of questions growing out of such relation. But while the action may still be resorted to by a landlord, to recover possession of his lands from a refractory fisMurrayv.Quigley, 119 Iowa, ferred for thirty years; held,, 6. In this case action was de- that it was barred by limitation. § 50.] WHEN THE ACTION MAY BE BEODGHT. 61 tenant who refuSes to vacate after the determination of his ten- ancy, yet it is now but seldom employed, where no question of title is involved, and the speedier, and, in many respects, more effective, remedy of unlawful detainer has quite generally su- perseded other methods. During the continuance of the lease a landlord is without right to maintain ejectment, for it is fundamental that to sus- tain the action there must be not only a right of property but a right of possession as well. This right of possession the land- lord segregates from his general proprietary interest, or, as wc usually term it, his ownership, when he executes a lease and the term which he thereby creates carries with it this segre- gated right to the possession and profits of the land. In order, therefore, that he may resort to the remedy of ejectment it is essential that the term should cease. A tenancy may be determined in several ways, as by its own expiration through the effluxion of time ; or by the hap- pening of a particular event on which it is limited ; or by a breach of some condition annexed to the lease ; or, in some cases, by the landord's election evidenced by a notice to quit. It is not proposed to review here the fundamental rules relat- ing to landlord and tenant nor the character and qualities of estates less than freehold, but, as incidental to our main sub- ject, we must necessarily glance at some of the phases which they present in this connection. The general rule is, and it seems always has been, that, when a term expires by its own limitation, whether by lapse of time or the happening of a par- ticular event, an action will at once lie to recover possession, and this too without any demand of possession or notice to quit.^" As a general proposition, a tenancy at will may be terminated any time and without previous notice to quit,"" but this species of teiiancy has now practically developed into 3 tenancy from year to year, and when such is the case it can be determined only by a proper notice."^ The statute fixes the character and ii9Secor V. Pestana, 37 111. 525; eo Herrell v. Sizeland, 81 111. Alcorn v. Morgan, 77 Ind. 184. 457. 61 Hunt V. Morton, 18 111. 75. 62 WHEN THE ACTION MAY BE BROUGHT. [§ 51. extent of this notice and the method of its service. But when such form of tenancy has been regularly terminated the action will lie as in other cases. The uses and requisites of a notice to quit are so important, however, that their further considera- tion seems necessary, yet this duty can more advantageously be performed by discussing them in connection with their cognate matters and hence they will not further be adverted to at this time. § 51. Continued — Forfeitures. — A termination of a ten- ancy for breach of condition presents more difficulties, yet, as the old ideas which formerly characterized this procedure have largely been discarded, the matter has been relieved of much of its complexity. Under the old rule it was necessary to make an actual entry upon the land before an action of eject- ment could be maintained therefor, and the claimant's title was required to be of such a nature as to render his entry legal. When, therefore, a lease for j^ears was given and the immediate right of possession thereby transferred to the tenant, the land- lord could not legally enter upon the land during the continu- ance of the term, and, as a consequence, was without remed)' to recover back his possession while the term lasted, even though the tenant should neglect to pay his rent or otherwise disregarded the conditions of his grant."^ But after a time, when terms increased in value and in length, this was felt to be a serious evil. Thus, the tenant might be insolvent and hence an action on the covenants would be useless, or the lands might be left without sufficient to enable the landlord to levy a distraint to countervail an arrear of rent. To overcome these difficulties it then became customary for landlords to insert in their leases certain provisos and conditions to the effect that, if the rent should remain unpaid after it became due, or if any other of the particular covenants of the lease should be broken by the lessee, the term should thereupon become forfeited, and the landlord, in such cases, was empowered to re-enter and again possess his lands. These conditions continue to be used in modern leases, in much the same language as in their ancient forms. Although the actual entry is no longer required the 82 Adams, Eject. 146. §§ 52, 53.] "WHEN THE ACTION MA.T BE BEOUGHT. 63 right to make such entry is still necessary, and the power of re- entry thus reserved to the landlord, in case the rent shall re- main in arrears for a certain time after it is due, is the most common proviso upon which ejectments for forfeitures are founded. But, while the right of re-entry in case the rent shall remain in arrear for a certain time after it has become due, is the most common proviso upon which ejectments for forfeitures are founded, yet it is also customary to reserve the right for the breach of other conditions. In every such instance it is neces- sary that the breach complained of should come within the ex- act terms of the condition, as in case of doubt or uncertainty the general rule must apply, that the grant shall be construed with most favorable intendments for the grantee. § 52. - Continued — Statutory provisions. — The statute has further come to the aid of the landlord, in case of arrearages of rent, by giving to him, without any formal demand or re-entry, a right to commence an action of ejectment against the tenant for the recovery of the demised premises in all cases where a half-year's rent shall be due and unpaid. The object of the statute,''^ however, is the recovery of rent, and a saving proviso generally permits the tenant to avoid the effect of the action by a payment or tender of the arrearage at any time before final judgment. The statute does not destroy or take awa}- the land- lord's right to create a forfeiture by the common-law method but merely affords a cumulative remedy."* In practice this remedy is seldom resorted to as, in most of the states, a more speedy and summary remedy is provided in connection with the action of unlawful detainer. When the primary object is the recovery of the land it is not of much value as the tenant may always defeat a recovery by payment of the rent in arrears. § 53. Dower. — By the rules of the common lav^r a wid- ow's claim for dower cannot be asserted in ejectment. The reason for this is obvious for notwithstanding the dower may 03 First passed 11 Geo. II, c. 19, e* Chadwick v. Parker, 44 111. and substantially re-enacted in 326. most of the states. 64: WHEN THE ACTION MAY BE BEOUGHT. [§ 53. have become consummate, yet, until it has been admeasured and specifically assigned there is no part of the lands upon which it can rest. There seems to have been an apparent exception to the rule in the case of what was known as free-bench, as where there was a custom in a manor that a widow should enjoy, dur- ing her widowhood, the whole or a part of the customary lands whereof her husband died seized. In such cases she might maintain ejectment for them. But this, it is said, was an ex- crescence which by custom grew out of the estate, and, as a general proposition, where the widow's claim was strictly in the nature of dower ejectment would not lie before assign- ment. This doctrine, together with other common-law rules, became a part of the unwritten law of the United States, and, except as it may have been modified or abrogated by special statutory en- actment, still governs this branch of our subject. At a com- paratively early day, however, we may discern encroachments on the common-law rule by the enactment of statutes confer- ing a right of action upon the widow prior to admeasurement, by which ejectment virtually became an action for the assign- ment of dower, and at present laws of this kind are in force in a number of states. In every instance the right to recover dower by ejectment rests entirely upon statute,'^'' and is strictlj^ personal to the widow. Hence, one purchasing such right of dower before admeasurement would be precluded from bring- ing ejectment either in his own name or in that of his grantor."'' The innovation of permitting a widow to sue for dower in this form of action seems to have originated in New York, when the old forms of real actions, including the writ of dower, were abolished. The right to recover after admeasurement re- mained as theretofore, but if ejectment was brought before such admeasurement, then, instead of the issuance of a writ of pos- session, upon the filing of the record of judgment, the court appointed commissioners to admeasure and assign the widow's dower and upon the confirmation of their report a writ of pos- session issued as in other cases. This method does not seem to «5 See Proctor v. Bigelow, 38 es Galbraith v. Fleming, 60 Mich. 282; Burrall v. Bender, Midi. 413. 61 Mich. 622. §§ 54, 55.J WHEN THE ACTION MAY BE BEOUGHT. 6& have been very generally followed in other states and the ustial practice seems to be to have dower assigned in a special pro- ceeding instituted for that purpose, after which, if possession of the assigned lands is withheld, ejectment will lie to recover same. >§ 54. When right of entry is lost. — The old books fur- nish a number of instances whereby the right of entry upon lands may be tolled, that is, taken away or destroyed, and mod- ern writers frequently reproduce these ancient methods when treating of the action of ejectment. But, beyond the exhibition of a little pedantic learning, it is difficut to perceive what use- ful purpose is served by a recital of these obsolete formulas. The principal ways in which the right was barred were, by dis- continuance, by descent, and by limitation. The first has refer- ence to estates7tail and other interests in land which are wholly unknown to our law ; the second to emergencies that cannot arise under our system of descents and land titles ; the third, which is still effective, will be considered in the succeeding par- agraphs. § 55. Statutes of Limitation. — The law favors the repose and security of titles, and it is competent for the legislature to pass laws limiting the time in which actions may be brought to recover the possession of land or to determine conflicting claims of title. The same power which permits the enactment of laws fixing the periods within which actions must be brought also permits amendments to such laws, changing and abridg- ing the periods, and the change may operate on existing rights. But no amendments can operate to remove a bar that has al- ready become complete,^' nor injuriously affect existing claims or rights then vested.^' They may have a retroactive effect in some cases, but to secure this they must provide a definite time within which all suits, where the right of action has accrued prior to the passage of the act, must be brought,"'' and the time so limited must be reasonable.^" 67 Horbach v. Miller, 4 Neb. es Stambaugh v. Snoblin, 32 31; Thompson v. Read, 41 Iowa, Mich. 296. 48; Dyer v. Gill, 32 Ark. 410; 69Ludwig v. Stewart, 32 Mich. Pearsall v. Kenan, 79 N. C. 472. 27. 70 Horbach v. Miller, 4 Neb. 31. 6G WHEN THE ACTION MAT BE BROUGHT. [§§ 56, 57. A Statute of limitations pertains to the remedy, not to the right of action or validit}^ of the cause of action/^ but it is the cause of action, and not the form, that determines the appHc- abiHty of the statute.'^ The statute does not begin to run in any case until there is a complete and present cause of action/^ § 56. Within what time action must be brought. — The statute of limitations, as now generally enacted, provides in substance that no person shall commence an action for the re- covery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or make such entry first accrued, or within twenty years after he or those from, by, or under whom he claims, have been seized or pos- sessed of the premises, with a saving clause in favor of persons disabled and an exception in favor of the state. If such right or title first accrued to an ancestor or predeces- sor of the person who brings the action, the twenty years is computed from the time when such right so first accrued.^* It would seem that formerly the right of entry was made to depend largely upon whether the possession of the defendant was adverse to the claim of the plaintiff, and, if it was not, the time of limitation was held not to run. As the question of ad- verse possession was often one of considerable technical diffi- culty in its solution, and as the application of the rule was fre- quently productive of much inconvenience, it was finally abol- ished in England by statute,^^ and now the only question is whether the statutory period has elapsed since the right of ac- tion accrued, irrespective of the nature of the possession.^' § 57. When right of action accrues. — As the statute lim- its the right of entry or action to a certain period after such right has accrued, it becomes important to ascertain when the right does accrue. In a general way this inquiry is answered in many states by the same statute which prescribes the period during which the right may be exercised. In this particular the 71 Meek V. Meek, 45 Iowa, 294. Parks, 32 Ark. 131; Wriglit v. 72 Callaway v. MoMillian, 11 Tichenor, 104 Ind. 186. Heisk. (Tenn.) 557; Ganley v. 74 Beattie v. Whipple, 154 111. Bank, 98 N. Y. 487. 273. 73 Cairo, etc. R. R. Co. v. 75 3 & 4 "w^. iv, c. 27. 76 2 Arch. Nisi Prius, 317. § 58.] WHEN THE ACTION MAY BE BROUGHT. C7 law is quite uniform, and the general statutory rules fixing the times at which the right of action begins may be summarized as follows : First. When any person is disseized, his right of entry or of action shall be deemed to have accrued at the time of such disseizin. Second. When any person claims as heir or devisee of one who died seized, his right shall be deemed to have accrued at the time of such death, unless there is some other estate inter- vening after the death of such ancestor or devisor, in which event his right shall be deemed to accrue when such interme- diate estate expires, or when it would have expired by its own limitation. Third. When there is such an intermediate estate, and, gen- erally, in all other cases when a party claims by virtue of a remainder or reversion, his right shall be deemed to accrue when the precedent estate would have expired by its own limi- tation, notwithstanding any forfeiture thereof for which he might have entered at an earlier time. Fourth. As a person, when entitled so to do, may enter by reason of a forfeiture or breach of condition, if he claims under such a title his right ma}^ be deemed to have accrued when the forfeiture was incurred or the condition was broken. Fifth. Generally, the right shall be deemed to have accrued when the claimant, or the person under whom he claims, first became entitled to the possession of the lands under the title upon which the action is founded. § 58. Persons under disability. — Under the English stat- utes, if at the time at which the right of any person to make an entry or bring an action to recover land shall have first accrued such person shall have been under the disability of infancy, coverture, idiocy, lunacy, or absence bej'ond seas, then such person, or the person claiming through him, was allowed a further period of ten years from the time of the removal of such disability or the death of the disabled person, in which to assert a right of entry, and this, notwithstanding the full period of twenty years as provided by the statute had expired.''^ 77 2 Arch. Nisi Prius, 323. 68 WHEN THE ACTION MAT BE BEOUGHT. [§ 58. The American statutes have preserved the spirit of the Eng- lish law in this respect but have greatly abridged the time al- lowed for the commencement of real actions as well as the classes of persons who may claim the benefits of extension of such time. Coverture is no longer a shield in those states which have enlarged the contractual rights and obligations of married women. '^ Absence beyond seas was at one time generally recog- nized as a disability, the term "be3-ond seas'' being taken to mean out of the state or the United States,'^ but at present the doctrine is practically obsolete although a saving clause may yet be found in some of the statutes with respect to the rights of persons who are absent in the public service. Imprisonment has always been regarded as a disability in a majority of the states, but generally the imprisonment must be upon a criminal charge, or under a sentence for a less period than the term of life. The trend of the modern statutes may be summarized as fol- lows : If at any time when a right of entry or of action first accrues, the person entitled to make such entry or bring said action is under the age of legal competency, or insane, impris- oned, or absent from the country in the service of the United States or of the state, such person, or any one claiming by, through, or under him, will be allowed a short period, varying from two to five years, after such disabilit}' has been removed within which to bring action, notwithstanding the time before limited in that behalf has expired. It would seem that at one time an attempt was made in Eng- land to distinguish between cases of voluntary and involuntary disability. Thus, if insanity occurred after the statute had commenced to run, this would suspend its progress. But this was overruled, upon the principle that a different construction had always been given to all the statutes of limitation and that such nice distinctions would be productive of mischief.^" There are some traces of this doctrine in the early decisions of several of the states,*^ as, where a right of action accrued to one labor- 's castner V. "Walrod, 83 111. so Adams, Eject. 59. 171. 81 See Macliir v. May, 4 Bibb "Murray v. Baker, 3 Wheat. (Ky.), 44; May's Heirs v. Ben- (TJ. S.) 541; Whitney v. God- net, 4 Litt. (Ky.) 314; Eaton v. dard, 20 Pick. (Mass.) 304. Sanford, 2 Day (Conn.), 523. §§ 59, 60.] WHEN THE ACTION MAT BE BEOUGHT. 69 ing under no disability and by his death descended to his heir, who was under some disabiUty, the right of the latter would be saved until the full expiration of the statutory period after such disability had been removed. But, as a general proposition, th'e doctrine never received a recognition in the United States and has been repudiated in ■ states where it seems to have been announced. The uniform rule now is that when the statute of limitations has once commenced to rtm no subsequent disability can check or interrupt it.^^ § 59. Heirs and successors of person under disability. — The general statutory provision with respect to heirs and suc- cessors to the title of disabled persons is, that, if the person first entitled to make entry or bring action dies during the contin- uance of any of the disabilities mentioned in the statute, and no determination or judgment has been had of or upon the title, the action may be brough by the heirs of such person or by any one claiming under or by him, at any time within two years after his death, notwithstanding that the time previously limited in that behalf has expired. But this is the full measure of protection afforded. If the statute begins to run during the lifetime of an ancestor, his death, and the, descent to his heirs of his rights in land, will not interrupt the continuance of the statute nor the completion of its bar,^^ and it is immaterial whether or not the heirs are under disability.*^ § 60. Prevention of suit by paramount authority. — When- ever a person is prevented from exercising a right or from resorting to a legal remedy for its vindication, by some para- mount authority, the time during which he is thus prevented is not to be counted against him in determining whether the stat- ute of limitation has barred his right.*^ This is true even though the statute makes no specific exception in his favor in 82 Kistler v. Hereth, 75 Ind. 297. But see Ladd v. Jackson, 43 177; Piper v. Hoard, 107 N. Y. Ga. 288. 67; Castro v. Geil, 110 Cal. 292; 84 Gates v. Beckworth, 112 Ala. Lincoln v. Norton, 36 Vt. 679; 356; White v. Clawson, 79 Ind. Daniel v. Day, 51 Ala. 431. 192. 83. Reedy v. Millizen, 155 III. ss St. Paul, etc. Ry. Co. v. 636; Rogers V. Brown, 61 Mo. Olson, 87 Minn. 117, 94 Am. St. 187; Henry v. Carson, 59 Pa. St. 693, 91 N. W. Rep. 294; Kellv v. Donlin, 70 111. 378. 70 WHEN THE ACTION MAT BE BROUGHT. [§ 61. such cases. ^° This is well illustrated in a case where while one person claims public land under a grant, another goes into pos- session-thereof, and after denial of his application to enter it as a homestead keeps the matter in litigation t)y successive appeals in the land department of the United States for a long period. As the courts have no right to invade the functions confided by law to other departments of the government, or interfere in matters exclusively intrusted to their determination, so long as such matters are pending and undetermined,it follows that the claimant would be unable to maintain an action of ejectment in the state courts during the time the appeals were pending and therefore such time should not be counted against him when he finally brings his action. ^^ So, also, if the owner of the paramount title is enjoined, at the suit of one in possession, from setting up or insisting tipon any title or interest in the land, such injunction will afford suffi- cient ground for not allowing the running of the statute to ripen into a bar of the owner's right, during the time the injunc- tion was in force. '^ § 6i. Lands sold for taxes. — By statute, in a number of states, a special limitation is fixed for the recovery of land sold for taxes. This limitation is generally placed at from two to five years after the date of sale or issuance of tax deed, the rule varying somewhat in this respect, and unless action shall be brought within such period the original title is extinguished and all rights thereunder barred, except that a further time for redemption is allowed in the case of minors, lunatics, or per- sons otherwise under legal disability. The eflfect of such laws is to create a new and shorter period of limitation of the right of entry upon land, and, for this reason, the wisdom as well as expediency of legislation of this character may well be doubted. But where the laws creating this new term have been tested they have generally been upheld.^" It is contended, in support of such laws, that they are neither harsh nor oppressive ; that they 86 Braun v. Sauerwein, 10 sg See Russell v. Lumber Co., Wall. (U. S.) 218. 45 Minn. 376; Crisman v. John- s' St. Paul, etc. Ry. Co. v. son, 23 Colo. 264; Russell v. Olson, 87 Minn. 117. Lang, 50 La. Ann. 36. S8 Kelly V. Donlin, 70 111. 378. § 61.] WHEN THE ACTION MAT BE BEOXJSHT 71 contravene no constitutional rights, and that they are necessary to secure the collection of the public revenue ; that considerable time must elapse between assessment and sale ; that where the limitation commences to run from the issuance of the tax deed a still further time is allowed while the certificate is maturing, and that during the limitation period then ensuing the owner has ample time and opportunity to question the invalidity of the tax proceeding if so disposed. Further, that if he fails to move during all these years it is but reasonable that he should not thereafter be heard to complain."" But this shortened period of limitation does not always apply only to original owners. In some cases the tax purchaser is under the necessity of asserting his rights against the original owner in possession within the same limited period, and in the extent of his failure so to do his remedy is barred."^ Usually however, a tax deed is not distinguished from other muniments of title, and where a limitation is created it applies to the time within which a deed must be applied for and not to rights that may be asserted under a deed actually issued. This matter is statutory. The general rule is that application for deed must be made within, say two years from the time the certificate of sale is issued. 90 Crisman v. Johnson, 23 Colo. oi Coale v. Campbell, 58 Kan. 264. 480, 49 Pac. Rep. 604. CHAPTER IV. NOTICE TO QUIT. 62. Generally considered. 63. When notice is required. 64. When notice is dispensed with. 65. When notice is not re- quired. 66. Tenant from year to year. 67. Continued — Theory of tenancy. § 68. Tenant holding over. 69. Tenant at will. 70. Tenant by sufferance. 71. Vendees. 72. Vendors. 73. Mortgagors. 74. Licensees. § 62. Generally considered. — ^V\''hen a person has ac- quired possession of the lands of another, which he continues to retain, a question arises as to the right of the owner to insti- tute proceedings to disposses such occupant before a notice to quit has been given to him or a demand for such possession has been made. The strong tendency of modern decisions is to require such notice, where the entry was peaceable and with the consent of the owner. The theory in such cases proceeds on the lines of tenancy, or a holding of some kind in subserviency to the rights of the owner, and while the theory becomes con- siderably attenuated at times it is always consistent with this notion. Where the owner does any act from which a tenancy of any kind rnay fairly be inferred courts are ever inclined to extend the benefit of same to the occupant, and, generally, where the holding is not for any fixed or determinate time, and it is only by construction that a limitation can be applied to it, a manifestation of intention is required before the tenant can be called upon to surrender possession to the owner of the re- version. The reason for a notice seems to grow out of the essential character of the action; that is, that an ejectment can only be brought for an unlawful or tortious detention.'^ When posses- 92 It has been noted by several ■writers as a singular fact that we are unable to find in the old authorities any decisions rela- tive to notices to quit, notwith- standing the practice of giving them is very ancient, and it was not until the latter half of the § 63.] NOTICE TO QUIT. 73 sion of land has been acquired by the consent of the owner, or where there has been a long and continuous holding under cir- cumstances which indicate an acquiescence on the part of the owner, such possession must generally be regarded as rightful and will not, as a rule, be deemed wrongful until a demand for possession has been made.^' A refusal to surrender, or a non- compliance with the demand, furnishes the gist of an action for the recovery of the land,'* and the occupant may then be re- garded as a wrongdoer. On the other hand, if the entry was wrongful in its inception, or has become so afterward, no de- mand is necessary, the possession being already tortiotis."^ As a deduction from the foregoing we may frame the fol- lowing conclusion. A notice to quit, or a demand for posses- sion — which in law, so far as the action of ejectment is con- cerned, means the same thing — is never required unless there is some, privity between the parties to the suit with respect to the premises sought to be recovered, and where the parties res- pectively claim under hostile titles the doctrine of notice to quit or demand of possession has no application. The different phases of the subject will form the substance of the succeeding paragraphs of this chapter. § 63. When notice is required. — It would seem to have been the rule as early as the reign of Henry VIII, that, in any holding on which an annual rent was reserved, the tenant was entitled to a half year's notice to quit in the event of the land- lord's election to terininate the tenancy. Modern legislation has changed and reduced the duration of the time of the notice in many instances, but the principle has been retained intact, and the general rule now is that, whenever the reservation of rent or other circumstance, indicates an agreement for an an- nual holding, or, as it is generally termed, a tenancy from) year eighteen century that they com- 417; Chicago, etc. R. R. Co. v. meaced to secure the attention Knox College, 34 111. 195. of the courts. While the doo- 91 Holston v. Needles, 115 111. trine of notices is now well es- 461; McCarthy v. Brown, 113 tablished and clearly defined, it Cal. 15. is yet of comparatively modern 05 Springs v. Schenck, 99 N. origin. C. 551,' Herrell v. Sizeland, 81 93 Kirkland v. Trott, 66 Ala. 111. 457; Livingstone v. Tanner, 14 N. Y. 64. 74 NOTICE TO QUIT. [§ 6i. to year, such tenant cannot be ejected from the land which' forms the subject matter of the tenancy, without a notice to quit.*"" In like manner, if the tenancy is from month to month, it entitles the tenant to notice before he can be sued for pos- session, °' and generally, whenever the tenant enters into pos- session with the assent of the landlord, and no definite period is fixed for the determination of such possession, a notice to quit will be necessary before the landlord can bring ejectment,"^ unless some act or event has occurred which, of itself, termin- ates the holding."" Where a tenant in possession dies his in- terest in the land vests in his personal representative who will continue to hold on the same terms as the original tenant, and be entitled to the same noticet to quit.^ These rules were form- iilated at a comparatively early period in the history of the action in this country' and have received a general acceptance in all of the states with but little change or deviation. § 64. When notice is dispensed with. — Although a ten- ant m.ay be entitled to notice to quit, yet the necessity for such notice may be superseded and the tenancy terminated bv his denial, either by word or act, of the title of the landlord.^ Thus, where a defendant in ejectment repudiates a tenancy and claims title in fee,' or where he attorns to a stranger,'' he thereby dis- penses with the necessity of a notice, for by such acts he puts himself broadly in hostility to the right of the landlord, who will not then be required to prove that the term has ended nor 96 Jackson v. Miller, 7 Cow. 1 Cody v. Quarterman, 12 Ga. (N. Y.) 747; Scully v. Murray, 386. 34 Mo. 420; Leavitt v. Leavitt, 2 -yvood v. Morton, 11 111. 517; 47 N. H. 329 ; Hunt v. Morton, 18 Jackson v. Wheeler, 6 Johns. 111. 7S: Coomler v. Hefner, 86 (N. Y.) 272; Catlin v. Wash- Ind. 110. burn, 3 Vt. 25; Vincrat y. Coi- 87 Warner y. Hale, 65 111. 395; bin, 85 N. C. 108; McCarthy v. Seem v. McLees, 24 111. 193; Brown, 113 Cal. 15; Sims v. Prindle v. Anderson, 19 Wend. Cooper, 106 Ind. 88. (N. Y.) 391. 3 Herrell v. Sizeland, 81 111. S8 Jackson v. Miller, 7 Cow. 457; Eberwine v. Cook, 74 Ind. (N. Y.) 747; Coomler v. Hefner, 378. 86 Ind. 110. * Woodward v. Brown, 13 Pet. 99 Jackson t. Miller, 7 Cow. (V. S.) 1. (N. Y.) 747; Clark v. Rhoads, 79 Ind. 344. § 65.] NOTICE TO QUIT. 75 that he has made a demand for possession.'' So, too, if a ten- ant for years, during the term, conveys the demised land to another in fee, he thereby disclaims the tenancy and the land- lord may at once proceed to repossess himself without notice to quit," and generally, where this view of the law prevails, when- ever the relation of landlord and tenant is terminated by any hostile act, it becomes the bounden duty of the landlord to pro- tect his title by regaining possession.' In the instances above given we can readily understand why the landlord should not be required to give notice before insti- tuting an action of ejectment, as the tenant disclaims holding as such. But cases will arise where the question is not so clear. Thus, a tenant may refuse to pay rent to one claiming as heir, where the ancestors estate has not been probated, or to one claiming as devisee, where the will is being contested. At the same time he may declare his willingness to pay rent to any person who may show himself lawfully entitled to receive it. In England the authorities leave .the matter in doubt and no x\merican decisions bearing directly upon the point have been brought to the writer's attention. The tendency of the Eng- lish decisions seems to be that such statements would not con- stitute such a disavowal as to dispense with a notice to quit.^ § 65. When notice is not required. — It is a rule of gen- eral and uniform observance that where the defendant in eject- ment has not entered into possession under the plaintiff or by his consent, so that there is no relation of landlord and tenant, nor any privity between them, but each claims adversely to the other, no demand of possession or notice to quit is necessary be- fore action brought.' This rule applies in all cases where the defendant denies plaintiff's title and right of possession and sets up a distinct claim of ownership in himself or another.^" 5 Springs v. Sclienck, 99 N. C. s See Doe v. Pasquall, Peake 351; McGlnnis v. Fernandes, 126 (Eng.), 196. 111. 230; Sims v. Cooper, 106 Ind. s Schoonmaker v. Doolittle, 88. 118 111. 605. « Trustees v. Jennings, 40 S. i" Harland v. Eastman, 119 111. C. 168, 42 Am. St. 854. 22; McCarthy v. Brown, 113 Cal. 7 Trustees v. Meetze, 4 Rich. 15. (S. C.) 50; Schoonmaker v. Doo- little, 118 111. 607. 76 NOTICE TO QUIT. [§ 66. But even where an entry has been made under the plaintiff and by his consent, so that a relation of tenancy is created, it does not follow that a demand for possession is necessary be- fore an action for eviction. In many cases subsequent events may so fix the rights of the parties that no demand is neces- sary. Thus, where a tenancy is for a fixed term, as where a lease is made determinable on a certain event or at a particular period, and the term expires by its own limitation, the author- ities are unanimous in declaring that no notice to quit is nec- essary, as both parties, in contemplation of law, are equally apprised of the end of the term. In such case the lease is it- self an all-sufficient notice,^^ and the tenant is bound to sur- render possession at its expiration.^^ Nor' does the mere fact that the tenant remains in possession after the expiration of his lease, without the consent of his landlord, change his holding into a tenancy at will or any other form of estate which re- quires notice to^ terminate.^'' Thus, where a tenant holds for the life of another, who dies, the tenant, by remaining in pos- session after the death of the cestui que vie without the con- sent of the owner of the reversion, thereby becomes a trespasser and no notice will be required before bringing ejectment. § 66. Tenant from year to year. — There is a recognized distinction between tenancy for years, which is a letting for a specific term, and tenancy from year to year, which combines many of the features of tenancy at will. As a general pro- position a lease for no determinate period of time, but by which an annual rent is reserved, is a lease from year to year so long as both parties may desire. It is binding for one year only but is capable of being extended for a second or any suc- ceeding number of years, and will so continue unless deter- mined by the dissent of either party. This termination may be accomplished by notice before the close of the year. Hence, if the tenant continues to hold the demised premises until the com- 11 Canning v. Plbush, 77 Cal. comb, 60 Ohio St. 427, 71 Am. St. 196; Livingston v. Tanner, 14 724; Torrey v. Torrey, 14 N. Y. N. Y. 64; Alcorn v. Morgan, 77 430; McClure v. McClure, 74 Ind. Ind. 186. 110. 12 Secor V. Prestana, 37 111. i3 Kuhn v. Smith, 125 Cal. 525; Kuhn V. Smith, 125 Cal, 615, 615; Livingston v. Tanner, 14 73 Am. SL 79; Gladwell v. Hoi- N. Y. 64. § 67.] NOTICE TO QUIT. 77 mencement of a second year, without offering to surrender or receiving a notice to quit, he will be entitled to hold for an- other year despite the landlord.^* To determine an estate from year to year at common law, six months' notice was required before the end of the year of tenancy, and this rule has found statutory confirmation in many of the states. Usually, however, a shorter period is pre- scribed, varying from two to three months.^^ It would seem that formerly such notice might be verbal, that is, by word of mouth, but, as a rule, the notification must now be in writing, and given at the time and in the form prescribed by statute.^" § 67. Continued — Theory of the tenancy. — It is believed that the foregoing expresses not only the general doctrine of the common law but also the statutory policy of a majority of the states. It will be remembered that the doctrine of the com- mon law grew out of the principle, that where land is let for an uncertain time a termination of the tenancy by act of the landlord, or indeed from any cause other than the default of the tenant, entitles the latter to emblements. Through the operation of this principle tenancies at will were early construed by the English courts into tenancies from year to year, and, that the tenant might be secured in his emblements, that is, that he might be enabled to reap the crops which he had sown, six months notice was required before he could be compelled to surrender possession. In its origin the rule applied to agri- cultural tenancies only, but, in course of time, it became ex- tended to all holdings of a similar nature without respect to the character of the land. The early views seem to contemplate a presumed intention of the parties that the tenancy should be prolonged for an in- definite number of years, and hence, being of such uncertain duration, it was deemed just that either party should have rea- sonable notice, before the expiration of the year, of the others 14 Johnson v. Johnson, 13 R. I 467; Bacon v. Brown, 9 Conn, 334; Rich v. Bolton, 46 Vt. 84 Dunne v. Trustees, 39 111. 578 Ridgeley v. Stillwell, 25 Mo. 570 Rothschild V. "Williamson, 83 Ind. 349. Ind. 387. 15 This matter is statutory. Consult local statutes. 16 See Williams v. Derlar, 31 Mo. 18; Hanchet v. Whitney, 1 Vt. 311; Epstein v. Greer, 78 78 NOTICE TO QUIT. •[§ 68. intention to end it, and this view, in large measure, has been retained in those states where the rule of notice still obtains. § 68. Tenant holding over. — The exigencies of modern land tenures have to some extent modified the application of the old rules, and it is contended that a distinction should be made between those tenancies from year to year which originally were of uncertain duration and those which arise where a ten- ant holds over after the expiration of a lease for a specified term. In each year of occupancy under the former, there is, it is said, a growing interest in the ensuing year springing out of the original contract, while in the latter case a new contract arises each year of the holding over, by implication from the conduct of the parties.^' Where this view obtains it would seem that in case of a specific letting for a year, the tenant holding over is regarded as consenting or proposing to enter upon a new term for an- other year at the same rent and upon the same conditions of the prior occupancy, and the landlord's acceptance of the proposed tenancy is presumed from his receiving rent or other acts of acquiescence. But, while by remaining in possession without any new arrangement the tenant is regarded as offering to take the premises for another year, upon the terms of the ten- ancy which has just expired, yet the landlord is under no obli- gation to accept the offer, and, unless he does so, by receiving rent or by some other unequivocal act of assent, the tenancy is terminated and no notice is necessary .^^ The principle involved in the foregoing has been extended in some states to a continuous holding after the expiration of the original term, a new contract embodying the conditions of the original term being held to be created each successive year, and, in those states, if at the end of any year the tenant con- tinues in possession without the landlord's consent, this will be equivalent to holding over after the expiration of a lease for a specific term. In such event the landlord is at liberty to treat If See Alexander v. Harris, 4 Ferry Co., 82 111. 230; Smith v. Cranoli (U. S.), 299; Baltimore, Littlefield, 51 N. Y. 539; Kulrn etc. R. R. Co. V. West, 57 Ohio v. Smith, 125 Cal. 615; Gladwell St. 161. v. Holcomb, 60 Ohio St. 427. IS Cairo, etc. Co. v. Wiggins §§69, 70.] NOTICE TO QUIT. 79 the occupant as a trespasser and may maintain ejectment against him without any .previous notice of his intention not to prolong the tenancy.^' § 69. Tenant at Will. — It would seem that at common law a tenant at will was not entitled to a formal notice to quit and anything which amounted to a demand of possession was sufficient to determine the will and put an end to the tenancy."" This doctrine, however, was never uniformly accepted in this country and much diversity of opinion is expressed in the earlier decisions. The general proposition, that no one who holds lands by another's consent for an indefinite period should ever be evicted by ejectment at the suit of such party without previous notice to quit, soon found support,^^ and a general ten- dency was manifested to regard a tenant at will in much the same light as a tenant from year to year so far as concerned his right to notice. The statute, however, in many instances, has come in to sup- ply the deficiencies of the common law and to settle conflicting theories with respect to notice. In most cases the estate at will is terminable upon thirty days' notice, although in some states a longer period is provided. In some states the common-law rule still obtains and the tenancy may still be terminated, with- out a formal notice to quit, by a simple demand of possession.^^ As previously shown, however, a tenant for years, or anyone who is in possession under a lease for a definite period, is under a duty to vacate upon the expiration of the term without notice. If the tenant remains in possession after such expiration with- out the lessor's consent, he does not become a tenant at will nor is he entitled to notice.^^ § 70. Tenant by sufferance. — A tenancy by sufferance is, for all practical purposes, a trespass. It arises by operation of law and not from contract or agreement of the parties, and is, 19 Gladwell v. Holcomb, 60 21 See Jackson v. Laughhead, Ohiff St. 427; McKissick v. 2 Johns. (N. Y.) 75. Ashby, 98 Cal. 425. 22 See Herrell v. Sizeland, 81 20 Chamberlin v. Donoliue, 45 111. 457. But compare Chicago, Vt. 50; Withers v. Larrabee, 48 etc. Ry. Co. v. Knox College, 34 Me. 570; Herrell v. Sizeland, 81 111. 195. 111. 457; Johnson v. Johnson, 13 23 Kuhn v. Smith. 125 Cal. 615; R. I. 467. Alcorn v. Morgan, 77 Ind. 186. 80 NOTICE TO QUIT. [§ 70. at best, but a fictitious expedient to save the rights of those lawfully entitled to enter and to prevent the instituion of an adverse holding or possession. There is no privity between the tenant and the landlord,^* and no relation further than to raise the ordinary estoppel of a tenant to deny his landlord's title.-^ At common law such a tenant is not entitled to notice to quit nor is any demand of possession necessary before the insti- tution of suit.-" It has been held that an entry should be made to terminate the tenancy,^' but it seems that almost any kind of entry will suffice for this purpose, nor is it necessary that same should be made in a peaceable manner.^* The party having the right to enter may either declare his purpose to regain pos- session or he may do any act indicative of such intent. The desire to remove apparent hardships, as well as a mis- conception of the character of a tenancy by sufferance, has in- duced legislatures of a number of the states to mitigate the severity of 'the common-law rule with respect to notice. In these states a right to notice is conferred by statute, the periods ranging from one to three months. The justice of the inno- vation is open to question, notwithstanding it was undoubtedly prompted by humanitarian motives, while the practical legal effect is to convert the tenancy from one by sufferance to one at will. The courts, in construing such statutes, have ever been inclined to draw the lines strictly, and, while it is difficult to reconcile some of the decisions with the language of the statute, to confine the right to notice to such tenancies only as imply an assent on the part of the landlord.^^ Where this is made to 2* Bennett v. Robinson, 27 ^s Donnell v. Johnson, 17 Pick. Mich. 32; Livingston v. Tanner, (Mass.) 266. 14 N. Y. 64. 29 Thus, a tenant holding over 2s Griffin v. Sheffield, 38 Miss, after the expiration of a definite 359; Jackson v. McLeod, 12 term, without permission, is Johns. (N. Y.) 182. strictly a tenant hy sufferance, 26 Rich V. Keyser, 54 Pa. St. yet it has heen held that no no- 86; Russell v. Pabyan, 34 N. H. tioe is necessary in such case be- 218; Howard v. Carpenter, 22 fore proceeding by ejectment, Md. 10; Livingston v. Tanner, notwithstanding the statute pro- 14 N. Y. 64; Jackson v. McLeod, vides for a notice in case of a 12 Johns. (N. Y.) 182. tenancy at will or by sufferance. ^7 Rising V. Stannard, 17 Mass. Such notice, it is said, is neces- 282. sary only in case there is such a § 71.J NOTICE TO QUIT. 81 appear the statute applies to all cases of tenancy by sufferance, however created. As a rule, however, the statute has not changed the character of a holding over from a trespass to a tenancy, and if the holding is wholly without the consent of the person next entitled to the possession, then the requirements of the statute relative to the prerequisites for bringing an action of ejectment do not apply, and a recovery may be had of the lands so held without any previous notice. § 71. Vendees. — As a general rule a notice to quit is never necessary unless the relation of landlord and tenant ex- ists ; and for this reason it has been repeatedly held that where a vendee enters under a contract of purchase, although with the consent of the vendor, the latter may maintain ejectment against him without a previous notice to quit.^° But though the rule is very positively asserted in the earlier cases, yet an examination of the facts involved generally shows that it was applied only where the vendee who had thus entered had failed to perform his part of the contract under which he entered, and where the vendor had taken some steps to show that the contract was at an end; and while the principle has never been overruled and still controls as a settled proposition of law, it is nevertheless modified by the further doctrine that it is only to be applied when the right to retain possession has been in some manner forfeited by the purchaser. Hence, if the pur- chaser repudiates the contract under which he obtained pos- session, or fails to comply with its terms, the vendor is at lib- erty to treat the contract as rescinded and regain possession of the land by an action of ejectment; and in such case neither a demand of the possession nor a notice to quit is necessary.^^ tenancy at will or by sufferance of the landlord to such continu- as needs to be terminated, and ance. Smith v. Littlefield, 51 that such a tenancy is not ere- N. Y. 539. ated, within the meaning of the so Jackson v. Miller, 7 Cow. statute, by a tenant holding over (N. Y.) 751; Jackson v. Mon- his term; to entitle the tenant crief, 5 Wend. (N. Y.) 26. to notice, .the holding over must 31 Prentice v. Wilson, 14 111. be continued for such length of 91; Wright v. Moore, 21 Wend, time after the expiration of the (N. Y.) 230; Hotaling v. Hotal- term and under such circum- ing, 47 Barb. (N. Y.) 163; Hicks stances as to authorize the im- v. Lovell, 64 Cal. 14. plication of assent on the part 6 82 NOTICE TO QUIT. [§§ r2, It would seem, however, that where a party acquires pos- session of land under an executory contract of purchase, and is not in default, the vendor cannot maintain ejectment against him until he has demanded possession or given him notice to quit. The possession of the purchaser being lawful in its in- ception does not become wrongful until he is called upon to restore it.^' This proceeds upon the theory that no man who holds lands of another by such other's consent should ever be evicted without notice,'^ and as the relation of the vendee more nearly resembles that of a tenant at will than any other, there is much propriety, as well as manifest justice, in requiring that he should first receive notice before resort is had to more stern and summary measures. But where a vendee has failed to perform the conditions and agreements of the contract under vi'hich he entered, notwithstanding his possession was taken by and with the assent of the vendor, it would seem to be the gen- eral rule that no other or further notice is necessary than that of a termination of the contract, and that the vendor may main- tain ejectment without first having given a notice to quit. § 72. Vendors. — Where a vendee has fully paid the pur- chase money and otherwise complied with the conditions of sale, he becomes clothed with an equitable title that in some states will be sufficient to enable him to maintain an action for the possession of the land. The relation of the parties will be discussed in another place and it will be sufficient in this con- nection to note that where an action for recovery may be brought, no notice to qut will, as a rule, be necessarv before in- stituting the action. A vendor who refuses to deliver the prem- ises to the vendee is regarded much the same as a trespasser. He will not be treated as a tenant at will, in the absence of any agreement between the parties, and hence entitled to a notice in writing before the commencement of suit, but action will lie immediately to recover the lands as in any other case of tortious holding.^* § 73. Mortgagors.^Where the common-law doctrine of mortgages is recognized and ejectment is permitted to be 32 Prentice v. "Wilson, 14 111. Jackson v. Miller, 7 Cow. (N. Y.> 91. 747. ■"Jackson v. Longhead, 2 "-i Vance v. Anderson. 113 Cal. Johns. (N. Y.) 75. And see 532. § T4.] NOTICE TO QUIT. 83 brought on conditional conveyances of this kind, it would seem that after breach of condition the mortgagor becomes liable to immediate eviction at the suit of the mortgagee, and, in such case, no notice to quit or demand for possession is nec- essary before resorting to the action.^^ The principle of this seems to be, not that the mortgagor is tenant at will to the mort- gagee after the forfeiture, but that he is then acting as a kind of trustee for him, subject to have his authority concluded at the mortgagee's pleasure. This, at least, is the doctrine to be drawn from the English cases but it is difficult to reconcile the same with the general spirit of American law, even in those states where ejectment is still permitted to lie on a mortgage. It would seem also that the lessees of the mortgagor are liable to be evicted without notice, provided they have been let into possession subsequent to the mortgage and without the consent of the mortgagee.'" But if a lease has been given by the mort- gagor with the assent or concurrence of the mortgagee, or if the mortgagee, with knowledge of the lease, permits or en- courages the lessee to expend money or labor upon the premises, it may admit of doubt whether by such conduct the mortgagee has not confirmed the lease so far, at least, as to render a notice to quit necessary before ejectment can be maintained. With respect to tenancies created prior to the execution of the mortgage the duty of the mortgagee is much the same as that of the mortgagor before the mortgage was made. A purchaser from a mortgagor stands in no better position than his grantor, and may be evicted without notice. ^'^ § 74. Licensees. — Where a person enters into possession of land with the permission of the owner, as a mere occupant and without the payment of rent, he is entitled to a reasonable notice to quit before an action of ejectment can be maintained against him. This would seem to be the English rule and also that of those states in which the common law has not been re- pealed. The reason for this is, that a person entering by per- mission of the owner is not a wrong-doer nor can his posses- sion become tortious until there ^ has first been a demand for 3s Kilgour Y. Gockley, 83 111. st Jackson v. Hopkins, 18 109; Pierce v. Brown, 24 Vt. 165. Johns. (N. Y.) 487. 36 Jackson v. Hopkins. 18 Johns. (N. Y.) 487. 84 NOTICE TO QUIT. [§ 74. the surrender of such possession and a refusal. It is imma- terial that the owner may have a right to revoke the license and to re-enter upon the land. The entry by the licensee was with the owners consent, and it is unreasonable that he should be subjected to costs until his possession shall have become wrongful. ^^ In many of the cases in which the rule has been announced the occupant has been treated as a sort of a tenant and the cases, in the main, have proceeded on the grounds of tenancy, but whether the licensee be regarded as a tenant from year to year, or at will, or even as a mere occupant, the right to reasonable notice turns on the fact that he is in possession with the owners consent. Such being the case his occupancy is rightful and he must have a reasonable time within which to surrender possession. What is a reasonable time, in the ab- sence of positive statute, must depend on the character of the possession. In case of agricultural lands the element of em- blements would probably serve to indicate such time. Where the question of emblements is not involved a shorter time might suffice, but, in all cases, it must be reasonable in view of the circumstances.'*^ If the occupant entered with right but his subsequent pos- session became wrongful, as where he denies the title of the licensor, or disclaims holding under him, no notice would be necessary. If the Hcensee refuses to surrender within a reason- able time after demand of possession, the action lies as in other cases and the owner may recover the land from him.*" 38 Jackson v. "Wheeler, 6 Johns. s9 Jackson v. Livingston, 1 (N. Y.) 272; Chicago, etc. E. R. Johns. (N. Y.) 322. Co. v. Knox College, 34 111. 195. ^o Chicago, etc. R. R. Co. v. Knox College, 34 111. 195. CHAPTER V INCIDENTAL MATTERS QI 75. Introductory. § 83. 76. Form of the action. 84. 77. Joinder of actions. 85. 78. Concurrent actions. 79. Process and appearance. 86. 80. Continued — Former prac- 87. tice. 88. 81. Continued — Present prac- tice. 89. 82. Service. Continued — Agents. Owner out of possession. Attorney's autliority to bring suit. Appointment of receiver. Precept to stay waste. Continued — Remainder- men and reversioners. Enjoining ejectment suit. '§ 75. Introductory. — It is proposed, in this chapter, to discuss briefly such incidental matters of practice as do not properly fall under other heads, or which, by reason of their nature, are not susceptible of a more systematic classification. In the chapters which follow an orderly presentation will be made of the general features of practice in the action as they severally associate themselves with the ideas involved in the parties, pleading, proof, judgment and execution. § 76. Form of the action. — At the present time ejectment does not differ in essential characteristics from other actions at law. It is commenced by summons, which shall be in like form as other summons at law. The use of fictitious names of plaint- iffs or defendants, and of the names of any other than the real claimants, and the statements of any lease or demise to the plaintiff, and of an eviction by a casual or nominal ejector, are abolished. As a necessary result of the foregoing, the consent rule formerly employed is also dispensed with. The pleadings are filed at the same time and in the same manner as other actions and the rules 01 pleading and practice in legal actions generally will govern in all actions of ejectment so far as they are applicable. Thp issue is made naturally, either by general denial or special plea, and the cause proceeds to trial on the question thus raised. Special provision is made for certain contingencies and for the few features which are peculiar to the relief sought, but the general form of the action is not dis- 86 INCIDENTAL MATTERS OF PRACTICE. [§ 77. tinguishable from the ordinary action in personam. The na- ture of the recover)'- necessarily influences the form of the ver- dict, and it is in this particular that we find the greatest diver- gence from the usual form of legal actions. There is nothing complicated in the procedure, however, and for directness and simplicity it is not excelled by any other species of legal remedy. § 77. Joinder of actions. — It was permissible at common law, where several causes of action of the same nature existed between the same parties, to join them in one action by several counts in the declaration. This procedure was retained by the courts of the colonies and afterward adopted by the states, and still continues to be followed in those states which employ the common law practice. In states using the so-called codes the principle has not only been retained but greatly extended, and in such states it is allowable, in many instances, to join causes of action not of the same nature where they grow out of the same transaction. But this privilege, at common law, did not extend to actions of ejectment, and even under the present liberal practice in England, whereby causes of action of any kind, provided they are by and against the same parties and in the same rights, may be joined in the same suit, replevin and ejectment are expressly excepted. While the joinder of actions often depends on the form of the action rather than the subject-matter or cause of action, yet the nature of the cause of action is the best test by which to determine questions of this kind, and unless the same plea may be interposed and the same judgment given on all of the counts of the .declaration, or, at all events, unless the same judgment can be given although the pleas may be different, several causes of action cannot be joined.*^ AVhen we shall apply this test to the action of ejectment as formerly administered the impossi- bility of joining any other action with it is apparent, and even in modern practice, under the theories by which the action is supported, a joinder of another cause of action, distinct in its nature and calling for a different judgment, is a matter of very doubtful propriety. In a number of states such joinders are now permitted, but where this is not allowed the consequences "See 1 Chit. PI. 199; Tidd, Prac. 12; Com. Dig., Action G. §§ 78-80.] INCIDENTAL MATTEES OF PEACTICB. 87 of a misjoinder remains as at common law and the declaration will be bad on demurrer or in arrest of judgment.*^ The special features of this subject, and the counts that may be in- serted in a declaration in ejectment, will be shown in the chap- ter devoted to the pleadings in the action. § 78. Concurrent actions. — Generally, where two suits are commenced for the same cause of action, and which in- volve the same question, a plea in abatement will be sustained in the second suit, but in order to secure this effect it must ap- pear that the two suits are identical. It is not enough, that the same land is in controversy.*^ Hence, it has been held that a plaintiff may have two suits against the same defendant for the recovery of the same land pending at the same time, if the second is brought upon a title acquired after the commence- ment of the first.** § 79. Process and appearance. — Under the old practice, in civil cases generally, after the original writ had been sued out, the means whereby a defendant \vas compelled to appear in court was called process, or sometimes, to distinguish it from intermediate measures, original process. In modern practice the first process in an action is a summons, except in actions where special bail may be required. This process, as a gen- eral proposition, is issued under the seal of a court, tested in the name of the clerk of such court, and directed to the sheriff of the county for service on the defendant.*^ A hasty glance at past and present methods may not be uninstructive. § 80. Continued — Former Practice. — Under the old form of the action of ejectment the declaration was, in effect, a kind of process to bring the interested party into court. The suit was commenced not in the usual manner, by suing out a writ, but by a delivery of the declaration to the tenant in possession. 42 Guinnip v. Carter, 58 111. 44 Leonard v. Flynn, 89 Cal. 296; Williams v. Bradbury, 9 535. Tex. 487; Pell v. Levett, 19 45 The codes make some Wend. (N. Y.) 546. This is the changes in this rule by permit- doctrine stated by Chitty and ting process to issue without other writers on common-law seal at the instance of the plaint- pleadings. See 1 Chit. PI. 205. iff. The process is directed to 43 Mandeville v. Avery, 124 N. the defendant personally and Y. 376. may be served by any one. 88 INCIDENTAL MATTEES OF PEAOTIOE. [§§ 81, 82. This was occasioned by the fact that the plaintiff and defend- ant were fictitious persons, and hence, the suing out of a writ would be but a useless form. The declaration then, being the onhr means by which the party in possession was informed of the claim set up by the lessor and the only warning given of his proceedings, its delivery bore a close resemblance to the service of a writ and was governed by much the same rules as process generally. Accordingly the suit was commenced by the delivery of the declaration against the casual ejector to the tenant or person in possession, and this was considered as much a commencement of the action as would the service of a summons or capias in personal actions.*" This was regarded as sufficient to put per- sons interested on inquiry, and for all practical purposes the declaration was treated as a process of the court.*^ The ser- vice was proved by affidavit of the process server. § 8i. Continued — Present practice. — When the fictions of the action were abolished and the action itself was made to conform to the general plan of other actions at law, whereby the real parties became plaintiff and defendant, the reason of the old practice requiring service of the declaration disappeared. Thereupon the practice itself was discontinued, and at the pre- sent time the action is commenced by summons, which is in like form, and is issued, tested, served and returned as other sum- mons at law. § 82. Service. — Under the ancient practice, which re- quired service of the declaration, it was necessary that the na- ture and contents of the declaration should be explained at the time to the person to whom it was delivered, and courts would closely scrutinize the method of service to ascertain if a proper delivery had been made.** To be strictly regular the service was required to be made upon the party in possession, and, if the possession was divided, then upon each of the tenants,*^ but it seems that when personal service could be effected it was im- *8 Baron v. Abeel, 3 Johns, the time of the declaration was (N. Y.) 482. delivered. 47 Thus, the court might pun- 48 Jackson v. Stiles, 1 Cow. Ish, as for a contempt, any im- (N. Y.) 222. proper conduct of the tenant at 49 Camden v. Haskill, 3 Rand. (Va.) 462. § 83.] INCIDENTAL MATTERS OF PEACTIOB. 89 material whether it was made upon the demised premises or elsewhere.'''' It would frequently happen, however, that either from wilful or accidental absence of the tenant, or other circumstance, the claimant would be unable to serve him personally, in which event the declaration might be delivered to one of the family, nailed to the door of the house, or in some other manner left upon the land. The service, in all cases, was proved by affi- davit. In the modern practice, where a summons is not distinguished from other process, the statute has provided the manner in which such summons shall be served. As a general proposition it is the duty of the sheriff to serve all process of summons, but in some states this rule has so far been departed from as to per- mit such service by private individuals. When served by the sheriff it should be returned into court with an indorsement of the service and the time same was had, and if served by a pri- vate individual such return must be verified by affidavit. AVhere the defendant is a corporation it may be served with process by leaving a copy thereof with its president, or some other offi- cer in case he can not be found. Service on minors, or others under disability, must, as a rule, be personal, notwithstanding the appearance may be by guardian or conservator. As the action is brought against the person in possession it follows that there can be no substituted service by publication, although the statute, in some states, permits this form of procedure, where a party claiming proprietary rights in the land is beyond the jurisdiction of the court. This, however, is a modern inno- vation and is permitted only in those states where an action to quiet title may be united with an action of ejectment. § 83. Continued — Agents. — As the original design of the action contemplated only a recovery from the tenant in posses- 50 As a general rule, in all ac- to avoid objections, it was cus- tions for the recovery of land ternary to serve him personally process was reguired to he wherever found and then to served upon the land demanded, make a formal summons upon If the defendant appeared it was the land by erecting a stick or immaterial on what land he was wand and aflBxing to it a copy summoned, but if he was not of the summons, met with upon the land, in order 90 INCIDENTAL MATTERS OF PBACTICE. [§ 84. sion no other party defendant was necessary and no other was generally permitted, except that a landlord might come in to defend his title when the person sued was his tenant. The stat- ute has extended the scope of the action by permitting a join- der of parties claiming proprietary rights in the disputed prem- ises, notwithstanding such parties may not be in actual occupa- tion, or when they are only constructively in possession. This has resulted in many modifications of the earlier rules respect- ing parties and methods of service, and, in some states, where the defendant is a non-resident service may be had upon his agent residing in the state with the like effect as though made upon the principal. This, however, is a distinct departure from the primary ideas involved in the action, and, except in possible cases of corporations, wholly unnecessary for the determination of the right of possession. Even though the owner or claimant may be a non-resident or without the jurisdiction of the court, an efficient service may yet be had upon the person in posses- sion, and if such person holds under the claimant he will be bound, as a rule, by the judgment that may be entered in the action. If the premises are unoccupied the demandant may enter without process, and, having acquired a peaceable pos- session may then, if so disposed, bring an action of quia timet m equity. § 84. Owner out of possession. — According to the old practice at common law the tenant or person actually in pos- session, being the one prima facie interested, was the party on whom the declaration was always served ; and notwithstanding that it frequently happened that the lands in controversy belonged to some third person out of possession, to whom such service afforded no information of the proceedings, he was vet without a remedy against his tenant if he omitted to give notice of them. Nor was the landlord permitted to defend, even when he did receive notice, unless the tenant consented to become a co-defendant with him, and, to make matters worse, there existed no means by which a tenant could be compelled to appear and be made co-defendant. As will readily be seen this system occasioned great inconvenience to landlords. The ten- ants, either from negligence, fraud or collusion, frequently omitted to appear themselves, or to give to their landlords the § 84. J INCIDENTAL MATTERS OF PEACTICE. 91 necessary notice, and although judgments against the casual ejector were often set aside upon affidavits of circumstances of this nature, the remedy was yet very incomplete. The abuses which such a procedure permitted finally pro- duced legislative interference for the regulation of appearances m the action and by statute the rights of the landlord were saved where he appeared and entered into the consent rule. These statutes were further amended from time to time until the landlord, whose tenant had been sued in ejectment, was per- mitted, upon his own motion, to appear and be made defendant in the action, while, as a further safeguard, it was provided that every tenant, when sued in ejectment by any person other than his landlord, should forthwith give notice of same under pen- alty of forfeiture of the value of several years' rent, variously fixed at from two to three years. ^'^ These statutes have been substantially re-enacted in all or a majority of the states and represent the prevailing law on this branch of our subject. Under a statute of this character it has been held that a judg- ment against the tenant, in an action of which the landlord had no notice, no more binds the landlord than would a judgment in any other legal proceeding to which he was not a party,^^ and while the general rule that a tenant who has been evicted in fact, or against whom a judgment of ejection has been rendered m favor of a third person, may attorn to such person, or buy in his title and set it up against his landlord, may still hold good,^'' yet if such judgment is in any degree attributable to a neglect of the tenant's duty to his landlord, the rule does not apply.^* The tenant is under a duty, when sued in ejectment, to notify his landlord of the pendency of such suit, and the mere fact that a pecuniary penalty is annexed to a breach of such duty does not, it seems, in any way relieve the tenant from perform- ance or afford him an option of remaining silent and paying the penalty. The tenant cannot be permitted to take advantage of 51 The basic statute seems to bs Foster v. Morris, 3 A. K. be tliat of 11 Geo. II, c. 19. Marsh. (Ky.) 609; Lumsford v. 52 0etgen v. Ross, 47 '111. 142; Turner, 5 J. J. Marsh. (Ky.) 105. Rogers v. Rippey, 25 Wend. (N. 54 Lowe v. Emerson. 48 111. Y.) 432; "Wheeler v. Byerss, 4 160. Hill (N. Y.), 466 92 INCIDENTAL MATTEES OF PEACTICE. [§ 85. his own wrong, and if he neglects this duty, and thereby pre- vents the landlord from protecting either the tenant's posses- sion or his own reversion, he is guilty of such a degree of bad faith, that, when called upon by the landlord to surrender pos- session, he cannot be permitted to withhold same under a plea that he has been evicted by a paramount title under which he then claims to hold. On the other hand, if the tenant fully per- forms his duty, and the landlord fails to protect him in his pos- session, and he suffers a judgment of eviction, he may then protect himself by purchasing the paramount title or he may attorn to the evictor and take a lease from him.^^ § 85. Attorney's authority to bring action. — It is funda- mental that an attorney is not permitted to bring an action in the name of another without first receiving authority for that purpose, and should he assume so to do the suit should be dis- missed as soon as the matter is brought to the attention of the court. Under the English practice this matter of authorization always formed an important feature in the institution of litiga- tion. An attorney was not allowed ,to either prosecute or defend a suit unless he had a written warrant from the party interested. This constituted his authority for appearing in the case, and, it seems, was required to be filed in the court wherein the action was pending. This requirement, although at one time observed m this country, has now fallen into disuse and while the funda- mental idea of authorization has been preserved the attorney may be effectively appointed by parol. He must, of course, be employed for the purpose, or, as the technical phrase puts it, retained in the cause, but, generally, where an appearance is entered a legal presumption is raised that he was duly re- tained.^' Indeed, it has frequently been held that the license of an attorney is prima facie evidence of his authority to appear for any person whom he professes to represent, and this applies to either side of the action or any of its collateral branches." 65 Lowe v. Emersoa, 48 111. courts, and as such, are expressly 160. empowered to represent litigant 56 See Vorce v. Page, 28 Neb. parties. Williams v. Johnson, 294; Dorsey v. Kyle, 30 Md. 512; 112 N. C. 424. Coward v. Clanton, 79 Cal. 23. 57 Norberg v. Heineman, 59 This follows from the fact that Mich. 210. attorneys are officers of the § 85.J INCIDENTAL MATTERS OF TEACTIOE. 93 An attorney may, however, be compelled by the court, either of its own motion or at the instance of the opposing party to the suit, to show his authority for appearance or the right by which he assumes to represent the client. But, in order to invoke the exercise of this power of the court the general rule is, that the opposite party must state facts showing, or tending to show, that the attorney does not possess the authority which he as- sumes ; otherwise, it would seem, the presumption arising from his license and appearance will prevail. ^^ In the action of ejectment, however, much of the spirit and not a little of the old rules respecting authorization have been retained in many states. In these states a defendant in eject- ment may, at any time before pleading, apply to the court wherein the action is pending for an order requiring the attor- ney for the plaintiff to produce in such court his authority for commencing the action in the name of any of the plaintiffs. It is not necessary, in such case, to aver or show any want of authority on the part of the plaintiff's attorney and it is suffi- cient that the application be accompanied by an affidavit of the defendant that he has not been served with proof, in any way, of the authority of the attorney to use the name of the plaintiff stated in the declaration. When such application is made it becomes the duty of the court to issue an order requiring pro- duction of the attorney's authority, and to stay all proceedings in the action until the same shall have been produced. This has long been the generally received rule and its observance seems to be very uniform throughout the United States. It does not seem, however, that the proof of authority should be strictly formal. A written request, or a written recognition of such authority, duly proved by the affidavit of the attorney, or other competent witness, will be sufficient,'^'' and if it further appears that previous to such application the defendant had 58 In People v. Mariposa Co., the presumption. And see Nor- 39 Cal. 683, it was held that a herg v. Heineman, 59 Mich. 210, mere aflSdavit of counsel that he where it was held that an attor- is informed and believes that ney's authority to appear must the opposing attorney was not be presumed, and that the ad- authorized to appear on the trial, verse party cannot require the when unsupported by other evi- attorney to show his authority. dence, is insufficient to overcome 59 strean v. Lloyd, 128 111. 493. 94: INCIDENTAL MATTEES OF PEACTICE. [§ 86. been served with duly verified proof of the authority of the plainti-ff's attorney to bring the action, the application should be dismissed. § 86. Appointment of receiver. — It would seem that the question, as to whether a receiver for the rents and profits of the land in controversy may be appointed pending an action of ejectment, has frequently been raised, yet the answers returned thereto, in the main, are agreed in a denial of such right. ^\'hile a court of equity has inherent power to appoint a receiver for property in litigation, such appointment resting in the sound discretion of the court before whom the matter is pending, yet no such power is lodged in a court of law, and the action of ejectment, even in those states which have ostensibly abolished the old distinctions, is still at action at law as distinguished from a proceeding in equity. The law courts have always exercised the right to prohibit waste in actions of ejectment, but the right to take charge of the lands in controversy, through the inter- vention of a receiver, never seems to have been recognized, and where applications of this kind have been made they have usually been denied upon the ground that such an act would be an exercise of equitable powers which do not inhere in common- law courts."" It has been held, however, that in a proper case and upon due showing of equitable grounds, a receiver may be appointed, but this has occurred only in those states where legal and equitable relief may be administered in the same action "'■ or where eject- ment is treated as an equitable remedy."^ In such states, if the plaintiff shows apparent title to the land and it further appears that a sequestration of the premises is essential to his protec- tion ; as that the defendant who is collecting the rents and profits is insolvent and \\ill not be able to refund on account of «o See Oehme v. Ruoklehaus, oi Rogers v. Marshall, Abb. 50 N. J. L. 84, 11 Atl. Rep. 145 Stephens v. Koga, 142 Ind. 523 Rollins V. Henry, 77 N. C. 467 Pr. N. S. 457, 38 How. Pr. (N. Y.) 43; Whitney v. Buckman, 26 Cal. 447; Collier v. Sapp, 49 Ga. Emerson's Appeal, 95 Pa. St. 93; Kron v. Dennis, 90 N. C. 327. 258; Whitworth v. Wofford, 73 «= Emerson's Appeal, 95 Pa. Ga. 259; Sengfelder v. Hill, 16 St. 258. And see Bitting v. Ten Wash. 355; Colburn v. Yantis, Byck, 85 Ind. 360. 176 Mo. 670. § 87.] liSrOIDENTAL MATTERS OF PKAOTICE. 95 such insolvency in the event of an adverse verdict, or that the estate is being wasted through his incapacity and neglect, then a receiver may be appointed to hold the land pending judg- ment.*^ It has further been held that after judgment for the plaintiff he may be entitled to have a receiver appointed pending further legal proceedings,** or a bill may be filed in such case as an ancillary proceeding to the action at law.''^ The general rule, however, is as first stated and as the con- test is merely to determine the legal title the reason of the rule is apparent.^^a- § 87. Precept to stay waste. — The old books do not fur- nish us with much information relative to a proceeding in the action to restrain the commission of waste pending the litiga- tion, though it would seem that where the defendant, after judgment against him, brought a writ of error he could be com- pelled to enter into a ruk not to commit waste or destruction, during the pendency of the writ. The essential idea of waste is, that it is a damage to the reversion done by a person in right- ful possession. The only remedy at law is an action of trespass for the injury, and, as the person committing the waste is right- fully in possession it follows that there is no means of stopping the waste by a legal action so long as the right to possession continues. In such event the only remedy lies in the exercise of the prohibitive jurisdiction of equity. But, to secure a re- straining order there must be no dispute in respect of the title *" and where it is shown that the defendant is in possession under an adverse claim of right, courts have refused to interfere."'' The tendency of modern decisions has been to moderate the rigor of the old rule, and where an ejectment has been brought and it is satisfactorily shown to the court that the defendant is insolvent, or that he will be unable to respond in damages in 83 See cases last cited, and es uiman v. Clark, 75 Fed. consult People v. Mayor, 10 Abb. Rep. 868. Pr. (N. Y.) Ill; Rollins v. esa Davis v. Taylor, 86 Ga. 506. Henry, 77 N. C. 467. «<5 Cox v. Douglass, 20 W. Va. 84 Whitney v. Buokman, 26 175; Nethery v. Payne, 71 Ga. Cal. 447; Frlsbee v. Timans, 12 374. Bla. 300. 157 Nevitt v. Gillespie, 1 How. (Miss.) 108. 96 INCIDENTAL MATTERS OF PEACTICE. [§ 87. the event of a recovery by the plaintiff, an injunction may be granted until the title has been settled by an action at law.''^ It has further been held that it is not essential that the defendant be shown to be insolvent where it further appears that the waste sought to be restrained would, if allowed, produce an irrepara- ble injury, or where it is of a malicious and destructive char- acter.'*^ The statute, in some cases, has further come to the aid of a plaintiff in ejectment by providing that the bringing of the ac- tion will not prevent a court from issuing a precept to stay waste and ruling a party to give security in such manner as the court may deem proper. All of this, however, is a doctrine of comparatively recent 3'ears, for of old, courts of equity would not restrain a trespass of any kind in any case where it ap- peared from the pleadings that there was a controversy respect- ing the title to the land. Waste is in the nature of a trespass because it is. an injury to the freehold, but, as previotisly shown, it could be committed, if at all, only by a tenant or by some person whose estate or interest in the land was in privity with 68 Snyder v. Hopkins, 31 Kan. irreparable miscliief is being 557; Camp v. Bates, 11 Conn. 51; done or threatened, going to the Erhardt v. Boaro, 113 U. S. 537. destruction of the inheritance or 89 Newall V. Gravel Co., 11 of the estate^such as the ex- Atl. Rep. (N. J. 1887) 495 (no traction of ores from a mine, or off. rep.); Taylor v. Collins, 51 cutting down timber, and for the Wis. 123; Wharf Co. v. Simpson, removal of coal — to issue an in- 77 Cal. 286. In the case of junction, though the title to the Lanier v. Alson, 31 Fed. Rep. premises be in litigation. The 100, the court declares that authority of the ■ court is ex- equity will not entertain a bill ercised in such cases, through to enforce merely the legal its preventive writ, to preserve title to land, and quotes from the property from destruction Lord Eldon, who said that in a pending legal proceedings for bill for account, and an injunc- the determination of the title." tion to stay waste, stating that ^ See, also, Erhardt v. Boaro, 113 the defendant claimed by title tJ. S. 537, from which case the adverse to the complainant, he language above quoted seems' to stated himself out of court as to have been taken. This last case the injunction. Then the court, refers to Jerome v. Ross, 7 in the case cited, adds: "This Johns. Ch. (N. Y.) 315, where doctrine has been greatly modi- numerous illustrations of the fied in modern times, and it is proper application of the doc- now a common practice where trine will be found. § 88.] INCIDENTAL MATTERS OF PEACTICE. 97 that of the complaining party. In such event courts of equity would always interpose by injunction to prevent the threatened injury. But, in such event also, there was never any dispute about the title. By degrees the ancient rule of noninterference by courts of equity with trespass to land"; the title to which was in dispute, became much relaxed, and now, in many states, it is a common practice where irremediable injury is being done or threatened, for courts to issue a preventive writ to preserve the property from distruction pending legal proceedings for the de- tremination of title.^° The theory upon which this doctrine rests is, that great ar(d irremediable injury may result in many cases if equity should refuse its aid in matters of this kind, par- ticularly where the mischief sought to be enjoined goes to the destruction of the substance of the estate, siich as the removal of minerals or the felling of timber. The action of ejectment, as a rule, proceeds slowly, hence, the subject-matter of the liti- gation, in many cases, might be virtually destroyed before a de- cision could be reached if the trespass were not restrained and the property thereby preserved during the pendency of the suit. Usually, in order to obtain this protection, it must appear that an action of ejectment has been brought and is actually pending, but it is contended that the reason underlying the proceeding does not require the pendency of such suit, and that it is enough if the plaintiff shows his claim of title, the immin- ency of irreparable injury, and his intention to immediately put the question of title into a course of legal investigation and de- termination by an action of ejectment.'^ § 88. Continued — Remaindermen and reversioners. — - The observations of the foregoing paragraph have reference to injunctions sought by rival claimants to the title and do not apply, as a general proposition, to remaindermen and rever- sioners. These classes have always been permitted to maintain an action, either preventive or compensatory, for any injury to 70Erhardt v. Boaro, 113 U. S. 44 Md. 251; Piper v. Piper, 38 537; Freer v. Davis, 52 W. Va. N. J. Bq. 81. 1; Gause v. Perkins, 56 N. C. 'i Freer v. Davis, 52 W. Va. 1; 177. And see Griffith v. Hilliard, Gause v. Perkins, 56 N. C. 177. 64 Vt. 643; Fulton v. Harmon, 98 INCIDENTAL MATTEES OF PEAOTICK. [§ 89. the inheritance by the tenant in possession/- and, where such tenant is a dowress or tenant by curtesy, a forfeiture will in some cases be permitted. But this will be allowed, if at all, only where the waste has been both voluntary and permissive and of such a character as to indicate an utter disregard of the rights of the person next in succession. § 89. Enjoining ejectment suit. — It is within the pro- vince of equity to enjoin proceedings at law and this power may, in proper cases, be invoked to restrain the prosecution of an ejectment suit. But the indispensable basis upon which a defendant to an action at law may resort to a court of equity to restrain the prosecution of such action is, that he has some equitable defense of which a court of law cannot take cogni- zance, either by reason of want of jurisdiction or from infirmity of legal process. Hence, a court of equity would be without power to enjoin the prosecution of an action of ejectment on the ground that the conveyance relied on by plaintiff is void for want of delivery, or if delivered, that it was procured through duress, the defense in such case being complete at law.'^^ 72 Woodbury v. Willis, 50 Me. 73 Bishop v. Chiniquy, 74 111. 403; Lund v. New Bedford, 121 317. Mass. 286; Potts v. Clarke, 20 N. J. L. 536. CHAPTER VI. PARTIES TO THE ACTION. I. Gekeeallt Consideeed. II. Special Classes of Paeties. III. Husbands and Wives. IV. MOEXGAGOES AND MOETGAGEES. v. VeNDOES AND PUEOHASEES. VI. Landloeds and Tenants. VII. OrncEES and Fiduciaeies. VIII. Municipalities. I. Generally Considered 90. Prelimmary views. § 100. Tenants in common.' 91. Plaintiffs. 101. Coparceners. 92. Defendants. 102. Joint-tenants. 93. Continued — Persons not 103. Insane persons. in possession. 104. Infants. 94. Joinder of parties — 105. Death of parties — De- Plaintiffs. feitdants. 95. Continued — Hostile 106. Continued — Plaintiffs. claimants. 107. Interveners. 96. Joinder of parties — 108. Servants and employees. Defendants. 109. Purchasers pendente lite. 97. Continued — Separate 110. Corporations. trials. 111. Railway companies. 98. Improper joinder of par- 112. Entry under right of ties. eminent domain. 99. Non-joinder of parties. 113. Trespassers. § go. Preliminary views. — It will be remembered that during the early stages of the action of ejectment it was insti- tuted upon a feigned issue made up by fictitious parties. The nominal plaintiff and the casual ejector were judicially re- garded as the persons of a fictitious form of an action really brought by the lessor, the actual plaintiff, against the tenant in possession, and this fictitious form of action was designed and intended to force the real parties to trial upon the merits, with- out being entangled in nicety of pleadings on either side. The 100 PARTIES TO THE ACTION. [§ 91. lessor of the nominal plaintiff and the person in possession were substantially the only parties to the suit, and notwithstanding the apparently circuitous method by which the real defendant was brought in the subsequent proceedings were neither com- plicated nor unwieldly. In the modern adaptation of the action the entire spirit of the ancient remedy has been retained. Its object, now as then, is to force an issue between the parties who assert conflicting claims, without needless delay or verbose pleading, but the cir- cumstances which inspired the fictions no longer exist and the ends of justice are better subserved by a direct prosecution of the suit in the names of the real parties in interest. § 91. Plaintiffs. — While the parties to a suit in ejectment are now specifically provided for by statute it may yet be stated, as a primary rule of general observance, that all actions must be prosecuted in the name of the legal owner. In some states this rule has been modified and the "real party in interest" must bring the action, but, in any event, to maintain such ac- tion, the plaintiff must have, at the time suit is instituted, a valid subsisting right in the lands claimed, or of some share, in- terest or portion thereof, which entitles him to possession.^* In the case of sole ownership this last statement will present few difficulties, but a large amount of controversy has arisen in cases where one of several cotenants has brought an action against a stranger. The rule is fundamental that each coten- ant, irrespective of the character of his tenancy, is entitled to the possession of the entire propei'ty as against all persons ex- cept his fellow-tenant, and, as a logical sequence, it would seem that he might maintain ejectment for the whole thereof as against one who has no title. This view has been adopted by a number of courts of last resort and it has been held that, un- der a general allegation of seizin, notwithstanding the proof may show another joined with him in interest, it will be suf- ficient for the plaintiff to establish any estate in the lands that will give him a right to the possession.''^ In many states, how- 74 Nelson v. Triplett, 81 Va. ■m Stark v. Barrett, 15 Cal. 362 236; Perciful v. Piatt, 36 Ark. Hibbard v. Foster, 24 Vt. 542 456; Baro v. Fennell, 24 Fla. 378. Mather v. Dunn, 11 S. Dak. 196 Sharon v. Davidson, 4 Nev. 416. § 92.J GENERALLY CONSIDERED. 101 ever, this view is rejected/* so that it would appear that the question is a debatable one, to be determined by local policy. This phase of the subject will be treated in detail further on. Under present laws relating to amendments it is possible in many states to substitute plaintiffs after the action has been commenced, but where this is permitted the new plaintiff is re- garded as standing in the shoes of the first plaintiff and must rely on the title which he possessed at the commencement of the action.'^ It is a further general rule that the plaintiff must have been disseized at the time action is brought, and one who is in the actual and exclusive possession of land cannot maintain eject- ment therefor against a person not in possession, but who merely claims title thereto.''^ A number of questions are presented where the plaintiff sues in an official capacity or where he asserts the right of posses- sion in a fiduciary or ministerial character. Usually, the real party in interest can alone maintain the action. So, too, diffi- cult questions will sometimes arise growing out of the peculiar relations sustained by the parties. In the succeeding para- graphs of this chapter an attempt will be made to discuss these C[uestions and to deduce the rule that should be applied. Nec- essarily the discussions must be brief, and those matters only will be alluded to that are directly involved in the action. The rights, powers, and duties of officers and fiduciaries can only be incidentally touched. The capacity of parties to bring the action will also receive -but a passing mention, it being assumed that the reader will have recourse to special works when ques- tions of much doubt or difficulty may intervene. Enough will be shown, however, to intelligently present the subject in the phases that are usually encountered in practice. § 92. Defendants. — The original and primary object of the action of ejectment was the recovery of the possession of a freehold, and, while the establishment of title is now the prin- T6 Marshall v. Palmer, 91 Va. 78 Carmichael v. Argard, 52 344; Johnson v. Hardy, 43 Neb. Wis. 607; Brown v. King, 107 368. N. C. 313; Steinman v. Vicars, 77 Barrett v. Birge, 50 Cal. 655. 99 Va. 595. 102 PAETIES TO THE ACTION. [§ 92. ciple end to be attained — the right to the possession following the title — the same general rules that characterized the remedy while it was purely a possessory action are retained. Hence, if the premises for which the action is brought are actually oc- cupied by any person, such actual occupant should be named as defendant in the suit/" If the premises are not occupied, the action should be brought against some person exercising acts of ownership thereon, or claiming title thereto or some interest therein, at the commencement of the suit.*" The statutes now in force in most of the states also provide for the settling of disputes concerning the title generally, and under these statutes all persons claiming title to or interests in the lands in question, and whose rights or claims are sought to be precluded, may also be made parties defendant. Where only the right of possession is involved the person in actual occupation of the premises is always a necessary party defendant," and, usually, none other need be named, the theory being that if judgment is recovered against such occupant it binds those under whom he occupies as well.^^ Persons not in possession, in a case similar to that last mentioned, when claim- ing possessory rights, are proper but not necessary parties de- fendant. Where the land is unoccupied ejectment is generally maintainable against the person claiming title alone,^'' but if the land is occupied the occupant must be made a party,** and, it seems, that an action against the claimant without joining the occupant will not lie. Thus, the action will not lie against a landlord only where the land is in possession of a tenant.*^ In any event, unless the party made defendant is in posses- sion, actually or constructively, or, in case of vacant or unoc- " C. & B. I. R. R. Co. v. Clapp, Losee v. MoFarland, 86 Pa. St. 201 111. 418; Keane v. Cannovan, 33. 21 Cal. 293; Shaw v. Tracy, 95 82 c. & E. I. R. R. Co. v. Clapp, Mo. 531; Losee v. MoFarland, 86 201 111. 418. Pa. St. 33 ; Hoyt v. Southard, 58 ss Burohard v. Roberts, 70 Mich. 432. -Wis. 111. soBurchard v. Roberts, 70 84 Dutton v. Warschauer, 21 Wis. Ill; Anderson v. Court- Cal. 609. right, 47 Mich. 161; Steams v. ss Shaw v. Tracy, 95 Mo. 531; Harman, 80 Va. 48. Grundy v. Hadfield, 16 R. I. 579. 81 Shaw V. Tracy 95 Mo. 531; §§ 93, 94.] GENERALLY OONSIDEEED. 103 cupied lands, unless he asserts a claim of title or a right to the possession, the action will not lie against him.*^ § 93. Continued — Persons not in possession. — The right to institute an action against a person not in the actual or con- stnictive possession of land, but who merely claims an interest therein or title thereto, is distinctly an innovation of the statute. But under modern codes this right is now given and may be freely exercised. The policy of the statute is to quiet title by an action at law and notwithstanding some apparent incon- gruities such policy has now become firmly established as a part of our jurisprudence. The object is to compel persons out of possession, who set up false claims to land, to submit their claims to a test and by a verdict and judgment in the action to have such claims effectually determined.^' If the wrongful claim is founded in either fraud or mistake, and the rightful owner is so situated that he cannot bring ejectment, a court of equity will, upon a proper case made, take jurisdiction and ex- tend relief by causing the delivering up, concellation or rescis- sion of agreements, securities, deeds or other instruments, but where the question involved is purely one of title the action of ejectment is the peculiarly appropriate remedy and not an ac- tion in equity to quit title.^^ The fact that the defendant is not in actual possession, is, under the statute, immaterial. If he claims title he may properly be made a party defendant. § 94. Joinder of parties — Plaintiffs. — As a general rule all interested parties may be joined, either as plaintiff or de- fendant, in an action for the recovery of lands. This is a dis- tinct innovation upon the old rule and is created by the liberal provisions of the statutes. With respect to parties plaintiff, however, there is much uncertainty in the decided cases. Where there are several parties holding undivided interests in the land sought to be recovered, if such interests are joint then it would seem, on principle, that all should be joined. But if there is no community of interest, as in the case of tenants in 86 Sisson V. Cummings, 10.6 N. sr Harvey v. Tyler, 2 Wall. Y. 56; Carmichael v. Argard, 52 (U. S.) 328; Banyer v. Emple, "Wis. 607; Long v. Railroad Co., 5 Hill (N. Y.), 48. 89 Ky. 544 ; Liggett v. Lozier, ss Stearns v. Harnian, 80 Va. 133 Ind. 451. 48. 104 PAETIES TO THE ACTION. [§§ 95, 96. common, the principle does not apply, while the statute has very generally given to cotenants the right to institute suits without joining their fellow-tenants and to recover possession of their own shares. The conflict of authority is over the right of one such cotenants to maintain the action for a recovery of possession of the entire property without joining the other owners of the undivided interests. Upon this point there is much dispute. One line of cases strenuously insists that this procedure is proper,^^ another denies the right and confines the recovery to the specific degree of interest to which the plaintiff may show himself entitled upon the trial. In other words, one tenant in common cannot recover for the joint benefit of him- self and his cotenant but is limited to his own aliquot share or part."" It is contended that the statute permitting tenants in common to join in an action would be rendered useless if one can recover for the others and that the effect of such a rule would be to permit A to recover for B even though B, for any reason, could not recover for himself."^ It will be perceived, however, that the question of joinder, in the phase now under discussion, does not extend so much to the right to maintain the action as to the degree of recovery that can be had under it. § 95. Continued — Hostile claimants. — While all persons having an interest in the^ subject of an action and in obtaining the relief demanded, may, under modern codes of procedure, be joined as plaintiffs, yet this does not permit the joinder of two distinct and entirely separate causes of action. Particularly is this true where the pleading, upon its face, shows that the claims are hostile to each other and that one practically nulli- fies the other. Hence, two persons, each of whom claims the entire tract by a title hostile to that of the other, cannot unite as plaintiffs in an action of ejectment against a third party who may be in possession."" § g6. Joinder of parties — Defendants. — It has sometimes been doubted whether other parties could be joined as defend- so See Johnson v. Schumacher, 481; King v. Hyatt, 51 Kan. 504; 72 Tex. 334; Moulton v. McDer- Johnson v. Hardy, 43 Neb. 368. mott, 80 Cal. 629; Smith v. 9i King v. Hyatt, 51 Kan. 504. Tankersley, 20 Ala. 272. ' 02 Hubbell v. Lerch, 58 N. Y. ooMobley v. Bruner, 59 Pa. St. 237. § 96.] GENEEALLT CONSIDERED. 105 ants where the premises are actually occupied and no privity is claimed or shown between such actual occupant and the added parties. The reasoning in such cases is based upon the course of procedure in the original action, or of those cases where a writ of right was prosecuted. In the former, the action could be brought only against the tenant in possession or the casual ejector, in which event notice was required to be given to the tenant in possession if there was one; in the latter, the suit was brought only against the tenant of the freehold demanded. In neither case could persons claiming title through indepen- dent and distinct sources be joined as defendants, and, if they were, the misjoinder might be pleaded in abatement. And so we find it has been held in some of the earlier cases artd with reference to then existing statutes, that, where the premises are occupied, persons not in possession cannot be made defendants to the action. °' It was contended in support of this doctrine that the effect of the judgment was to conclude all persons in privity with the occupant, and therefore no necessity existed for making any other than the occupant a defendant to bind all persons in privity by a recovery, and that, if there was no priv- ity between the party in possession and the others joined as defendants, it would involve the trying of two or more separate distinct titles and causes of action in one suit, and for this rea- son an abatement was allowed. But under the statute now generally in force, while the party in possession or actual occupancy must be made a party de- fendant, yet all others claiming title to or interests in the prem- ises may be joined with him and this, it seems, without respect to privity of title or unity of interest. The manifest object of the statute so phrased seems to be, to obviate the hardship and inconvenience imposed upon the demandant by the operation of the old rule. Under this rule, as stated above, if the premises were occupied suit could be brought only against the tenant in possession with the right to bring in the landlord under whom he claimed, if there was one. As to other adverse claimants there was no way by which the plaintiff could try his title in ejectment, and, after recovering from the tenant in possession 83 See Hanson v. Armstrong, 22 111. 44 106 PAKTIBS TO THE ACTION. [§ 97. he was compelled to resort to as many suits in equity as there were claimants in order to relieve himself from the burdens such claims imposed. Hence, it would seem that where the statute permits a joinder of other parties with the actual oc- cupant, its true intent is that the plaintiff may, in one action, try his title to the land in controversy against all persons in possession or asserting clairhs thereto, irrespective of the origin or nature of such claims, arid without respect to the question of privity.^* It is to be regretted that the adjudicated cases shed but little light on this particular phase of the law and the ques- tion may be considered, to some extent, as unsettled. As has been said, it is anomolous in the law of ejectment to permit the trial of several distinct issues in the same cause, but such seems to be its present tendency. § 97. Continued — Separate trials. — If a number of per- sons are joined as defendants a question of much difficulty is presented Vihere the parties, although in possession of parts of the land, have no common interest. It has been held, in such a case, that it is proper for the court to order separate trials, and that the court may do this on its own motion when it be- comes apparent that the several parcels of land in controversy are separate and distinct and that the several defendants rely upon different sources of title. If this were not permittted, the rule allowing the plaintiff to join as defendants all who are in possession of the tract for which he sues would be productive of great inconvenience and injury."^ But while the foregoing will undoubtedly be the proper prac- tice to pursue in the case of joint defendants claiming separate parts of the land under independent titles, yet, notwithstanding that they may file separate answers if they shall consent that the several actions shall be consolidated and tried as one case, a judgment may be rendered against all for the possession of the entire premises instead of against each for the part occu- pied."'' 84 For a learned and lucid dis- Oreg. 302; Judson v. Malloy, 40 cussion of this phase of the law Cal. 299. of ejectment, see opinion by fs Judson v. Malloy, 40 Cal. Shope, J., in South Park Cora- 299. mlssioners v, Gavin, 1?,9 111. 2S0. "s Andrews v. Carlile, 20 Colo. And see McCoun v. Hannah, 3 370. §§ 98, 99.] GENEEALLT CONSIDERED. , 107 § 98. Improper joinder of parties. — The general rules of pleading govern the methods of procedure in the action of ejectment. Hence, if a person has been improperly joined as a party, objection to such misjoinder shojild be taken by de- murrer, where the defect appears on the face of the pleadings, and, if not so taken, the objection will be deemed to have been waived. °^ . In any event, the objection should be brought be- fore the court at the earliest possible moment, and if a person allows verdict and judgment to go against him, without having interposed an objection, he will be bound thereby and cannot be relieved in an appellate court."^ This doctrine is based on the familiar principle that pai'ties litigant cannot be permitted to assume inconsistent positions in court. If they elect to adopt a certain course of action they will be confined to the course which they adopt, for courts will not permit their procedure to be trifled with by allowing parties to play fast and loose. If, then, a person assumes the role of a necessary party defendant, and particularly if he pleads to the merits, he cannot, after being cast in the suit, change front and insist that it was error to make him a defendant. ^° § gg. Nonjoinder of parties. — The rules which apply in the case of misjoinder are much the same where there has been a failure to join necessary parties, and such nonjoinder, when apparent on inspection of the declaration, should be taken ad- vantage of by demurrer. If the defect is disclosed upon the trial, objection should be raised before the case is submitted to the jury. If this is not done the right to raise the question of defective parties will be considered waived and it will be too a? See Bensieck v. Cook, 110 woman in the actual occupation Mo. 173; Metcalfe v. Brand, 86 of the land, but whose husband Ky. 331; Grain v. Aldrich, 38 was insane and confined in an Cal. 514; Hinchman v. Railroad asylum, was made defendant. Co. V. 17 N. J. Eq. 75. Both were served with sum- 98 As where a son resides In mons. After judgment had been his father's family on the lands rendered against her she as- in controversy, but who does not signed as error that a wife is assert any ownership or right of not a necessary party, but as possession therein. Drake v. she had appeared and contested Root, 2 Colo. T. 685. the action the court held that 09 Bensieck v. Cook, 110 Mo. she was bound by result. 173. In thi's case a married 108 PARTIES TO THE ACTION". [§§ 100, 101. late to bring same forward on a ■motion for a new trial. ^ A familiar case of nonjoinder is presented, where the action is brought against the owner of the freehold only, and the prem- ises, at the time, are in the actual possession of a tenant. In such event the action cannot be maintained if timely objection is made, the tenant in possession being a necessary party. ^ § 100. Tenants in common. — As tenants in common have several freeholds in the common property, notwithstand- ing their joint possession, the rule was that they should always be severally impleaded. The statute, however, now regulates the relation and provides the manner in which actions may be brought for the recover}^ of the common land. The subject re- ceives frequent allusion in other places and will not further be adverted to here. § loi. Coparceners. — The estate in coparcenery, as it ex- isted at common law, has been abolished by statute and the status of those who otherwise would sustain the relation has been reduced to that of tenants in common. While the name has been retained to indicate a tenancy accruing by descent and not by purchase, yet this is about all that has survived. The in- cidents of the relation are no different from those which affect tenants in common generally, including rights pertaining to- the possession of land and the remedies that may be resorted to for their vindication or protection. At common law, coparceners, though several persons, were regarded as but one heir, having but one entire freehold in the land before partition. Hence, it will be seen that in a real ac- tion, at common law, all of the parceners are required to join, for their remedy must necessarily follow the nature of their possession, and this being joint the remedy must be joint also. In modern practice, and under the statutory modification of the relation, they are governed by the same rules that apply to tenants in common generally and the action may be joint or several as may best suit their convenience. In the lattei- case the recovery would be limited to the actual share of the par- cener. 1 Mather v. Dunn, 11 S. Dak. 2 Shaw v. Tracy, 95 Mo. 531. 196; Coulson v. Wing, 42 Kan. 507. §§ 102-104.J GENEBALLY CONSIDERED. 109 § 102. Joint-tenants. — The estate of joint-tenancy has now become very infrequent in the United States. While the statute still permits the creation of estates of this kind the gen- eral policy of the law is to discourage them, except where land has been conveyed to trustees. In the absence of express words of limitation all joint estates, with the exception mentioned, are considered and taken as tenancies in common. Where, however, the limitation expressly creates a joint-tenancy the law will give it effect and the tenants must jointly sue as well as be jointly sued, the common law incidents in this respect being of binding force and efficacy. It was permissible, how- ever, at common law, where one of two joint- tenants disseized the other, for the latter to recover against his cotenant in an action of ejectment,^ and this right has been substantially pre- served by statute in the modern action. § 103. Insane persons. — While a person suffering froni mental derangement is ungier many disabilities he still has a legal capacity to sue and be sued in a proper form of action and under such restrictions as may be provided. If such a person is in possession of lands, either actually or constructively, or claims an interest in or title to the same, he is a proper party defendant. In such event his interests may be protected by the appointment of a guardian ad litem/ and the power of the court , to appoint such guardian, of necessity, concedes the power, upon a proper basis of facts being presented, to render a judgment as binding on the insane person and his property rights, as a similar judgment would be upon a sane person.'* § 104. Infants. — The proprietary rights of an infant are not distinguishable from those of an adult, notwithstanding that for many purposes he is under a legal disability. The statute requires the action of ejectment to be brought in the name of the real party in interest and against the actual party in pos- session. To satisfy these requirements it is essential that where an infant is the actual claimant the action should be commenced in his name, and that, notwithstanding the defend- 3 1 Roscoe, Real Actions, 9. 5 Bensieck v. Cook, 110 Mo. 4 Mitchell V. Kingman, 5 Pick. 173, 33 Am. St. 422. (Mass.) 431; King v. Robinson, 33 Me. 114. 110 PAETIES TO THE ACTION. [§ 105. ant is under age he should yet be named as defendant. There is no technical difficulty in this procedure as an infant may al- ways appear by his next friend or statutory guardian, and in like manner may defend by a guardian ad litem. It may be, where the statute expressly confers a right of property and pos- session upon a guardian that he may sue in his own name to recover his ward's land." This was the case at common law with respect to guardians in socage, but in the United States this form of guardianship does not exist and the decisions seem strenuous in their announcement that a suit in ejectment for the ward's lands must be prosecuted in the ward's name.'' § 105. Death of parties — Defendants. — At common law the death of the defendant in a real action worked an abatement of the suit, but this seems to have been remedied by statute at quite an early day,' and the person next in interest might be compelled to appear and defend. This principle has been pre- served in the statutory action of ejectment provided in the United States, and upon the death of the defendant all persons interested in the estate may be cited to appear and the action may be further prosecuted against them.^" Upon their ap- pearance they may set up title in themselves, acquired from the deceased defendant, or from any other source. ^^ It is impera- tive, however, that such persons be brought in, for otherwise there would be no defendant in court against whom judgment could be given for the land. Nor would it be sufficient merely to bring in the administrator for, as he could not be a tenant of the freehold, he could not be charged with being a disseizor. '^- And even though a judgment should be rendered in such a case it could not affect the heirs.^' But where a revivor is had in an action of ejectment on the suggestion of plaintiff against one as heir of the original de- fendant, it is incumbent on the plaintiff to see that the person so oSee Torry v. Black, 58 N. Y. 655; Trask v. Trask, 78 Me. 103. 188. 11 Brunswick Sav. Inst. v. 7 Vincent v. Starks, 45 Wis. Grossman, 76 Me. 577. 458; MuUer v. Benner, 69 III. ' 12 Trask v. Trask, Adm'r, 78 108. Me. 103. 8 17 Car. II, c. 8. 13 Bridgham v. Prince, 33 Me. loGuyer v. Wookey, 18 111. 174. 536; Barrett v. Blrge, 50 Gal. § 106.] GENERALLY CONSIDERED. Ill brought in is a proper party, for if it shall appear that such person is not the heir of the original defendant, and does not claim under him, but is in possession under a claim of inde- pendent and adverse title, the whole proceeding wiU be er- roneous.^* If there are several defendants, and one of them dies at any time before judgment, the action will not thereby abate but the plaintiff, on suggesting the death of such defendant upon the record, may proceed against the survivors. But, if the plaint- iff should proceed to trial, without such suggestion, and obtain judgment against all of the defendants, this would be error, as there cannot be a judgment against a person not in being. § io6. Continued — Plaintiffs. — With respect to parties plaintiff the rule is not so clear and local usage must be re- sorted to for the determination of many questions of this kind. It seems to have been the rule at common law that the death of any party, either plaintiff or defendant, and whether joint or sole, would abate an action. When the cause of action sur- vived such persons as possessed the right might institute a new action.'-^ Where the cause of action was a contract the personal representatives might prosecute it, and by the early English statutes, which are generally regarded as part of the common law, actions for the recovery of chattels and some ac- tions of tort were also allowed to be maintained by the ad- ministrator. It is contended that under an ec[uitable con- struction of these statutes, all rights of action for the re- covery of property, whether real or personal, survive to the personal representative, including actions of ejectment.^" But as ejectment is an action to try the right of possession and not merely to recover for an injury to possession, it was essen- tial under the old practice that the fictitious demise should be laid in the name of the party legally entitled to the possession, and the judgment fixed the possessory right. In the modern action the principle has not been changed, and, for this reason, the successor of the title and not the adniinistrator would seem to be the proper person to continue the action. This was the view entertained by the revisers of the statutes when the old " Rlchter v. Beaumont, 71 is 1 Chit. PL 58. Miss. 713. i«3 Redf. Wills, *177. 112 PAKTIES TO THE ACTION. [§ 106. action was abolished by the legislature of New York in 1830, and in the new procedure it was provided, that the action should not abate by reason of the death of the plaintiff but that the same proceedings might be had, as in other actions, to substi- tute the names of those who should succeed to the title of the plaintiff so dying, in which case the issue should be tried as be- tween the original parties.^'^ The provision above noted has been generally adopted, either in form or substance, by the other states. At the present time, for all purposes of survivorship the action is not regarded even technically as for a tort,^* and if the plaintiff dies before verdict his heirs may be substituted and may prosecute in their own right. ^^ If he dies after verdict they may be added as rep- resentatives, and obtain judgment thereon.-" If the plaintiff dies before trial his heirs may revive the suit aiid have judg- ment.-^ This may be taken as the generally received doctrine, although in some states, where the administrator is vested with a primary control during the period of administration, a some- what different rule would seem to prevail. This phase of the subject will be further discussed in speaking of personal rep- resentatives. Where the doctrine, as stated, is permitted to obtain, if there are several plaintiffs and any of them die before final judg- ment the death may be suggested on the record, and the heir or devisee of the deceased party may be admitted to prosecute the suit with the survivor in the same manner as if he had originally joined with him in commencing the action. If they do not join within a reasonable time, to be fixed by the court, the surviving plaintiff may prosecute the suit for so much of the premises in question as may then be claimed by him. 1' See H. S. N. Y., pt. 3, chap. Indeed, it was held to be a con- 5, tit. 1, § 32. Under the ancient tempt of court to suggest or as- practice, as the plaintiff was sign for error the nominal merely nominal, the courts plaintiff's death, looked upon the lessor of the is Guyer v. Wookey, 18 111. 536. plaintiff as the real person con- 536. cerned in the litigation and i» Funk v. Stubhlefleld, 62 111. would not siiffer him to he de- 405. prived of his remedy hy the 20 Milliken v. Marlin, 66 111. 13. death of the nominal plaintitC. 21 Milliken v. Marlin, 66 111. 13. §§ 107, 108.] GENEEALLT CONSIDEEED. 113 It will be understood, that the foregoing remarks have refer- ence to estates of freehold only. If the object of the recovery is a leasehold, then, since it is a cause of action arisihg on contract and the interest, if recovered, is for practical purposes a chattel, the executor or administrator would properly be sub- stituted on the record and the recovery would be an asset for distribution in the usual course of administration. § 107. Interveners. — The subject-matter in litigation in the action of ejectment is not the land itself, but the right to the possession of such land. Hence, a person unconnected with the right of possession asserted by either plaintiff or defendant, but claiming by a title paramount to both, cannot intervene or make himself a party to the action.^^ Where a third party who shows no interest in common or privity of right between him- self and the other litigants, but who claims by an independent ownership, petitions to be made a party, the petition should be denied. ^■■' The reasons which prevent the intrusion of a third party in a litigation already commenced apply with the same force where an effort is made by the defendant to introduce a stranger to the title in suit as a codefendant.^* § 108. Servants and employees. — While the subject is not altogether free from doubt the better opinion would yet seem to be, that where a person is in the actual occupation of land only as an incident of his employment he is not to be re- garded in the same light as a tenant and his possession is more like that of a servant. And where the occupation of land by a servant is connected with the service, or is required by the employer for the necessary or better performance of the ser- vice, the possession is always that of the master.^^ This raises some interesting questions in an action brought for the re- covery of the land. It is' a rule, both of the common law and of the statute, that if the premises, for the recovery of which the action is brought, are actually occupied by any person such occupant shall be named as defendant in the suit. The rule is broad enough to embrace every kind of occupancy and if lit- 22 Porter, v. Garrissimo, 51 Cal. 24 Longdon v. Clouse, 1 Atl. 559; Colgrove v. Koonce, 76 N. Rep. (Pa.) 600. C. 363. 25Chatard v. O'Donovan, 80 23 Piles V. Watt, 28 Ark. 151. Ind. 28. 8 114 PAETIES TO THE ACTION. [§ 109. erally construed would include persons who are in the nominal possession of land merely as servants or employees of the ad- verse claimant. And this was the construction given to it in the earlier decisions.^" Modern authorities reverse this holding and announce that such persons are not to be regarded as occupants within the meaning of the law, and notwithstanding such occupancy, the rule at present would seem to be that an action of ejectment cannot be maintained against them.^' At all events, mere em- ployees of the defendant who have simply been permitted to re- side upon the lands in controversy at the time suit is brought, and who claim no rights or interests therein, are not necessary parties defendant. ^^ The general rule, that ejectment must be brought against the party really interested in the possession, and not against the mere agents or employees by whom his occupancy is main- tained, only applies, however, to cases where the principal or employer may be sued. If the employer is not amenable to an action the rule fails, and the agent, servant or employee be- comes the proper party defendant."^ § 109. Purchasers pendente lite. — It is now among the best established rules of law, that where a person enters under a defendant, during the pendency of a suit to recover the land upon which such entry is made, he will be bound by any judg- ment that may be rendered in the suit notwithstanding he was not a party thereto. Hence, a purchaser from the defendant is held chargeable with notice of the character of the suit and of the extent of the claim asserted in the pleadings in reference to the land, even though he may be without notice in point of fact.''" The plaintiff, in such case, is wholly exempted from 26 Doe V. Stradling, 2 Starkie 21 Am. St. 607; Danlhee v. (Eng.), 187. And see Shaver v. Hyatt, 151 N. Y. 493. McGraw, 12 Wend. (N. Y.) 558. 20 Thus, ejectment may not be 20 Chiniquy v. Catholic Bishop brought against the United of Chicago, 41 III. 148; Danihee States, but will lie against an V. Hyatt, 151 N. Y. 493; Lattie- agent or officer of the United Morrison v. HoUaday, 27 Oreg. States in possession. See Po- 175; Polack v. Mansfield, 44 Cal.' lack v. Mansfield. 44 Cal. 36. 36. ■ soHurd v. Coleman, 42 Me. 28 Shaw V. Hill, 83 Mich. 322, 182; Tilton v. Cofield, 93 Wis. 168. g§ 110-112.] GENEEALLT CONSIDERED, 115 taking any notice of the title so acquired and such purchaser need not be made a party. The reason of tliis rule is founded in necessity and tlie rule itself is applied in furtherance of public policy. Were it other- wise, alienations made during the pendency of a suit might de- feat its whole, purpose, and there could be no end to litigation. § no. Corporations. — The general rule is, that in the en- forcement and protection of its rights a corporation has the same capacit}' as an individual, and may be sued in the same manner. Hence it may, in its own name, prosecute all such real and possessory actions as may be necessary. This right seems to have been implied at common law and is expressly conferred by the statutes which provide for the creation and regulation of corporations. Where, after the beginning of suit, the plaintiff corporation, by consolidation, becomes merged in a new corporation, in which the plaiiitiff's proprietary right is vested, the new cor- poration should be substituted as plaintiff.''^ § III. Railway companies. — For lands to which it has title a railway company may maintain the same atcions as other corporations. But in the case of railway companies we find a number of rights not possessed by the ordinary corporation, and among these is the right to condenm lands under the em- inent domain of the state. Where land has been thus con- demned a railway company may maintain ejectment for its re- covery, since the company acquires more than a mere easement or right of way, in that it has the right to possession for all pur- poses. Nor is such right affected by the fact that the land is not necessary for present use.^^ § 112. Continued — Entry under right of eminent do- main. — It is a fundamental law that private property shall not be taken or damaged for public use, against the will or without the consent of the owner, unless just compensation shall be made therefor, but, as a rule, corporations clothed with the right of eminent domain may always enter upon the land of private owners upon giving security for the payment of the damages that may accrue from the entry when the amotmt of 31 Wiggins Ferry Co. v. Rail- 32 Pittsburgh, etc. Ry. Co. v. road Co., 163 111. 238. Feet, 152 Pa. 488. 116 PARTIES TO THE ACTION. [§ 113. such damages shall have been ascertained. In such case a right of entry is established by virtue of the statute and without re- gard to the consent of the owner. But unless such entry is made in compliance with the law or in pursuance of a treaty with the owner, it will amount to a trespass for which an ac- tion will lie, either for damages or ejectment as the owner may elect.^^ Where, however, the entry is made with the knowledge and consent of the owner, notwithstanding there has been no dives- ture of title, either by conve3"ance or condemnation, the cor- poration does not thereby become a trespasser and the owner is regarded as having so far parted with possession as to estop him from attempting to resume the same or to defeat the right of the corporation to proceed under the statute. Nor does it seem that such consent need be openly expressed, for if the owner is passively derelict in knowingly permitting the corpor- ation to occupy and place its improvements on his land, this will be regarded as a permissive entry, and its effect the same as if a formal contract had been entered into by which the land- owner had agreed to put the corporation into possession and 'ac- cept as compensation such sum as might be awarded to him by proceedings under the general law.^* § 113. Trespassers. — Notwithstanding a person may have entered upon lands without a claim of right, yet, if his en- try was peaceable, his occupation will be so far protected that no one, of his own motion, will be permitted to evict him with force and arms or to forcibly interfere with his possession. Having acquired a peaceable possession of the land he will be presumed to be there rightfully and not even the owner may forcibly eject him vinless duly authorized by a legal process issued by some court of competent jurisdiction.^^ At common 33 Oliver v. Railroad Co., 131 si See Oliver v. Railroad Co., Pa. St. 408; Terre Haute, etc. 131 Pa. St. 408; St. Johnsbury, R. R. Co. V. Rodel, 87 Ind. 128; etc. R. R. Co. v. Willard, 61 Vt. Smith V. Railroad Co., 67 111. 134. 191. In this case the interest of 35 Van Aiiken v. Munroe, 38 the life tenant was condemned, Mich. 725; Austin v. Bailey, 37 but no steps were taken against Vt. 219; Illinois, etc. Coal Co. v. the remainderman. Held, that Cohb, 82 111. 183. ejectment would lie at the suit of the owner of the fee. § 113.] GENERALLY CONSIDERED. 117 law the owner might always enter by force and retake lands in the possession of a trespasser, but as this frequently led to breaches of the peace a statute was enacted ^° providing that no one should thenceforth make entry into lands except where the right was given by law, and then only in a peaceable manner. This statute, either by re-enactment or recognition, has be- come a part of our own law, and summary remedies for the re- storation of persons violently dispossessed now exist in all of the states. In these actions the question of title is not raised nor will a plea of this character be permitted.''' The only ques- tion presented is the fact of forcible entry and when this is sat- isfactorily shown a restoration of possession will be ordered and the question of title will be left to the parties to be deter- mined by an action of ejectment. Where a person enters upon lands without right and in a violent and forcible manner the owner may at once resoi't to his action of forcible entry and compel a restoration of posses- sion without the necessity of litigating the title with the tres- passer, but where the entry was peaceable the right to a sum- mary remedy is not so clear. Ejectment will always lie against a trespasser, and the earlier cases all hold that where a party is in peaceable possession the owner must resort to this form of action.'* But of late years the tendency has been to extend the scope of the action of forcible entry and detainer and to permit recoveries from trespassers upon a simple showing of prior possession. The question is one of doubt, however, and in many states seems to be obscure and unsettled. A mere intruder, who relies upon possession only, has but little standing in a court of law when sued in ejectment and a recovery will generally be allowed on a simple showing of the prior possession of the plaintiff.'' S6 5 Rich. II, c. 7. ss Hentig v. Pipher, 58 Kan. 3T Judy V. Citizen, 101 Ind. IS ; 788, 51 Pac. Rep. 229; John Spiers v. Duane, 54 Cal. 176; Henry Shoe- Co. v. Williamson, Rawson v. Putnam, 128 Mass. 64 Ark. 100, 40 S. W. Rep. 703; 552. Cook V. Bertram, 86 Mich. 359. 88 Shoudy V. School Directors, 32 III. 290. 118 PAETIES TO THE ACTION. [§ 114. II. Special Classes of Parties. 114. Heirs and devisees. 115. Reversioners. 116. Continued — Forfeitures. 117. Assignee of reversion. 118. Reversioners by possi- bility. 119. Remaindermen. 120. Cotenants — Suits be- tween. § 121. Continued — Extent of recovery, 122. Cotenants and strangers. 123. Continued — Extent of recovery. 124. Continued — ' Opposing views. 125. Doweress. 126. Tenant by curtesy. § 114. Heirs and Devisees. — ^While the rule is well es- tablished that heirs, devisees and legatees cannot sue in their own names for the recovery of personal propert}' of a decedent, pending administration or distribution in probate, 3'et with respect to realty there seems to be a conflict of opinion. It is observable, however, that this apparent conflict rests largely upon the interpretation of local statutes rather than upon any of the recognized principles governing this branch of the law, for usually, where the statute does not give to the personal rep- resentatives the possession of the decedent's lands, the heir can maintain ejectment to recover the possession of same at any time after the ancestor's death and before the estate is dis- tributed.*" This follows as a logical result of the application of the principle that, upon the death of the ancestor, intestate, his real property vests immediately in his legal heirs, subject only to the right of the personal representative to sell same for the payment of debts, in the manner prescribed by law. The same principle applies to a devisee, ,where the devise vests an immediate estate in possession. The statutes and civil codes of some of the states, however, have abolished many of the distinctions of the common law with respect to the real and personal property of decedents, and both are equally permitted to remain as assets in the hands of the executor or administrator pending final settlement. Where such a rule prevails, as where the personal representa- ■loTJbrick- v. Beck, 13 Pa. St. C39; "Warren v. Tobey, 32 Mich. 45; Murdock- v. Mitchell, 30 Ga. 74; Root v. McFerrin, 37 Miss. 17. § 115.] SPECIAL CLASSES OF PARTIES. 110 tive is directed by statute to take into his possession all the es- tate of the decedent, real as well as personal, it follows that the heir at law cannot bring ejectment to recover lands owned by the ancestor while there is an administrator of such estate duly appointed or while the administration of the estate is incom- plete or unsettled. During the period of administration, and while the estate is in process of settlement, the right of the heir is subordinate to the administrator's possession." It has been held, however, under statutes similar to those under considera- tion, that the possession thus given to the administrator is for the joint benefit of creditors and heirs, and should be exercised only as the exigencies of the case may require ; that if there is no administration the heirs may maintain ejectment for the lands of the intestate,*^ and that if there is an administrator, and he declines to commence the action, the heirs have such an estate in possession of the inheritance as will enable them to maintain the suit notwithstanding the power given to the administrator.*' Where the administrator's right of possession is not exclu- sive, an heir may, even during the pendency of the administra- tion, maintain ejectment against any person except the admin- istrator or one holding under him.** § 115. Reversioners. — While the modern action of eject- ment, or statutory substitute, is now employed for the settle- ment of titles rather than for the mere recovery of possession, which follows as a necessary incident, yet its essence is still that of a possessory action and the pleadings, proofs and judg- ment are in consonance with this idea. Hence, the right to the ultimate title does not, of itself, insure a recovery unless to it there is also added the right of present possession. In other words, the claimant must have a right of entry upon the lands at the time of the demise laid In the declaration, or at the time " See Doyle v. "Wade, 23 Fla. *3 Gossage v. Crown Point, etc. 90; Union Bank v. Powell's Co., 14 Nev. 153. Heirs, 3 Fla. 175; Harper v. '44Lewon v. Heath, 53 Neb. Strutz, 53 Cal. 655; Lewon v. 707; Jones v.' Billstein, 28 Wis. H-eath, 53 Neb. 707. 221; Filbey v. Carrier, 45 Wis. >2 trpdegraff v. Trask, 18 Cal. 469; Holbrook v. Campau, 22 458; Bufford v. Hoilllman, 10 Mich. 288. Tex. 564. 120 PARTIES TO THE ACTION. [§ 116. suit is commenced, and whatever takes away this right of entry or possession will also deprive him of his remedy by this form of action, notwithstanding the legal title remains in him.*^ This rule still obtains in all its pristine vigor, unaffected by time or the m.utations through which the action has passed, .and is of controlling efficacy whenever invoked. For this reason a landowner who has created an intermediate estate and duly installed a grantee into its enjoyment, will have no rights either against his grantee, or any person who may have invaded the possession of such grantee, until the determi- nation of such precedent estate.*" Thus, a lessor cannot re- cover the demised premises during the existence of the term or while the lessee has the right of possession under the lease, even against one not claiming thereunder ; *'' and such lease may be shown in evidence by a defendant in ejectment, though he does not connect himself with it, thereby defeating a recov- ery.*= Nor is the integrity of the rule affected even though the de- fendant may have entered under the tenant of the particular estate and by his consent. The fact that such tenant may have undertaken to convey the whole property, while it indicates an intention upon the part of his grantee to take and hold the land under a claim to the whole thereof in fee, does not confer any right of possession upon the reversioner, nor entitle him to maintain any action to the maintenance of which a right of possession is essential.*^ It may be that such a conveyance would entitle the reversioner to a forfeiture of the tenant's es- tate, and, in a proper case, such forfeiture might be made ef- fective by ejectment, but unless the person entitled to the for- feiture elects to enforce it, notwithstanding the existence of a cause of forfeiture, no right of possession will accrue.^" § ii6. Continued — Forfeiture. — ^The question of forfeit- ure raised in the foregoing paragraph is forcibly presented 46 Richardson v. Railway Co., *7 Cobb v. Lavalle, 89 III. 331. 89 Md. 126; Wells v. Steckel- is Cobb v. Lavalle, 89 111. 331. berg, 52 Neb. 597. « Pendley v. Madison, 83 Ala. 46 Robinson v. Kime, 70 N. Y. 484. 147; Pendley v. Madison, 83 oo Miller v. Bwing, 6 Cush. Ala. 484. (Mass.) 34. § 116.] SPECIAL CLASSES OF PARTIES. 121 where the tenant in possession is guilty of waste. The general rule of the common law is, that voluntary waste works a for- feiture of estate and is a determination of the tenancy," al- though the authorities are not altogether clear as to what will constitute waste producing this effect. The felling of timber, opening of mines, changing the course of husbandry, tearing down buildings, etc., are given as examples in the elementary books, but much depends on local custom, the situation of the property, and the circumstances of the particular case. It has been held that if the tenant in possession does any act that works a disherison; as by destroying timber which he cannot reproduce, or removing soil which he cannot replate, the re- version is thereby wasted and an action lies to recover the lands, ^^ but the later cases seem to hold that the mere fact that the tenant is committing waste ^^■ill not of itself, give to the re- versioner any possessory rights. For any injury to the inheri- tance he may resort to his remedy for waste or such preventive remedy as the law may afford, but cannot bring ejectment so long as the tenancy continues. ^^ At common law a life tenant by curtesy or dower was always liable in damages to the reversioner for waste committed, and the estate was subject to forfeiture for this reason. By statute the same rule was made to apply to other life tenants. To some extent, not very clearly defined, this rule has been asserted in the United States, but courts hesitate to enforce it and the sub- ject is involved in much doubt. It has been held, in states where the rule still continues to receive some recognition, that a reversioner or remainderman is not entitled to claim imme- diate possession as a result of the forfeiture of the interest of the life tenant unless it appears that there has been both per- missive and voluntary waste by the tenant, or by one for whose conduct he is responsible, and in such case it must further ap- pear that the voluntary waste was committed wantonly and with a reckless disregard of the rights of the next taker."* 51 Phjllips V. Covert, 7 Johns. es Robinson v. Kime, 70 N. Y. (N. Y.) 1. 147. 52 Sohermerliorn v. Buell, 4 siRoby v. Newton (Ga. 1905), Denio (N. Y.), 422. 49 S. E. 694j In this case the 122 PARTIES TO THE ACTION [§ 11'^- § 117. Assignee of reversion. — By the common law, no one could take advantage of a condition but the immediate grantor or his heirs, a principle fully consistent with the old feudal maxims, but highly injurious to the rights of grantors when the practice of alienating estates had become general and leases for years a valuable possession. To remedy this evil a statute was passed ^^ giving the grantee or assignee of a rever- sion the same rights and advantages, with respect to forfeitures of estates, as were accorded to the heirs of individuals and the successors of corporations. This statute, as originally enacted, was very broad in its terms, permitting to the assignee a priv- ilege of re-entry not only for non-payment of rent or waste but for "other forfeiture." But the courts, in their interpretation of the statute, limited its effect by declaring that the "other for- feiture" extended only to matters of the same nature as those expressly named and which were incident to the reversion or for the benefit of the estate. Thus, the assignee might take ad- vantage of covenants relating to repairs or the course of hus- court says: "The feudal system, which furnished the reasons for the common-law rule that a dow- ress was liable in damages for waste, and which l^rought about the statutes applying the same rule to other tenants for life, and imposing harsh penalties not known to the common law, never having been of force in this state, the harsh and strin- gent rules applied in some Eng- lish cases in determining what was waste are not, and never were, suited to the conditions of our people, and therefore never became a part of our law. There- fore our law determines the question as to what is waste by looking alone at the rights of two individuals, one in posses- sion of the estate for a limited time, and the other who is to take after the lapse of that time, without regard to any system of tenures of which the estate in question formed a component part. In England the courts were bound to look, not only to the rights of the individuals who were owners of the estate, but also to the rights of the lord paramount under the system which public policy demanded should be maintained. There- fore under our law the tenant for life must not be harassed and disturbed by the interfer- ence of the reversioners or re- mainderman, unless it be clearly shown that the rights of the lat- ter as the ultimate owner of the property are imperiled by the conduct of the tenant. Dower is favored by the law, and a tenant in dower, of all other tenants, is entitled to the enjoyment of her estate free from the undue espionage and intermeddling of the heirs of her husband or those who claim under them." 65 32 Hen. VIII, 34. § 118.] SPECIAL CLASSES OF PARTIES. 123 bandry, but not of collateral covenants, and this construction was generally followed by the courts of this country. In the absence of a statute to the contrary the old rule will probably control in the settlement of questions in which it may be invoked, but such statutes now exist in many states and un- der them, where a reversion is conveyed before the breach of any express condition annexed to the particular estate, the as- signee of the reversion has the same right of entry and the same remedy for breach of the condition as the original gran- tor, or those who legally represent him, would have had if the reversion had not been so conveyed.^" § ii8. Reversioners by possibility. — A reversion is a vested interest, the residue of an estate left in a grantor after he has carved out a particular estate, but which commences in possession only after the determination of the precedent estate thus created. There are many cases, however, where property may revert to a grantor who has parted with all his estate, as where land is dechcated in fee for a special purpose, and the purpose fails, or where a conveyance has been made to a cor- poration which is subsequently dissolved by ouster, and, gen- erally, where the entire interest is conveyed but its continuance depends upon a contingency. '' iVs there is no such thing in law as a contingent reversion,^^ it follows that about all that is left in the grantor, in a case of this kind, is a naked possibil- ity of reverter. This is not an estate of any kind recognized by the law, and hence, as no rights can be predicated upon it, eject- ment will not lie for the lands affected by it."^ The question arises mainly in those cases where rival titles are asserted by parties claiming under the grantor by deed or will on the one hand and by inheritance on the other. It seems 56 Consult local statutes. as a sort of convenient colloqui- 57 Board of Education v. Ed- alism. No such an estate is son, 18 Ohio St. 221. known to the law and the im- 68 This statement may cause proper use of the term seems to some doubt, from the fact that have grown out of misapplica- both courts and legal writers tions of the doctrine of remain- have, in many instances, used ders. the term in the discussion of 59 Davis v. Railway Co., 87 legal propositions. Such use, Ala. 633, 6 So. Rep. 140. however, can be regarded only 124 PAETIES TO THE ACTION. [§ 119. clear, however, that a mere possibility of reverter cannot be made a subject for disposition by deed or will; in other words, it is incapable of either alienation or devise."" If, by any chance, the grant should fail the grantor becomes clothed with a right of entry and this right he may assert by an action of ejectment against the party in possession. But the right, so far as it may be called a right, is strictly personal until the oc- casion arises for its exercise, that is,' until there has been a breach of condition or other circumstance permitting an entry. If, prior to this event, the grantor attempts to convey the land, his grantee takes nothing, nor will a devisee acquire any right by an attempted disposition by will. In the event that the gran- tor dies before a right of entry accrues his heirs succeed to his reversionary rights, and may maintain ejectment against any person in possession claiming under him."^ This is only a re- statem.ent of the old and oft repeated rule, that where an estate is conveyed upon a condition subsequent no one can take ad- vantage of the breach of such condition except the grantor or his heirs. "^ § iig. Remaindermen. — The questions discussed in the paragraphs immediately preceding and the rules therein stated, apply in many respects to remaindermen. As it is indispen- sable to the maintenance of the action that the plaintiff shall have a right of possession at the time suit is instituted, it nec- essarily follows that a remainderman cannot avail himself of the remedy during the continuance of the particular interme- diate estate."^ For any act done or threatened, which constitutes an injury to the inheritance, he is entitled to a remedy, either preventive or compensatory, but, notwithstanding there may have been a total disseizin of the tenant of the particular estate by a stranger to the title, or that such tenant has assumed to convey the entire property, and has placed his grantee in full so Presbyterian Church v. Ven- 328; Hooper v, Cummings, 45 able, 159 111. 215; Nicoll v. Rail- Me. 359. road Co., 12 N. Y. 121. 63 Cook v. Caswell, 81 Tex. 61 Presbyterian Church v. "Ven- 678 ; Miller v. Bwing, 6 Cush. able, 159 111. 215. (Mass.) 34; Salmons v. Davis, 62 Towne v. Bowers, 81 Mo. 29 Mo. 176 ; Wells v. Steckelberg, 491; Merritt v. Harris, 102 Mass. 52 Neb. 597. § 120.] SPECIAL CLASSES OF PAETIES. 125 possession, in neither case wotild the remainderman be entitled to maintain an action for the recovery of tlie land until the ter- mination of the particular estate.''* This logically follows from the reason that the injury in either case is only to the possess- sion, and as the remainderman has no right of possession, there- fore he can suffer no injury from the detention of possession by another. On the other hand, when the particular precedent estate has terminated, and a right of entry has accrued, the remainderman may at once i'nstitute an action for the recovery of the land if possession thereof shall be withheld."^ § 120. Cotenants — Suits between. — It was announced at an early day, both in England and America, that one tenant in common cannot, in general, maintain an action of ejectment against his cotenant unless there has been an actual ouster,^" and this doctrine, in its essential terms, continues to find ex- pression.^^ For some time, however, considerable uncertainty seems to have prevailed with respect to the meaning of the words "actual ouster." It would seem that at one time they were held to indicate some act or acts accompanied by physical force, but this meaning was subsequently repudiated and the question as to whether one tenant had actually ousted another was held to be one of fact, involving the intentions and motives of the party in possession to be inferred from circumstances.^^ Where one tenant denies the title of the other and claims the whole property,^" or where one hinders the entry of the other,'" this will amount to an ouster and give to the injured party a right to recover his moiety in ejectment.''^ It would seem nec- e^Pendley v. Madison, 83 Ala. 501; Edwards v. Bishop, 4 N. Y. 4S4; Salmons v.' Davis, 29 Mo. 61. 176; Pierre v. Fernald, 26 Me. 68 Cummings v. Wyman, 10 440; Foster v. Marshall, 22 N. Mass. 468. H. 491. 00 Edwards v. Bishop, 4 N. Y. 65 Davis V. Jones, 95 Ga. 788, 61. 23 S. E. Rep. 79. to Gordon v. Pearson, 1 Mass. 66 Barnitz's Lessee v. Casey, 7 323; Norris v. Sullivan, 47 Conn. Cranoh (U. S.), 456; Clapp v. 474. Bromagham, 9 Cow. (N. Y.) 5,56. ti Gale v. Hines, 17 Fla. 773; 67 Vance v. Schroyer, 77 Ind. Frakes v. Elliott, 102 Ind. 47; Falconer v. Roberts, 88 Mo. 574. 126 PAETIES TO THE ACTION. [§ 121. essary, however, that there should be an ouster of some kind to €nable one tenant to bring the action against his cotenant and where this right has been preserved by statute, as is generally the case, the statute, as a rule, continues to employ the ancient formula providing for an "actual ouster." But while the form has been retained and an ouster must still be alleged and proved,^^ a forcible expulsion is no longer required to be shown and it will be sufficient if the plaintiff proves any act which amounts to a total denial of his claim. '^^ The denial must be such as to amount to a disseizin of the cotenant, or such as will establish an adverse possession upon the part of the wrong- doer.''* That is, it must be more than a mere claim in fee, for such a claim is consistent with the title; it must be a claim of exclusive ownership. Nor is a refusal to pay rents and profits to a cotenant sufficient to furnish grounds for the action unless there is also a denial of his title.^^ Neither will ejectment lie at the instance of one tenant in common merely because his co- tenant is occupying more land than would be his share of the premises upon a division thereof."^ If the defendant by his pleadings admits an ouster or sets up a claim to the entire premises as of right, the fact of ouster will be taken as established without any proof on the part of the plaintiff." § 121. Continued — Extent of recovery. — But while it is now well settled that one tenant in common may maintain eject- ment against a cotenant in possession who disputes his rights,'^ yet such action can be brought only for the moiety or undivided share of such tenant and not for possession of the entire tract- 7= Ewald V. Corbett, 32 Cal. 74 Clapp v. Bromagham, 9 Cow. 499; Higbee v. Rice, 5 Mass. 351; (N. Y.) 556, Cross V. Robinson, 21 Conn. 385; 75 Slglar v. Van Riper, 10 Allen V. Long, 80 Tex. 261; Ed- Wend. (N. Y.) 415. wards v. Bishop, 4 N. Y. 61. re Daniel v. Daniel, 102 Ga. TsPhelan v. Smith, 100 Cal. 181. 158; Minton v. Steele, 125 Mo. 77 Harrison v. Taylor, 33 Mo. 181; Cameron v. Railway Co., 60 211; Allen v. Salinger, 103 N. C. Minn. 100; Norris v. Sullivan, 14; Noble v. McFarland, 51 111. 47 Conn, 474: Edwards v. 229. Bishop, 4 N. Y. 61. 7s Mabie v. Whitaker, 10 Wash. 656. § 122.] SPECIAL CLASSES OF PAKTIES. 127 nor for a designated part of the landJ" At first blush this ap- pears incongruous, as it seems to imply a divided possession. There is no technical difficulty, however, in the enforcement of a judgment recovered in an action so brought and the plaintiff having been found to be the owner of an undivided interest may properly be let into possession with the defendant accord- ing to their respective interests.^" § 122. Cotenants and strangers. — As a general proposi- tion any two or more persons, claiming the same land as co- tenants, may join in an action for its recovery or any one may sue alone for his share. This is the statutory rule of most of the states and where the rule obtains the action may still be maintained notwithstanding that the interests of the tenants are unequal. Upon the foregoing proposition there does not seem to be any dispute. °^ But with respect to the right of one tenant, acting solely for himself, to recover the entire property, there is much conflict of opinion. Inasmuch as a tenant in common is entitled to the possession of the entire tract, as against all persons except his cotenant, it would seem to be in consonance with legal reason that he may, without joining such cotenant, maintain an action of ejectment against a stranger and recover possession of the whole thereof. This view has been adopted in a number of states, and in those states now constitutes a settled rule.^- The ■ reason for the rule certainly seems ample to sustain it, particu- larly when we consider that the gist of ejectment is the re- covery of possession rather than the establishment of title, and that the question of title is raised only incidentally for the pur- pose of sustaining such right to recover. In trespass the prin- ts Duncan v. Rodecker, 90 82 Mather v. Dunn, 11 S. Dak. Wis. 1. 196; Newman v. Bank, 80 Cal. 80 Foster v. Hackett, 112 N. C. 368; Allen v. Higgins, 9 Wash. 546. 446; Grassmeyer v. Beeson, IS 81 West Chicago Park Com- Tex. 766; Sowers v. Peterson, 59 missioners v. Coleman, 108 111. Tex. 216; Thames v. Jones, 97 591; Baber v. Henderson, 156 N. C; 121; Smith v. Tankersley, Mo. 566; Telfener v. Dillard, 70 20 Ala. 272; Robinson v. Roberts, Tex. 139; King v. Hyatt, 51 Kan. 31 Conn. 145. 504; Marshall v. Palmer, 91 Va. 344. 128 PAETIES TO THE ACTION. [§ 123. ciple involved has never been questioned,^^ and, as the posses- sory rights are the same in both actions, there seems no sub- stantial reason why it should not obtain in ejectment. What- ever objection might be urged against it with respect to the now infrequent estate of joint-tenancy does not apply to tenants in common. Such latter persons are not united in interest, and hence escape the rule requiring joinder of parties, while the possession of one is the possession of all, and for these reasons there is nothing incongruous or inconsistent in an action by one of them to recover from a stranger the possession of the common property. As the action is now conducted in all of the states it is sufficient for the plaintiff in ejectment, upon the trial,, to show a right in himself to the possession of the prem- ises at the time of the commencement of the suit, and this a tenant in common certainly does when he discloses his title, notwithstanding that such proof may also show that another has substantial interests in the land. § 123. Continued — Extent of recovery. — It is contended, and with much reason, that whenever a right is given there should be a corresponding remedy for its protection and en- forcement,**^ and as there can be no dissent from the funda- mental proposition that each cotenant is, as against a stranger, entitled to the exclusive possession of all of the common prop- erty, there would seem to be but one logical conclusion to be drawn when that possession has been invaded by a stranger. In such event either tenant should be free to vindicate the right to possession and to employ any of the agencies which the law has provided for such an emergency. Hence, a cotenant should have the right to recover possession by an action of ejectment in his own name irrespective of the extent of his estate or actual interest in the land.*'* 83 Hlbbard v. Foster,, 24 Vt. son, 28 Minn. 523; George v. Mc- 542. Govern, 83 Wis. 555; Allen v. 84 Freeman, Cotenancy, see. Higgins, 9 Wash. 446; Brady v. 343. Kreuger, 8 S. Dak. 464, 59 Am. ssThe doctrine of the text is St. 771; Hibbard v. Foster, 24 supported by the following au- Vt. 546; Newman v. Bank, SO thorities: Robinson v. Roberts, Cal. 368; Telfener v. Dillard, 70 31 Conn. 145; Sharon v. David- Tex. 139. son, 4 Nev.|419; Sherin v. Lar- § 124:.] SPECIAL CLASSES OF PARTIES. 129 It has sometimes been urged, in opposition to this view, that if the owner of an undivided interest be allowed to recover the whole property he will, on the strength of a title to a moiety, have recovered possession of other moieties to which he has no title, and, having so obtained possession of the entire property, will not be estopped from denying the title of the owner of the other interest.*^ There is some support for this view in a case where there is no community of interest between the claimant and the other owners and where each holds under different titles. In such event, as the recovery is not based upon a com- mon title, if the claimant does not recognize or mention the title of his cotenants there would, perhaps, be no impropriety in restricting his recovery to the actual interest he is able to show. But where the tenant grounds his claim to recover on the com- mon title, he recovers, if at all, for the benefit of the whole, and if in such action he obtains possession of the land, his cotenants become likewise possessed.^'' In such a case, notwithstanding the action was brought in the name of one, the recovery would be for the benefit of all. Where the right to sue in this man- ner is recognized, however, the courts go much farther and per- mit recoveries of the whole to a sole claimant of any undivided part on the theory that where one tenant in common of lands recovers possession of the same; as against a mere disseizor, his recovery inures to the benefit of all of the cotenants and the judgment he may obtain will be subordinate to their rights. ^^ § 124. Continued — Opposing views. — But while there are numerous precedents to support the doctrine just enunciated the volume of authority is in opposition to it, and the more generally observed rule would seem to be, that in ejectment by a tenant in common against a person in possession, who is a stranger to the title, the plaintiff can recover only to the extent of his interest. ^° This rule proceeds upon the well recognized principle of the action that a plaintiff must recover if at all, on the strength of his own title, and hence, as a necessary corol- 86 King v. Hyatt, 51 Kan. 504, Neb. 505 ; Newman v. Bank, 80 37 Am. St. 304. Cal. 368. ST Barrett v. French, 1 Conn. sd Mattis v. Boggs, 19 Neb. 364. 698; Kirk v. .Bowling, 20 Neb. 88 Crook V. Vandevoort, 13 260; King v. Hyatt, 51 Kan. 504; 9 130 PARTIES TO THE ACTION. [§ 12i. lary, his recovery must be in accordance witli that title.'" The old rule whereby a plaintiff was required to state in his pleading the exact nature of the interest he claimed and was restricted in his proof to the estate actually declared upon, has been so far relaxed as to permit him to sue for the whole of the prem- ises and to recover such part, or such interest therein, as upon the trial he shall show himself lawfully entitled to. But this seems to be its full extent, and while he may prove and recover such interest the authorities which announce the rule now tm- der discussion seem to be united upon the point that he cannot, in his own name, represent or bind his cotenants nor recover any other or greater interest than his evidence shall show him to be entitled to."^ Hence, each tenant who may be ousted by a stranger must sue for and can recover only his alicpot part or share of the estate, which part or moiety so recovered he will hold in common with the disseizor, until his remaining coten- ants institute like proceedings as himself to recover from the stranger his or their individual interests in the land."" Further, while any person may bring ejectment for th-e whole of the premises, and his action will not be defeated merely be- cause he fails to prove that he is entitled to the entirety, and shows only a title to some lesser interest, yet it is incumbent upon him not only to establish the legal title in himself to sucli lesser interest, but also to prove the extent of such interest. If it appears that there are other persons interested with him as cotenants, he must show the specific share or proportion that belongs to him, and his undivided interest must be made cer- tain, clear and definite. If he fails to do this, and, as a conse- quence, his interest cannot be specified by the verdict of the jury or the judgment of the court, he cannot recover, and judg- ment will be rendered for the defendant.'^ Gray v. Givens, 26 Mo. 303; Daw- 344; Gray v. Givens, 26 Mo. 291; son V. Mills, 32 Pa. St. 302; Over- King v. Hyatt, 51 Kan. 504; cash v. Ritchie, 89 N. C. 384; Johnson v. Hardy, 43 Neb. 368. Marshall v. Palmer, 91 Va. 344; 9= Baber v. Henderson, 156 Cruger V. McLaury, 41 N. Y. 219. Mo. 566, 57 S. W. Rep. 719; ooMobley v. Bruner, 59 Pa. St. Dewey v. Brown, 2 Pick. (Mass.) 483; Johnson v. Hardy, 43 Neb. 387; Mobley v. Bruner, 59 Pa. St. 368. In this case the plaintiff 483. And see Kirk v. Bowling, was permitted to amend by 26 Neb. 260. making his cotenant a party. os Marshall v. Palmer, 91 Va. 91 Marshall v. Palmer, 91 Va. 344. §§ 12a, 126.] SPECIAL CLASSES 0¥ PARTIES. 131 § 125. Doweress. — In many of the states a widow may bring an action of ejectment to recover unassigned dower in the lands of her late husband, while in some states it can be re- covered only in this form of action.'* At common law an eject- ment for dower would not lie before assignment, and the only remedy, in such a case, was the old writ of dower, but in the United States, from an early day, ejectment has been permitted by statute before assignment or admeasurement,"-''' and where the old statutory action of ejectment is still permitted it will generally lie for unassigned dower, although, in such event, it is regarded simply as a right of action and not a vested in- terest."" Usually, an assignee of a chose in action may sue and recover thereon, either in his own name or in the name of the assignor, and it has been held in some states that if a widow sells her right of dower before assignment the purchaser may pursue an appropriate remedy and compel an assignment."'^ But, in the absence of express statutory authority to the contrary, the bet- ter considered rule would seem to be that the right is personal to the doweress, and that unassigned dower can be recovered hy no person other than the widow. Where this rule prevails an action of ejectment will not lie at the suit of an assignee, whether prosecuted in his own name or otherwise."^ An action of ejectment for dower is now very infrequent and in a majority of the states is not permitted. The early statutes of ejectment, which followed the lead of the Revised Statutes of New York, generally provided for this form of recovery, but during later years the inconvenience of the method has led to its general abolition and in only a few states is it now ptir- sued. § 126. Tenant by courtesy. — Under modern statutes the estate by curtesy has well nigh been obliterated. In some states 9* Proctor V. Bigelow, 38 Mich. 96 Yates v. Paddock, 10 Wend. 285. (N. Y.) 529. 95 Tlae change seems to have ei Robie v. Flanders, 33 N. H. heen first effected in New York, 524; Rowe v. Johnson, 19 Me. and the policy thus inaugurated 146; Thomas v. Simpson, 3 Pa. has been followed in a number St. 60. of states. 98 Galbraith v. Fleming, 60 Mich. 408. 132 PAETIES TO THE ACTION. [§§ 127, 128. it is not recognized at all ; in others it obtains but a scant recog- nition; in no state is it allowed its full common-law signifi- cance. It has been held, in those states where the estate con- tinues to exist, that a tenant by the curtesy initiate may sue alone for possession of his wife's land and for damages for the detention thereof."^ This is the common-law rule, but even A'here the estate is recognized it is practically rendered nuga- tory by enactments which give to a married woman the same rights of control over her separate property that she would have if she were sole. III. Husbands and Wives. 127. Generally considered. 128. Married women — Plaint- iffs. 129. Suits against the hus- band. § 130. Married women — De- fendants. 131. Joinder of wives. 132 Homesteads. § 127. Generally considered. — In the old law the topic discussed in this section had but a small place, the possessory rights of the wife, for most purposes, being transferred to the husband. Indeed, the old writers on ejectment do not notice the marital relation, excpt as it serves to confer rights on the husband, and then only in a casual and incidental way. But modern legislation has completely changed the marriage status, so far as it affects the ownership of land and the assertion oi possessory rights therein, and the topic becomes of much im- portance in every work assuming to treat of the trial of con- tested titles. § 128. Married women — Plaintiffs.- — By the rules of the common law the legal existence of a woman, upon her mar- riage, became suspended, and thenceforward, during the cover- ture, was merged entirely in that of the husband. As a con- sequence she was without capacity to take or hold real prop- erty or make any valid contracts with respect to same. The husband, by virtue of the marital relation, was alone entitled to the possession of the wife's lands during their joint lives, and as 99 Wilson V. Arentz, 70 N. C. 670. § 129.] HUSBANDS AND WIVES. 133 the right of possession is the indispensable -requisite for the maintenance of ejectment, it followed that the wife was without capacity to sue for the recovery of her lands and that the pos- sessory title of the husband was sufficient to enable him to bring the action in his own name.^ In those states where a husband is entitled to the possession of his wife's land he may still sue in ejectment therefor without joining her in the ac- tion.^ But, at the present time, for nearly every practical purpose, a married woman rests under no disability from the simple fact of coverture, and, in most of the states, broad and comprehen- sive statutes secure to -her the same freedom of action as though she was sole. Under these statutes married women have the same rights in their separate estates as are possessed by their husbands in respect of their own property, including the right to bring an action to recover possession of lands from which they have been unlawfully ousted.' Nor is it necessary, in cases of this kind, that the husband be joined as a plaintiff.* This is a wide departure from the ancient rules with respect to suits by married women, and while the husband may, perhaps, still properly join in a suit for the recovery of the wife's lands, as prescribed by Chitty and the earlier writers, yet, under mod- ern statutes which give to a married woman the right to take, hold and convey property with like effect as if she were un- married, it is clear that the husband is not a necessary party. § 129. Suits against the husband. — It does not appear to be material to the operation of the principle involved in the statute mentioned in the preceding paragraph, or the exercise of rights thereunder, whether the disseizor be a stranger or the husband of the plaintiff. Where the doctrine of absolute prop- erty in a married woman is recognized and enforced it has re- peatedly been held that she may maintain an action of eject- ment against her husband to recover possession of lands to 1 Jackson v. Leek, 19 Wend. 2 Evans v. Kunze, 128 Mo. 670. (N. Y.) 339; Cliambers v. Hand- a Darby v. Callaghan, 16 N. ley, 3 J. J. Marsb. (Ky.) 98; Y. 71; Cook v. Cook, 125 Ala. Shaw V. Hersley, 5 Mass. 521; 583, 27 So. 918. Thornton v. Thornton, 3 Rand. •* Darby v. Callaghan, 16 N. Y. (Va.) 179. 71. 134 ' PAETIES TO THE ACTION". [§ 129. which she is entitled in her own right.' Nor is it of an}^ con- sequence, in such event, that tlie land of which recovei'}' is sought has been occupied by the husband and wife and their children as a homestead, nor that the husband and children con- tinue to reside thereon." In some of the cases the right to maintain the action is restricted to parties living separate and apart from each other,'' and in most of the cases where the doc- trine, as above stated, has been announced this has been their condition. This is another wide departure from the common law, under which the disabilities of coverture effectually precluded a wife from suing her husband at law, and by which such coverture might always be pleaded in bar of the action. But it is con- tended, and with much legal reason, that legislative acts giving to a married woman the same status and rights as though she were sole so far as respects her own separate property, would have no very beneficial operation or effect in the protection of such property unless the powers conferred should be made to extend to the prosecution of suits for its recovery even against her husband, should he, contrary to her wishes and in defiance of her rights, unlawfully interfere with it.* The decisions in which this doctrine is announced proceed, in the main, upon the theory that legislation extending the contractual powers of married women has destroyed the common-law unity in person of husband and wife, so far at least as their rights of property are concerned, and has given to each spouse a separate and in- dependent legal existence to such an extent as may be necessary to the full exercise and protection of such rights." Where this doctrine prevails the wife may, in her own name and in any form of action, sue the husband to enforce any right affecting her property, the same as if he were a stranger. •^Wood v. Wood, 83 N. Y. 575; 7 McKendry v. McKendry, 131 Crater v. Crater, 118 Ind. 521; Pa. St. 24. And see Taylor v. McKendry v. McKendry, 131 Pa. Taj'lor, 112 N. C. 134. St. 24, 6 L. R. A. 506; Bucking- s Emerson v. Clayton, 32 111. ham V. Buckingham, 81 Mich. 493; Smith v. Smith, 20 R. I. 89; Cook v. Cook, 125 Ala. 583, 556. 27 So. Rep. 918, 82 Am. St. 264. 9 See Sims v. Rickets, 35 Ind. « Cook T. Cook, 125 Ala. 583, 181 ; Wright v. Wright, 54 N. Y. 27 So. Rep. 918, 82 Am. St. 264. 437; Gillespie r. Gillespie, 64 But see Manning v. Manning, 79 Minn. 381. N. C. 293. § 130.] HUSBANDS AND WIVES. 135 But while the legislation upon this subject has been compara- tively uniform throughovit the country the judicial construc- tion of such legislation has been variant and contradictory. It is believed that the foregoing statements represent not only the preponderance of authority but the general trend of public sen- timent as well, yet, in many states, where statutes have been enacted giving to a wife the power to contract and sue gener- ally, it is contended that such statutes do not extend to con- tracts made with the husband or to suits brought against him during the coverture, and, in such states, while the old common- law right to sue in equity is still recognized, the right to bring an action at law is denied. The statute, in such states, is per- mitted to have only a limited effect. That is, the wife may sue or be sued without joining the husband, but with respect to the spouses the legal unity remains unaffected, and, as a conse- quence, neither may maintain a legal action against the other.^" In a few states the statute expressly decides the question, either by an express inhibition of the right to sue the husband,^^ or an express permission so to do,^^ and, in such cases, the de- cisions thereunder are practically of no value for juristic pur- poses or as persuasive authority in other states. There is another feature of the subject which is reserved for discussion in another place, and that is : to what extent a judg- ment of ejectment may be executed against the husband. As a rule, the sheriff must evict the defendant where a writ of pos- session is sued out by the successful plaintiff, and the appli- cation of this rule, in the case of husband and wife, is fraught with much difficulty. § 130. Married wromen — Defendants. — Where a married woman is in the joint occupancy of land with her husband, as- serting and claiming an interest therein in her own right, she is not only a proper but a necessary party and a recovery against the husband alone will not affect her rights. ^^ Where 10 See Barton v. Barton, 32 Md. chusetts. See Lombard v. Morse, 214; Smith v. Gorman, 41 Me. 155 Mass. 136. 405; Small v. Small, 129 Pa. St. 12 As in California. See Wil- 366. son V. Wilson, 36 Cal. 447. 11 This is the case in Massa- is Stewart v. Patrick, 68 N. Y. 450. 136 PAETIES TO THE ACTION [§ 130. such title is of record no question can arise, but where the claim rests on mere occupancy and the statute of limitations, the case becomes one of difficulty. As a general proposition a married woman is presumed to have entered under her husband and their joint occupancy is, in law, the possession of the husband.^* In the absence of evi- dence upon the subject the legal presumption supplies the want of proof and becomes conclusive. But the presumption may always be rebutted b}- showing that she took possession in her own right, and when a married \yoman enters into the posses- sion of land in her own right, claiming under a color of title emanating from a source other than her husband, and con- tinues uninterruptedly in possession, claiming the land as her own, for the statutory period of limitation, then, notwithstand- ing her husband may have shared the occtipancy with her, hef title becomes complete and is not affected by a recovery from the husband in an action to which she was not a party.^^ Where husband and wife are in the joint occupancy of land, the title whereof is vested in the wife, or where the husband alone is in the ostensible possession of such land, some intricate questions may arise out of the statutory directions respecting parties defendant. Thus, the statute directs the action to be brought against the "actual occupant." But if the husband is in possession only as the consort of the wife, or as an agent or servant of the wife, this, it has been held, does not constitute him an occupant within the meaning of the law.^° It is fur- ther held, that the question as to who is the actual occupant in a case of this kind, and hence a proper defendant, is one of fact for the jury ; and where the title is in the wife they may prop- erly find that she was the actual occupant, notwithstanding her husband was in charge of affairs, cultivated the soil, etc. These decisions proceed upon the theory that a husband may still be the head of a family without being in anj^ legal sense the pos- sessor or "actual occupant" of the house or land in or upon which the family reside. 14 Bledsoe v. Simms, 53 Mo. 450; Martin v. Rector, 101 N. Y. 305. 77. 15 Collins- V. Lyncli, 157 Pa. St. lo Martin v. Rector, 101 N. Y. 246; Stewart v. Patrick, 68 N. Y. 77. §§ 131, 132.] HUSBANDS AND WITBS. 137 § 131. Joinder of wives. — It remains now to consider the position sustained by married women with reference only to the marital relation and where no separate proprietary rights are involved. The question as to the joinder of wives will oc- cur only in case of defendants and the rule would seem to. be quite general that a wife, is not a necessary party to an action for the recovery of lands in the possession of the husband, and in which she holds no separate estate in her own right.^^ A dif- ferent rule may, perhaps, apply where the husband is under some disability and the wife is in the actual occupation of the land. Thus, where the husband is insane and confined to a lunatic asylum and the possession of the premises is withheld by the wife, in view of the circumstances, the situation of the husband, his enforced absence and confinement, his unfortu- nate mental condition, and the actual possession of the wife, she must be regarded as a proper, if not a necessary, party de- fendant.^* When, however, both spouses are in the actual occupation of land, although under the claim of the husband, and both of them, or the wife alone, refuse to surrender possession when demanded, the wife may become a proper party and may be sued as well as the husband.'-^ § 132. Homesteads. — It would seem as though the gen- eral rule, that a wife is not a necessary or even a proper party to an action of ejectment for the recovery of lands in the pos- session of the husband, and in which she has no separate estate, might find an exception where the land in question had been properly impressed with the character of a homestead. The homestead, however, must rest upon some other valid legal estate and is dependent on the general title of the claim- ant. The cases must be very few in which considerations of this kind can enter, and, usually, it will not affect the appli- if Bledsoe v. Simms, 53 Mo. from a purchaser in default in 305; Bunce v. Bidwell, 43 Mich. the payment of instalments of 542. the purchase money where both IS Bensieck v. Cook, 110 Mo.' spouses were in possession and 173. refused to surrender. Reddish v. 19 So held in ejectment hy a Smith, 10 Wash. 178. vendor to recover possession 138 PAETIES TO THE ACTION. [§ 132. cation of the rule as stated, that the property sought to be re- covered is claimed as a homestead when the proceeding is based upon a prior alienation b)^ deed or mortgage in which the wife has properly joined.^" The homestead law, as generally en- acted, in no way limits the power of husband and wife to alien- ate their homestead by deed of conveyance with or without con- ditions, and is intended mainly as a protection from forced sale under execution during the lifetime of the owner and his dependent survivors after his death. The wife of the owner, during his lifetime, has no right of possession that may not be divested b)^ a conveyance in which she joins, and where a valid sale is had under a mortgage or trust deed so executed the pur- chaser may maintain ejectment without regard to thfe wife. But, however we may regard the views just presented, it would seem that where ejectment is brought on an indepen- dent title and claim of paramount right, the wife, in case the defendant is a married man, may become a necessary party. While it is true that the action is usually brought to settle con- flicting claims of title yet its nature is still possessory. Hence, although the title may in fact be in the husband, yet, if the land is occupied as a homestead such occupancy involves a question of possession, in which the wife is equally interested. Under these circumstances it has been held that the wife is a neces- sary party in the case and should be made a defendant with the husband."^ In like manner, where husband and wife occupy together, as a homestead, lands claimed to belong to the wife, an action of ejectment to test the validity of a conveyance to the wife should be brought against both.^^ =0 Conn. life Ins. Co. v. Jones, 47; Connor v. Nicliols, 31 111. 1 McCrary (C. Ct.), 388. 148. • 21 Cleaver v. Bigelow, 61 Mich. 22 Hodson v. Van Fossen, 25 Mich. 68. § 133.] MOETGA&OES AND MOETGAGEES. 139 IV. Mortgagors and Mortgagees. 133. Generally considered. 134. Relation of the parties. 135. Actions by the mort- gagees. 136. Continued — Modifications and denials of mort- gagee's rights. 137. Actions by the mort- gagor — Against mort- gagee. 138. Provisions for possession. § 139. Accounting and pay- ment. 140. Variances and excep- tion. 141. Debt barred by limita- tions. 142. Actions 'by the mort- gagor — Against stran- gers. 143. Equitable mortgages. § 133. Generally considered. — The earlier writers on ejectment devote much space to that phase of the action which has special reference to the relation subsisting between mort- gagor and mortgagee, and the respective rights and duties which, spring from such relation 'in respect to the occupancy and possession of the mortgaged property. With the excep- tion of landlords and tenants no class seems to have furnished a greater amount of litigation in this form of action, and much curious but now comparatively obsolete learning will be found scattered through all of the reports published during the first half of the last century. It may further be observed that much confusion exists at the present time with respect to the status of the parties and the rights which attend such status. In many jurisdictions the old doctrines of the relation have been materially changed, modified, or abrogated. In others the notions of the mediaeval lawyers have, to a considerable extent, been retained. Out of this has grown an irreconcilable conflict of judicial opinion and the authorities are variant and contradictory. The chief difficulty lies in the character to be accorded to the mortgage. The old theory is that it is a conveyance ; the modern theory is that it is but a lien. In no state is the old doctrine now ac- cepted in its entirety, yet in those states which continue to re- cognize the technical distinctions of law and equity the ancient idea which regards a mortgage as a substantive conveyance still continues to find a modified expression. It will readily be seen that where a mortgage is regarded as a conveyance of the fee the rights of the parties, with respect 140 PAETIBS TO THE ACTION". [§ 13-i. to the occupancy of the land, will be vastly different from those which arise where it is regarded merely a charge or incum- brance upon the fee. In the latter case the mortgage works no substantial change. The legal title, with all its incidents, re- mains in the mortgagor subject only to the lien,''^ and such lien, while it holds the mortgaged premises as security for the discharge of the mortgagor's obligation, is not an estate in the land.=^ When the action of ejectment was remodeled by the legisla- ture of New York in the early part of the last century, as else- where mentioned in this work, it was specifically provided that the action should not thereafter be maintained by a mortgagee, or his assigns or representatives, for the recovery of the posses- sion of the mortgaged premises,^^ and this provision was sub- sequently adopted by many of the other states. ^° § 134. Relation of the parties. — In its original form the execution of a mortgage had the effect to vest in the mortgagee the full legal estate, subject to be defeated only by the per- formance of the condition annexed to the grant. If tender of payment of the money, to secure which it was given, was not made on the day appointed therefor, according to the condition, the estate became absolute and indefeasible in the mortgagee ; and by the strict rules of the common law all interest or right therein of redemption passed from the mortgagor. Equity early interfered to moderate the severity of this rule and to per- mit redemptions, on the ground that the conveyance was in- tended merely as a pledge, and the doctrine was promulgated that notwithstanding the forfeiture at law, the breach of the condition was in the nature of a penalty which should be re- lieved against in equity. This was the law that was introduced 23 Brinkman v. Jones, 44 Wis. 24 Mack v. Witzler, 39 Cal. 510; Hubbel v. Moulson, 53 N. 247; Blackwell v. Harnett, 52 Y. 255; Vason v. Ball, 56 Ga. Tex. 326; Berthold v. Fox, 13 268; Wing v. Cooper, 37 Vt. 169; Minn. 501. Fletcher v. Holmes, 32 Ind. 497; 25 part 3, chap. 5, title I, § 57, Carpenter v. Bowen, 42 Miss. R. S. N. Y. 28; Woods v. Hildebrand, 46 Mo. 26 See Malloy v. Malloy, 35 284; McMahon v. Russell, 17 Fla. Neb. 224. 698; Terrell v. Allison, 21 Wall. (U. S.) 292. § 134.J MORTGAGORS AND MOETGAGBES. lil into the colonies, and which, in various modified forms, has continued in some locahties until our own time. But within comparatively recent years the old ideas concern- ing the relative status and rights of- the parties have been dis- carded in many states. The assimilation of law and equity in one form of action is, to a large extent, responsible for this but other causes have contributed, the chief of which perhaps is, that the reciprocal rights and duties of the parties should con- form to their real intention when the relation was entered into. That intention, in every instance, is that the mortgaged property is only a security for the payment of a debt, or the discharge of some contractual obligation, and the mortgage but a lieij. This view is now confirmed in many states by statute. In form, a mortgage, as generally drawn, still purports to convey a present legal estate to the mortgagee, with a clause of defeasance on performance of the condition, and in this respect there has been but little change from the old methods ; but its legal effect, in most of the states, is only to create a lien on the land which is held to be a security for the payment of the mort- gage debt. In the states where this doctrine obtains, the title, with all its incidents, remains in the riiortgagor, subject to the lien, and though the estate of the mortgagor before foreclosure is still popularly, but erroneously, called an "equity of redemp- tion" — the name it had when the legal estate was in the mort- gagee and the right to redeem existed only in • equity — such words are only a survival of old and now meaningless terms, the ideas they once represented having become obsolete. The rules which governed the relation of the parties less than one hundred years ago are, in the main, inadapted to the exigencies of today and the changed conditions which characterize the transaction, yet, it is noticeable that these old rules, founded upon and fitted to a different state of the law, have retained their hold to some extent upon later opinions, notwithstanding that the reasons which led to their adoption have ceased to exist. The concluding statements of the foregoing paragraph are strikingly exhibited in those states where the technical distinc- tion of law and equity still exists and where the old forms of ac- tions have been preserved. In the reported decisions of these states many curious anomalies may be found in attempts to ap- 142 ' PARTIES TO THE ACTION. [§ 135. ply the exploded doctrines of mediaeval law to modern condi- tions. In the main they continue to recognize a certain degree of ownership in the mortgagee, some even contending that he is the owner of the fee, having the jus in rem as well as the jus ad rem," and, as an action of ejectment is brought at law and not in equity, and the naked legal rights are the only ones to be considered, hence, it follows, under this line of decisions, that a mortgage is a sufficient title on which to maintain an action of ejectment against a mortgagor or other person in possession. ^'^ § 135. Actions by the mortgagee. — At common law, when, by reason of non-payment of the mortgage debt on the day appointed in the condition, the estate had become abso- lutely forfeited to the mortgagee, the mortgagor, or other per- son in possession, became liable to immediate eviction at the suit of the mortgagee,^" and, in such case, no notice to quit or demand of possession seems to have been necessary before re- sorting to the action.^" The right of the mortgagee to enter and take possession was based on the principle, that after con- dition broken he was entitled to the legal estate in the land, and his entry upon same, being the entry of the legal owner, would be both rightful and lawful if effected without a bi^each of the peace, and, it would seem, if he succeeded in making an entry, even though by actual violence, his possession would still be lawful as that of an owner. But the common law went further, for upon the execution of a mortgage, whether in fee or for years, the legal estate imme- diately vested in the mortgagee, the mortgagor, if retaining possession of the land, being regarded much in the character of a tenant at will. It would seem that the actual possession was rarely -given to the mortgagee upon the excution of a mortgage, and, to avoid the consequences just mentioned, a clause was 5T See Oldliain v. Pfleger, 84 29 Lyman v. Mower, 4 Vt. 345; 111. 102; Hemphill v. Ross, 66 Carpenter v. Carpenter, 6 R. I. N. C. 477; Hager v. Bralnerd, 44 542; Carroll v. Ballance, 26 111. Vt. 294. 9; Rockwell v. Bradley, 2 2s Kilgour V. Gookley, 83 111. Conn. 1. 109; Marks v. Robinson, 82 Ala. so Jackson v. Foster, 4 Johns. 69; Shields v. Lozear, 34 N. J. (N. Y.) 215; Jackson v. Stack- L. 496. house, 1 Cow. (N. Y.) 122; Kil- gour V. Gockley, 83 111. 109. § 136.] MOETGAGORS AND MOETGAGEES. 113 usually inserted providing that until default in the payment of the mortgage debt the mortgagor might retain possession and receive the rents and profits. Where an agreement of this kind was inserted the mortgagor was entitled to remain in possession until default and should the mortgagee enter prior thereto such entry would be wrongful and the mortgagor might have tres- pass against him.^"- On the other hand, in the absence of such agreement the mortgagee might enter at any time or proceed to eject the mortgagor by action. ^^ Where the common law has not been modified or changed by statute the foregoing may still be regarded as expressing the generally received rules of law upon questions of this kind. By the excution of the mortgage the entire legal estate passes to the mortgagee,^^ and unless it is specifically provided that the mortgagor may retain possession until default in payment of the mortgage debt, the mortgagee may institute an action for the recovery of such possession as well before as after default.^* § 136. Continued — Modifications and denials of mort- gagee's rights.' — The foregoing, however, does not represent the prevailing American doctrine. At a comparatively early day it became settled, both at law and in equity, that as to all persons except the mortgagee, the legal estate was in the mort- gagor. But this, being a contradiction in terms, presented the anomaly of two owners of the same estate at the same time, and the further inconsistency, that neither could enjoy the estate in the measure which it implied. This led to the enactment of laws defining the status and relation of the parties and determining their respective rightswith regard to the land. In the main the legislation upon the subject has followed the lines laid down by the court of chancery, the object being to declare the true char- acter of the transaction. SI Brown v. Cram, 1 N. H. 169; v. Munson, 77 Pa. St. 250; Jones Runyan v. Mersereau, 11 Johns, v. Smith, 79 Me. 446; Shields v. (N. Y.) 534. Lozear, 34 N. J. L. 496. 32,Newell V. Wright, 3 Mass. s* Barrett v. Hinckley, 124 111. 138; Pettenglll v. Evans, 5 N. H. 32; Bsker v. Hefflerman, 159 111. 54; Blaney v. Bearce, 2 Me. 132. 38; Hobart v. Sanborn, 13 N. H. 3s Terry v. Rosell, 32 Ark. 478; 226; Colman v. Packard, 16 Mass. Toomer V. Randolph, 60 Ala. 356; 39; Marks v. Robinson, 82 Ala. Harper v. Ely, 70 111. 581; Sum- 69. wait V. Tucker, 34 Md. 89; Tryon litt PARTIES TO THE ACTION. [§ 134. The statute, as now enacted in a majority of the states, generally denies to a mortgagee a remedy by ejectment, and as the progress of judicial decision, in such states, has de- prived him of the least estate in the land and left him only a lien, it follows that he no longer possesses any right to posses- sion, either before or after condition broken, except as he may acquire it by a valid foreclosure or through the express or nec- essarily implied consent of the mortgagor.^^ Where this rule prevails the only remedy of the mortgagee is by foreclosure of his lien and after sale and deed, should he become the pur- chaser, if possession is withheld, he may apply to the court for a writ of assistance, which is generally granted as of course. ^^ In such event the mo'rtgagee will be placed in possession with- out the necessity of resorting to ejectment,^'' and this, although the delivery of possession may not have been one of the man- dates of the decree of sale.^^ § 137. Actions by the mortgagor — Against mortgagee. — As we have seen, the effect of the execution of a mortgage, at common law, was to vest the mortgagee with the full legal title to the mortgaged land, and, as a necessary incident thereto, with the right of possession. This right, as heretofore shown, might be curtailed by a contemporaneous agreement providing for the retention of possession by the mortgagor until default in the condition, and, in such event, an entry by the mortgagee prior to such default would be tortious. If, however, the mort- gagee or his assignee had lawfully acquired possession after condition broken, ejectment would not lie against him nor would his possession be disturbed at the suit of the mortgagor.^" But the mortgagee might be let into possession at any time be- fore forfeiture, in which event his occupancy would be lawful, 35 Howell V. Leavitt, 95 N. Y. 37 Stanley v. Sullivan, 71 Wis. 617; Rountree v. Denson, 59 Wis. 585; Hagerman v. Hetzel, 21 522; Pox v. Wharton, 5 Del. Ch. Wash. 444. 200; McMahon V. Russell, 17 Fla. 38 Oglesby v. Pearce, 68 111. 698; Mack v. Wetzlar, 39 Cal. 220. 247; Hurley V. Estes, 6 Neb. 386. S9 phyfe v. Riley, 15 Wend. soHibernia, etc. Soo. v. Lewis, (N. Y.) 248; Jackson v. Wink- 117 Cal. 577; Jones v. Hooper, ler, 10 Johns. (N. Y.) 480; Poun- 50 Miss. 510; Watkins v. Jerman, tain v. Bookstaver, 141 111 461 36 Kan. 464. § 139.] MOETGAGOES AND MOKTGAGEES. 145 he being regarded for most purposes as a steward or bailiff of the mortgagor, to whom he was Hable to account for the rents and profits.*" This seems to have been the generally received doctrine both in England and America. The foregoing doctrines, in many respects, have been re- tained in modern practice, and are given a marked prominence in the judicial decisions of most of the states. The general rule now is, that while a mortgagee is not permitted to maintain a possessory action to recover the mortgaged premises by reason of the default of the mortgagor, still, if he can make a peaceable entry upon the lands after condition broken, he may do so, and may retain such possession against the mortgagor and every person claiming under him subsequent to the mortgage, subject to be defeated only by the payment of the mortgage debt." Where it is conceded that a mortgagee may come rightfully into possession before forfeiture such possession may be con- tinued until the mortgage debt is paid or otherwise discharged.*^ Indeed, the taking possession of mortgaged property has long been recognized as one of the methods of collecting the mort- gage debt, *' and while a mortgagee so in possession, as previ- ously stated, will be liable to account for the rents and profits of the land actually received, or for such as by proper diligence might have been received, to be credited upon the debt, yet his possession, if peaceably acquired, cannot be disturbed either by the mortgagor or any one claiming under him subsequent to the execution of the mortgage.** In some of the cases special emphasis is placed upon the fact that the possession of the mortgagee must have been taken with *o Van Buren v. Olmstead, 5 Emory v. Keighan, 88 III. 482 Paige (N. Y.), 9; Moore v. Cable, Hosford v. Johnson, 74 Ind. 479 1 Johns. Ch. (N. Y.) 385; Saun- Martin v. Fridley, 23 Minn. 13 ders v. Frost, 5 Pick. (Mass.) Wright v. Ross, 36 Cal. 434 259. Damon v. Dures, 66 Mich. 347 41 Cooke V. Cooper, 18 Oreg. Grayson v. Weddle, 67 Mo. 590 142, 17 Am. St. Rep. 109; Bosse Kelso v. Norton, 65 Kan. 778, 93 V. Johnson, 73 Tex. 608; Phyfe Am. St. 308, 70 Pac. Rep. 896. V. Riley, 15 Wend. (N. Y.) 248; is Kilgour v. Gookley, 83 111. Pell v. Ulmar, 18 N. Y. 139; 109. Rogers v. Benton, 39 Minn. 39, i* Fountain v. Bookstaver, 141 12 Am. St. 613, 38 N. W. Rep. III. 461; Hennessy v. Farrell, 20 765. « Harper v. Ely, 70 111. 581; 736 10 Wis. 46; Cross v. Knox, 32 Kan. 146 PARTIES TO THE ACTION. [§ 138. the assent of the mortgagor; that the right of entry under the mortgage having been taken away, the privilege of possession can be acquired only by the agreement or assent of the one who holds such right. *^ But such assent need not be express. It may be implied from circumstances/'' and, generally, if the mortgagor obtains possession by any lawful or peaceable mode " he may retain it until his mortgage debt is paid, and neither the mortgagor nor his heir can maintain ejectment for its recovery.^' The only remedy in such case is a bill to re- deem.*" On the other hand, if the mortgagee has acquired pos- session by force or fraud, without the consent of the mortgagor and without color of lawful authority, his mortgage will con- stitute no defense to an action of ejectment brought by the owner.°° § 138. Provisions for possession. — It is a common prac- tice in the draughting of mortgages, to insert a provision to the effect that in case of default in any of the payments thereby se- cured or of any of the conditions therein contained, the mort- gagee shall be entitled to immediate possession of the premises. This provision has frequently been held valid and enforcible, as being in the nature of an additional security for the mortgage debt,^^ and will generally be upheld in all cases where the stat- ute is silent on the subject of possession. Where the statute ex- pressly provides for the retention of the legal title, and the con- sequent right of possession, by the mortgagor, it is still compe- tent for the parties to stipulate for the right of possession, and when this is done by a provision of the mortgage, and posses- sion is assumed by virtue of such provision, the mortgagee will not be disturbed while the debt remains unpaid. ^^ ■15 Rogers v. Benton, 39 Minn. 18 Oreg. 142; Miner v. Beckman, 39. 50 N. Y. 337. *e As where the mortgagor 4s pee v. Swingly, 6 Mont, abandons possession, his assent 596; Frink v. LeRoy, 49 Cal. 314; that the mortgagee may enter Brinkman v. Jones, 44 Wis. 512; may well he implied, especially Wells v. Van Dyke, 109 Pa. St. where he allows the mortgagee 355; Duke v. Reed, 64 Tex. 705. to remain in possession for a ^s Cross v. Knox, 32 Kan. 725. considerable length of time. bo Howell v. Leavitt, 95 N. Y. Rogers v. Benton, 39 Minn. 39. 617. *7 As where he purchases at a ei See Spect v. Spect, 88 Cal. void foreclosure sale and enters 437. into possession. Cooke v. Cooper, 52 Felino v. Lumber Co., 64 § 139.] MOETGAGOES AND MOETGAGEES. Ii7 § 139. Accounting and paynaent. — 'Nor does it seem, wliere the method of procedure described in the foregoing para- graph obtains, that a mortgagor may maintain an action of ejectment against a mortgagee in possession even though it be averred that the mortgagee has collected from the rents and profits a sum suihcient to extinguish the mortgage debt,^' nor even where a tender of the amount alleged to be due has been made.^* The reason for this is, that ejectment is distinctly a legal action and hence disputed questions as to the amount actu- ally due can not be settled therein.^^ And it vi^ould further seem that the rule is the same whether the mortgage is regarded as a substantive conveyance of the legal estate or merely as creat- ing a lien. In either event a mortgagee in possession assumes the quasi character of a trustee or steward of the mortgagor. He is charged with the rents and profits and the mortgagor is entitled to have them applied in liquidation of the debt, but not in the first instance. The law does not apply them as received to the extinguishment of the mortgage. In many cases com- plicated equities must be determined and adjusted before it can be ascertained what part, if any, of the rents and profits received is to be applied to the mortgage debt. The mortgagee is entitled to have them applied to reimburse him for taxes and necessary repairs ; for sums paid to remove prior incumbrances, in order to protect the title ; for costs incurred in defending the title, and for other legitimate purposes. Therefore, to enable the mort- gagor to maintain an action for possession an accounting must first be had in equity and the rights of the parties ascertained,^^ while many of the authorities affirm that his only remedy to re- cover possession from the mortgagee, after the mortgage debt has been paid, is a bill to redcem.^^ This right to redeem is Neb. 335, 89 N. W. Rep. 755, 97 Y. 225. And see Jones, Mtgs., Am. St. 646. § 716; Adams, Eject. 106. 53 Hubbell V. Moulson, 53 N. se Fountain v. Bookstaver, 141 Y. 225. 111. 461; Hubbell v. Moulson, 53 54 Fountain v. Bookstaver, 141 N.-Y. 225. 111. 461. 5TRoweIl V. Jewett, 69 Me. 55 Oldham v. Pfleger, 84 III. 293; Posten v. Miller, 60 Wis. 102; Hubbell v. Moulson, 53 N. 494; Chapin v. Wright, 41 N. J. Bq. 438. 1J,S PARTIES TO THE ACTION. [§ 140, 14i. cognizable only in equity and can be asserted, it is claimed, in no other form.^^ It may be further stated, that the rules which govern the re- lations of the immediate parties to the transaction apply with equal force to their assigns.^" § 140. Variances and exceptions. — To the foregoing statements an exception may be noted in those states where the action of ejectment is permitted to assume the character of a proceeding in equity."" In such states, if the mortgage debt is fully paid the mortgagor is entitled to possession ; if it has not been paid the mortgagee has the right to retain possession until out of the rents and profits, or otherwise, the residue is paid. But, in any event, the equitable right of redemption of the mortgagor may be enforced in an action of ejectment, which may be employed as a substitute for a bill to redeem. In such cases it is the duty of the jury, under the direction of the judge sitting as a chancellor, to ascertain how much the mortgagee in possession has realized from the rents and profits. If they find he has received, or in the exercise of reasonable diligence should have realized, enough to pay the sum secured, a general verdict for plaintiff should be rendered ; if not, a conditional or special ■verdict may be found in such form that, upon payment of the residue, the mortgagor may, without unnecessary delay, obtain possession of the premises."^ § 141. Debt barred by limitation. — The equitable princi- ple which governs the rule that a mortgagor cannot maintain ejectment against a mortgagee in possession until the debt is paid, does not admit of satisfaction of the debt by mere lapse of time. The statute of limitations, it is said, is a bar to the remedy only but does not extinguish, or even impair, the obligation of the debtor, and notwithstanding such debt «8 Linnell v. Liiford, 72 Me. ing, while in states wlilclt have 280; Chapin v. WrigM, 41 N. J. abolished the old forms of ac- Eq. 445. tion it partakes of an equitable 59 Fountain v. Bookstaver, 141 character in so far, at least, that 111. 461; Hubbell v. Moulson, 53 equitable relief may be admin- N. Y. 225; Robinson v. Ryan, 25 istered in connection with a N. Y. 320. judgment of recovery. 60 In Pennsylvania ejectment 01 gee Mellon v. Lemmon, 111 is strictly an equitable proceed- Pa. St. 56. § 142, 143.] MOETGAGOES AND MORTGAGEES. 149 may not be asserted as a cause of action it is always available as a defense. This will certainly be the case in all jurisdictions where an equitable defense may be interposed to an action for the recovery of real property, whether the mortgage operates to convey a defeasible title or is regarded only as a mere security contract incident to the debt. In neither case will the mortgagor, or one claiming under him subsequent to the mortgage, be per- mitted to maintain ejectment against one shown to be a mort- gagee in possession with the mortgage debt unpaid, although at the time the statute of limitations would bar an action on the debt or to foreclose the mortgage."^ § 142. Actions by the rnortgagor — Against strangers. — Notwithstanding that by the common law the legal title and es- tate in the mortgaged lands passed to and became vested in the mortgagee upon the execution of the mortgage, the principle was early announced in the American cases that as to all the world, except the mortgagee, the freehold remained in the mort- gagor in -the same condition in which it was prior to the mort- gage."' Being thus clothed with all his rights as a freeholder as to all persons other than the mortgagee or his assigns, it fol- lowed that he might maintain any action for an injury to the inheritance or possession,"* and the mere fact that the legal title was in the mortgagee could not be urged as a defense."^ Where, as is generally the case, the mortgage is regarded as a mere lien, the right to recover possession from a stranger can not be questioned, as this is one of the attributes of ownership and an inseparable right of property. § 143. Equitable mortgages. — An absolute deed convey- ing land in fee, passes the legal title, although made and deliv- ered only as security for a debt, and recovery may be had 62 Kelso V.Norton, 65 Kan. 778, Hinckley, 124 111. 32; WilMna v. 93 Am. St. 308, 70 Pac. Rep. 896; French, 20 Me. Ill; Buck v. Speot v. Speot, 88 Cal. 437, 22 Payne, 52 Miss. 271. Am. St. 314, 26 Pac. Rep. 203; s^ White v. Rittenmeyer, 30 Johnson v. Sandhoff, 30 Minn. Iowa, 268; Hall v. Lance, 25 111. 197; Duke v. Reed, 64 Tex. 705. 277; Bird v. Decker, 64 Me. 550. 63 Willington v. Gale, 7 Mass. 65 Allen v. Kellam, 69 Ala. 138; Hitchcock v. Harrington, 6 442; Savage v. Dooley, 28 Conn. Johns. (N. Y.) 290; Hall v. 411; Hardwick v. Jones, 65 Mo. Lance, 25 III. 277; Barrett v. 54. 150 PAETIES TO THE ACTION. [§ 144. thereon in ejectment by the grantee agamst the grantor.^^ This is the general rule in all of the states which still preserve the technical distinction of law and equity, and is also the rule ob- served in the federal courts. Where equitable defenses are permitted the grantor of an ab- solute deed, intended only as a mortgage, may defend suc- cessfully when sued for the possession by interposing an equit- able plea and tendering the debt and iiiterest.^^ This is the rule in most of the code states, or states where law and equity may be administered in the same action. V. Vendor and Purchaser. 144. Relation of the parties. 145. Right of possession. 146. Actions by the vendor. § 147. Actions by the vendee. 148. Actions against vendee by third persons. § 144. Relation of the parties. — The relative positions sustained toward each other by the vendor and purchaser of real property, under an executory contract of sale, are some- what peculiar, and vary greatly accordingly as they are viewed from a legal or an equitable standpoint. It has long been a familiar principle of equity that things agreed to be done are to be regarded as actually performed, and, in furtherance of this principle, a contract' for the sale of land is, for many purposes, regarded in equity as if specifically executed ; the estate, from the making of the contract is looked upon as the property of the vendee, while the purchase money is considered as belonging to the vendor. ^^ At law, however, the contract receives only the interpretation expressed upon its face, and confers upon the parties mere rights of action; the estate remains the property of the vendor and the unpaid pur- chase money that of the vendee.^" Yet, while the question of 66 Riggers v. Bird, 55 Ga. 650; McGinnis v. Fernandes, 126 III. 228. 67 Diggers v. Bird, 55 Ga. 650 Pobbs V. Kellogg, 53 Wis. 448 Walls V. Erdel, 20 Fla. 86 HiiEjhpS V. Davis, 40 Cal. 117. 68 Lombard v. Sinai Congrega tion, 64 111. 477; King v. Ruck- man, 21 N. J. Eg. 599; Kerr v. Day, 14 Pa. St. 112; Dorsey v. Hall, 7 Neb. 464; Pease v. Kel- ley, 3 Oreg, 417; Baum.v. Grigs- by, 21 Cal. 175. o» Lombard v. Sinai Congrega- tion, 64 111. 477. §145.] YENDOE AND PUECHASEE. 151 title in a legal controversy growing out of the relation is com- paratively well settled, the question of possession frequently presents complicated aspects and even in a purely legal action the influence of the equities of the parties is not without a marked and sometimes controlling effect. § 145. Right of possession. — It is a rule of general and uniform observance that the legal title to land draws to it the legal possession of the same, and this rule has often been ap- plied in the solution of questions growing out of the relation of vendor and vendee. A contract of sale is prospective in its operation, and does not, without special stipulation, confer any rights of immediate occupancy upon the vendee. The legal title which the vendor retains until final execution is attended with all its legal incidents, including the right to hold, possess and enjoy the land; and the vendee cannot, at least until full pay- ment has been made of the purchase money, claim any posses- sory rights in the premises he has contracted to purchase. The mere fact that a person has made a contract for the purchase of land does not entitle him to enter upon and hold it, and a pur- chaser's possession so obtained, in the absence of some agree- ment permitting him to enter, would be unauthorized and un- lawful.'^" Yet where a party's land is in the actual possession of another, even though unlawfully, he has no right forcibly to re- possess himself, but must resort to the action of forcible entry and detainer o^ the action of ejectment, or whatever other form of action the law may have provided to enforce a claim of the ■possession or delivery of specific real property.'^ Where a party enters into possession of lands under a con- tract of purchase, the most that can be implied from such a contract is permission to enter while the conditions are matur- ing, as a tenant at will, and to occupy as such.'^ Generally the courts in referring to such occupation speak of the vendee's pos- session as acquired under and by virtue of a license, and while such occupation bears a nearer affinity to a tenancy at will than to any other form of estate which it may resemble, yet, 70 Williams v. Fortes, 47 111. 173; Hyatt v. "Wood, 4 Johns. 148. (N. Y.) 150; Dwight v. Cutler, 71 Allen V. Tobias, 77 111. 169. 3 Mich. 566; Davidson v. Ernst, 72 Dean v. Comstock, 32 111. 7 Ala. 817. 152 PARTIES TO THE ACTION. [§ 146. in the absence of any reservation of rent or other method of compensation for such occupancy, it is not such a tenancy as to properly create the relation of landlord and tenant. For this reason the questions which have arisen in the course of the set- tlement of disputes growing of out the vendee's occupancy have, not always been productive of a uniformity of decision. The vendee in possession under an executory contract is in all cases under legal obligation to promptly pay the stipulated purchase money at the time or times when it may become due, and to faithfully perform any of the conditions precedent upon which the sale is based ; and, failing in this, the vendor has a right to elect whether he will abandon the contract and re-enter upon his lands, or hold the vendee to his agreement, if the con- tract is such a one as can be enforced by compelling specific performance.''^ In the former event he may, if he sees fit, treat the vendee as his tenant, and recover against him for the use and occupation of the land,'* or he may regard him as a tres- passer and eject him by suit.'^ The possession of the vendee is not adverse to the vendor, in the legal sense of the term, but consistent with his title.'" § 146. Actions by the vendor. — It would seem to be an established rule at the present time, that ejectment is not main- tainable by a vendor against his vendee in possession under an executory contract of sale who is not in default in the perform- ance of his contract," or who has performed it and is in posi- tion to demand a deed, or who seasonably and in good faith of- fers to comply with the terms of his purchase, and continues ready to comply with them.'^ To a vendee in possession under such circumstances the contract will avail him as a defense to an action of ejectment, or as a cross-action in equity to enforce 73 Seabury v. Doe, 22 Ala. 207; 76 Jackson v. Camp, 1 Cow. (N. Dean v. Comstock, 32 111. 173; Y.) 605. Williams v. Forbes, 47 111. 148. 77 Hutcbinson v. Coonley, 209 74 Davidson v. Ernst, 7 Ala. 111. 437. 817. 78 Prentice v. Wilson, 14 111. 75 Hicks V. Lovell, 64 Cal. 14; 91; Wbite v. Livingstone, 10 Jackson V. Miller, 7 Cow. (N. Y.) Cush. (Mass.) 259; Cavalli v. 751; Gibbs v. Sullens, 48 Mo. Allen, 57 N. Y. 508. And see 237; Dean v. Comstock, 32 111. Whittier v. Stege, 61 Cal. 238. 173; Harle v. McCoy, 7 J. J. Marsh. (Ky.) 318. § 146.] VENDOE AND PUKCHASEK. 153 a trast against his vendor, or to obtain a specific enforcement of thie contract.''' The statute is largely responsible for this con- dition, as, under the strict rules of the common law such de- fenses would be unavailable. In all of the states, however, there have been marked departures from the common-law rule in litigation between vendor and vendee, and in' those states which permit a defendant to set up as many defenses as he has, whether they are such as were formerly denominated legal or equitable, any defense which serves to bar the vendor's right of entry may be shown. But where a vendee who has been let into possession under such a contract fails to comply with the terms of the same, as where there has been default in the stipulated payments ; or if after maturity of the purchase money the vendor tenders a deed and demands payment, which the vendee refuses to make ; or if there has been a default in the performance of any of the con- ditions precedent to the execution of the conveyance ; or if the vendee has abandoned the purchase and repudiates the title of his vendor, then, in every such case, the vendee forfeits the benefit of the contract, and cannot avail himsell of it as a de- fense to an action of ejectment by his vendor.^" The vendor in such event has an option either to sue for a specific perform- ance in a proper case or to abandon the contract and bring an action for the recovery of the land.^^ The refusal of the vendee amounts to an abandonment on his part ; and should the vendor in the exercise of his election assent to its abandonment, a complete dissolution of the contract is effected by the mutual Ts Love v. Watkins, 40 Cal. a second instalment to be paid 548; Crary v. Goodman, 12 N. Y. in ten months and the residue at 266. deferl-ed periods, and the vendor 80 Thome v. Hammond, 46 is to execute a deed in two Cal. 530; Jackson v. Moncrief, 5 months, the vendor is entitled to Wend. (N. Y.) 26; Dean v. Com- maintain an action of ejectment stock, 32 111. 173; Williams v. on the default of the purchaser Forbes, 47 111. 148. to pay the second instalment, al- 81 Keys V. Mason, 44 Tex. 144. though the first instalment was Where a contract is entered into punctually paid and the vendor for the sale of land by the terms did not before bringing suit ten- of which the purchaser is to pay der a deed. Wright v. Moore, 21 $500 down and enter into imme- Wend. (N. Y.) 230. diate possession of the premises. 154 PARTIES TO THE ACTION. [§ 147. and concurring assent of both parties ; '^ and neither party may thereafter invoke its terms or protection as against the other.^^ The vendor is by this event restored to his orginal position ; he cannot now sue for a breach nor compel a specific perform- ance, because the contract itself has been dissolved ; but he is at liberty to maintain ejectment to recover the possession of the land to which he has the legal title.'* In every such event eject- ment is a proper remedy against the vendee, and the vendor will be entitled to a judgment for possession.'^ A right of action will subsist in favor of the vendor where the vendee has been let into possession under a void sale ; '^ as also where possession has been given him under an agreement that he would quit and surrender up possession if he should not pay the purchase money on a given day ; and in such cases ejectment will lie without notice on failure to perform, the agreement operating in much the same manner as a clause of re-entry on breach of covenant in a lease. '^ § 147. Actions by the vendee. — Ejectment only lies where the ejector possesses the legal title; and however strong the equities may be, the rule, in general, is well established that 82 Graves v. White, 87 N. Y. were executed, but never deliv- 465. ered. There was some evidence 83 Hicks V. Lovell, 64 Cal. 14. that C. had put improvements 84 Wright V. Moore, 21 Wend. on the lot, which were after- (N. Y.) 230; Dean v. Comstocli:, wards removed. In an action hy 32 111. 173. A. against C. to recover this lot, 85 Thompson v. EUenz, 58 held, that the defendant's claim Minn. 301. But compare Mack to the lot, having its origin in V. Dailey, 67 Vt. 90, 30 Atl. Rep. a lottery contract, was void; and 686. that, as the deed therefor was- 86 A., the undisputed owner of never delivered, this was a parol a tract of land, entered into an sale of land and void under the agreement with sundry parties statute of frauds; and that the to convey it to them, and to ex- plaintiff's claim, resting upon ecute deeds therefor in accord- an untainted legal title, unaf- ance with the various portions fected hy the collateral illegal which should fall to each from contract, entitled him to a ver- a lottery held to determine each diet. Allebach v. Godshalk, 116 man's share. The lottery was Pa. St. 329, 9 Atl. Rep. 444. held and lot No. 52 fell to B„ 87 Smith v. Stewart, 6 Johns, and lot No. 38 to one C. B. and (N. Y.) 46; Central Pac. R. R. C. agreed to exchange their lots, Co. v. Mudd, 59 Cal. 585; Ritchie and C. took possession of No. v. Railway Co., 55 Kan. 36. 52. Deeds for the several lots § 148.] VENDOR AND PDECHASER. 155 such equities cannot prevail over the legal title.'' For this reason a vendee under an executory contract cannot maintain ejectment against his vendor, but must resort to a court of chan- cery to assert and establish his rights. But in some states, as in Pennsylvania, there are no courts of chancery, and equitable relief in such cases can only be administered in legal actions. Under such conditions an action of ejectment brought by a vendee against his vendor, under articles of sale, is the equiv- alent of a bill in chancery for specific performance, and may in all proper cases be maintained.*" But in order to enforce a spec- ific performance by ejectment the vendee must have paid or ten- dered the purchase money before bringing suit i^" and where the possession of the vendor is lawful the vendee cannot maintain his action without proof of such previous payment or tender, and in case of a tender must also keep the same good by pro- ducing the money in court. Until he has thus put his vendor in default he has no cause of action ; nor can he demand a ver- dict conditioned on his subsequent payment of the purchase money."^ With respect to third persons, but subject nevertheless to the rules first stated, a vendee in possession may defend the same, and upon the strength of his equitable title may oust any one not having a superior right of entry.''^ As against a mere tres- passer, bare peaceable possession has often been held sufficient to maintain ejectment.^^ § 148. Actions against vendee by third persons. — ^Wherc a vendee has been let into possession under an executory con- tract he comes fully within the term "occupant," and as such may be proceeded against by a third person who claims para- mount title. Usually, if the vendor does not interfere to protect 88 KTcKay v. ■Williams, 67 Mich.. no Vincent v. Huff, 4 Serg. & 547; Barrett v. Hinckley, 124 111. R. (Pa.) 298. 33; Williams v. Peters, 72 Md. 01 Bell v. Clark, 1.11 Pa. St. 92. :i84: Johnson v. Pontious, 118 92 Seymour v. Creswell, 18 Fla. lud. 270. 29; Wilson v. Glenn, 68 Ala. 383. 89 Rennyson v. Rozell, 106 Pa. 93 Wilson y. Glenn, 68 Ala. St. 412. This is prohahly pe- 383; House v. Reavis, 89 Tex. culiar to the jurisprudence of 622, 35 S. W. Rep. 1063; Sherin Pennsylvania, and does not pre- v. Brackett, 36 Minn. 152. vail to any extent in other states. 156 PAETIES TO THE ACTION. [§ 146. the possession judgment must go against the vendee, as his right consists only of an incipient equity. But, as a judgment in ejectment concludes only the party against whom it is ren- dered, and persons who claim through or under such party by a title accruing after the commencement of the action, it .fol- lows that such judgment can have no appreciable effect upon the rights of the vendor, and notwithstanding he may have had notice of the pendency of the suit the judgment rendered therein cannot be set up to defeat an action of ejectment subse- quently brought by him for the same land.^* As between the vendor and vendee themselves, if ejectment be brought against the latter, and he notifies his vendor to defend, the judgment- might, for some purposes, be held conclusive, but no such re- sult will follow where a third party is concerned. In this re- spect there is a marked difference between the relation of vendor and vendee and that of landlord and tenant and the rules which govern the latter relation where a tenant in posses- sion is sued have no application to the former. VI. Landlord and Tenant. 149. Generally. § 155. Tenants. 150. Landlords. 156. Tenants for years. 151. Cumulative remedies — 157. Tenants at will. Rent in arrears — No- 158. Tenants from year to tice. year. 152. Forfeiture — Default gen- 159. Tenants by sufferance. erally. 160. Entry under void lease. 153. Assignee of landlord. 161. Forfeiture of tenants 154. Landlords as defendants. rights. § 149. Generally. — The subject of landlord and tenant must necessarily receive much attention in a work devoted to an exposition of the law relating to the recovery of land. It might, perhaps, have been better if everything relating to the relation had been grouped under one head, but this, while con- ducing to convenience in some things, would have produced much inconvenience in ' other things, and, in large measure, would have defeated the author's plan of systematic develop- ment of the general subject of the book. It is hoped that the in- 84 Cadwallader v. Harris, 76 III. 370. § 150.] LANDLOED AND TENANT. 157 dulgent reader will overlook this defect, if it shall be found to be a defect, and for those phases of the relation which do not ap- pear in the following paragraphs, will consult the other parts of the work where they are discussed with other cognate topics. § 150. Landlords. — From a very early period in the his- tory of the action it would seem that ejectment has been re- sorted to by landlords, on the determination of tenancies, to re- cover possession of their lands from refractory tenants. This use has, to a large extent, been superseded in recent years by the employment of the more summary remedy of unlawful de- tainer, but ejectment may still be brought, and, in some cases, is the only form of action available. The action will always lie against a tenant where a right of re-entry has accrued through a breach of any of the covenants or conditions of the lease, and usually but little difficulty is ex- perienced in obtaining a recovery. But at the time when pro- visions of this kind were first introduced it would seem to have been otherwise. The early law was prolific in subtleties and fine-spun distinctions, and the preliminaries required be- fore a landlord could bring an ejectment upon a clause of re- entry were of such a character as to render it next to impos- sible, in many cases, to take advantage of provisions of this kind. The greatest difficulty seems to have arisen in respect to clauses of re-entry for non-payment of rent. Under the old law a demand of the rent, either in person of by an authorized agent, was first required to be made. The demand was further required to be of the exact amount due, and if a penny more or less was asked it was vitiated. The demand was still further required to be made upon the precise day when the rent be- came due, at some convenient time before sunset, upon the land and at the most notorious place. In pursuance of this latter re- quirement it was held that if there was a house upon the land the demand must be made at the front do6r of the house. In every case an actual demand for the rent was required to be made, although, in fact, there might be no person on the land to pay it. To make matters worse, the courts, notwithstand- ing the landlord's compliance with all the required formalities, would set aside the forfeiture, upon payment of the debt and costs, at any time before execution was served, and the tenant was always at liberty to apply to a court of equity for relief. 158 PARTIES TO THE ACTION. [§ 151. These were only a few of the many vexatious difficulties to which a landlord was subjected and it was many years before he was relieved of the. duty of observing all the forms and niceties of the common law. The first relief was an enactment"^ •exempting him from the necessity of demand where no suf- ficient distress could be found upon the premises, but otherwise he was obliged to comply with all the formalities before he could proceed upon a proviso for re-entry. The same act took from the court the discretionary power formerly exercised, of staying proceedings at any stage upon payment of the rent in arrear, and its provisions generally are the foundation upon which subsequent rules have been erected. At the present time the relation of landlord and tenant is reg- ulated in all of the states by express statutory provisions which fix the methods by which tenancies may be determined and rights of re-entry established. The vexatious requirements of the old law have been abolished and the procedure simplified in conformity with modern ideas. Leases may be forfeited for hreach of conditions as at common law and, in addition, cumu- lative remedies are generally provided by which possession may he be regained when default has been made in the payment of stipulated rent.^" § 151. Cumulative remedies — Rent in Arrear — Notice. — The English statutes'*' giving a landlord the right to commence an action of ejectment for the recovery of demised lands when half a year's rent is in arrear and unpaid, without any formal demand, have been substantially re-enactel in most of the Amer- ican states. This remedy, however, is cumulative only and does not destroy the landlord's right to create or declare a for- feiture of lease by the common-law methods, °^ and, because the tenant may at any time before judgment, or in some cases after judgment and before execution, restore himself by pay- ee 4 Geo. II, c. 28, and 11 Geo. vailed, and decisions declaring II, c. 19. ' and confirming the common-law 96 These remedies are all very rules will be found in all of the modem. For many years the states east of the Mississippi, common-law requisites for the "7 11 Geo. II, 19. termination of tenancies and re- os Chadwick v. Parker, 44 111. ■covery of demised land pre- 326. § 152, 153.] LANDLORD AND TENANT. 159 ment of the arrears and costs, is seldom resorted to where the object is not to collect rent but to regain possession. Provision is also made for the termination of tenancies by notice, the time of notice varying somewhat in the different states. Where notice has been given in the manner provided by statute no other notice or demand of possession will, as a rule, be required before bringing ejectment, although, in most cases, the effect of the notice may be avoided by payment of the rent before the expiration of the time therein limited."" The object of these statutes is to dispense with the common-law re- quirements of demand of rent upon the premises, etc., as de- tailed in the preceding paragraph,^ and to afford an efficient and speedy remedy that shall be just alike to both parties. § 152. Forfeiture' — Default generally. — The statute has extended the privilege of forfeiture by demand and notice to all defaults that may be made in any of the terms of a lease, and has further provided a form of notice and method of service, and where such default has occurred and full compliance with statutory requirements is shown, no other notice or demand of possession is necessary to terminate a tenancy. Clear and strict proof of service of demand and notice is essential, how- ever, to entitle the landlord to a judgment of forfeiture.^ § 153. Assignee of landlord. — The English statutes re- lating to the assignment of leases are the basis of American laws upon this subject.' The general rule now is that the gran- tees of any demised lands, or of the reversion thereof ; the as- signees of the lessor of any demise ; and the heirs of such gran- tees or assignees have the same remedies by entry, action or otherwise, for the non-performance of any agreement of the lease or other cause of forfeiture, as their grantor or assignor might have had if no grant or assignment had been made. No 99 Woodward v. Cone, 73 111. s The statute 32 Henry VIII, 241; Leary v. Pattison, 66 111. c. 34, made leases assignable, but 203. required an attornment by the 1 Dodge V. Wright, 48 111. 382; tenant. The statute of 4 Anne, Burt V. French, 70 111. 254. c. 16, dispensed with attornment. 2 Henderson v. Coal Co., 140 The substance of these statutes U. S. 25; Parnam v. Hohman, 90 has been re-enacted in this coun- 111. 312. try. 160 PAETIES TO THE ACTION. [§ 154. attornment is necessary to enable the grantee to recover,* and the tenant is subject to the same estoppels that he would have been had the title remained in the original lessor.^ § 154. Landlords as defendants. — It is a fundamental rule of the action that if the lands in controversy are occupied at the time of suit such occupant shall be named as a party de- fendant. This is the common-law rule, which has been re- affirmed and declared in every state by statute, and, while the statute now permits all other persons claiming interests in the land to be joined as defendants it does not appear that any other than the occupant is a necessary party. Not infrequently however, the person so in possession is not the owner but a tenant, and, in a majority of cases, such tenant is indifferent as to the whole matter. By statute a tenant who is thus sued in ejectment is required to forthwith give notice of the pendency of the suit to the person under whom he holds, and the land- lord may then defend the suit in the name of his tenant or he may be let in to defend in person. Should a tenant who has thus been sued neglect to notify his landlord and suffer a judg- ment of eviction to be entered against him, such judgment, whatever may be its effect vvitli respect to the tenantj will not bind the landlord.^ As the statute is generally phrased the privilege of interven- tion is given to landlords only,' and it would seem that for- merly considerable difficulty often arose as to the meaning of the term "landlord," and as to what interest in the lands in controversy would be sufficient to enable a person claiming title to appear and defend the action.^ The earlier cases seem to hold that not every person claiming title could be admitted to de- fend as landlord but only those who were in some degree in possession, as where a person is receiving rent, or matters of that kind. But this doctrine was afterward repudiated and the 4 Thomasson v. Wilson, 146 111. Rogers v. Rlppey, 25 Wend. (N. 384; Kelliim v. Insurance Co., Y.) 432. 101 Ind. 456. ' Linderman v. Berg, 12 Pa. 6 Cantwell v. Moore, 44 111. St 301. App. 657; Kennard v. Harvey, s See Jackson v. McBvoy, 1 80 Ind. 41; Allen v. Shannon, 74 Gaines (N. Y.), 151; Ralston v. Ind. 168. Doe, 36 Ga. 611; Linderman v. fsLowe V. Emerson, 48 111. 160; Berg, 12 Pa. St. 301. § 155.] LANDLORD AND TENANT. 1()1 term landlord was held to extend to every person whose title is connected to, and consistent with, the possession of the oc- cupant.^ Where a person claims in opposition to the title of the tenant in possession he cannot be considered as a landlord and the manifest injustice to the tenant in making him a co- defendant is apparent. This doctrine has received a very general acceptance in the United States,^" and in many jurisdictions is declared by stat- ute. On the landlord's application to be let in he must show this fact of connection and consistency by proper averment,^^ but, it seems, he need not set out his title.^^ Where the relation of landlord and tenant is shown to exist the former is generally entitled, as a matter of right, to be let in to defend,^'^ and this he may do as a co-defendant,^* or in the name of the tenant.^^ He may also defend in his own name and right after a substitution of parties, but it seems he cannot claim this privilege unless the plaintiff shall consent to such ■ substitution.^* § 155. Tenants. — ^Strictly speaking, every person in the possession of land by lawful investure is a tenant, irrespec- tive of the character of his estate, or the terms by which he holds. Thus, the owner of the fee is a tenant, equally with one who holds by the most precarious and uncertain tenure. They differ in degree, not in kind. But, for many years it has been customary to class the holders of estates less than free- holds as tenants, and by that name to distinguish them from persons owning the dominant estates. The classification has been found convenient in practice and, b}^ reason of its very general employment by the laity, has come to be used by the 9 This doctrine seems to have 12 Stribling v. Prettyman, 57 been iirst announced by Lord 111. 371. Mansfield in Fairclaim v. Sham- 13 Morris v. Beebe, 54 Ala. 200; title, Burr. (Eng.) 1294. Reay v. Butler, 69 Cal. 572; Hill 10 Stribling v. Prettyman, 57 v. Atterbury, 88 Mo. 114 ; Jack- Ill. 371; Vancleve v. Green, 20 son v. Allen, 30 Ark. 110. N. J. L. 171. 14 Sutton v. Casseleggi, 77 Mo. 11 Williams v. Brunton, 3 Gil. 397. (111.) 600; Jackson y. Stiles, 6 is Dimick v. Deringer, 32 Cal. Cow. (N. Y.) 594; Bryant v. Kin- 488. law, 90 N. C. 337. i" Merritt v. Thompson, 13 III. 716. 11 162 PAETIES TO THE ACTION. [§ 164. lawyers as a sort of legal colloquialism. This use has been continued in the present work, and, with this explanation, it is thought that no confusion will result. The term is sometimes given to all persons holding estates less than a fee, notwithstanding such estates may, in fact, be freeholds, but it is particularly used in reference to those in the enjoyment of what are known as chattels real, that is, the hold- ers of terms of years, or other estates less than freehold. § 156. Tenants for years. — It was a fundamental rule of the common law that a tenant for years, by the execution of a lease, acquired only a right of entry upon the demised lands, ^'^ and until such entry had been made he could exercise no pos- sessory rights with respect to same. For this reason it was early held that such tenant could not, before entry, maintain an action either of trespass or ejectment, because, as those ac- tions complain of a violation or ouster of possession they could not be maintained by one who never had an actual possession. ^^ But this doctrine has been expressly rejected in the United States, where an estate for years is both created and perfected by the execution and delivery of a lease for the term, and such lease, while it confers no rights of ownership, does carry a right to the possession and profits of the land.^^ As ejectment, in its essence, is still a possessory action, it fol- lows that a tenant for years, with the term still unexpired, has a full and generally exclusive right to bring the action against any person who ma}' invade his possession.^" In fact, it will be remembered, the original purport of the action of ejectment was to unable a tenant for years who had been ousted to re- cover his term. 17 Technically called interesse a tenant by a parol lease, and termini. afterward, and before the tenant 18 4 Bac. Abridg. 183. gets possession, leases the same 19 Riddle T. Littlefield, 53 N. land to another, who goes into H. 510; Freer v. Stotenbur, 36 possession, the first tenant may Barb. (N. Y.) 642. either bring an action of eject- 20 Hodgkins v. Price, 137 Mass. ment against the occupant to re- 13; Campbell v. Hunt, 104 Ind. cover possession or may sue the 210, 2 N. E. 363; Tarpey v. Salt landlord in assumpsit for a Co., 5 Utah, 205, 14 Pac. Rep. 338; breach of the implied covenants Berrington v. Casey, 78 111. 317. for possession and quiet enjoy- In this case it was held that ment. where a landlord leases land to § 157, 158.] LANDLORD AND TENANT. 1G3 § 157. Tenants at will — Where lands are let for an in- definite period, to be determined by the act of the parties them- selves, the tenancy is said to be at will, and this, as usually un- derstood, is the will of both parties. Such tenancy may orig- inate by an express grant or may arise by implication from the circumstances connected with the entry or possession.^^ The possession of a tenant at will is a legal one and he may bring ejectment against any person who invades it prior to its determination.^^ So, on the other hand, as the estate is deter- minable at the will of the landlord the latter may bring the ac- tion against his tenant at any time after the term has expired, and it has been held that the bringing of an action of ejectment for the premises is itself a sufficient termination of the will.^' § 158. Tenants from year to year. — The inconveniences arising from the uncertainties of tenancies at will early gave rise to the creation of an estate, partaking of the qualities of estates for years and at will, which eventually came to be known as a tenancy from year to year. It was raised upon an implied contract for a year and was terminated only by a notice during the term. The new estate found great favor with the courts, which were ever inclined to make every indeterminate lease a holding from year to year, and so it finally became a recognized estate at common law and has been continued and confirmed by subsequent statutory enactments. It is initiated by any kind of a holding at will and receives its subsequent character by payments of rent or other circumstances tending to show a yearly tenancy. Tenancies from year to year seem to have grown naturally out of the ancient doctrine of emblements, which entitled a ten- ant at will to the crops he had sown and gave to him' a free in- gress and egress to reap and carry them away after the deter- mination of his tenancy by the landlord. It will readily be seen that land would be of very little value to the landlord while covered with crops belonging to his late tenant and subject to a right of entry to gather them, while to give the crops and 21 See Jones v. Shay, 50 Cal. 22 Covert v. Morrison, 49 Mich. 508; Burns v. Bryant, 31 N. Y. 135. 453; Goodenow v. Allen, 68 Me. 23 gee Blum v. Robertson, 24 308; Rich v. Bolton, 4S Vt. 84. Cal. 127; Chamberlin v. Dona- hue, 45 Yt. 50. 164: PARTIES TO THE ACTION. [§ 158. such right of entry to a tenant at will was, in effect, to say that his enjoyment of the land was not affected simply by the de- termination of the landlord's will respecting his estate in it. But the distinction between the right of enjoyment and the right of estate was not very clearly drawn in the early days, and, because it was seen that the landlord could not arbitrarily put an end to the former, it was assumed that he was similarly restrained as to the latter. Hence, as early as the time of the year-books, we find holdings of this kind regarded as continu- ing occupations, requiring for their termination a reasonable notice to quit. It will further be observed that under the doc- trine of emblements the tenant practically acquired all the profits of the land from the determination of the landlord's will, without paying any rent therefor. This was felt to be a hardship on the lessor, and so, in the interest of both parties a new species of continuous holding was created that could be terminated only by a reasonable notice. The tenant held the land as of right for the full period of the term but was charged with the duty of payment of rent and of surrender of the land at the expiration of the limit fixed by the notice. This notice, at a comparatively early period, became fixed at half a year, ending at a time corresponding to that at which the tenancy commenced. Thus the form of the tenancy became estab^ lislied and its convenience, no less than its inherent justice, has caused it to be continued and made a part of our own law. It is a general rule that the reservation or payment of rent is essential to the creation and continuance of the estate,-* and this reservation is the leading circumstance that turns leases for uncertain terms into leases from year to year,^^ but the estate may arise in a number of ways. The rights of a tenant from year to year are much the same as those of a tenant for a definite term, and so long as his ten- ancy continues he may bring ejectment for an interference with his possessory rights.^" 24 Chamberlin v. Donahue, 45 454; Lockwood v. Lockwood, 22 Vt. 50; Dunne v. Trustees, 39 Conn. 425. 111. 578; Williams v. Deriar, 31 25 Herrell v. Sizeland, 81 111. Mo. 13; Johnson v. Johnson, 13 457. R. I. 467; Coan v. Mole, 39 Mich. =« Berrington v. Casey, 78 111. 317. § 159, 160.J LANDLOKD AND TENANT. 165 § 159. Tenants by sufferance. — The estate held by a ten- ant by sufferance is the lowest known to the law and .of such a precarious and uncertain character as to have no commercial value. It originated as an expedient of the courts to protect the rights of reversioners and remaindermen, and in its legal aspects differs but little from a trespass. Although not orig- inating in tort the possession of the tenant is nevertheless re- garded as tortious,^' and his rights, as against any person in- vading his possession, are very similar to those of a trespasser. § 160. Entry under void lease. — There is some confusion if not positive disagreement in the authorities, with respect to the possessory rights of a tenant who enters under a lease which, for any reason, is inefficient to create or convey a term. It has been held in a number of instances, that where a tenant enters under a verbal lease for more than a year, and hence void by the statute of frauds, the transaction will still be con- strued as a valid lease for a year, while the acts of the parties in the payment and acceptance of rent may be sufficient to create a tenancy from year to year which can be terminated only after a notice to quit.^^ The better opinion, however, would seem to be that a lease void in itself is not effectual to vest any term whatever in the lessee, and even though possession is taken thereunder with the consent of the lessor, this, without some further agreement, evidences nothing more than a tenancy at will.^^ This tenancy at will, it is said, can be converted into a yearly tenancy only by a new contract, yet it does not seem that such new contract need be made in express terms but may be inferred from circumstances. Thus, a hew contract may be implied by the pa5rment and acceptance of an installment or ali- quot part of a gross annual rent.^° This would be evidence of a subsequent understanding or agreement, and, usually, with- out explanation to the contrary, would be of controlling effect. 27 Donnell v. Johnson, 17 Pick. 29 Talamo v. Spitzmiller, 120 (Mass.) 266. N. Y. 37, 17 Am. St. 607; Me- ss Rosenblat v. Perkins, 18 Leran v. Benton, 73 Cal. 329; Oreg. 156; Swan v. Clark, 80 Barlow v. Wainwriglit, 22 Vt. 88; Ind. 57; Drake v. Newton, 23 N. Withers v, Larrabee, 48 Me. 570; J. L. Ill; Strong v. Crosby, 21 Jennings v, McComb, 112 Pa. St. Conn. 389; Martin v. Blanchett, 518. 77 Ala. 288. so Laughran^v. Smith, 75 N. Y. 209. 166 PAETIF.S TO THE ACTION. [§ 161. But, in any event, there must be something which tends to show that the creation of a yearly tenancy was within the in- tention of the parties ; something occurring subseciuent to the lease and from which new promises may be inferred.^^ § i6i. Forfeiture of tenant's rights. — A violation of any of the covenants, or a breach of any of the conditions, under which a tenant enters will generally give to the landlord a right of election to forfeit the tenant's rights in the term. But courts are averse to enforce forfeitures and a waiver of such right will frequently be implied from slight circumstances.^^ Thus, where a lease contains a condition of forfeiture in case the ten- ant underlets the premises without the written consent of the lessor; if, after such condition has been broken the lessor does any act which is clearly inconsistent with his reliance upon it, such as the acceptance of rent with a full knowledge of all the facts, such conduct amounts to a waiver of the condition, so far, at least, as to preclude the lessor from afterward availing himself of the forfeiture.^^ And, generally, if the lessor by words or acts induces or leads the lessee to believe that he will not enforce a forfeiture provided for in the lease, and the lessee, with that belief, continues to recognize the relation, the lessor will be estopped from setting up a breach or declaring a for- feiture.^* VII. Officers and Fiduciaries. 162. Trustees. 163. Executors and adminis- trators. 164. Continued — Statutory powers. 165. Guardians. 166. Conservators and com- mittees. § 167. Receivers. 168. Action by receiver In for- eign jurisdiction. 169. Actions against receiv- ers. 170. Assignee in bankruptcy. § 162. Trustees. — Under the application of the principle that only the legal title can be exhibited as a basis of claim in siDumn v. Rothermel, 112 Pa. St. 272; Talamo v. Spitzmiller, 120 N. Y. 37. 32 Williams v. Vanderbilt, 145 111. 238; Johnson v. Douglas, 73 Mo. 168. S3 Moses V. Loomis, 156 111. 392, 47 Am. St. 194; Dalim v. Barlow, 93 Ala. 120; Garnhart V. Finney, 40 Mo. 449; Hukill v. Myers, 36 "W. Va. 639; Ireland v. Nichols, 46 N. Y. 413. 34 Conger v. Duryee, 90 N. Y. 594; Brooks v. Rogers, 99 Ala. 433; McGlynn v. Moore, 25 Cal. 384. § 162.] OFFICERS AND FIDUCIARIES. 167 ejectment, it logically follows that a trustee, even as against the cestui que trust, may recover the lands affected by the trust, and the equities of the beneficial owner, however stroflg they may be, cannot prevail against the title thus asserted.^^ As the legal title of a trustee draws to it the possession of the lands, and as the beneficiary's right consists only of an ability to compel performance of the trust, there is nothing incongruous or inconsistent in this rule, and notwithstanding the tendency to merge legal and equitable rights, which, in many states, has become so manifest of late years, the general integrity of the rule has not been questioned.'* The terms of the trust may to some extent modify the rule in its practical application, but, in general, the estate of the trustee is attended by the same legal incidents as if he were also the beneficial owner, and in all actions concerning the title the trustee is the proper party.^'' It will be understood, of course, that the foregoing remarks apply only where there is an active trust ; where the trustee has some duty to perform in reference to the trust property, and where the trust itself has been properly created as required by law. If, for any reason, the trust is invalid, as where it rests in parol when the law requires a writing ; or if it is merely a dry or passive trust which is executed by the statute, then, as the trustee takes neither title nor estate it follows that he can do no act that involves ownership, and having no title to the land can institute no action for its recovery.'^ So, also, when the only question involved is the right of pos- session, and the beneficiary is entitled thereto, it seems he may bring an action in his own name and maintain ejectment even • as against the trustee.^^ 35 Kirkpatrick v. Clark, 132 Phillips, 60 Ga. 434; Philpot v. 111. 342; Kirkland v. Cox, 94 Lander, 46 N. J. Bq. 318. 111. 400; Devin v. Hendershott, st Richardson v. Priederitze, 32 Iowa, 192; Beach v. Beach, 14 35 Mo. 266; Farwell v. Rogers, Vt. 28; Everett v. Drew, 129 99 Mass. 33; Kirkland v. Cox, Mass. 150. 94 111. 400. 36 Presley v. Strihling, 24 3s Ingham v. Bumell, 31 Kan. Miss. 527; Clark v. Clark, S 333. Paige (N. Y.), 153; Bennett's 39 Fernstler v. Seihert, 114 Pa. Appeal, 46 Pa. St. 492; Gunn v. St. 196. Barrow, 17 Ala. 743; Cameron v. 168 PARTIES TO THE ACTION". [§ 163. § 163. Executors and administrators. — As a general pro- position neither executors nor administrators take any estate title or interest in the lands of the decedent whom they repre- seilt, and, having no interest therein, can maintain no action to perfect the title or relieve it of any burden.*" But to this general proposition the statute, in some states, has made a number of exceptions, and judicial construction has tended still further to weaken the integrity of the ancient rule. It must be understood, however, that the rule, as stated, re- fers only to executors acting under a naked testamentary ap- pointment, in which event their powers are co-extensive with those of administrators, and they are bound by the same rules and subject to the same limitations. But, an executor may also be a trustee, and, when acting as such, his powers are measured by the terms of the will under which he is appointed. Under his testamentary authority he may do many things that would be beyond his power while merely performing the or- dinary offices of an executor, and the rules which apply to trus- tees generally must be resorted to for the determination of the character of his actions. Again, both executors and administrators, although clothed only with the ordinary powers for the settlement and distribu- tion of their decedent's estate, may yet acquire such interest in the lands forming a part of said estate as will justify them in resorting to legal measures for the recovery of the possession or perfecting of the title thereto. As where an executor or ad- ministrator receives land in payment of debts due the estate, or has purchased same for the protection of the estate at an ex- ecution or judicial sale under a judgment belonging to the es- tate. Under such circumstances, while the land, in a proper sense, is held in trust for the persons beneficially interested, yet the legal effect of a conveyance to the executor or administra- tor is to vest in such person the entire legal title with all its in- cidents, including the right to possession. While the land thus purchased is regarded as a substitute for the judgment, mort- gage, or other matter exchanged for it, and, takes the place of same for all practical purposes as between the executor or ad- 40 Ryan V. Duncan, 88 III. 144; Stuart v. Allen, 16 Cal. 473. Le Moyne v. Quimby, 70 111. 399; § 164.J OFFIOEES AND FIDUCIAEIES. 169 ministrator and the parties beneficially interested, yet the land, so far as respects its custody, control and disposition, is the property of the officer. This being true it follows that he may maintain ejectment for its recovery when wrongfully withheld by another.*^ Where the interest sought to be recovered is less than free- hold, as where the estate involved is a term of years, no ques- tion as to the right of personal representatives to bring the ac- tion during the administration period can arise. While the next of kin or devisees, as the case may be, are entitled to the possession of the land on final distribution of the estate, yet be- fore that time has arrived their rights are wholly expectant. § 164. Continued — Statutory powers. — In a number of states, where attempts have been made to assimilate the com- mon-law doctrines of real and personal property and to reduce the divergent methods of descent and distribution to one uni- form course of procedure, we may observe some marked de- partures from the rules which ordinarily govern in actions of ejectment. In these states the policy is to treat land much in the same manner as chattels and while the title of the ancestor vests in the heir at the moment of the ancestor's death, yet the possession and profits of same remain with the administrator until the final settlement of the estate. Where this rule pre- vails the statutory right of the administrator may be enforced by ejectment.*^ The respective relations of heirs and devisees with respect to the administrator or executor is not altogether well settled, but the general idea seems to be that the statute does not in- terfere with the descent of the land to the heir or the vesting of the legal title in the devisee, and, in some states it has been held that they may take possession or bring ejectment therefor against all persons except the administrator or some one in pos- session tinder him.*^ But, in all cases, it would seem that the iiKunzie v. "Wixom, 39 Mlcli. Cal. 621; Buckner v. Chambliss, 384. 30 Ga. 652; Barco v. Fennell, 24 42 See Kline v. Moulton, 11 Fla. 378. Mich. 370; McRae v. McDonald, *3 Marvin v. Schilling, 12 57 Ala. 423; Jones v. Billstein, Mich. 361; Miller y. Hoberg, 22 28 Wis. 227; Weeks v. Hahn, 20 Minn. 249. 170 PARTIES TO the' ACTION. [§ 165. right of the administrator is sole, and exclusive of the right of the heirs. That is, that it is not a joint right, and that such right of possession, both as against the heirs and all other per- sons, continues until the estate is settled or the property de- livered over by order of the probate court.^* Under such a law the right to sue in ejectment follows as a necessary conse- quence, and in some states it has uniformly been held that, pending administration, the personal representatives alone may maintain the action.*^ § 165. Guardians. — According to the common law there were four kinds of guardians, to wit : in chivalry, by nature, in socage, and by nurture. These distinctions, which grew out of the old feudal system, however much they may have served to influence modern legislation do not seem to have ever re- ceived a practical recognition in the United States. In all of the states the legislature has provided laws for the custody of the person of an infant 'and the control of his property, and it is this statutory guardianship only which figures in land titles or the litigation that may arise with respect thereto. This statutory guardianship, however, would seem to be a direct out-growth of the common-law guardianship in socage, and in some cases specific reference is made thereto by the statute in defining the rights, powers and duties of the guar- dian. Guardianship in socage, under the English common law, existed only where an infant under the age of fourteen years was seized of land held in socage tenure. No person who could inherit from the infant was permitted to assume the of- fice, which was given to such of the infant's next of kin as could not take by inheritance. In addition to the custody of the person of the infant the guardian in socage was regarded as possessing an estate in the infant's land, or "at least such a title thereto as would enable him, in his own name, to maintain an appropriate action to recover damages for trespass and to recover possession of the land itself when wrongfully held by another.^' 44 Miller v. Hoberg, 22 Minn. « Chapman v. Hollister, 42 249; Agee v. Williams, 30 Ala. Cal. 463; Meeks v. Klrby, 47 Cal. 636; Edwards v. Evans, 16 Wis. 168. But compare Miller v. 181; Page v. Tucker, 54 Cal. 121; Luco, 80 Cal. 257. Barco v. Fennell, 24 Fla. 378. 48 See Hutchins v. Dresser, 26 § 165. j OFFICERS AND FID0CIARIES. 171 The statutory guardianship, while to some extent based upon the ancient guardianship in socage/^ has greatly en- larged the powers of the guardian in some particulars and re- stricted them in others. Thus, it has given to him the control and management of the personal as well as the real property of the ward ; has extended the time limit of control to the age of twenty-one years, and entrusted such control to relatives who may inherit. But while a guardian in socage could maintain ejectment in his own name against any person who might de- prive him of the possession of the ward's lands, it does not seem that this right has been preserved under the statute as gener- ally enacted, and notwithstanding the guardian has the control and management of the ward's land the technical possession thereof continues in the ward.*^ For personal property be- longing to his ward the guardian is now permitted in some states to sue and recover in his own name for the use of the ward,*° but the more generally observed rule is, that in all ac- tions concerning the ward's property the suit should be en- titled in the ward's name.^° In any event, unless the power is given in express terms the guardian cannot maintain eject- ment.^^ This results, in some measure, from the rules which at present govern the action. It is generally provided that no person may recover in ejectment unless he has at the time of commencing the action a valid subsisting interest in the land claimed and a right to the possession thereof. If the statute does not in terms give the possession of the ward's lands to the guardian he is without such interest therein as will support an; action for their recovery brought in his own name.^^ On the other hand, if the statute expressly gives to the guardian the custody and control of all of the ward's property and invests him with full power for its management and protection, in other words, if it gives him the same powers and duties as a Me. 76; Foley v. Insurance Co., ^sLongmire v. Pilkington, 37 138 N. Y. 333; Hughes' Appeal, Ala. 296; Melbane v. Melbane, 53 Pa. St. 500. 66 N. C. 334. *7 Emerson v. Spicer, 46 N. Y. so Vincent v. Starks, 45 Wis. 594; Snook v. Sutton, 10 N. J. 458. L. 133. 51 Muller v. Benner, 69 111. 108. *8 Muller V. Benner, 69 111. 108; 52 Muller v. Benner, 69 111. 108. Sallee v. Arnold, 32 Mo. 532. 172 PAETIES TO THE ACTION. [§§ 166, 167. guardian in socage, together with all the necessary legal rem- edies to accomplish these purposes, then, it may be, an action will properly lie in the guardian's name.^^ § 1 66. Conservators and committees. — The powers and duties of a conservator or committee of a lunatic, drunkard, or other incapacitated person, differ but little from those of a gen- eral guardian of an infant. The incapacitated person is de- prived of the right to manage his property or administer his affairs and all business relating to his estate must be transacted with the conservator. But the proprietary rights of the ward are not affected by such guardianship. It would seem, there- fore, that this power of management gives a conservator no right to institute an action of ejectment for the recovery of his ward's lands, for with respect to them he is regarded as a mere bailiff acting under the direction of the court which appointed him. Having neither title to nor estate in the lands he is pre- cluded from bringing any action based on personal interest, and should the possession be invaded it can be recovered only in the name of the non compos.^^ § 167. Receivers. — A receiver is an officer of the court appointing him, and acts under its orders and directions. He has no powers other than those conferred upon him by the or- der of appointment, and can legally do-nothing bej'ond their scope. '^^ As a general rule, personal estate becomes vested in him by virtue of his appointment, but real estate only by a con- veyance to him, which the court has power to compel."'' It is sometimes asserted by the elementary writers, that the mere ap- pointment of a receiver operates as a transfer to him of the real as well as personal property involved in the litigation,, but this is fundamentally opposed to all of the principles of con- veyancing. The statute may effect such a transfer in proper cases, but, independently of statute, a receiver obtains no title to lands by virtue of his appointment only, nor unless he shall become so vested by a conveyance."' By his appointment he 53 See Torry v. Black, 58 N. Y. 55 Hooper v. "Winston, 24 111. 188. 353. B*Petrie v. Shoemaker, 24 so Chautauqua Bank v. Risley, Wend. (N. T.) 85; Allen v. Ran- 19 N. Y. 370; Union Trust Co. v. som, 44 Mo. 263. Weber, 96 111. 346. c' Union Trust Co. v. Weber, § 167.] OFFICEES AND FIDUCIAKIES. 173 may become authorized to take and hold possession of real property, and to receive the rents and profits thereof, but his possession is only that of the court. And even where by con- veyance he becomes clothed with the legal title he is not a pur- chaser, in the ordinary meaning of the term, but holds the title and possession as an officer of the court for the benefit of all parties in interest.^' But where the order provides only for the sequestration of the rents and profits of land no question of title is involved. Under such order he would be entitled to possession as against the parties to the action, and all claiming under them, but his possession, in any event, would be the possession of the court, and his powers would be limited to such acts as the court shoulcJ specially authorize or direct.^" Hence, he would have no right to bring an action of ejectment withovit special leave of court, nor to otherwise litigate the title. ^° He might, by permission, institute proceedings to compel the surrender of possession to him, either against the parties to the action in which he is ap- pointed or against a stranger claiming adversely, but his right would still be confined to possession for the purpose of secur- ing the rents and profits, and if there should be no interference with him in the exercise of this power, he would have no con- cern with the title or interest in the determination of adverse claims, if any such there were.*^^ It is also a fundamental maxim that a receiver can maintain an action only in those cases where the debtor could have so done had there been no receiver.*'^ This follows from the fact that the receiver derives whatever interest he may possess from the debtor, and if the debtor was without title or right of entry his deed to the receiver would be a mere nulity.^^ In most of the cases in which this doctrine has been announced the sub- 96 111. 346; Foster v. Townshend, so Foster v. Townshend, 68 N. 68 N. Y. 203. Y. 203; Umon Trust Co. v. 58 Union Trust Co. v. Weber, Weber, 96 111. 346. 96 111. 346. 61 Poster v. Townshend, 68 N. 59 Reynolds v. Pettyjohn, 79 Y. 203. Va. 327; Sawyer v. Harrison, 43 62 La Pollett v. Aiken, 36 Ind. Minn. 297; Manlove v. Burger, 1; Republic Ins. Co. v. Swigert, 38 Ind. 211; Screven v. Clark, 48 135 111. 150. Ga. 41. 03 Republic Ins. Co', v. Swig- ert, 135 111. 150. 174 PAETIES TO THE ACTION. [§ 168. ject-matter has been chattels or proprietary rights relating to personalty, but the principle is not limited to any class of prop- erty and applies to land as well as to chattels. A receiver will sometimes be appointed pending an action of ejectment to take charge of and harvest the crops growing upon the land in dispute,"^ but this is a practice not warranted by the principles of the action and depends upon local statutory policy. § i68. Action by receiver in foreign jurisdiction. — It is still a mooted question as to whether a receiver shall be per- mitted to sue in a foreign jurisdiction for the recovery of prop- erty belonging to or claimed to be a part of his trust estate. It is conceded that he is wholly without right so to do ; that he has no extra-territorial power, and that his appointment does not entitle him to recognition by the courts of a foreign state."' In the earlier cases this doctrine seems to have been rigorously adhered to, and that which he could not claim as of right the courts declined to grant as an act of grace ;"" and it is still con- tended in some quarters that as he is the coercive creature of a different forum, neither under the supervision of nor account- able to the courts of a foreign state, it is contrary to public policy to confer upon him the rights of a resident suitor in the courts of such state to the prejudice of a citizen. The tendency of the more recent cases, however, is to permit the maintenance of suits by foreign receivers, where the rights of domestic creditors are not involved and when such suits do not injuriously affect the interests of the citizens."^ The priv- ilege is distinctly an act of comity, and, like all concessions of this kind, is not granted when inimical to public policy or con- trary to law. While such suits are generally brought for the recovery of chattels or for the establishment of rights con- 64 See Bitting v. Ten Eyck, 85 (U. S.) 322; Insurance Co. v. Ind. 360. Needles, 52 Mo. 17. 65 Rhawn V. Pearoe, 110 111. er Patterson v. Lynde, 112 111. 350; Filkins v. Nunnemacher, 81 196; Mentzner v. Bauer, 98 Ind. Wis. 91; Brady v. Connelly, 52 427; Oilman v. Ketcham, 84 Wis. Mo. 19; Catlin v. Silver Plate 60; Boulware v. Davis, 90 Ala. Co., 123 Ind. 477: Hazard v. 207; Bagby v. Railroad Co., 86 Durant, 19 Fed. Rep. 471. Pa. St. 291; Kurd v. Elizabeth, 66 Booth V. Clark, 17 How. 41 N. J. L. 1; Comstock v. Fred- erickson, 51 Minn. 350. § 169.] OFFICERS AND FIDUCIARIES. 175 nected with personal property, it would yet seem that they may be brought for the recovery of real property as well."^ § 169. Actions against receivers.^It was early held that any attempt, by a person having an outstanding right or title, to disturb the possession of a receiver, is a contempt of court, and before a suitor could bring an action of ejectment for the recovery of lands so held it became necessary to obtain the per- mission of the court of chancery."" This rule has not been materially changed in modern practice and a receiver appointed by judicial authority cannot, in the absence of statute, be sub- jected to suit without leave of the court whose officer he is, which must be granted in the cause in which he was ap- ■pointed.'"' The rule is based on the principle that the posses- sion of a receiver is the possession of the court, and any un- authorized interference therewith, either by taking forcible pos- session of the property committed to his charge, or by legal proceedings for that purpose, without the sanction of the court appointing him, is a direct and immediate contempt of the court.'^ Of late years, however, there have been some marked changes in the ancient rule above stated, particularly with respect to re- ceivers appointed by the federal courts. By act of Congress,'^ a receiver appointed by any court of the United States may be sued in respect of any act of his own without previous leave of court, and, presumably, this is broad enough to permit an action of ejectment where a receiver has entered into possession of land claimed by one not a party to the receivership suit. If has been held that the effect of the act is to abrogate the rule that a receiver cannot be sued without leave of the court ap- pointing him, and gives to the citizen an unconditional right to bring his action in any proper court and to have the justice of his demand determined by a jury.^^ 68 Small V. Smith, 14 S. Dak. rige, 96 Ind. 69 ; Melendy v. Bar- 621, 86 Am. St. 808, 86 N. W. bour, 78 Va. 544. Rep. 649. ' 71 Richards v. The People, 81 69 Angel V. Smith, 9 Ves. 111. 551. (Eng.) 335. T2Act of March, 1887, 25 Stat. ^o Links V. Conn. River Bkg. at Large, 436. Co., 66 Conn. 277, 33 Atl. Rep. fs Gableman v. Peoria, etc. Ry. 1003; Little v. Dusenberry, 46 Co., 179 TJ. S. 335. N. J. L. 614; Keen v. Brecken- 176 PAETIES TO THE ACTION". [§§ 170, 171. § 170. Assignee in bankruptcy. — At the present writing a National Bankrupt Act is in operation, which, by its terms, supersedes all state laws'relating to insolvency. Many features of the present law are obscure, but it would seem that when a trustee is appointed he becomes vested, by operation of law, with the bankrupt's title, although the court may order such conveyance as may be necessary to effect this purpose. The act further provides for the maintenance of suits by the trustee against adverse claimants of the bankrupt's property, and under this authorization it would seem that the trustee may bring ac- tions of ejectment to recover possession and determine title. It has frequently been held that an assignee in bankruptcy does not take the title to the property of the bankrupt as an in- nocent purchaser for value, but as a mere volunteer, standing in the shoes of the bankrupt, as respects the title, and having no greater rights in that respect than the bankrupt himself could assertj* With respect to the status of a receiver or trustee in bank- ruptcy as defendant in ejectment proceedings there is a dearth of authority. The exclusive nature of the bankruptcy pro- ceeding, as well as the character of the relief which it affords, has no analogy in other departments of the law, and, usually, the courts to which the jurisdiction has been committed are very jealous of intrusion or outside interference. It has been held that where a trustee has taken possession of buildings con- taining the bankrupt's stock ejectment will not lie against him by the owner of the building ; but the latter will be compelled to resort to the bankruptcy court for a remedy.'' VII. Municipalities. 171. The United States. 172. Officers of the United States. § 173. The State. 174. Counties. 175. Cities and towns. § 171. The United States. — A different rule prevails whenever the Federal Government is sought to be made a party to a legal proceeding from that which applies to controversies 74 Hardin v. Osborne, 94 111. 75 Deweese v. Reinhard, 165 571; Walker v. Miller, 11 Ala. U. S. 386. 1067. § 171.J MUNICIPALITIES. 177 between citizens. It is a fundamental principle that the gov- ernment cannot be sued, except by its own consent, and such consent can be manifested only by an act of Congress.'^ This principle underlies all the authorities relating to the jurisdiction of courts and is a necessary attribute of sovereign power. From this principle it logically follows that no state can pass a law, which will have any validity, making the United States suable in its courts." As an extension of the principle it has been held, that as the possession of the government can exist only through its of- ficers, using the phrase in the sense of any person charged on behalf of the government with the control of its property, coupled with actual possession, it necessarily follows that such officers may not be made defendants in suits brought to re- cover the possession of lands in their occupancy. In other words, that the rule which prohibits a direct proceeding against the government,'^ operates with the same force and effect when its officers are made parties, and that state laws which provide that judgments in ejectment shall work an estoppel, binding the parties and all persons in privity with them, have no appli- cation in cases of this kind. Should such a suit be brought it will be unavailing, for when it becomes apparent from the pleadings or the proofs that the possession sought to be assailed is, in fact, the possession of the government, the jurisdiction of the court ceases. Were the rule otherwise, say the authorities, the government could always be compelled to come into court and litigate with private parties in defense of its property. '° 7s Carr v. United States, 98 States, but lias limited such tr. S. 433; United States v. Lee, suits to those arising on con- 106 U. S. 196. "It is inherent in tract, with a few unimportant the nature of sovereignty not exceptions. to he amenable to the suit of an t9 Carr v. United States, 98 U. individual without its consent. S. 433. In this case it was held This is the general sense and that the cases in which the general practice of mankind." property of the government may The Federalist, No. 81. be subjected to claims against it 77 Carr v. United States, 98 are those in which the property U. S. 433. is in juridical possession by the '8 Congress has created a court act of government itself, or has in which it has authorized suits become so without violating its to be brought against the United possession, and it seeks the aid 12 178 PARTIES TO THE ACTION. [§ 172. But the proposition last stated has not gone unchallenged and while it may still apply to suits involving the possession of chattels it has been denied when the subject-matter is land. This phase of the proceeding will form the substance of the succeeding paragraph. § 172. Officers of the United States. — While we must concede the absolute integrity of the main proposition of the last paragraph, to wit : that the United States cannot lawfully be sued in any case without its consent, we may yet pause to inquire whether the further proposition, that no action can be maintained against an individual without such consent, where the judgment must depend upon the right of, the United States to property held by such person as an officer of the government, is a necessary or proper deduction from the proposition first stated. The later cases, both state and Federal, strongly tend to minimize the earlier doctrines of sovereignty, which were bor- rowed, to a large extent, from the political and judicial policy of Great Britain.'" The result of this has been to modify the doctrine of the second proposition above stated and to permit suits against the officers of governrhent. of the court to establish or re- propriate manner of seeking re- claim its rights therein. In such lief Where the ascertainment of case it is equitable that the prior the parties' rights required a rights of others to the same suit against the king, no suit property should be adjudicated was permitted to lie against the and allowed. Obviously this ap- king, except as allowed on such plies mainly to chattel property, petition. See the cases of The Siren, 7 In this country there Is no Wall. 152, and The Davis, 10 such thing as the petition of Wall. 15. right, as there is also no such 80 From the time of Edward I thing as a kingly' head to the until the present, the King of nation, nor to any of the states England has not been suable in which compose It. There Is the courts of that country, ex- vested in no officer or body the cept where his consent was given authority to consent that the on petition of right, although it state shall be sued, except in the is a matter of great uncertainty law-making power, which may whether prior to that time he give such consent on any terms was not suable in his own courts It may see fit to impose. (The and in his kingly, character, the Davis, 10 Wall. 15.) Many of same as other persons were, the reasons which forbade that But after the establishment of the king should be sued in his the petition of right, as the ap- own court do not apply to the § 1T2.] MUNICIPALITIES. 179 It would now seem to be the received rule, that in all cases where jurisdiction depends on the party, it is the party named in the record, and where the right is alleged to be in the plaint- iff and the possession in the defendant, the inquiry cannot be stopped by the mere assertion of title in the sovereign.'^ In deciding who are parties to a suit the court has no right to look be5'ond the record. It is immaterial that the defendant is an officer of the government. Making him a party does not inake the government a party, notwithstanding that it may stand be- hind him as the real party in interest.*^ In such a case thd court has before it a plaintiff capable of suing, a defendant who has no personal exemption from suit, and a cause of action cognizable by the court, while it is further presumed, in favor of the jurisdiction of the court, that the plaintiff may be able to prove the right which he asserts in his declaration. If the plea shows that the defendant is in possession as an officer of the United States and alleges title in the government the court does political" body corporate we call the United States, nor can it be said that the dignity of the gov- ernment is degraded by appear- ing as a defendant in the courts of its own creation, because it is constantly appearing as a party in such courts and submitting its rights, as against the citizens, to their judgment. In one case it was said that It would be in- consistent with the very idea of supreme executive power, and would endanger the performance of the public duties by the sov- ereign to subject him to repeated suits as a matter of right, at the will of the citizen; and to sub- mit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and in peace, and the money In his treasury. (Briggs V. Light Boats, 11 Allen (Mass.), 162.) Yet, as we have no person in our government who exercises supreme executive power or performs the public duties of a sovereign, it is diffi- cult to perceive on what solid foundation of principle the ex- emption from liability to suit rests. It seems most probable that it has been adopted by our courts as a part of the general doctrine of publicists, that the supreme power in every state, wherever it may reside, shall not be compelled, by process of courts of its own creation, to de- fend itself from assaults in those courts. See United States v. Lee, 16 Otto (U. S.), 196; Chis- holm V. Georgia, 2 Dall. (U. S.) 419. siOsborn v. Bank, 9 Wheat. (U. S.) 738; Polack v. Mansfield, 44 Cal. 36; Tindal v. Wesley, 167 U. S. 204; Scranton v. Wheeler, 113 Mich. 565. 82 Davis V. Gray, 16 Wall. (U. S.) 220; King v. Lagrange, 61 Cal. 221; Jackson v. Wilcox, 1 Scam. (111.) 344: United States V. Lee, 16 Otto (U. S.) 196. 180 PARTIES TO THE ACTION. [§ 173. not thereby lose jurisdiction. On the contrary such a plea presents an issue, which the court is bound to tr}-, the same as any other issue in the case.^^ If the facts aUeged are proved upon the trial they constitute a defense to the action, but it seems like a denial of justice to say that however clear the plaintiff's rights may appear no remedy can be afforded him when his opponent is an officer of the United States and is claiming to act under its authority. The conclusion, therefore, to be drawn from the adjudged cases would seem to be : that the government cannot be sued without its consent, although it may maintain an action against any one else whether he consents or not ; that a person who claims title to land in the possession of the United States can- not have his right finally determined in any other way than by bringing an action of ejectment against the officer in imme- diate possession of the demanded premises and recovering judgment against him ; that when any one in the actual pos- session of property defends his right of possession upon the ground that the government, state or national, has placed him in possession, he must show that the right of the government is paramount to the right of the plaintiff, or judgrnent will be ren- dered against him.*** Such judgment, however, would constitute no bar to an ac- tion by the government to recover the same property back, nor would it preclude it from the assertion of any rights therein. The effect of judgments of this character, with respect to both the, demandant and the defendant, as well as the government, is reserved for discussion in another part of the work.*'' § 173. The state. — It was formerly doubted, in England, whether an ejectment could be maintained by the king, because ejectment is for an injury done to the possession of lands, and the king could not be put out of possession.^" The same idea seems to have been retained in this country after the institution of the present government, and a number of early cases may be found wherein it is held that a state cannot maintain eject- 83 King v. Lagrange, 61 Cal. 204, Scranton v. Wheeler, 113 221; Scranton y. Wheeler, 113 Mich. 565, 67 Am. St 484. Mich. 565. ss See § 499, infra. 81 Tindal v. Wesley, 167 U. S. so Adams, Eject. 79. §§ 174, 175.J MUNICIPALITIES. 181 ment, or other action to try the title to land, for the reason that a state cannot be disseized. The remedy, in case of a trespass of any kind, was held to be by information for intrusion.'' But this rule, if it ever was a rule, does not appear to have re- ceived a general recognition, while the right of the state to sue in ejectment was declared by the statutes of many of the states at about the time of the change of the action to its modern form. By these statutes every action brought by the state, or in the name of the people, might be prosecuted in like manner as if such action had been commenced by an individual. In cases of escheat or forfeiture it would seem that quo warranto, or some action of that nature, should be employed, but even escheats have been permitted to be recovered by ejectment.*^ In all other cases ejectment is the proper remedy where the state claims title to land in the possession of another.'^ As a party defendant the state occupies much the same position as the United States, and may not be staed in its own courts without its consent. § 174. Counties. — The county is an integral part of the state ; one of its subdivisions for local governmental purposes. Its essence is that of the state and in many respects the general rules of law do not apply to it. It rests on a different footing from individuals and private corporations, and from municipal corporations proper, such as cities and towns acting under char- ters or incorporating statutes."" The powers of a county, as a body politic, can be exercised only through its board of super- visors, and, usually, actions against the county are prosecuted in the same manner. § 175. Cities and towns. — The authorities are not in ac- cord with respect to the right of a city or municipal corpor- ation to bring ejectment for public ways. On the one hand, it has been held that a city has not such a valid substituting in- terest in the lands embraced in its streets as will authorize it to 87 See Jackson v. Winslow, 2 year, page 293. And see People Johns. (N. Y.) .80, dissenting v. Denlson, 17 "Wend. (N. Y.) opinion by Kent. Also State v. 312; People v. Livingstone, 8 Aredge, ,1 Ball. (S. C.) 551. Barb. (N. Y.) 253. 88 In New York escheats might 89 State v. Shields, 56 Ind. 521. be recovered by ejectment as so Symmonds v. Clay Co., 71 early as 1818. See laws of that 111. 355. 182 PARTIES TO THE ACTION. [§ 175. maintain ejectment therefor, and this disability is declared to be fundamental. Under these decisions the charter provisions giving a city supervision and control of its streets, confers only the power to care for them, keep them in repair, and to prevent and remove encroachments and obstructions.'^ On the other hand, it is declared that a municipal corporation may maintain ejectment to recover possession of its streets, subject to the. right of the citizens to pass and repass upon them as open high- ways."^ Where the fee of the street is vested in the city or town the right to maintain an action of ejectment against one who has intruded upon or occupies any part thereof does not seem to be doubted. But where the fee remains in the abut- ting proprietor, this, in a number of states, is held to constitute a technical objection to the successful prosecution of the action, and where this view prevails the general rule is that ejectment will not lie. The tendency, however, is to disregard objections of this kind and where the right to possession, use and control of public thoroughfares is vested in any of the municipal agencies of the state, this right is coming to be regarded as being in itself a sufficient ground on which to base an actipn of ejectment irrespective of whether the city has or has not the legal title to the way.'^ This subject is considered at length in another place.'* With respect to other property it does not appear that the municipality is distinguished from the citizen. 91 See Grand Rapids v. Whit- os Lee v. Harris, 206 111. 428 ; tlesey, 33 Midi. 109. Hoboken Land Co. v. Hoboken, 92 San Francisco v. Sullivan, 36 N. J. L. 544 ; Klinkener v. Mc- 50 Cal. 603; Lee v. Harris, 206 Keesport, 11 Pa. St. 444. 111. 428, 69 N. E. Rep. 230, 99 si See § 33 et seq. Am. St. 176. CHAPTER VII. THE PLEADINGS. I. By the Plaintiff. II. By the Dbfendant. I. By the Plaintiff. 176. General otservatlons. § 188. Double descriptions. 177. The venue. 189. Exceptions from the 178. The demise. grant. 179. Continued — Equitable 190. Sufficiency of pleadings titles. under the code. 180. Continued — Equitable 191. Amendments. relief. 192. Continued — Changing •181. Lease, entry and ouster. nature of action. 182. Allegations of possessory 193. Joinder of actions. rights. 194. Several plaintiffs. 183. Character of ownership. 195. Actions in official capaci- 184. The estate claimed. ties. 185. Description of the prem- 196. Actions against receiv- ises. ers. 186. Continued — Particulars 197. Claimants by hostile of description. titles. 187. Description by reference. 198. Exhibits. § 176. General observations. — Under the ancient prac- tice the initiatory pleadings occupied a conspicuous place in the action of ejectment and the declaration was, for many pur- poses, regarded as a process of the court. Inasmuch as the parties were fictitious no writ could issue and it was by means of the declaration that the party in possession was informed of the claim made by the lessor." The action was therefore com- menced by. the service of the declaration, which, in its technical details, -was required to be, explicit and strictly formal. The severity of the earlier rules continued to be relaxed, however, until the final abolition of the old forms of action and at pre- ss See §§6, 80, ante. 18i THE PLEADINGS. [§ 176. sent, in their general aspects, the pleadings are governed by the same rules and are subject to the same requirements that apply to pleadings in civil actions generally. The nature of the re- lief sought must, of course, influence their shape to some ex- tent, but the ancient technical details are no longer of neces- sary observance, and even important defects rhay now be cured under the liberal provisions respecting amendments which are in force in ever}' state. The rules of pleading, whether at common law or under the codes, still require an orderly presentation of the facts relied upon to sustain the action and the declaration or complaint should be drawn with special reference thereto, in order that no variance may result upon the trial. The plaintiff's claim should be distinctly stated, and the character in which he sues as well as the extent of his interest should affirmatively appear. This latter rule, however, has been much relaxed of late years where the plaintiff is entitled to possession irrespective of the charac- ter of his interest, as where one of a number of tenants in com- mon sues a stranger to the title, and is subject to some uncer- tainty growing out of conflicting decisions with reference to the extent of the recovery. The old rule, that a pleading must be construed most strongly against the pleader, still applies, but has been greatly modified in most of the states with a view to substantial justice be- tween the parties,®' while after judgment the rule is generally reversed and the pleading construed in favor of the pleader and in support of the judgment. ^^ But, while liberal intendments may be made in favor of the pleadings, yet courts cannot supply substance where it is lacking or overlook the omission of ma- terial averments ; ®® the pleadings must still state a valid cause of action or ground of defense. No judgment can be rendered on evidence unsupported by allegations,'- nor has the doctrine, that a defective pleading may be cured by verdict, any applica- tion where there is an entire absence of a material allegation.^ 97 Jackson v. Jackson, 17 Oreg. George v. McCullougli, 48 Neb. 110; ScWffer v. Adams, 13 Colo. 680. 572. 1 Thurmond v. Brownson, 69 ssshahan v. Tallman, 39 Kan. Tex. 597; Abemathy v. Seagle, 185. 98 N. C. 553. 99 Mansur v. Straight, 103 Ind. 2 Richards v. Insurance Co., 80 358; Gale v. James, 11 Colo. 540; Cal. 505; George v. McCullough, §§ 177, 178.] BY THE PLAINTIFF. 185 The time of filing declarations is the same as in other actions at law, and the rules of practice in other actions apply to ac- tions of ejectment, so far as they are adapted, except as the statute may otherwise specifically provide. Where the statute is silent the practice and rules of the common law govern.' § 177. The venue. — The general rule is, that an action to recover the possession of land must be commenced in the county wherein the land, or some part of it, is situated. Irl other words, the venue is local. Hence, the declaration or complaint should name the county and state in which the land in controversy is located,* and a failure in this respect has been held sufficient to deprive the court of jurisdiction.^ But if there are two or more counts, and a general finding has been had, the judgment will not be disturbed because one of the counts is defective,^ while in some cases it has been held that even though the pleadings are defective in the matter of venue, yet, if a court of general jurisdiction, without objection, pro- ceeds to judgment, it will be presumed after judgment that the land is in the county where the suit was commenced.'^ It is also a general rule of construction that nothing can be more definite and certain than the description furnished by the gov- ernment survey, and if lands are clearly and distinctly described in a pleading in a judicial proceeding, by reference to the sec- tion, township and range of the United States government sur- vey, the court must take judicial notice of the county in which they are situated.^ If the land comprises a single tract lying partly within two counties, suit may be brought in either county.' § 178. The demise. — It is still customary for courts and writers to speak of the demise laid in the declaration, although, 48 Neb. 680; Mansur v. StreigM, s Minkhart v. Hankler, 19 111. 103 Ind. 358. 47. 3 Williams v. Hartshorn, 30 s Minkhart v. Hankler, 19 111. Ala. 211; Mills v. Graves, 44 III. 47. 50; Kitchen v. Wilson, 80 N. C. ^ Brown v. Anderson, 90 Ind. 191; Georgia Iron Co. v. Allison, 95. 116 Ga. 444; Michigan C. R. Co. s Rogers v. Cady, 104 Cal. 288; V. McNaughton, 45 Mich. 87. Smither v. Flournoy, 47 Ala. 348 ; *Lieary v. Langsdale, 35 Ind. Devine v. Burleson, 35 Neb. 238. 74. « Barnes v. Underwood, 54 Ga. 87. 186 THE PLEADINGS. [§ ITS. as a matter of fact, no demise is alleged, the only statement being that on a day therein specified the plaintiff was pos- sessed of the premises in question. This has taken the place of the old allegation of a lease which was required by the an- cient practice, and for which it may be regarded as an equiv- alent. But the term has been so long in use and has acquired such a definite meaning as indicative of the time when title be- came or was vested in the plaintiff, that it will doubtless long remain, its convenience and great utility overcoming any ob- jection to its somewhat fictitious character. The statute providing for the averments of the declaration usually directs that the allegation of plaintiff's possession shall be laid as of some day certain, which shall be after his title ac- crued.^" This is important, for if the demise of the plaintiff is alleged as of a date prior to his having acquired title, there must, of necessity, be a variance when he comes to produce his proof.^^ These observations apply with increased force where title depends on limitation and possession, and not upon docu- mentary evidence. In such a case care should be taken in stating the demise and the date should be laid on some day subsequent to the expiration of the full limitation period.^^ Under the old practice the plaintiff, in stating the demise, necessarily showed, however, how he came into possession as well as the right by which he claimed, and, while it would still be proper for a plaintiff to plead his title,i^ yet, under the stat- ute as now generally enacted, a simple averment of seizin and possession is sufficient without stating how he became seized.^* 10 This provision was Incorpo- showed that title was acquired rated in tlie Revised Statutes of August 22, 1865, while the dec- New York when the action was laration laid the date of the de- remodeled, and these statutes are raise on May 3, 1S65. And see the basis upon which the eject- Poster v. Stapler, 64 Ga. TfiH. ment laws of nearly all the other 12 Schoonmaker v. Doolittle, states seem to have been erected. 118 111. 605. See R. S. N. Y., pt. 3, ch. 5. tit. 1. is Ewing v. Cones, 131 Ind. 11 In Pitkin v. Yaw, 13 111. 251, 600. - the deed introduced to show title 1* Billings v. Sanderson, 8 was dated January 4, 1851, and Mont. 201, 19 Pao. Rep. 307; the declaration alleged title on Wilmington, etc. Ry. Co. v. Gar- June 1, 1850; held, a variance. ner, 27 S. C. 50; Hihn v. Mangen- To the same effect, Holt v. Rees, berg, 89 Cal. 268; Curtiss v. Liv- 44 111. 30, where the proof ingston, 36 Minn. 380. § 179.] , BT THE PLAINTIFF. 18 T It is generally essential, however, that there should be an al- legation of ownership in order to recover from a defendant in actual possession, and notwithstanding that the declaration may recite the facts whereby the plaintiff claims title, yet if this ma- terial allegation is omitted the pleading will be insufficient.^^ In addition to a substantial averment of ownership the declara- tion should also allege that the plaintiff is entitled to'posses- sion,^° and a failure to so allege, when required by statute, renders the pleading fatally defective. ^^ This has been held to be the case even in those states where the statute provides that the allegations of pleadings shall be liberally construed with a view to substantial justice. There are modern decisions to the effect that if there is no demise from a particular person laid in the declaration, no re- covery can be had based upon his title. ^^ But under the stat- ute, as generally enacted, this feature of the ancient practice would seem to be wholly unnecessary and title, however ac- quired, may be shown under the general allegation of owner- ship.'-' § 179. Continued — Equitable titles. — In some of the states, particularly in those states where the distinction of law and equity has been ostensibly abolished, ejectment may be brought on strictly equitable titles. This is a complete reversal of the common law and a decided innovation upon the old rules. But where rights of all kinds may be tried in the same action there is, perhaps, no incongruity in permitting a demise to be laid upon an equitable title provided it be of such a char- acter as to carry with it a right to present possession.^" In such a case, however, it would seem that the facts showing title 15 Schultz V. Hadler, 39 Minn. Simmons v. Lindley, 108 Ind. 191, 39 N. "W. Rep. 97. But see 297. Vance v. Schroyer, 82 Ind. 116. is See Hobby v. Buiicb, 83 16 Richards v. Crews, 16 Oreg. Ga. 1. 58; Ashland Church v. Northern 19 Richards v. Smith, 98 N. C. P. R. Co., 78 Wis. 131; Simmons 509; Pease v. Hannah, 3 Oreg. v. Lindley, 108 Ind. 297. But see 301; Ewing v. Lutz, 131 Ind. 361; contra, Tevis v. Armstrong, 71 Billings v. Sanderson, 8 Mont. Tex. 59. 201, 19 Pac. Rep. 307. 1- George v. McCullough, 48 20 See Hill v. Plunkett, 41 Ark. Neb. 680, 67 N. W. Rep. 758; 465; Tobey v. Secor, 60 Wis. 310. 188 THE PLEADINGS. [§§ ISO, 181. must be specially pleaded,'^ and that a recovery cannot be had upon allegations of a strictly legal title f^ or, as stated in some of the decisions, where a pleading in ejectment relies upon an equitable title it should contain, in substance, the elements of a bill in equity.-^ Except as permitted by statute, however, a person having the equitable title to land cannot recover in an action at law against the legal title, on the ground that it was acquired through either actual or constructive fraud. The legal title, in such case, must first be attacked and declared void by an action in equity.^* § i8o. Continued — Equitable relief. — ^Under the modern codes of many states, legal and equitable relief may be admin- istered in the same action, and in such states the declaration in ejectment may assume many of the features of a bill in chanc- ery. Hence, it is permitted to have a reformation of deed and a judgment of ejectment in the same suit.^^ But where an ef- fort is made to recover on a deed which misdescribes the land sued for, no evidence to correct the error of description will be admitted on the trial unless a proper ground therefor has been laid in the pleading. In such event it would seem that there must be an allegation of the mistake and a prayer for reforma- tion. Without this the evidence should not be received.^" Except as provided by statute, however, no equitable relief can be granted in an action at law, and allegations to this end are improperly inserted in an action to recover the possession of land.^^ § i8i. Lease, entry and ouster. — According to the for- mer practice the demise stated in the declaration was the title under which the plaintiff was supposed to enter, and the ouster the supposed wrong for which the action was brought. The rules of pleading, as well as the form of proof thereunder, were 21 Leatherwood v. Fulbright, 2* Walker v. Kynett, 32 Iowa, 106 N. C. 683; 14 S. E. Rep. 299; 524; Rountree v. Little, 54 111. McCauley v. Fulton, 44 Cal. 355. 323. 22 Merrill v. Bearing, 47 Minn. 25 in some states this privilege 137, 49 N. W. Rep. 693; Groves is also allowed to defendant. V. Marks, 32 Ind. 319. See Nickols v. Shearon, 49 Ark. 23Kentfleld v. Hayes, 57 Cal. 75. 409. But see Westfelt v. Adams, 2s Cain v. Hunt, 41 Ind. 466. 131 N. C. 379. 27 Prentice v. Stearns, 113 U. S. 435. § 181.J BY THE PLAINTIFF. 189 strikingly dissimilar from the practice in other actions, and quite technical in character. Although the demise was a fiction it was yet required to be consistent. The plaintiff was obliged to set forth a lease which might by possibility have been true, and the lessor was supposed to have the capacity for making a demise which should be valid and effectual not only at the time of the alleged delivery of the lease but also at the time of ouster and at the time of bringing the action.-' The statute has expressly abolished all of the old forms of pleading and destroyed whatever significance they may have formerly possessed, and, as a rule, it is no longer necessary on the trial, for the defendant to confess, nor for the plaintiff to allege or prove, a lease, entry and ouster, or either of them,^^ except in actions by one or more tenants in common, or joint tenants, against their cotenants. But with respect to this latter class the old requirement, so far as same relates to ouster, is still in force, and a plaintiff, in such case, must allege and prove on the trial of the cause, that the defendant actually ousted him from the possession of the common property, or did some other act amounting to a total denial of his right as such cotenant. It is still customary for the plaintiff to allege that the defend- ant entered and ousted him while seized and in possession of the land in controversy, and this must be regarded as the better practice. Such an allegation, together with proper averments as to description, time and place, is sufficient for most purposes of the .action.^" But under the liberal construction generally given to the pleadings it has been held sufficient if the declara- tion merely alleges that the defendant is in the unlawful pos- session of the lands and refuses to surrender.^^ Where the statute provides for the substance of a pleading there must be a conformity to statutory directions, and aver- ments couched in other language than that which the statute prescribes, have in some instances, been held insufficient.^^ Lit- 28 See Doe v. Butler, 3 Wend. si Speight v. Jenkins, 99 N. C. (N. Y.) 154. 143; National Bank v. Corey, 94 29 Brewer v. Beckwith, 35 Ind. 461; Rego v. Van Pelt, 65 Miss. 467. Cal. 254. 30 Billings v. Sanderson, 8 32 Thus, an averment that de- Mont. 201; Tetherow v. Cham- fendant "unjustly withholds" is bers, 74 Mo. 183. not equivalent to the allegation 190 THE PLEADINGS. [§ 1^2. eral conformity, however, will not generally be insisted upon if equivalent expressions are used,^^ and, generally, whether the action is against one in the actual possession of the land sued for, or against one exercising acts of ownership thereon, or claiming title thereto or some interest therein, the form of averment required in the declaration by the statute is the same.'* § 182. Allegations of possessory rights. — The extent and effect of allegations relating to the possession are now generally fixed and regulated by statute, and, when such is the case, the substantial requirements of the statute should be observed by the pleader. Thus," where the statute requires an affirmative allegation of right in the plaintiff it is not enough to state that the plaintiff is the owner in fee and that defendant wrongfully withholds possession. There must be a distinct allegation that plaintiff is entitled to the possession. ''^ On the other hand, in the absence of a statutory direction of this kind it seems that no demand need be alleged nor proved, nor is the plaintiff required to allege that he is entitled to the possession.'^ But while it may be necessary to allege the right of possession it does not seem that the allegation should be in the exact words of the statute and a complaint deficient in this respect may yet be sufficient if from the language employed it clearly appears that a possessory right is claimed.^^ A total failure to allege that plaintiff is entitled to possession, or an absence of facts showing such right, is fatal to the complaint,'^ and the omission, being of an essential fact, is not cured by verdict.'" required by statute that he "un- s* Dickerson v. Hendrjrx. 88 lawfully withholds" them. Os- 111. 66. borne v. United States, 3 N. M. se Barclay v. Yeomans, 27 Wis. 213, 5 Pac. Rep. 465. 682; Miller v. Shriner, 87 Ind. 33 Thus, the omission of the 143. word "unlawfully" will not se McCaslln v. State, 99 Ind. vitiate a pleading if its equiva- 428. lent in meaning is used. Sway- st Swaynie v. Vess, 91 Ind. 584: nie' V. Vess, 91 Ind. 585. As Wilmington, etc. R. R. Co. v. where the averment is that the Garner, 27 S. C. 50. defendant keeps the plaintiff out ss Miller v. Shriner, 87 Ind. of possession "without right." 141. Smith v. Kyler, 74 Ind. 581. so Mansur v. Streight, 103 Ind. 359. § 183.] BY THE PLAINTIFF. 191 The theory upon which the foregoing doctrine is founded is, that the plaintiiif must recover on his own right, hence, it is not enough to allege that defendant's possession is without right, for even though it be conceded that the defendant has no right to the possession of the land in dispute, and that he unlawftilly keeps the plaintiff out, yet the right of possession may be vested in a stranger to the record. For this reason it is contended that an assertion of possessory right is an essential averment and a neglect to insert it in the declaration or complaint is an omission of a fact essential to the plaintiff's cause of action. § 183. Character of ownership. — The plaintiff should al- lege and prove a legal seizin in himself, that is, he should show not only the specific degree of interest he may claim in the land but the right or authority by which he assumes to hold such interest. This he may ordinarily accomplish by a state- ment of the method of its acquisition, or, in other words, a deraignment of his title. Indeed, this becomes the vital point upon the trial, and hence it has been held that the declaration should be so framed as to clearly and unequivocally exhibit the title which is expected to support the claim. ^^ A variance from the title alleged will be fatal to the maintenance of the action. ^'^ But while the foregoing expresses the spirit of the general rule, and in many cases may still be applied under the princi- ples of evidence which require that the proof must correspond to the allegations and be confined to the point in issue, yet under later statutes this strictness no longer prevails. As a general proposition a party may now allege a seizin of the entire prem- ises and his action will not be defeated should he fail to prove that he was entitled to the entirety, provided he is able to show some lesser interest *^ or title to a fractional part.*^ Some of 40 See Rowe v. Beckett, 30 Ind. 504; Marshall v. Palmer, 91 Va. 154; Barrett v. Hinckley, 124 111. 344; Craig v. Taylor, 6 B. Mon. 32; Marshall v. Palmer, 91 Va. (Ky.) 457; Dawson v. Mills, 32 344; Taylor v. O'Neil, 15 R. I. Pa. St. 302; Craig v. McBride, 198. But see § 190, post. 9 Dana (Ky.), 427. 41 Thus, an allegation of title *2 Marshall v. Palmer, 91 Va. in A. is not supported Iby a deed 344; Gray v. Givens, 26 Mo. 303 to A. "and the other heirs at law Matthews v. Turner, 64 Md. 109 of B.," without evidence that A. Jones v. Walker, 47 Ala. 175 is the sole heir at law of B. Almond v. Bonnell, 76 111. 536. Cook V. Sinnamon, 47 111. 214. 43 Matthews v. Turner, 64 Md. And see King v. Hyatt, 51 Kan. 109. 192 THE PLEADINGS. [§ 1S±. the decisions have greatly extended this doctrine of relaxation in those cases where the gist of the action is the recovery of possession rather than the establishment of title, and it has been held that under the general allegation of seizin it is sufficient for the plaintiff to establish any interest in the premises which gives to him a right of possession." But while a plaintiff may sue for all of the land and recover a moiety the converse of the rule does not hold good, and if he claims only an undivided interest it would be error to give him a judgment for the entirety.*^ It has been held that where a declaration or complaint fails to state the nature or extent of the interest which the plaintiff claims in the land ,in controversy, the objection cannot be reached by demurrer but should be presented by a motion to make the allegation more specific.*^ This, however, will de- pend much on local practice, for, usually, if a declaration 'or complaint is vague, uncertain or ambiguous the defect may be taken advantage of by demurrer. § 184. The estate claimed. — ^^In every case, in the ab- sence of statutory provisions to the contrarj', it is necessary for the plaintiff to particularly state the nature and extent of the interest or estate claimed, whether in fee, for his own life, or the life of another, or for a term of years, and, in the latter instances, to specify such life or lives or the duration of the term. This rule, which has been very generally adopted, is ordinarily construed strictly, and a variance in the proofs, nn- less aided by statute, will usually defeat the action. Thus, where the plaintiff declares for a certain estate or interest in the land a different estate or interest cannot be shown by the proofs and recovered ; " as, where the claim is for a fee, he cannot recover an estate for life or years ; ^* he must recover 44 As where the owner of an 46 Schenck v. Kelley, 88 Ind. undivided one-half sues a tres- 445. passer or a stranger to the title *7 winstanley v. Meacham, 58 for the exclusive possession of 111. 97; Lyon v. Kain, 36 111. 362; the entire tract. Stark v. Bar- Gamble v. Daugherty, 71 Mo. rett, 15 Cal. 362. 599; Hunt v. Camphell, 83 Ind. 45 Gamble v. Daugherty, 71 48 ; Forsyth v. Rowell, 59 Me. Mo. 599. 131. isBallance v. Rankin, 12 111. § 185.] BY THE PLAINTIFF. 193 the fee, or nothing.*' Again, if an undivided half interest is claimed, he cailnot have judgment for all.^" So, too, if the declaration fails to state any specific degree of interest, merely alleging a deprivation or detention of posses- sion, it will be obnoxious to demurrer.^^ To entitle him to a verdict the plaintiff must show an existing title in himself as well as a right to immediate possession,^^ and the declaration should set forth his title, or the right whereof he claims, in terms so explicit that judgment in his favor will determine the character of his estate and not simply his right of possession. '^^ But where the estate claimed is the fee, a simple allegation of seizin or ownership will generally be sufficient. This is par- ticularly true where the fact of ownership is aided by a statu- tory presumption of right of possession. °* § 185. Description of the premises. — It would seem that in the earlier stages of the remedy, when ejectments were com- pared with real actions and arguments were drawn from anal- ogy with them, a high degree of certainty was requisite in the description of the lands sought to be recovered, which was re- quired to be so definite as to enable the sheriff exactly to know, without other information, of what to deliver possession. A review of the old cases, however, discloses the fact that while the rule of sufficient certainty was frequently invoked in gen- eral terms, yet in its practical application it was made to depend 420; Almond v. Bonnell, 76 111. plaint does not directly aver the 536; Forsyth v. Rowell, 59 Me. ownership of the fee in the 131; Hunt v. Campbell, 83 Ind. plaintiff, nor the right of posses- 48. sion, but does contain averments 49 Christy v. Pulliam, 17 111. from which the inference is ir- 59. But see §§ 190, 230, post. resistible that such plaintiff has BO Gamble v. Daugherty, 71 Mo. a subsisting interest in the land 599. in dispute and is entitled to the «i Goodall V. Henkel, 60 Mich, possession, the complaint will 382; Little v. Pherson, 35 Oreg. be sufficient on demurrer. Vance 51. But see Vance v. Schroyer, v. Schroyer, 82 Ind. 116. And 82 Ind. 116. see Lovely v. Speisshofer, 85 Ind. 52 Wells v. Steokelberg, 52 Neb. 456, where It was held that if by 597. the facts averred a title is 53 Goodall v. Henkel, 60 Mich, shown, the complaint will be 382; Taylor v. O'Nell, 15 R. I. sustained. 198; Cook v. Sinnamon, 47 111. 54 Jones v. Memmott, 7 Utah, 214. It has been held, however, 340, 26 Pac. Rep. 925. that notwithstanding the com- 13 19i THE PLEADINGS. [§ 185. more upon mere caprice than on principle, and from the diffi- culty which frequently attended attempts at specific designation the courts soon relaxed its severity. It would now seem to be the practice, in England, for the sheriff to deliver possession of the premises recovered according to the directions of the claim- ant, who therein acts at his own peril. ^^ The relaxation of the ancient rule requiring certainty of de- scription, although accounted by an eminent English writer ^^ as one of the "salutory regulations which the wisdom of mod- ern times has introduced into the action" does not seem to have been productive of good results in this country. It opened the way to numerous and vexatious applications to correct the errors of the sheriff in delivering possession, and courts were early obliged to formulate rules restricting the plaintiff, where a general verdict was rendered in his favor, to the taking pos- session of so much only as he gave evidence of his title to on the trial. ^' The earlier rule, which prevailed in England until about the middle of the eighteenth century, and which is better suited to our system of land parceling and methods of practice, has practically been reaffirmed by our courts and in many in- stances incorporated into our statutes, and may be considered an established principle pf the action.^' Under this irule it is necessary that the premises claimed shall be described with convenient certainty, so that, from the de- scription given, possession thereof may be delivered."" This certainty has reference both to quantity and location,"^ but if 55 Adams, Eject. *23; Cotting- Wis. 447; Griffin v. Hall, 111 Ala. ham V. King, Burr (Eng.), 623. 601; Turner v. Rives, 75 Ga. 56 Adams, Eject. *24. Thus the 606; Lazar v. Caston, 67 Miss, declaration may describe the 275; Blow v. Vaughn, 105 N. C. parcels as a "messuage, mill, 198; Livingstone County v. Mor- garden, meadow, pasture, wood, ris, 71 Mo. 603; White v. Hake- heath, moor," or even as "so man; 43 Mich. 267; Tracy v. many acres of land," or a "house, Harmon, 17 Mont. 465. stable," etc. See 2 Arch. Nisi ei Thus, where the plaintiff in Prius, 318. his declaration described the 58 Seward v. Jackson, 8 Cow. land sued for as lying south of (N. Y.) 427. the west half of a given quarter 59 Clark v. Clark, 7 Vt. 190; section and between the south Jones V. Porter, 3 Pa. 132. line of such quarter and a bayou, 00 Lenninger v. Wenrick, 98 and the proof showed that his Ind. 596; Orton v. Noonan, 18 land lay south of the east half § 186.] BY THE PLAINTIFF. 195 the description given is such as would enable a competent sur- veyor to locate the land by refering to deeds, writings, or known objects, it will satisfy the requirements of the rule,^^ the only test being that it shall be sufficiently definite to admit of proper ascertainment and identification.^^ Where, however, the de- scription is so imperfect or incorrect that it is impossible there- from to locate the land, a judgment founded upon it will be of no effect.^* § i86. Continued — Particulars of description. — A de- scription by the section, township, range and meridian, will or- dinarily be sufficient, since it follows the description adopted by the government in the original survey, and is as complete as can be required for any purpose,^^ although some authorities hold that the county and state in which the land is situated must also be designated.^' The most that can be said, however, with reference to the statement of city, county or state is, that its insertion tends to greater certainty, yet the entire omission of this particular is of minor consequence, provided the section, town and range be correctly stated, as there can be but one locality answering that description."^ The requirement of the statement of the county is a survival of the old ideas respecting real actions. Of course, in ejectment the venue must be local. of the quarter section, it was s* Balliett v. Veal, 140 Mo. 187, held that this was a fatal vari- 41 S. "W. Rep. 736. ance, and that he could not re- 65 parr v. Van Horn, 38 111. cover. McCormick v. Huse, 78 226; Louis v. Giroir, 38 La. Ann. ,111. 363. And see Balliett v. 723; Mills v. Traver, 35 Neb. 292. " Veal, 140 Mo. 187, 41 S. W. Rep. ss Leary v. Langsdale, 35 Ind. 736. 74. But in a later case in the 62 Lane v. Abbott, 23 Neb. 489; same state it was held that Sphung V. Moore, 120 Ind. 352; where the complaint does not Hihn V. Mangenberg, 89 Cal. disclose the county in which the 268. land is situated and a court of 63 Indianapolis, etc. Union v. general jurisdiction, without ob- Cleaveland, etc. Union, 45 Ind. jection, proceeds to judgment, it 481; Parr v. Van Horn, 38 111. will be presumed, after judg- 226; Livingston Co. v. Morris, ment, that the land is in the 71 Mo. 603; Munson v. Munson, county where the suit was in- 30 Conn. 425; Hihn v. Mangen- stituted. Brown v. Anderson, 90 berg, 89 Cal. 268; Mills v. Ind. 95. Traver, 35 Neb. 292; Ayers v. 6t Howe v. Williams, 50 Mo. Reldel, 84 Wis. 276. 252; Beal v. Blair, 33 Iowa, 318; Slater v. Breese, 36 Mich. 77. 196 THE PLEADINGS. [§ 186. In all cases of small parcels defined by metes and bounds, the land should be so described that in the event of a recovery the of&cer executing the vi^rit of possession will know to what land the plaintiff is entitled f^ but it would seem that if the property is exactly designated by references to location, character of im- provements, methods of use, etc., this will be sufficient,^'' while if a tract is well known by a particular name it may be so de- es Livingston Co. v. Morris, 71 Mo. 603; Linninger v. Wenrick, 98 Ind. 596. Thus, declarations for "a portion of a strip of land, ten rods wide, off from the west side" of a properly designated forty-acre lot, was held fatally defective, because it neither gave the length or width of the strip, nor so identified it that possession could be given in case of recovery. White v. Hapeman, 43 Mich. 267. So, too, where land was described as "the northeast part of the northeast quarter of . . . containing thirty-five acres." Roberts v. Lanam, 92 Ind. 380. Land de- scribed as "a part of the Joshua Wilson farm in sec. 15," etc., "containing forty acres," held an insufficient description. Ham- mond V. Stoy, 85 Ind. 457. Wbere no dimensions of the lot were given and no data was furnished from which they might be as- certained, the complaint was held demurrable for insufii- ciency. Griflin v. Hall, 111 Ala. 601. Recovery was denied on a declaration describing lands as "Part of a tract of two hundred and twenty acres, between Fort Creek and Shoulder Bone Creek, bounded on the north by lands of W. A„ on the east by lands of R. and C, and on the south and west by lands said R." Turner V. Rives, 75 Ga. 606. And see Lazar v. Gaston, 67 Miss. 275; Blow V. Vaughn, 105 N. C. 198. A petition describing lands by metes and bounds commencing , at "the S. E. corner of the N. W. 14 of the N. %" of a specified section, town and range, is suffi- ciently definite and certain with- out setting forth by some defi- nite landmark or survey where such corner is situated. Mills V. Traver, 35 Neb. 292, 53 N. W. Rep. 67. 89 A declaration described the premises as "a certain lot of land lying in the town of A., being the piece of land near the railroad depot in said town upon which defendant has erected a pump-house and appliances for the purpose of supplying its engines with water," Jield suffi- ciently certain. Carter v. Rail- way Co., 26 W. Va. 644. So, also, where the complaint described the premises as "the house built by plaintiff for defendant on the Crandall farm, near the east line, in fractional section 13, township 4 south, and range 5 east, and the ground covered thereby." Cunningham v. Mc- Collum, 98 Ind. 38. To the same effect, where lands were de- scribed as "a certain part of the S. E. of the S. E. section 29, range 6, township 8, containing two acres, more or less, includ- ing the meeting-house and camp grounds, with privilege of water during worship." Rayburn v. Elrod, 43 Ala. 700. § 187.] BY THE PLAINTIFF. 197 scribed.'" This latter method, while permitted in some cases, is yet very unsatisfactory in that it necessarily requires a resort to extrinsic evidence to fix boundaries and location. Where the action is brought to recover possession of a part only of lands described or designated by a colloquial name, it will rarely be possible to frame a sufficiently certain description.'^ In soine cases a description by acreage, located in a part of a properly designated tract will be sufficient. But this will only occur in exceptional cases where the elements of cer- tainty can be inferentially drawn from the description itself.'^ In most cases such a description, standing alone, will be in- sufficient.'^ § 187. Description by reference. — The methods of land parceling and conveyancing employed in this cotmtry at the time of its settlement, and for many years thereafter, were those in vogue in England. Our present admirable system of rectangular surveying was unknown, and whenever a survey was attempted, either for the purpose of locating a grant or to furnish a description of land conveyed, resort was necessarily had to the methods of the old trigonometrical systems. This occasioned long and complicated recitals of monuments, courses, distances, etc., and from motives of convenience these technical descriptions were avoided whenever a simpler device could be employed. One of these simple methods was to de- scribe the abuttments, another to name the last occupants, and still another to mention the character of the uses to which the TOHildretli v. White, 66 Cal. but the land wouLd be located 594; Glacier, etc. Mining Co. v. by laying off 225 acres -having Willis, 127 XJ. S. 471, 32 L. Ed. the south, east and west sides of 172. the section for boundaries, with 71 Thus, a suit to recover land the remaining boundary a line known as "a part of the Joshua parallel to the south line of the Wilson farm, in section fifteen, section and sufficiently distant township," etc., "containing therefrom to Include the requi- forty acres," held an insufficient site quantity. See Tierny v. description. Hammond v. Stoy, Brown, 65 Miss. 113. 85 Ind. 457. 's A complaint describing the T2 As where a description lands as "the N. E. part of" a called for "the south part of sec. designated section "containing 5," etc., containing "225 acres," 35 acres," was held bad on de- it was held that the description murrer. Roberts v. Lanam, 92 was not void for uncertainty, Ind. 382. 198 THE PLEADINGS. [§ 188. land had been subjected. These were generally taken as suffi- cient for the purposes of a deed and, as a consequence, were also inserted in the pleadings whenever the title or right of possession was called in question. There are decisions which support this kind of description where the references are capable of certainty in location but the practice is generally discouraged and recoveries of lands so de- scribed have often been denied.'* Where land is described by reference to monuments it is not necessary to aver positively the existence of such monuments.'^ But, while evidence of extrinsic facts and circumstances is generally admissible to identify lands and to aid defective or imperfect descriptions in deeds, it must yet be remembered that the judgment in ejectment is for the land demanded in the declaration or complaint, and this should be so described that the judgment of the court, following the declaration, may be definite and certain. Hence, in cases similar to those now un- der consideration, that is, where parol evidence is necessary to identify the premises of a deed, the better practice is for the pleading to describe the land definitely by averring the facts that will be established by the extrinsic proof.'^ § i88. Double descriptions. — It would seem that in the common-law action it was no objection to a description that the premises were twice demanded in the same demise. This was in conformity to the general rule that if the same count con- tained two demands, for one of which the action would lie, but not for the other, that all the damages should be referred to the good ca'use of action. The question arose mainly in con- nection with the peculiar descriptive terms of the English law, as where the action was brought for a "messuage and tene- '4 See Turner v. Rives, 75 Ga. ignated lot lying within one 606. A complaint describing hundred feet on either side of a lands as adjoining the lands of certain railroad track, it is no three persons named, and con- objection to the complaint that taining a certain number of it does not positively aver that acres, held, too vague to be ex- there is such a track on the land, plained by parol testimony. May v. Railroad Co., 26 Minn. Blow V. Vaughn, 105 N. C. 198. 74. '« Thus, where land is de- 76 Cottingham v. Hill, 119 Ala. scribed as all that part of a des- 353. §§ 189j 190.] BY THE PLAINTIFF. 199 ment." The latter term, because it included many kinds of incorporeal hereditaments, was held to be uncertain as to what was intended to be demanded. These subtleties are, of course, without meaning in this country but the principle has been re- tained and is still applied. An inconsistency is sometimes developed through an over anxiety of the pleader to identify the land, and this inconsis- tency generally grows out of the employment of particular and general descriptions. The usual rule seems to be, where there are two descriptions of the property, the one general and the other particular, and both cannot stand together, that the par- ticular description will be adopted and the general one re^ jected.^^ § 189. Exceptions from the grant. — Exceptions from the tract claimed should be described as particularly and concisely as the part sought to be recovered, the same general principles applying with equal force and effect in either case. If a speci- fic quantity is excepted from the claim, it should be located with convenient certainty in order that it may be excluded from the delivery in case of a recovery, but courts are generally liberal in construing such descriptions and will make favorable, in- tendments for the claimant where the description can be prop- erly fitted to the land.''' If, however, the exception is of an un- defined tract, referred to or designated merely by the name of its purchaser, it is fatally defective, and, because its extent can- not be ascertained from the description given it, renders the complaint incapable of supporting a judgment for the plaintiff as to any portion of the land sought to be recovered.^° § 190. Sufficiency of pleadings under the code. — As pre- viously remarked, the tendency of modern decisions has been toward a relaxation of the stringent rules that formerly pre- 77 Inge v. Garrett, 38 Ind. 96; ner," it was held good on de- Case V. Dexter, 106 N. Y. 548; murrer, and the phrase con- Barney v. Miller, 12 Iowa, 460; strued to mean two acres In such Sikes v. Shows, 74 Ala. 382; comer lying in a square and Hoggin V. Lorenz, 15 Mont. 309. hounded by four equal sides. 78 As where a complaint de- Green v; Jordan, 83 Ala. 220. scribed lands sued for as a par- 79 Goodwin v. Forman, 114 ticular quarter section, "except Ala. 489. And see Lancey v. two acres in the southeast cor- Brock, 110 111. 609. 200 THE PLEADINGS. [§ 190. vailed. This is particularly true in states which have codes of procedure, and in a number of instances it has been held that, in respect to actions concerning rights in real property, a gen- eral allegation of ownership in a pleading is sufficient to admit proof of any legal title, general or special.*" Hence, in eject- ment, it is sufficient, under these decisions, for the plaintiff to allege that he is the owner and entitled to the possession of the land demanded, and that the same is wrongfully withheld, with- out alleging in detail the particular facts on which his claim of title is based.*^ It is said that the rules which require the plaintiff to set up in his complaint the nature, quality and kind of ownership, are too narrow and technical for code pleading, and that the rule as first stated should prevail in all jurisdic- tions where the statute requires that the complaint shall con- tain a plain and concise statement of the facts constituting the cause of action, without tmnecessary repetition.*^ The reason- ing by which these decisions are supported proceeds upon the theory that ejectment is strictly a possessory action; that it is the "possessory title" which is ii;nportant, and that, as plaintiff must show that he is entitled to immediate possession in order to recover, it is comparatively immaterial in what form his title may be.** The rule would seem to be the same under code pleading as under the common-law system with respect to pleading evi- dence, and a complaint or petition which sets up only the evi- dential facts instead of alleging ownership or right of posses- sion, will generall}' be insufficient,** although in some states the rule is very much infringed.*'* 80 McArtliur V. Clark, 86 Minn. 82 Atwater v. Spaulding, 86 165, 90 N. W. Rep. 369, 91 Am. Minn. 101; Caperton v. SclimicJt, St. 333; Brady v. Kreuger, 8 S. 26 Cal. 479. D. 464; Billings v. Sanderson, 8 83 See Stuart v. Lowry, 49 Mont. 201; Johnston v. Pate, S3 Minn. 91, 51 N. W. Rep. 662: N. C. 110. Johnston v. Pate, 83 N. C. 110. 81 Atwater v. Spaulding, 86 s* McCaughey v. Schuette. 117 Minn. 101, 90 N. W. Rep. 370, Cal. 223; George v. McCullough, 91 Am. St. 331; Garwood v. Hast- 48 Neb. 680, 67 N. W. Rep. 758; ings, 38 Cal. 216; Burt v. Bowles, Sohultz v. Hadler, 39 Minn. 191. 69 Ind. 1; Brady v. Kreuger, 8 But compare Carson v. Butt, 4 S. D. 464. And see Johnson v. Okla. 133. Crookshanks, 21 Oreg. 339; ss See Lovely v. Speisshofer, Northern Pao. R. R. Co. v. Lilly, 85 Ind. 456. 6 Mont. 65. § 191.J BY THE PLAINTIFF. 201 As a general statement, it may be said, that the codes have not materially altered the fundamental rules of pleading how- ever much they may have changed the form. If a party re- covers in an action, it must be upon the case made by the plead- ings. If the proof varies materially from the allegations of the pleadings it wiU be fatal to the action. § igi. Amendments. — It would seem to have been the practice in the earlier stages of the action not to permit amend- ments to the declaration, or at least not until the landlord, or tenant, had been made defendant instead of the casual ejector, and consequently, if the defects were such as to prevent the courts from granting the common rule for judgment against the casual ejector, the plaintiff's lessor was compelled to dis- continue the action and resort to a new ejectment. The reason for this was, that the declaration being considered as the first process there was nothing preceding it to warrant an amend- ment. ^'^ This practice was subsequently modified so as to permit the lessor to amend his declaration before appearance, provided such amendment would work no injustice to the tenant. But, for a long time, even after appearance, the declaration could be amended in form only and not with respect to matter of sub- stance. As it was extremely difiicult, under the old practice, to indicate what errors were substantial, and hence not amend- able, and as, under the strict rules by which the action was con- ducted, the demise, the term, the time of ouster, etc., were all considered as substance, much inconvenience was occasioned. This led to a more liberal policy by which the incidents just mentioned came to be regarded as formal only, and for the purpose of expediting the true justice of the case it became the practice to permit the plaintiff to add a new demise, when founded on the same title, and even to add new counts on an- other demise, and in many other ways to introduce matters of substance as well as form, and thus a practical freedom of amendment was finally permitted.^^ The modern remedy differs in no essential particular from other civil actions and the rules of pleading and practice which 86 2 Tidds, Prac. 1206; Adams, (N. Y.) 156; Jackson v. Tuttle, Eject. 200. 6 Cow. (N. Y.) 590; Taylor v. 87 See Den v. Smith, 2 Pa. Taylor, 3 Marsh. (Ky.) 19. 710; Jackson v. Murry, 1 Cow. 202 THE 1 LEADINGS. [§ 193. obtain in actions at law generally will apply to the action of ejectment except as otherwise specially provided. This in- cludes the right of amendment.^' At the present time very lib- eral statutes of amendments and jeofails prevail in all of the states, and the court in which an action is pending has power to permit amendments in any process, pleading or proceeding in such action, either in form or substance. Under these stat- utes, at any time before final judgment, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, dis- continuing as to any joint plaintiff or defendant, changing the form of action, and in any other matter which may enable the plaintiff to sustain the action for the claim for which it was in- tended to be brought.^^ The adjudication of the court allow- ing an amendment is generally taken as conclusive evidence of the identity of the action. § 192. Continued — Changing nature of action. — But while the statute of amendments permits a change in the form of an action, allowing even so radical a departure as a sub- stitution of tort for assumpsit, it does not, it seems, permit a change in its essential nature by introducing an entirely new cause of action.'" Therefore, it has been held that plaintiff will not be allowed to amend his declaration so as to enable him, instead of recovering the land sued for, to have jtidgment for the amount paid by him at a foreclosure sale thereof, and for the sale of the land to repay such amount f^ neither can an ejectment be converted into an action of foreclosure.'^ These things are too remote from the original cause of action to be engrafted upon it by amendment. So, too, a plaintiff in eject- ment will not be permitted to so change his action by amend- 88 Dougherty v. Purdy, 18 111. 73 Md. 128; Crosby v. Clark, 132 206; Schoonmaker v. Doolittle, Cal. 1. 118, 111. 605; Ludeman v. Hirth, 90 Bank v. Shoemaker, 117 Pa. 96 Mich. 17; Townsend Savings St. 94; Stevenson v, Mudgett, 10 Bank v. Todd, 47 Conn. 190;, N. H. 338; Connecticut Ins. Co. Vreeland v. Ryerson, 28 N. J. L. v. Kinne, 77 Mich. 231. 205. 91 Hobby v. Bunch, 83 Ga. 1, 89 See Kennan v. Smith. 115 20 Am. St. 301. Wis. 463; Wallis v. Wilkenson, 92 Johnson v. Johnson, 27 S. C. 309, 3 S. E. Rep! 606. , §§ 193, 194.] BT THE PLAINTIFF. 203 ment as to recover the value of the land instead of the land it- self,"' nor to make the case an action to redeem."* Where the claim of the plaintiff is changed by amendments of this charac- acter the effect is to substitute a new and different cause and kind of action, and this the courts are strenuous in declaring cannot be done."^ So far has this doctrine been carried that an amendment has been refused where it would embrace more or different land from that described in the declaration, the con- tention being that such a course would be practically a state- ment of a new cause of action."" § 193. Joinder of actions. — Modern codes have materi- ally changed the old rules relative to joinder of actions and sin- gleness of issue, and, with a view to prevent a multiplicity of suits, permit a plaintiff to unite several causes of action in the same complaint when they are of a congruous nature or grow- out of the same transaction. As these codes have abolished all distinctions in pleading between actions at law and suits in equity, and provided but one form of action for the protection and enforcement of rights, it follows that both legal and equit- able remedies may be administered in the same suit. About all that is required in the pleading is a statement of the facts on which relief is claimed, and when this is done such relief as is appropriate may be adjudged.*" Where this practice prevails a claim of title and right of pos- session of land, with or without damages, may be joined in an action for waste, or for partition, or to quiet title."^ § 194. Several plaintiffs. — Where parties possess a com- munity of interest the joinder of all in one complaint would seem to follow as a natural inference, but under the statute, as now generally enacted, the declaration may contain several counts and several parties may be named as plaintiffs even though their interests are not common, and this joinder may be made in one count or the interests may be stated separately. 93 Gas Light Co. v. Railroad St. Amand v. Long, 25 La. Ann. Co., 51 Hun (N. Y.), 119. 164. 9* Skinner v. Hodge, 24 S. C. s>6 Robbins v. Harris, 96 N. C. 165. 557. ss Morales v. Fisk, 66 Tex. "7 Terrell v. Frazier, 79 Ind. 189; White v. Moss, 67 Ga. 89; 475. 98 Smith V. Kyler, 74 Ind. 582. 20i THE PLEADIJS'GS. [§ 195. It was formerly held that where several plaintiffs united in one action, if it appeared that one of the plaintiffs had no title to the premises sued for, a recovery could not be had in the action by the other plaintiffs, even if they had title,"" and where the rule still obtains, that the recovery must be had upon the title declared for, this ruling would probably be sustained.'- But the statute has abrogated much of the old strictness with re- spect to allegations and proof, particularly in actions of eject- ment, and while it is still true that the proof should conform to the allegations yet it is no longer an objection to a recovery that an)'' one of several plaintiffs is unable to prove any interest in the premises claimed. In such event those entitled may now have judgment, according to their rights, for the whole or such parts as he or they might have recovered if he or they had sued in his or their name or names only.^ In the absence of any statutory provision to the contrary the general rule would still seem to be that an allegation of joint interest must be substantially proved as alleged in the declara- tion, and that a mere showing of title in one or more, but not in all, is fatal to recovery.' § 195. Actions in official capacities. — Where the plaint- iff sues as an officer or fiduciary the facts entitling him to main- tain the action should be stated in the pleadings, together with a description of the official capacity in which he sues. Thus, where executors or administrators are permitted to sue in this form of action for the recovery of land belonging to the estate they represent, the declaration should set forth the nature and extent of the interest which the heirs or devisees of the de- ceased have in the premises claimed and that the plaintiff, as such executor or administrator, is entitled to the possession thereof, together with such other allegations as are necessary where the action is brought by one in his own right. 39 Murphy v. Orr, 32 111. 4S9; Follansbee, 131 111. 147; Miller Whitlow V. Echols, 78 Ala. 206. v. Early, 64 Mo. 478. 1 See McGlamory v. McCor- s Towns v. Mathews, 91 Ga. mick, 99 Ga. 148. 546; Primm v. "Walker, 38 Mo. 2 This is statutory, but the 94; Tormey v. Pierce, 42 Cal. text states the general statutory 355; Lynch v. Kirby, 36 Mich, doctrine. And see Walton v. 238. §§ 196-198.] BY THE PLAINTIFF. 205 § ig6. Actions against receivers. — Land in the posses- sion of a receiver is usually regarded as being in custodia legis, and before an action of ejectment can be brought for its re- covery it is first necessary to obtain leave of the court which ap- pointed tlie receiver. When such leave has been granted the action proceeds as in other cases. But inasmuch as the right to sue a receiver is a special privilege, and not an absolute right as in other cases, it is essential to the maintenance of the action that this privilege be affirmatively averred in the declaration, and the absence of an allegation showing that leave to bring the ac- tion has been granted will be fatal on demurrer.* § 197. Claimants by hostile titles. — The allowing joinder of parties and the union of causes of action, does not permit two persons, each of whom claims the whole of a tract of land by a title hostile to that of the other, to unite as plaintifTs In an action of ejectment against a third party who may be in pos- session, and it is immaterial whether the pleading sets forth the opposing titles in one or separate counts. Unless some com- mon interest is shown, the allegations of title neutralize each other and the pleading would be bad on demurrer.' § ig8. Exhibits. — It will rarely be necessary to file exr hibits with a declaration in ejectment, and, as a general proposi- tion, deeds or instruments constituting evidence of title are not the foundation of pleadings asserting title and should not be made exhibits. If they are so made they may be disregarded, and only the allegations of the pleading itself be considered." In no case will the recitals of an instrument annexed to a pleading be regarded as allegations of the facts recited,^ and notwithstanding that exhibits may be a part of the record, they yet form no part of the pleadings, nor can they be made so by annexation or by any prayer for the purpose.^ *Keeii V. Breckinridge, 96 Rye, 35 Arli. 470; Toun v. Pltt- Ind. 69; St. Louis, etc. R. R. Co. man, 82 Ga. 637. V. Hamilton, 158 111. 366. ^ Sprague v. Wells, 47 Minn. 6 Hubbel v. Lerch, 58 N. Y. 237. 504, 50 N. W. 535. 6 Smitli V. Schweigerer, 129 s Perciful v. Piatt, 36 Ark. Ind. 363, 28 N. E. 696; Howell v. 456. 206 THE PLEABINGS. [§§ 199, 200. II. By the Defendant. 199. Pleas in abatement 200. Continued — Demurrers. 201. Continued — Former ac- tion pending. 202. Pleas in bar — The general issue. 203. Theory of the general issue'. 204. Special pleas — Statute of limitations. 205. Plea of title. 206. Adverse possession. 207. Extrinsic facts. 208. Plea of title from common source. 209. Former recovery. 210. Denial of possession. , 211. Disclaimer of title. 212. Inconsistent pleas. 213. Continued — Special in- stances. 214. Plea,s since the last con- tinuance. .215. Equitable defenses. 216. Estoppels. § 199. Pleas in abatement. — It would seem that in the old form of the action there were many technical difficulties in the way of pleas in abatement. Permission to file a dilatory plea of any kind was always required and the application was fur- ther required to be made within the first four days of the term next ensuing that of which the declaration was entitled. The proceeding seems to have involved much circumlocution, from the fact that the casual ejector and not the real party in interest was, during the time limited, the defendant, and the books are not very clear as to how the real defendant should bring him- self before the court.*" At present the defendant may always demur to the declar- ation as in personal actions, and, generally, a plea in abatement may be interposed at any time before he has pleaded in bar, and the rules which govern the disposition of such pleas, as well as their effect if allowed, are the same as apply to other actions.^" § 200. Continued — Demurrers. — Where the declaration fails to state a cause of action, or where there is a total omis- sion of a fact essential to the plaintiff's case, a defendant is al- ways at liberty to take advantage of such defects by demurrer. Thus, if the plaintiff fails to disclose the nature of his interest. 9 See Adams, Eject. *243, for a description of the procedure. 10 See Rouche v. Williamson, 25 N. C. 141. § 201. j BT THE DEFENDANT. 207 or the quantity and quality of his estate ;^^ or if lie fails to aver that he is entitled to possession/^ when by statute these allegations are prescribed as substance, the pleading will be obnoxious to demurrer. It has sometimes been held that statu- tory prescriptions need not be made in the exact words of the statute/" provided the allegations are such as to show the stat- utory requirements by necessary implication, but, generally, where a specific formula is enjoined by law an omission thereof or a substantial deviation therefrom, will render the pleading bad on demurrer.^* § 201. Continued — Former action pending. — The order and manner of pleading and the pleas that may be interposed, as well as the operation and effect of such pleas, are now largely regulated by statute, particularly in states which have codes of procedure and practice. As a general rule the pendency of a former action does not abate a second, and a plea thereof as a defense will be unavailing, unless both actions are founded upon the same cause. But, while this rule is usually strictly enforced, its practical application, in actions for the recovery of land, is not always free from difficulty. The test generally ap- plied to determine the identity of causes of action is, whether the same evidence will support both.'-^ It is not enough that the property in controversy in both actions is the same/° the very point in controversy, the question to be litigated, must be the same. Where this fact affirmatively appears, it would seem that a defendant should not be subjected to the expense and annoyance of contesting two actions, brought by the same person, for the recovery of the same land, and the pendency of the first action may be pleaded as a defense in the second. ^'^ This seems also to be in consonance with the English cases during the earlier form of the action, for notwithstanding eject- ment at common law determined no question of title and went 11 Clark v. Crego, 47 Barb. N. Y. 272; Taylor v. Castle, 42 (N. Y.) 599. Cal. 371; Perry v. Foote, 36 i2Mansur v. Streight, 103 Ind. Conn. 102; Propst v. Mathis, 115 358. N. C. 526. 13 Swaynie v. Vess, 91 Ind. 584. is Mandeville v. Avery, 124 11 See Miller v. Shriner, 87 N. Y. 376. Ind. 141. " Dawley v. Brown, 79 N. Y. 15 Stowell v. Chamberlain, 60 390. 208 THE PLEADINGS. [§ 202. only to the right of possession, thereby excluding the defense of a former judgment or action, yet where, during the pen- dency of an action, the plaintifif brought a second action for the same lands on the same title, the court would stay the pro- ceedings in the second action until the first was discontinued. It will often happen in ejectment suits brought for the re- covery of the same land, that the evidence which would sus- tain one action will not support the other. Thus, the plaintiff may acquire a new and distinct title, and, having done so, may assert it without prejudice from another suit pending. He will be permitted to do this in the same manner that a stranger who had acquired same might have done, and such subsequently acquired title not being involved in the prior litigation will not be in any way affected by it. Therefore, a plaintiff may have two suits against the same defendant for the recovery of the same land pending at the same time, if the second is brought on a title acquired after the commencement of the first,^^ and the circumstance that the two actions in all other respects are identical is immaterial. ^^ § 202. Pleas in bar — The general issue. — The only plea in bar of the action of ejectment, in whole or in part, admissible at common law, is the plea of "not guilty," and in the statu- tory form of the action preserved in the United States this rule is still of considerable efficacy. Special pleas in abatement may always be interposed, but, in some of the states, matters in bar of the action can be set up only under a plea of the general issue.-" The reason for this seems to be traced back to the pro- cedure when the "consent rule" was in force and to the fact that, under such procedure the claimant in the action was re- quired to prove his right to the premises in dispute under this plea.^^ 18 Leonard v. Plynn, 89 Cal. seldom happend, by reason of 535. the consent rule, that a defend- 19 Callahan v. Davis, 125 Mo. ant could plead any other plea 27. than not guilty. The rule, in 20 See Reynolds v. Cook, 83 substance, Is thus stated by Mr. Va. 817; Nelson v. Brodhack, 44 Adams, writing during the early Mo. 596; Stubblefield v. Borders, part of the last century. First, 92 111. 279. the person appearing consents to 21 Under the old practice it be made defendant instead of the § 202.] BY THE DEFENDANT. 209 The statute, however, does not, as a rule, prohibit special pleas in bar but merely obviates their necessity by providing that the defendant may give in evidence any matter which may tend to defeat the plaintiff's action under the plea of the gen- eral issue. Where the statute is couched in mandatory terms no other plea will be permitted but even where the language is merely directory no other plea will, as a rule, be required. A general denial of the plaintiff's allegations will be sufficient to permit the introduction of any matters which may tend to sub- stantiate such denial, as well as to impose upon the plaititiff the burden of proof of all affirmative facts necessary to establish his title and right to possession. ^^ The effect of a general denial is that defendant denies the plaintiff's title and right of entry, and under this plea it would seem that any evidence is. admissible which tends to show the invalidity of plaintiff's claim.^^ On the other hand under the provisions of the codes of pro- cedure of some, of the states, while the general denial puts in issue the plaintiff's title and imposes upon him the burden of proof, yet the defendant is precluded from giving evidence of casual ejector. Secondly, to ap- the lessor of the plaintiff shall pear at the suit of the plaintiff; pay costs to the defendant, and, if the proceedings are by Seventhly, when the landlord bill, to file common bail. Thirdly, appears alone, that the plaintiff to receive a declaration in eject- shall be at liberty to sign judg- ment, and plead not guilty, ment immediately against the Fourthly, at the trial of the issue casual ejector, but that execu- to confess lease, entry and tion be stayed until the court ouster, and insist upon title shall further order. Adams, only. Fifthly, that if at the Eject. 233. trial the party appearing shall ^- Fairbanks v. Long, 91 Mo. not confess lease, entry and 628; Stubblefield v. Borders, 92 ouster, whereby the plaintiff 111. 27?: "Wood v. Eckhouse, 79 shall not be able to prosecute his Ind. 354; Sparrow v. Rhoades, suit, such party shall pay to the 76 Cal. 208, 9 Am. St. 197; Cheat- plaintiff the costs of the non ham v. Young, 113 N. C. 161, 37 pros, and suffer judgment to be Am. St. 617; Wallis v. Wilkin- entered against the casual son, 73 Md. 128; Black v. Tricker, ejector. Sixthly, that if a ver- 52 Pa. 436. diet shall be given for the de- 23 Sparrow v. Rhoades, 76 Cal. fendant, or the plaintiff shall 208, 9 Am. St. 197; Stocker v. not prosecute his- suit for any Green, 94 Mo. 280, 7 S. W. Rep. other cause than the non-con- 379, 4 Am. St. 382; West v. West, fession of lease, entry and ouster, 89 Ind. 530. 14 210 THE PLEADINGS. [§ 21)3. any estate in himself, or another, in the lands in controversy, or any license or right to the possession thereof, unless the same shall have been specially pleaded, and where such pro- visions are in force the doctrines of the common law are super- seded."* But this rule seems to obtain in but very few juris- dictions, and, generally, even in those states where the prac- tice is regulated by a formal code of procedure, a recital by a defendant of his own title is no more than a denial of plaint- iff's title, and opens the door no wider for the admission of evidence. ^^ At most, it would seem that an allegation by a defendant of title in himself, is but a general denial in an ar- gumentative form.^" In every event, however, there must be some form of denial of the plaintiff's right ;-' in other words, there must be an issue presented to the trial court, and where the answer does not put the plaintiff's title in issue, it is unnecessary, if not useless, for him to introduce any evidence concerning it,-' sO, also, if a plea professes to answer the whole declaration, but in fact answers only a part, and there is no plea to the other parts of the declaration, the plaintiff may, at any time during the term, have judgment nil dicit for the parts unanswered.^'' § 203. Theory of the general issue. — It will be seen, from the foregoing paragraphs, that there is considerable diversity, both of judicial opinion and statutory polic)^, respecting the efficacy and scope of the plea of the general issue, and that the effect to be accorded to it varies greatly in different states. To understand why it is, in itself, an all-sufficient plea in bar we must revert to the old action. There, it will be remembered, the technical issue always was, whether the defendant had wrongfully ousted the plaintiff, and in the modern remedy this 24 See Allen v. Higgins, 9 29 Anderson v. Fisk, 36 Cal. Wash. 446. 625; Kennedy v. Holman, 19 25 Phillips V. Hagart, 113 Cal. Ala. 734; Dickerson v. Hendryx, 552, 54 Am. St. 369. 88 111. 66, as where the action is 2s Marshall v. Shatter, 32 Cal. against one claiming title or 192. some interest in the land, when 2T Rhoades v. Higbee, 21 Colo, the same are vacant and unocou- 88. pied, a plea to the whole cause 2S Gregory v. Forbes. 96 N. C. of action denying that th« de- 77: Heinz v. Cramer, 84 Iowa, fendant is in possession is bad 4'97. § 204:.] BY THE DEE*^NDANT. 211 technical issue remains the same, although presented by a dif- ferent procedure.^" The real claimant, the old lessor, is the plaintiff, and his complaint is that the defendant wrongfully de- prives him of possession. The defendant is the real counter- claimant, and if he means to defend absolutely he pleads not guilty, and by that plea admits a possession or claim of title which should exclude or oust the plaintiff."^ If, at the trial, the plaintiff shows a title against which the defendant's ex- clusive possession or claim would be wrongful he will be en- titled to judgment; otherwise not. § 204. Special pleas — Statute of limitations. — While spe- cial pleas are, as a rule, wholly unnecessary to a proper pre- sentation of the defendant's case, and in some states are pro- hibited, yet with respect to defenses of a purely technical na- ture some diversity seems to exist. This is particularly true of the statute of limitations which has the eflfect, if allowed to prevail, of barring the plaintiff's suit without disproving his right and without respect to the right of the defendant. In nearly every form of action the statute of limitations, to be made available, must be specially pleaded and cannot be taken advantage of under the general issue. But while this is true as a general rule, it has repeatedly been held non-applicable to actions of ejectment.^^ It is contended that a plea of the stat- ute is simply a denial of the plaintiff's title and can have no other effect, and that, as a defense to the action, it may be re- sorted to under the general plea.^^ Hence, it has been said that if such a plea is filed with the general issue the court should strike it out, as tending to embarass the trial. ^* But, usually, while it may not be necessary for a defendant, in order to avail himself of the benefit of the statute of limit- so Prencla v. Robb, 67 N. J. L. 530; Nelson v. Brodhack, 44 260, 51 Atl. Rep. 509, 91 Am. St. Mo. 596; Fairbanks v. Long, 91 433; Wallis v. Wilkinson, 73 Md. Mo. 628; Fulkerson v. Mitchell, 128. , 82 Mo. 13; Lea v. Slatterly, 7 31 See Gilchrist v. Middleton, Baxt. (Tenn.) 235; Wade v. 107 N. C. 663; Wallis v. Wilkin- Doyle, 17 Pla. 522; Home v. son, 73 Md. 128; Holman v. El- Carter, 20 Fla. 45. liott, 86 Ind. 233; Edwardsville ss Stocker v. Green, 94 Mo. R. R. Co. V. Sawyer, 92 111. 377. 280; East v. Peden, 108 Ind. 92. 32 Stubblefleld v. Borders, 92 siwade v. Doyle, 17 Fla. 522. 111. 279; West v. West, 89 Ind. 212 THE PLEADINGS. [§ 205. ations, to specially plead the same, yet this, in the absence of an express prohibition, will not preclude his so doing, while in several of the states if this form of defense is relied upon it must be specially pleaded.^' The reasons which support this latter rule are not very cogent and usually it is sustained by the courts merely as an arbitrary direction of the statute. § 205. Plea of title. — As previously shown a plea of the general issue is all-sufficient at common law to admit proof of any title adverse to that of the claimant, whether vested in the defendant or some other person, and to permit the proof of any facts which go to defeat the plaintiff's right to recover. The codes of some of the states have materially changed the common-law rule by denying the defendant the right to offer in evidence any estate in himself or another, or any license or right to possession, unless the same has been specially pleaded. While the wisdom of this requirement may be open to ques- tion its authoritative force, in the states where it prevails, is beyond question, and the pleader who desires to avail himself of the benefits of title or possessory rights vested in the defend- ant must specifically aver them in his plea or answer. ^^ Where this rule obtains it would further seem that where title or pos- sessory right is pleaded, the nature and duration of the estate, or license, or right to the possession, must be set forth with practically the same certainty that would be required of any claimant suing for a recovery; failing in this the status of the defendant, so far as the pleadings and proof is concerned, is much the same as that of a trespasser and if the plaintiff is able to show any legal right whatever it will be deemed and taken as a superior right.^'' The reason of this rule, so far as it can be traced to a reason, seems to be the employment of chancery methods in legal ac- tions. By many of the codes an attempt has been made to con- form pleadings in legal actions to the standard of equity, and 35 See Custard v. Musgrove, 47 se Allen v. Higgins, 9 Wash. Tex. 217; Ortqn v. Noonan, 25 446. And see Carman v. John- Wls. 672; Hausee v. Mead, 27 son, 20 Mo. 108. Hun (N. Y.), 162; Chivington v. 37 Allen v. Higgins, 9 Wash. Colorado Springs Co., 9 Colo. 446. 597. §§ 206-208.] BY THE DEFENDANT. 213 in pursuance of this policy the answer, as in equity, should be so drawn as to apprise the plaintiff of the nature of the defense relied upon.^' § 206. Adverse possession. — But where a special plea of title is required it does not seem that it is necessary to do more than state the general character of the title or the nature of the estate claimed. Hence, an allegation of ownership in ffee of the lands in controversy will be sufficient to permit the defend- ant to introduce proof of any title, including that acquired by adverse possession. ^^ Where the defendant alleges that he is the owner in fee of the disputed land, and is lawfully seized and possessed of it, this sufficiently states a title in him, and upon the trial he may prove that his title is based upon an ad- verse possession maintained for the requisite period of limit- ation.^" In such event it is immaterial by what means he came into possession, or whether his claim is based upon color of title or whether his entry was of right or by wrong.""- § 207. .Extrinsic facts. — E^-en where a defendant is not required to set up title in himself, this fact being considered as involved in his denial of the plaintiff's right, yet if he desires to avail himself of facts not amounting to such denial, it has been held that he must specifically plead them,*^ and this is particu- larly true when such facts have reference to unconsummated equities,"' where defenses of this character are permitted to be relied upon as a defense in ejectment. § 208. Plea of title from common source. — Where both parties to the controversy claim title fjrom a common source and the defendant pleads this fact specially, it would seem that he is bound thereby. That is, by his pleading he is estopped to deny the common source of title, and this estoppel precludes him from setting up an independent outstanding title with which he is not connected.** He is not precluded from show- as water Co. V. Mooney, 12 42 Nelson v. Brodhack, 44 Mo Cal. 534. 596. 3s Rogers V. Miller, 13 Wash. « Carman v. Johnson, 20 Mo. 82; Bartlet v. Secor, 56 Wis. 520. 108; McCauley v. Fulton, 44 Cal. 40 Raymond v. Morrison, 9 355; Freeman v. Brewster, 70 Wash. 156. Minn. 203. 41 See Den v. 'Wright, 7 N. ,T. 44 Bernhardt v. Brown, 122 L. 175; Patten v. Scott, 118 Pa. N. C. 587, 65 Am. St. 725; Doyle St. 115. V. Wade, 23 Fla. 90; Bank v. 214 THE PLEADINGS. [§g 2tj9, 31U. iiig a superior title, provided he can also show a privity there- with, but unless it shall appear that he has acquired such para- mount title from a person not bound b}' the estoppel, he will not be permitted to impeach the title of the common grantor.*'' This rule has often been criticised but it seems to find a general acceptance wherever invoked. § 209. Fornier recovery. — Many of the questions that arise with respect to abatement for former suit pending will present themselves where the plea is a former recovery, and the sam.e reasons that lead to the solution in the one case will apply to the other. As a general rule a judgment in ejectment is conclusive upon the parties only as to the title established in the action,*" although this will depend some on the provisions of the statute. Where this rule obtains it is not the former re- covery which constitutes the estoppel, but the decision of the question in dispute, and the estoppel rests, in ejectment as well as in other cases, upon the familiar principle that when the same point has once been litigated between the same parties, and decided by a court of competent jurisdiction, it cannot be again called in question. Whether the case be one of a fornier judgment or a former action pending, the material point is whether the same title is sought to be litigated in both actions. This is the test, and unless the same title is involved the jjlea will be unavailing.*^ Hence, a judgment in an action of for- cible entry and detainer cannot be pleaded as a bar to an action of ejectment, for the reason that the questions involved in the two proceedings are different,*^ and in the former suit the title to the property in controversy was not and could not have been involved.*^ § 210. Denial of possession. — The theory upon which the action of ejectment is based is a deprivation of the possession Manard, 51 Mo. 548; Sohwall- 46 Ryerss v. Rippey, 25 Wend, back V. Railway Co., -69 Wis. (N. Y.) 432. 292; Lewis v. Watson, 98 Ala. " Dawley v. Brown, 79 N. Y. 479; Ames v. Beckley, 48 Vt. 395. 390. *5 Cooke V. Avery, 147 TJ. S. 4s Riverside Co. v. Townshend, 375; McCready v. Lansdale, 58 120 111. 9. Miss. 877; Christenbury v. King, 49 Kepley v. Luke, 106 111. 395. 85 N. C. 229; Smith v. Lindsey, 89 Mo. 76. § 210.] BY THE DEFENDANT. 215 of one legally entitled thereto, and, hence, it can be brought only by a party at the time out of possession. But while pos- session is so important an ingredient it has largely been lost sight of in the modern action by reason of the enlargement of the remedy as a means of trying disputed titles^ Proof that the defendant is actually in possession, or even that he claims any interest in the lands, or that the plaintiff has demanded possession of same, is not usually required, nor will the plea of the general issue have the effect of raising a traverse on these essentia] points."^" Indeed, by pleading the general issue, or by interposing a general denial, the defendant admits his pos- session of the land in controversy and this question is elimin- ated upon the trial. ^^ If it is desired to litigate the fact of pos- session, or secure an advantage from the reason that nO' de- mand of possession was made prior to suit, these issues must be raised by special plea. Unless this is done the possession of the defendant will be regarded as admitted, and under the issue upon the plea of not guilty, it will only be necessary for the plaintiff' to prove title in himself at the time suit was com- menced.'^^ The defendant may, however, by a special plea, deny that he was in possession of the premises at the time suit was brought, and this plea, usually required to be verified by afhdavit, raises a direct issue which imposes upon the plaintiff the burden of proving such possession. If the plaintiff shall not succeed in showing such possession his action is defeated,^^ but if he shows possession of only part he may recover for such part as his proof shows was held by the defendant at the time suit was commenced. °* But while a defendant may file separate pleas denying his possession, or that he claims title to or interest in the land, or that a demand of possession was made before suit, yet he is limited to the particular defense set up in each, and sowieland v. KoMck, 110 111. Coffin v. Freeman, 82 Me. 577. 16; Holman v. Elliott, 86 Ind. 52 Edwardsvllle R. R. Co. v. 233. Sawyer, 92 111. 377. 51 Holman v. Elliott, 86 Ind. 53 South Park Com'rs v. Gavin, 233; McClennan v. McCleod, 75 139 111. 280. N. C. 64; Edwardsville R. R. Co. s^Ogilvie v. Copeland, 145 111. V. Sawyer, 92 111. 377; Newton 98. V. Railway Co., 110 Ala. 474; 216 THB PLEADINGS. [§ 211. the pleas should not profess to be to the entire cause of ac- tion.'^^ A defendant who means to disavow possession should not enter any other defense. ^^ If, however, he desires to disclaim as to part of the land sued for, and to contest the plaintiff's right as to the residue, he should file specific pleas denying pos- session of the part in which no claim is made and setting up the general issue as to the part occupied or in which he claims title." § 211. Disclaimer of title. — Modern statutes have so en- larged the scope of the ancient remedy as to permit the main- tenance of the action not only against the person actually in possession, but also against all other persons claiming title to or interest in the lands in controversy, and all such persons may be joined in one action as defendants. If persons not in pos- session are so made parties, upon the theory that they are claim- ing title to or interest in the premises, they may put the fact in issue by a special plea,^^ and the same procedure may be fol- lowed in those cases where the action is brought to establish title to vacant and unoccupied land. It would seem, however, that when this plea is resorted to it should be the only one pre- sented,^" for if a general denial is made the defendant must stand or fall by the issue so tendered.^" In such event if the plaintiff prevails he will be entitled to a judgment against the defendant, although the latter had not, in fact, claimed title to or had possession of the land recovered." It may be, however, that the defendant makes no claim as to part of the land sued for but does assert ownership in the bal- ance. In such event the defendant may file a special plea dis- claiming any right, title or interest in a specific part of the land together with a tender of possession, and a plea of the B5 Dickerson v. Hendryx, 88 ss South Park Com'rs v. Gavin, 111. 66. 139 111. 280. 5« McClennan v. McCleod, 75 59 McClennan v. McCIeod, 75 N. C. 64; Edwardsville R. R. Co. N. C. 64; Torrey v. Forbes, 94 V. Sawyer, 92 111. 377; Buxbaum Ala. 135. v. McCorley, 99 Ala. 537. Com- oo Holman v. Elliott, 86 Ind. pare, Buesing v. Forbes, 33 Fla. 234; Danner v. Crew, 137 Ala. 495. 617. 6T Quincy v. Railroad Co., 94 6i Edwardsville R. R. Co. v. 111. 537. Sawyer, 92 111. 377. § 212.] BY THE DEFENDANT. 217 general issue as to the residue. In such event, should the de- fendant recover, he will be entitled to costs notwithstanding a judgment in favor of the plaintiff for the part disclaimed."^ § 212. Inconsistent pleas. — The matters just discussed bring up the subject of inconsistency in pleading, and this sub- ject demands a brief mention. It was a rule of the common law that only one plea was available by a defendant in any ac- tion, and this was not permitted to be inconsistent with itself. The object was to avoid distracting duplicity and to secure a singleness in the issue to be tried. By statute,'^ this rule was abrogated in England so far as to permit a defendant, by leave of court, to plead as many several matters as he might deem necessary to his defense, and this procedure subsequently be- came a part of the common law of the United States. Under this system a defendant was permitted to set up any number of grounds of defense, provided they were not inconsistent with each other, and, where an attempt was made to introduce in- consistent matters the courts exercised a discretionary power to either strike out the inconsistent pleas or, cause the defendant to elect upon which he would rely. But, for many years there has been a constant relaxation of the strict rules of pleading both by the exercise of judicial dis- cretion and legislative enactment. As a general rule a de- fendant may now plead as many defenses- as he has or as he may deem necessary, and it has frequently been held that separ- ate pleas are not objectionable merely because they are repug- nant to or inconsistent with each other. This statement may be found without qualification in the works of able legal writers and, apparently, is supported by a formidable line of author- ities.'* Indeed, about the only restriction stated in most of the cases is, that the defenses shah be set out in separate counts, each of which must be sufficient, in itself, to present the de- 62 Quincy v. Railroad Co., 94 Lay v. Filmore, 75 Miss. 493, 23 III. 537. So. Rep. 184; Gate v. Hutchin- 63 4 Anne, eh. 16. son, 58 Neb. 232, 78 N. "W. Rep. 64 See Bell v. Brown, 22 Cal. 500; Goodwin v. Wertheimer, 99 671; Banta v. Siller, 121 Cal. N. Y. 149, 1 N. E. Rep. 404; Ten 414, 53 Pac. Rep. 935; Ansley v. Broeck v. Orchard, 79 N. C. 518; Bank, 113 Ala. 467, 21 So. Rep. Lawrece v. Peck, 3 S. D. 654, 59; Farnan v. CMlds, 66 111. 547; 54 N. W. Rep. 808. 218 THE PLEADINGS. [§ 213. fense intended,"' and must be consistent in its averments. "^ This principle lias been extended to pleas in ejectment."^ Yet, it must be admitted that a critical survey of the de- cided cases leaves the inquirer in doubt and confusion, and one could well wish that both courts and legislators had been a trifle less "liberal" and a trifle more "consistent." The tendency of the later decisions seems to be toward a more strict construc- tion of the codes and statutory enactments relative to multiple pleas and inconsistent defenses. While the defendant is per- mitted to set up as many defenses as he has, based upon in- consistent legal theories, he yet should conform to the truth of the matter in dispute,''^ and inconsistent defenses should not be permitted to stand when the admission of the truth of one nec- essarily proves the falsehood of the other."^ This would seem to be the test, so far as any test has been announced." § 213. Continued — Special instances. — It has frequently been held, that in an action of ejectment a defendant may deny > the title of the plaintiff and also plead the statute of limitations, as such defenses are not inconsistent, nor are they such as he would be required to elect between.'"- It has further been held that affirmative defenses of this character are immaterial, and need not be specifically pleaded, where the question sought to be presented by them properly arises on the trial under the general issue. '^ In states where equitable defenses may be in- terposed much latitude has been shown in the matter of in- consistent pleas,'^ and no general rule can be formulated, but 65Farnan v. Childs, 66 111. 547: Mo. 97, 15 S. W. Rep. 346; Pavey Morgan v. Insurance Co., 37 v. Pavey, 30 Ohio St. 600; Bell Iowa, 359. V. Brown, 22 Cal. 671; Gammon 66Hillebrant v. Booth, 7 Tex. v. Ganfield, 42 Minn. 368, 44 N. 499. W. Rep. 125; Gate v. Hutchin- «7 See Penny v. Cook, 19 Iowa, son, 58 Neb. 232, 78 N. W. Rep. 538; Ledbetter v. Ledbetter, 88 500; Snodgass v. Andross, 19 Mo. 60; Goodman v. Nichols, 44 Greg. 236, 23 Pac. Rep. 969. Kan. 22. ti Wlllson v. Cleaveland, 30 <58 South Milwaukee, etc., Co. Cal. 192; Nelson v. Brodhack, 44 V. Harte, 95 Wis. 592, 70 N. W. Mo. 596; Newsom v. Guy, 109 Rep. 821. Ala. 305, 19 So. Rep. 448. 60 Seattle Nat. Bank v. Jones, 7= Rhodes v. Gunn, 35 Ohio St. 13 Wash. 281, 48 L. R. A. 177. 387. 70 See Crowder v. Searcy, 103 t3 See Bell v. Brown, 22 Cal. § 214.J BY THE DEFENDANT. 21\f as the plea of not guilty is usually taken as an admission of possession and puts in issue the title, it would seem thai any plea which involves a contradiction or inconsistency of facts cannot be pleaded with it J* In such case the defendant should be required to elect between themJ^ Thus, a defendant should not be permitted to plead the general issue of not guilty and at the same time a disclaimer,^^ as the two pleas are utterly incon- sistent. § 214. Pleas since the last continuance. — A plea puis darrien continuance was always permitted in ejectment, even while the plaintiff was merely nominal, although it seems to have seldom been employed and in England its use was dis- couraged. But in the United States, from a very early period, it has been held that a matter of defense arising after issue joined must be presented by this plea, and the rule applies as well to ejectment as to other actions." Thus, if the defendant acquires title during the pendency of the suit such fact may be pleaded in this manner,'^ or if in any lawful method the plaintiff's right of possession shall have been extinguished and the defendant shall have become the owner of the lands in con- troversy, this fact may be so specially pleaded. But where the defendant acquires the plaintiff's title pending suit such fact should not be pleaded in bar to the suit generally but only in bar of its further maintenance.''^ The effect thereof is not to defeat the suit ab initio^ but simply to stay its further prosecu- tion; in which event the plaintiff will recover his costs up to the time of the filing of the plea.*° Under the code system of pleading a title acquired during the pendency of the suit may be shown by a supplemental an- swer, which, in effect, is much the same as the common law 671; Goodman v. Nichols, 44 77 Jackson v. Ramsey, 3 Cow. Kan. 22, 23 Pac. Rep. 957; Rey- (N. Y.) 75; Bailey v. March, 3 nolds V. Cook, 83 Va. 817; N. H. 274. Fisher v. Stevens, 143 Mo. 181. '« Mowry v. Blandin, 64 N. TiTorrey v. Forbes, 94 Ala. H. 3. 135, 10 So. Rep. 320. '9 Mowry v. Blandin, 64 N. 75 Fugate V. Pierce, 49 Mo. '441. H. 3. 76 McQueen v. Lampley, 74 so Leavitt v. School District, Ala. 408; McClennan v. Mc- 78 Me. 574. Cleod, 75 N. C. 64. And see Rey- nolds V. Cook, 83 Va. 817. 220 THE PLEADINGS. [§ 215. plea since the last continuance. It has also been held, that, in- asmuch as the law does not favor a multiplicity of suits, where all matters in controversy between the parties relating to title and possession can be finally ended in one action, this course must be followed, and that a neglect so to do will estop the de- fendant from afterward asserting the new title against the suc- cessful plaintiff. ^^ But,, while a title acquired pendente lite is permitted to be shown by supplemental answer it is not usually incumbent on the defendant to so plead, the general theory of ejectment being that the action is to be tried on the title as it existed when the suit was commenced, and that the judgment rendered relates back to this time. The rule is gen- erally applied strictly in the case of plaintiffs *^ and the weight of atithority indicates that if a defendant fails to avail himself of an after-acquired title by a supplemental plea, such title may still be afterward asserted, notwithstanding a judgment against him in the action.'' § 215. Equitable defenses. — In those states where the modern code practice prevails no question will probably arise respecting the right of a defendant to interpose a plea on strictly equitable grounds.** In other states, where modified forms of the old practice are still retained, the right to plead an equitable defense has been conceded in these cases where the matter set up authorizes. the defendant to enjoin the judgment, should one be recovered against him.'° But, to secure such right, the facts alleged in the plea must not make such a. de- fense as is available in the common-law action, or the court will be justified in refusing to allow the plea to be filed, or in striking it out if it is filed.'" As a rule, however, in the ab- sence of statutory aid, an equitable defense may not be set up or proved, and even where the matter pleaded discloses a right siHentig v. Redden, 46 Kan. s* ciyburn v. McLaughlin, 106 231; Reed v. Douglas, 74 Iowa, Mo. 521, 27 Am. St. 369; Pren- 244. tiss V, Brewer, 17 Wis. 635. 82 Green v. Jordan, 83 Ala. ss Johnson v. Drew, 34 Fla. 220. 130, 43 Am. St. 172. 83 See People v. Holladay, 68 ss Johnson v. Drew, 34 Fla. Cal. 439; McLane v. Bovee, 35 130; Johnston v. Allen, 22 Fla. Wis. 27; Hemmingway v. Drew, 224; Michael v. Joy, 91 Md. 75} 47 Mich. 554; Savings Bank v. Hummel v. Hoi den, 149 Mo. 677. Hodgdon, 64 Cal. 98. § 216.] BY THE DEFENDANT. 221 to enjoin the judgment, should one be rendered agamst the de- fendant, it has been held that the plea is inadmissible and that the proper course for the defendant to pursue is an action in equity to enjoin the further prosecution of the action at law and to show the true character of the transaction.*'' This is always a proper practice where the common-law rules prevail and is entirely consistent with such rules and the theory upon which the action of ejectment is founded. But in many states the statute now expressly permits the union of equitable and legal defenses and the effect of such statutes is to abrogate the common-law rules forbidding a joinder. Where equitable defenses are allowed it seems that the de- fendant may plead a general denial and rely upon it as a com- plete defense, and may also, in the same answer, plead and rely on an equitable defense, the pleadings being so framed, how- ever, as to show that both defenses are relied on.'* But where a defendant relies upon an equitable defense it must be specially pleaded, and proof thereof is inadmissible in the absence of specific allegations,*^ while some of the cases assert that a plea of this kind should contain, in substance, the elements of a bill in equity. '"' In a few states the defendant is permitted to give in evidence, under the general denial, any facts which tend to show that the plaintiff, according to the rules of equity, should not recover,'^ but this is an extremity to which but few jurisdictions have gone, and, generally, equities, if shown at all, must be pre- sented by special plea.'^ § 216. Estoppels.- — The general rule undoubtedly is, that when an estoppel is relied upon as a defense to be rendered available on the trial it must be specially pleaded."^ This is particularly true in what are known as the code states, where 81 See McGinnis v. Fernandes, 108. But see Weld v. Johnson, 126 111. 228. 86 "Wis. 549. 88 See Ledbetter v. Ledbetter, »i East v. Penden, 108 Ind. 94. 88 Mo. 60; Freeman v. Brewster, saMcCauley v. Fulton, 44 Cal. 70 Minn. 203. 355; Freeman v. Brewster, 70 89 Uppfalt v. Nelson, 18 Neb. Minn. 203. ' 533. S3 Hammerslough v. Clieat- soKentfield v. Hayes, 57 Cal. ham, 84 Mo. 21; Fanning v. In- 409; Carman v. Johnson, 20 Mo. suranoe Co., 37 Ohio St. 346. 222 THE PLEADINGS. [§ 216. parties to actions are required to state the grounds which form their cause of action or constitute their defense. This was not the rule at common-law, however, nor is it recognized in some states, but the volume of authority now insists that an estoppel must be pleaded whenever an opportunity for so doing is presented.^* At common law, in an action of ejectment, an estoppel, if admissible at all, might be shown in evidence under the general issue, "^ and the same rule has also been announced in a number of modern authorities."" It has further been held in states where an estoppel is required to be pleaded in order to be available as a defense, that the rule does not apply to ejectment suits in which the parties do not set up the title on which they rely."^ S4, De Votie v. McGerr, 15 Colo. «« Phillips v. Blair, 38 Iowa, 467; Davis v. Davis, 26 Cal. 39. 649; Jackson v. Lodge, 36 Cal. 85 Wood V. Jackson, 8 Wend. 38; Mayer v. Ramsey, 46 Tex. (N. Y.) 9. 371. ST Tyler v. Hall, 106 Mo. 313. .CHAPTER VIII. THE PROOFS. I. By the Plaintht. II. By the Defendant. III. Whbke Both Parties Claim feom a Common Sottece. IV. Disputed Boundaeies. V. Landlord 7S. Tenant. I. By the Plaintiff. 217. Generally considered. § 229. 218. Competency of wit- nesses. 230. 219. Proof of entry and ouster. 231. 220. Proof of defendant's possession. 232. 221. Proof of title. 222. Proof of possession. 233. 223. Title shown must be valid. 234. 224. Tracing title. 235. 225. Continued — Origin and duration of title 236. shown. 237. 226. Secondary evidence. 227. Relevancy of testlmo'ny. 238. 228. Plaintiff must prove title as alleged. Plaintiff must rely on title asserted. Proof must be consist- ent with allegations. Variance between alle- gations and proof. Objection to variance — When taken. Extent of proof re- quired. Prima facie title. Character of title. Against grantee for con- dition broken. As against mere in- truders. On default of defendant. § 217. Generally considered. — It is fundamental that a person in possession of land is presumed, in the absence of any proof to the contrary, to be the 'owner thereof, and he is not required to show in what manner or by what title he obtained or holds such possession. This proposition, while generally accepted, is yet subject to some qualification, for possession alone, unexplained by collateral circumstances, cannot, in strictness, evidence anything more than the mere fact of present occupation by right. This is practically as far as the pre 224 THE PROOFS. [§ 217. sumption will extend and the quality and quantity of the in- terest must depend on other matters. A mere possession is just as consistent with a present interest by way of an estate at will as in one in fee. But if the possession is accompanied with a claim of ownership by" the occupant, then a new and stronger presumption arises and the two circumstances unite and produce a prima facie title in the possessor to the extent of his proprietary claim."* This presumptive or prima facie ownership on the part of the occupant meets the demandant in ejectment at the outset, and, as the law will never presume a wrongful or tortious hold- ing,'" the burden of showing a superior right is thrown upon him. This right he is required to establish by affirmative evi- dence to enable him to recover the land.^ He can derive no assistance from the weakness of the defendant's claim,^ for the mere possession of the latter gives him a right to hold the land as against every one who cannot produce the evidence of a valid title or superior right of occupancy.^ The demandant must further establish more than a merely prima facie case in the event that his claim is disputed, for, while this may be sufficient under some circumstances, yet the defendant may answer by showing the real title or paramount right to be vested in a third person, and this will be enough to defeat the plaintiff's claim without in any manner connecting himself with such outstanding title.* In this way he may prevent a re- covery although he may have no title whatever, even though his possession was wrongful in its inception."* 98Bagley v. Kennedy, 85 Ga. Blaokman v. Riley, 138 N. Y. 703; Harland v. Eastman, 119 318; O'Brien v. Gaslin,- 24 Neb. 111. 22. 559; Hurd v. Harvey County, 40 99 Patchen v. Keeley, 19 Nev. Kan. 92. 404; Fitzgerald v. Quinn, 165 111. * Boyer v. Thomburg, 115 111. 354. 540; Hogans v. Carruth, 18 Fla. 1 Pittsburg, etc. Ry. Co. v. 587; Hagenbuck v. McClaskey, O'Brien, 142 Ind. 218. 81 Ind. 577; Lee v. Cook, 2 Wyo. 2 Lathrop v. Emig. Co., 41 305. The text states the general Iowa, 547; Agnew v. Perry, 120 rule, but the statutes, in some 111. 655; CoflBn v. Freeman, 82 states, have created wide de- Me. 578. partures. See Dufeey v. Raferty, 3 Start Y. Clegg, 83 Ind. 78; 15 tCan. 9, for a case in point. Wilson V. Glenn, 68 Ala. 383; 6 Doty v. Burdiok, 83 111. 473. § 218.] BY THE PLAINTIFF. 225 The cardinal rules of evidence apply with the same force to actions of ejectment as to other actions at law. The evidence must, in all cases, correspond with the allegations and be con- fined to the point in issue ; the burden of proof is upon the de- mandant as holding the affirmative of the issue, and the best evidence of which the nature of the case is susceptible must always be adduced. As a rule the issue is general, although, under some circumstances, special issues may arise, particu- larly in those states where legal and equitable relief is per- mitted in the same action. When the general issue is pleaded the onus is cast upon the plaintiff of proving every material al- legation of the complaint. No evidence is properly admissible in his behalf which does not tend to support the averments and the defendant is bound to do no more than to disprove such averments. Where a negative is essential to the existence of a right the party claiming same has the burden of proving such negative." In this chapter no more will be attempted than a general dis- cussion of our present subject in its broader phases, and the details of practice, as well as the different kinds of title that may serve as a basis either of prosecution or defense, are re- served for more extended treatment in the chapters imme- diately ensuing. § 218. Competency of witnesses. — Under the rules which formerly prevailed the parties frequently experienced great difficulty in making proof growing out of the incompetency of witnesses by reason of their interest in the restilt of the suit. As a rule no one having an interest in the lands in controversy was permitted to give testimony concerning them and this doc- trine was often carried to extreme lengths. The disqualifying interest was not required to be immediate and even a contin- gent right was frequently permitted to be raised as a bar. The voluminous decisions upon this subject are now nothing more than obsolete learning, for, save in a very few instances, where the estates of persons deceased or of insane persons are involved, the mere fact of interest does not disqualify and if the witness is in other respects competent he may freely testify not- sBoulden v. Mclntire, 119 Ind. 574. 15 226 THE PKOOFS. [§ 219. withstanding he may be directly interested in the matter in issiieJ § 219. Proof of entry and ouster. — Under the consent rule, to which allusion has been made,' actual proof of entry and ouster by the defendant was dispensed with, yet, notwith- standing the terms of this rule, it seems that it was formerly necessary to show defendant's possession of the premises in dis- pute, and plaintiffs were frequently non-suited on subtle points arising out of this practice, quite independent of the merits of the case. To remedy this evil the courts altered the rule so as to include the confession of possession, as well as of entry and ouster, but with the abolition of the ancient practice the con- sent rule was itself dispensed with. But the advantages of the consent rule in the trial of the action were so many and obvious that although the rule itself was abolished the ideas which it involved were retained, and now, by statute, it is no longer necessary for the plaintiff to prove that the defendant was in possession of the land sued for, or claimed title thereto or in- terest therein at the time suit was commenced, unless the de- fendant shall deny that he was in such possession, or claims title to, or asserts some interest in the premises demanded.''' Under the foregoing rules, where the defendant pleads the general issue of not guilty, no formal proof of ouster is ever required. This plea, in effect, admits plaintiff's prior pos- session of the land in controversy and his subsequent eviction by the defendant, thus superseding the necessity of proof upon the trial.^" It puts in issue the title of the plaintiff and his right to possession, and this issue is the only question pre- sented on the hearing. Nor is it longer necessary, either in England or America, for the plaintiff to prove an actual entry under title, nor the actual receipt of any of the profits of the land demanded, and, in 1 This matter is statutory in Railway Co., 110 Ala. 474 ; "Wal- all of thGistates. lis v. Wilkinson, 73 Md. 128. 8 See § 9, ante. 10 Gilchrist v. Middleton, 108 oThis is statutory, hut the N. C. 705; Wallis v. Wilkinson, text states the general statutory 73 Md. 128; Holman v. Elliott, rule. And see Salmon v. Wil- 86 Ind. 233; Wieland v. Kobick, son, 41 Cal. 595; Holman v. El- 110 111. 16; Coffin v. Freeman, liott, 86 Ind. 231; Newton v. 82 Me. 577. § 219.] BY THE PLAINTIFF. 227 every case, it is now sufficient for him to show a right to the possession of such land at the time of the commencement of the action, as heir, devisee, assignee, or otherwise.'-^ While the books upon this subject still continue to lay down the rule that plaintiff must show an actual ouster or disseizin, yet in practice this does not seem to be necessary in a majority of the states. At most, it will be enough to show that the de- fendant wrongfully keeps the plaintiff out of possession. ^^ The rule requiring proof of ouster, dispossession, etc., is based largely on old and obsolete cases and while it may still be re- tained in some localities the modern doctrine is as first stated. There is an exception to the rule dispensing with proof of entry and ouster where the action is brought by one cotenant against another and in such case the plaintiff, in addition to all other evidence which he may be bound to give, must prove on the trial of the cause that the defendant actually ousted him," or did some other act amounting to a total denial of his right as such cotenant from which an ouster may be inferred.^* But while the rule is imperative that to maintain the action the fact of ouster must appear yet this fact may be conceded either by the circiunstances of the case or the allegations of the plead- ings, and, in such event, the plaintiff may be excused from making proof of same. Thus, if the plea or answer sets up a claim of right to the entire estate in the land whereby the defendant claims to be the owner of the whole thereof in sever- alty, or if there is an explicit denial that a cotenancy ever ex- isted, there is no reason why stronger evidence of an ouster should be' required, and the plaintiff will be relieved of the necessity of proving an ouster at the trial. ^^ In every case where the defendant by his plea or answer admits the with- holding of the premises, averring such withholding to be law- ful, this will constitute an admission of ouster.^^ 11 This is statutory in most of 457; Higbee v. Rice, 5 Mass. tlie states. 351; Sigler v. Van Riper, 10 i2Lotz V. Briggs, 50 Ind. 346. Wend. (N. Y.) 419. isTrapnall v. Hill, 31 Ark. i5 Peterson v. Laik, 24 Mo. 198. 543; Noble t. McFarland, 51 111. "Ewald V. Corbett, 32 Cal. 229; Allen v. Salinger, 103 N. 499; Cross v. Robinson, 21 Conn. C. 14. 385; Allen v. Long, 80 Tex. 261; lo Jordan v. Surghnor, 107 Mo. Taylor v. Hill, 10 Leigh (Va.), 520; Spect v. Gregg, 51 Cal. 198. 228 THE PEOOFS. [§ 220, The foregoing is a resume of the general doctrines upon this subject, yet it would seem, on principle, that notwithstanding the relations sustained by cotenants the rules of evidence in contests between them should not materially differ from those which govern in the action generally. And in pursuance of this idea it has been held, in some states, that a plaintift suing his cotenant for an undivided part of land is not required af- firmatively to prove actual ouster from possession where the declaration alleges a wrongful detention of possession and the defendant pleads the general issue. In such event the plea is taken as prima facie evidence of adverse possession by the de- fendant.^'' § 220. Proof of defendant's possession. — While the stat- ute has come in to aid defective proof in many particulars, and, in some instances, to dispense with actual proof of facts which seem essential to the maintenance of the action, it would yet seem that prudence requires the production of some evidence with respect to the possession of the lands in controversy. Ejectment is still a possessory remedy and the showing of a right of immediate possession is as essential as the proof of right of property. While the ancient fiction concerning the tenant in possession has been abolished the principle upon which it was founded has been preserved ; the adverse holder is still regarded as a wrong-doer, a person in tortious possession, and unless he is so in fact at the time action is instituted it can- not be maintained against him.^^ Hence, it would seem, that unless the statute expressly dispenses with proof respecting the possession of lands in dispute, or unless the defendant shall ad- mit his possession by plea, the plaintiff may be non-suited at the trial if he fails to show that the defendant dispossessed him or was in actual possession when the action was commenced,^' or that the defendant unlawfully and wrongfully keeps him out of possession.^" 17 See Kelley v. Kelley, 182 Leonard, 50 Pa. St. 461; Sell v. Pa. 131. McAnaw, 138 Mo. 267; Dillon 18 Dillon V. Center, 68 Cal. v. Center, 68 Cal. 561; Daniel v. 561. Lefevre, 19 Ark. 201. 18 See Kirkland v. Thompson, 20 Hurst v. Sawyer, 2 Okla. 51 Pa. St 216; Helfenstein v. 470. § 221.J BY THE PLAINTIIT. 22i) But, as heretofore shown, a plea of the general issue, or a general denial, will usually be taken as an admission of the defendant's possession for the purposes of the action, and where this rule obtains it would seem that formal proof that defendant was in possession of the premises, or claimed an in- terest therein, at the time suit was commenced, although proper is not necessary.^^ § 221. Proof of title. — It devolves upon the plaintiff in the first instance, as bearing the burden of proof, to establish his right to possession. This he does, if at all, by a deraign- ment of his title, or by showing the special circumstances which entitle him to the immediate possession of the land.^" To maintain the action the title thus exhibited must be superior to all others, or, at least, paramount to any that may be shown in opposition, whether vested in the defendant or a third per- son. This is the generally received rule. For many years this rule was regarded as fundamental, and is still so re- garded in a majority of the states. But, of late the rule has been much relaxed in some states, where the question of re- covery is confined wholly to the claims directly asserted b)' the parties to the suit. Where his doctrine obtains the plaintiff may recover if he has any right to the property and if that right is superior to any right vested in the defendant, notwith- standing the paramount legal title and right to possession may be outstanding in some third person.-^ As a general proposition, however, the statutory changes have practically done little more than to abolish the hctions. The essential nature of the action has not been affected, nor has there been any change in the character of the title or right of possession necessary to support it. A title may be established either by documentary evidence or by long and undisputed possession, or by a combination of both of these ingredients. A possessory title may be good al- 2iWieland v. Kobick, 110 111. 100 N. C. 234; Roots v. Beck, 16; Weigold v. Press, 132 Ind. 109 Ind. 473. 87. 23 See Duffey v. Raffierty, 15 22 Dubois V. Holmes, 20 Fla. Kan. 9; Lantry v. Wolff, 49 Neb. 834; Anderson v. McCormlck, 374; Johnson v. Futch, 57 Miss. 129 111. 308; Conwell v. Mann, 73. 230 THE PROOFS. [§§ 222, 223. though there are serious defects in the paper title,^^^ and some proof of possession is generally necessary even when the chain of deeds is without a flaw or break. § 222. Proof of possession. — The right of the plaintiff in ejectment is usually established by the production and proof of his title deeds, yet, as a rule, this, in itself, is not eno'agh. Some proof of possession is generally requisite to sustain the deeds, ^* and it has been held that a mere chain of paper title, without proof that any one of the grantors was in possession of the premises, is insufficient to show title in the plaintifi,-' even as against a mere trespasser.-" The statute respecting the ef- fect of a plea of not guilty may come in to aid defective proof in this particular, or even to dispense with its production, but where the rule has been announced it has usually been stated in unqualified terms. § 223. Title shown must be valid. — Not only must the plaintiff possess an apparent legal title to the premises but it must also be such in fact,^' and, frequently, this feature is a matter of substantive proof upon the trial. A deed or other muniment relied upon as a basis of claim must evidence a valid conveyance and represent a proper and legal transaction."" If it does not a recovery may be denied and the defendant is always at liberty to introduce any evidence tending to show the invalidity of the plaintiff's title because of the commission of a fraud,^^ or a violation of any rule of law respecting the conveyance of lands. ^" The fraud relied upon, however, must as a general rule, be of the character tliat is cognizable in a court of law; thus, the fact that a deed was obtained by fraudu- lent representations is not available as a defense to an action of ejectment.'^ 23a Brdman v. Corse, 87 Md. 27 Bay County v. Bradley, 39 506, 40 Atl. Rep. 107; Kepley Mich. 163; Hubbard v. Godfrey, V. Scully, 185 111. 52. 100 Tenn. 150. 2-4 Hewes V. Glos, 170 111. 436. 28 Goodtile v. Roe, 20 Ga. IS'i. 25 Florida, etc. R. Co. v. Lor- 29 Watts v. Witt, 39 S. C. 356. ing, 51 Fed. Rep. 932; Crawford so Sparrow v. Rhoades, 76 Cal. T. Corey, 99 Mich. 415; Start v. 208; Dillingham v. Brown, 38 Clegg, 83 Ind. 78. Ala. 311. 20 Gist V. Beaumont, 104 Ala. sipaldi v. Paldi, 95 Mich 410 347. § 224.J BY THE PLAINTIFF. 231 But this rule is not inflexible, for it will often happen that the fraud alleged is of a character that is usually denominated equitable, , and yet, in proper cases, evidence thereof may be received. Nor does this practice militate against the general rule of the action which denies the exhibition of equities, for it is an admitted principle that a court of law has concurrent jurisdiction with a court of equity in cases of fraud, and in the action of ejectment may investigate questions growing out of fraudulent transactions when properly presented. These ques- tions are usually raised in defense of the action and go to the right of the plaintiff to maintain it. The general rule is that, as between the parties, fraud vitiates all acts into which it enters, and where a conveyance upon which a party relies to establish his title is shown to have had its inception in fraud, and that he was a participant in such fraud, the title may be adjudged void and the plaintiff denied the right to recover possession.^^ Thus, where deed is executed without consider- ation and for the express purpose of defrauding creditors, not- withstanding the grantee is clothed with an apparent legal title, yet, as such title originated in fraud the courts will refuse to aid him in recovering possession.^^ So, also, if plaintiff claims under a deed which is void because made in violation of the statutes of the United States concerning the disposal of the public lands, this fact may be shown under the general de- nial.^* § 224. Tracing title. — In the chapters' which follow, the methods of proving specific titles, whether by purchase or des- cent, will be considered in detail, and, for this reason, no at- tempt will be made in this, connection to exhibit their require- ments. In all cases where the plaintiff alleges ownership, and this allegation is denied in the answer of the defendant, the biu'- den of proof is upon the plaintiff to show title in himself.^' This he does by a showing of investiture, by deed or otherwise . 32 Harrison v. Hatcher, 44 Ga. s* Sparrow v. Rhoades, 76 Cal, 638; Kirkpatrick v. Clark, 132 208. 111. 342; Watts v. Witt, 39 S. C. 35 Farley v. Parker, 4 Oreg. 356. 269; Pittsburg, etc. Ry. Co. v. 33 Harrison v. Hatcher, 44 Ga. O'Brien, 142 Ind. 218; Conwel'i 638. > V. Mann, 100 N. C. 234; Cox v. Arnold, 129 Mo. 337. 232 THE PROOFS. [§ 224. But a simple proof of formal investiture is not enough, as a rule, to sustain a verdict. It must further appear that the in- vestiture was made by competent authority. In other words, by one who had the right to convey and that the con^-eyance was made in the manner prescribed by law. Thus, one claim- ing under a will must prove the seizin of the devisor and the proper execution of the will.''° One claiming by deed must show the like facts of prior ownership and divestiture.^' One deraigning title through a corporation must prove the legal ex- istence of the corporation, the recitals in the deed being insuf- ficient for this purpose as against one claiming the land through another source of title. ^^ Where the land is claimed through a conveyance by an executive or ministerial officer, as where a sheriff's deed is relied upon, the antecedent steps leading to the deed are all material and must be shown.'^ Where title is claimed through the heirs at law of a person deceased it is es- sential for the plaintiff to show title in the deceased and then to connect his own title with that of the deceased person. This cannot be done by the mere production of a deed from the alleged heirs. In addition he must prove that the ancestor died intestate possessed of the land in question or having a legal title thereto, and that the grantors in his deed are, in fact, the heirs of such deceased person.*" To show title from a munici- pality, the authority for the execution of the deed as well as the deed itself must be put in evidence. Thus, in deraigning title from a county the resolution by virtue of which the deed was given must be introduced, notwithstanding this fact may be recited in the deed. Such recital is not enough.*^ Where the plaintiff sues as landlord it will generally be suf- ficient to show that the defendant entered as his tenant and that the term has expired,*- while as against a mere trespasser it will be enough to show prior possession and ouster by the de- 38 Enders v. Sternbergh, 52 ss Hobby v. Bunch, 83 Ga. 1. Barb. (N. Y.) 222. ' 4o St. Louis, etc. Ry. Co. v. 87 Jones V. Bland, 112 Pa. St. Warfel, 163 111. 641. 176; Stowell v. Spencer, 190 111. *iWard v. Lumber Co., 70 454. Wis. 445. 38 Sonoma Water Co. v. 42 Conwell v. Mann, 100 N. C. Lynch, 50 Cal. 503; Ward v. 234; Tyler v. Davis, 61 Tex. 674; Lumber Co., 70 Wis. 445. § 225.] BY THE PLAINTIFF. 233 fendant.*' These are the two exceptions to the general rule requiring proof of title on the part of the plaintiffs. It is not necessary in order to maintain the action that plaint- iff should base his claim on documentary evidence, and a title by adverse possession is sufficient to authorize a recovery when perfected as provided by the statute.^* The proof, in such case must show an uninterrupted hostile possession for the stat- utory peric>d, either with or without a color of title. § 225. Continued — Origin and duration of title shown. With respect to the origin, duration and general character of the title that must be shown on the hearing, the authorities are not agreed, nor is the policy of all of the states the same. In the newer states, formed out of the territory formerly in- cluded in the public domain, it has frequently been held that a plaintiff in ejectment must show a grant from the state or from the United States,^^ and a regular and uninterrupted chain of title to himself, unless it appears that both parties claim under the same person or from a common source of title. *° As a general proposition, this is the proper course to be pursued in all cases which will admit of it, and considera- tions of safety should always suggest it to counsel conducting a case for the plaintiff. But, while this course is alwa)'S desir- able it does not seem that it is always necessary, and generally it will be sufficient for the plaintiff, in order to make out a prima facie case, to trace his title back to either an immediate or re- mote grantor, who, at the time of his conveyance, was in pos- session of the land claiming it in fee.*^ Such a case can be overcome only by proving a paramount title either in the de- fendant or in a stranger, and in the absence of rebutting evi- dence the plaintiff will be entitled to a verdict as a matter of law.** Morgan v. Morgan, 65 Ga. 493; 45 Harvey v. Anderson, 129 Voss V. King, 38 W. Va. 607. Mo. 206. 43 Whitaker v. Pendola, 78 *« Omaha, etc. Co. v. Krags- Cal. 296; Hacker v. Horlemus, cow, 47 Neb. 592, 66 N. W. 658. 74 Wis. 21; "Ware v. Dewberry, 47 Anderson v. McCormick, 84 Ala. 568. 129 111. 308; Jones v. Bland, 112 44 Barnes v. Light, 116 N. Y. Pa. St. 176; Hoban v. Cable, 34; Ratcliff v. Iron Works, 87 102 Mich. 206. Ky. 559. 48Harland v. Eastman, 119 234: THE PROOFS. [§ 22(3. Where the parties claim through a common source the proot is greatly simplified and about all that devolves on the plaintifE is to show a better title from the common source."^ So, also, where the rights of the litigants have been determined in a former action, though of a different character, the judgment entered therein will be sufficient in most cases to establish the plaintiff's title. Thus, where in an action for partition the rights of all of the parties were found and awarded, upon an action of ejectment thereafter brought by one of the defendants against the others, the judgment roll in the partition suit would be competent and conclusive evidence to prove the title of the plaintiff.^" § 226. Secondary evidence. — As previously remarked, the general rule, that the best evidence of which the case in its nature is susceptible must always be produced, is fully appli- cable to actions of ejectment. Yet it must often happen that primary evidence of many essential facts cannot be produced and that recourse must be had to the next best forms. Where original deeds have been lost or destroyed the records, if the deeds were recorded, will furnish evidence of equal dignity, but if the deeds were not recorded, or, if recorded, the record has been destroyed, resort must necessarily be had to copies or other forms of secondary evidence. In like manner, in prov- ing title by descent, evidence of reputation and other forms of hearsay, will frequently be the only method of proving some of the incidents of pedigree. Secondary evidence of a deed is admissible where it is shown that the original deed could not be found after proper search was made therefor,'*^ and where a deed and the record thereof have both been destroyed, the court may receive all such evi- dense as would tend to establish its execution and contents^^'' Thus, a lost deed may be established by abstracts of title show- Ill. 22; Day v. Alverson, 9 bi Gillespie v. Gillespie, 159 Wend. (N. Y.) 223. 111. 84; Windom v. Brown, 65 49Myriok v. Wells, 52 Miss. Minn. 394. 149. Bia Tucker v. Shaw, 158 111. 60 Hancock v. Lopez, 53 Cal. 326; Hobbs v. Beard, 43 S. C. 362. And see Wright v. McCor- 370. mick, 77 N. C. 158. § 226.] BY THE PLAINTIFF. 235 ing the ownership of the land in controversy ; ^- or by the testi- mony of witnesses wlio had seen and read it and knew the con- tents thereof.^^ When the deed rehed upon is in the posses- sion or under the control of the adverse party if notice to pro- duce is given, and such notice is ignored by the party served, secondary evidence of its contents may be received.^* In order to authorize the introduction of secondary evidence of the contents of an alleged lost instrument it is first necessary to show that such an instrument once existed ; ^^ that dilligent search therefor has been made, and that it cannot be found f or, that it has been accidentally destroyed." Jn the case of lost instruments the sufficiency of the search depends much on the nature of the instrument and the circumstances of the case.°^ No precise rule can be prescribed as to what shall constitute a reasonable effort, but the party alleging the loss of a document must show that he has in good faith exhausted, in a reasonable degree, all sources of information and means of discovery which the nature of the case would suggest and which are accessible to him.^'' The sufficiency of the evidence of the loss or de- struction of the original deed is addressed to the discretion of the trial judge.^" c62Burdick V. Peterson, 72 Fed. Oreg. 589. Parol evidence of a Rep. 864. ' deed is admissible on proof that 53 Burdick v. Peterson, 72 Fed. on the death of the grantee his Rep. 864; Stebbins v. Duncan, brother searched among his 108 U. S. 32. papers and elsewhere and did 54 Hanson v. Eustace, 43 U. S. not And the deed, and that none 653; Cohen v. Insurance Co., of the grantee's heirs had pos- 69 N. Y. 300. session of it or knew where it 55 Windom v. Brown, 65 Minn. was. Bounds v. Little, 79 Tex. 394; Helton v. Asher, 103 Ky. 128. 730, 46 S. W. Rep. 22; Weiler v. 58 Wiseman v. Railroad Co., Monroe County, 74 Miss. 682. 20 Oreg. 425; Johnson v. Arn- 56 Woods v. lytontevalle, etc. wine, 42 N. J. L. 451. Co., 84 Ala. 560; Kelsey v. Han- 59 Harmon v. Decker, 41 Oreg. mer, 18 Conn. 311; Rullman v. 587, 68 Pac. Rep. 11; Woods v. Barr, 54 Kan. 643; Hall v. Galle- Montevalle, etc. Co., 84 Ala. 560. more, 138 Mo. 638, 40 S. W. Rep. But see Postel v. Palmer, 71 891. Iowa, 157. 57 Slocum v. Bracey, 65 Minn. o Hume v. Hopkins, 140 Mo. 100; Potter v. Adams, 125 Mo. 65, 41 S. W. Rep. 784. 118; Krewsom v. Purdon, 15 236 THE PROOFS. [§ 227. Where an alleged copy is offered it must be shown, by proper- evidence, that such paper is a substantial copy of the original." Where a claim is asserted under a deed alleged to have been lost, and of which no documentary secondary evidence can be furnished, much difficulty will necessarily be experienced in making proof. It seems, however, that even under these cir- cumstances the claimant should be allowed to show collateral facts tending to sustain his claim, as that he paid the purchase money, entered into possession, etc., and that the question as to whether the deed alleged to be lost was in fact executed, should be submitted to the jury.'''" In all cases, however, the rules respecting the establishment of title to real property under a lost unrecorded deed are very strict."^ It may happen that a deed is produced but by accident has become obliterated or partially destroyed. In such event re- course may be had to the record, and, if the record is also de- stroyed, then parol evidence is admissible to supply the missing or obliterated parts."* § 227. Relevancy of testimony — Order of proof. — The question of relevancy of testimony arises in almost every trial and the improper rejection or reception of evidence is usually one of the main arguments for the reversal of a judgment. Of course, all evidence should be relevant to the question at issue and tend to prove it, and it is within the discretion of the court to reject testimony apparently irrelevant at the time it is of- fered. But it should not be excluded if it has a tendency, how- ever remote, to establish the probability of the fact in contro- versy,'"' and, generally, where the admissibility of evidence de- pends upon a number of facts, to some extent independent of each other, and where each fact must be proved to complete the chain of evidence, the court, in the exercise of its discretion, should refuse to interfere in the order of testimony. A begin- ning must be made somewhere, and while the better plan would 61 Felbelman v. Assurance Co., 04 Landry v. Landry, 45 La. 108 Ala. ISO. Ann. 1113. 62 Terry v. Rodahan, 79 Ga. e^ Trull v. True, 33 Me. 367; 278. Hough V. Cook, 69 111. 581. «3Day V. Philbrook, 89 Me. 462. § 228.] BY THE PLAINTIFF. 237 undoubtedly be to commence with the orighi of title, either at its source or some admitted point in its history, and then follow its course in logical sequence to the claimant, yet, where this is not done and the evidence offered can be made material only by additional evidence, if counsel offers to supply the necessary connectives the testimony will generally be received subject to objection and to be stricken out if the missing links are not sub- sequently supplied. These rules have frequently been applied in trials of the ac- tion of ejectment and it has been held that a party has the right to commence anywhere in his chain of title."'' The court can- not know, until the party has rested his case, whether the proof is perfect or not, and the reasonable presumption is that the evi- dence offered will be followed by such other proof as is neces- sary for its proper connection. If, after the testimony is closed, a link is wanting, then, as a matter of course, the case must fail and the evidence offered should on motion be excluded from the jury.°^ § 228. PlaintifE must prove title as alleged. — The same principle, which, under the old practice, when the names of fictitious parties were used, prevented a recovery by the plaint- iff unless he showed himself entitled to the possession at 'the time of the demise laid in the declaration, has remained practi- cally unchanged through all the mutations to which the action has been subjected. The plaintiff must recover, if at all, upon his legal title as it stood at the commencement of the suit,"** or, as stated by many of the authorities, at the time alleged in the declaration that he had title,"" and it has been held in some cases that where the title displayed in evidence is shown to have ac- crued after such time, even though before the commencement of the suit, he cannot recover.'" 6e4.slier v. Mitchell, 92 111. 30 Miss. 129; Kile y. Tubbs, 32 480. Cal. 332; Mitchell v. Lines, 36 6T Rogers v. Brent, 10 111. 573. Kan. 378; Kelley v. McKeon, 67 68 Craig V. Bennett, 146 Ind. Wis. 561. 574; Dunlap v. Henry, 76 Mo. 09 wood v. Norton, 11 III. 547; 106; Hollingswortb v. Flint, 101 Foster v. Stapler, 64 Ga. 766; U. S. 591; Goodman v. Winter, McCoal v. Smith, 66 U. S. 450^ 64 Ala. 410; Torrance v. Betsy, to pitkin v. Yaw, 13 111. 251. 233 THE PKOOFS. [§ 229. The general rule, however, is as first stated and under this rule if the plaintiff is without legal title at the time of com- mencement of his suit he cannot recover,'^ notwithstanding he may have had an equity which ripened into a legal title after the suit was broughtJ^ He must recover, if at all, upon his title as it existed at the institution of his suit,^^ and even though he has the legal title, yet if at the time suit was commenced his right of possession was intercepted for any valid cause he can- not recover '* even though such intercepting cause is subse- quently removed.'^ So, too, if he pleads that his title was derived from one source he cannot show upon the trial that it was derived from another source,^^ even though the allegation as to the source of title may have been unnecessary. But a mere misrecital of the date of a deed in the pleadings will not prevent its admission in evi- dence on the ground of variance,'' nor will this objection lie where the description of the land as declared for departs in some measure on the proof, provided the land can be stifficiently identified after rejecting the conflicting calls.''^ § 229. Plaintiff must rely on title asserted. — Not only must the plaintiff prove title as alleged, but it is a fundamental rule, adopted and established wherever the action of ejectment prevails, that he must recover, if at all, only on the strength of the title thus shown, and not upon the weakness of that of the defendant.''* Probably no rule connected with the action is 71 Perciful v. Piatt, 36 Ark. 75 Gofer v. Schening, 98 Ala. 456; Green v. Jordan, 83 Ala. 338. 220; Mills v. Graves, 44 111. 50; 76 utassy v. Giedinghagen, 132 Nalle V. Thompson, 173 Mo. 595. Mo. 53, 33 S. "W. Rep. 444; 72 Paul V. Fries, 18 Pla. 573; BroT\-n v. Moore, 26 S. C. 160. Goodman v. Winter, 64 Ala. 410. And see Lane v. Queen City, etc. 73 Mexia v. Lewis, 3 Tex. App. Co., 66 Ark. 646. But compare 113; Cofer v. Schening, 98 Ala. Keathley v. Branch, 88 N. C. 338; Nowlen v. Hall, 128 Micii. 379. 274. 77 Peck v. Ashurst, 108 Ala. 74Grandin v. Hurt, 80 Ala. 429, 19 So. Rep. 781. 116; Converse v. Dunn, 166 111. 78 Chicago, etc. R. R. Co. v. 25; Finley v. Babb, 144 Mo. 403; Morgan, 69 111. 492. Voight V. Ruby, 90 Va. 799; 79 Mitchell v. Lines, 36 Kan. Richardson v. Railway Co., 89 378; England v. Hatch, 80 Ala. Md. 126: Wells v. Steckelberg, 247; Foster v. Evans, 51 Mo. 39; 52 Neb. 597. Fulton v. Hanlon, 20 Cal. 450; § 230.] BY THE PLAINTIFF. 239 more firmly established or sustained by more abundant au- thority. There are, however, some apparent exceptions to the rule as above stated, and it has been held that such relations may exist between the parties as will dispense with the production of proof of title on the part of the plaintiff. Thus, it is said, a party in possession under the plaintiff cannot controvert the title under which he entered ; if he was admitted into possession under a contract of purchase with the plaintiff, the latter, in an action to regain the possession, will not be required to make proof of his title,*" nor is a landlord, in an action against his tenant, compeUed to show title. *^ So, too, if the plaintiff had actual possession of the land at the time of defendant's entry, this will be enough to enable him to recover from a mere tres- passer.'^ § 230. Proof must be consistent with allegations. — Not only should the plaintiff disclose the nature and extent of his interest in his declaration but the proof offered in support of same should correspond to and be consistent therewith. So strictly was this rule formerly applied that any departure was fatal to the action, as, if the plaintiff claimed an entirety and his proof showed only an undivided interest, he could not re- cover.'^ But this rule is now practically without effect in a case similar to that last mentioned, and a plaintiff may still re- cover notwithstanding that the interest which he establishes on 'the trial may differ in quantity or quality from that claimed in" the declaration. That is, if he declares for the whole and the Sullivan v. Dimmitt, 34 Tex. si Tilghman v. Little, 13 111. 114; Shumway v. Phillips, 22 239. Pa. St. 135 ; Wallace v. Swinton, 82 House v. Reavis, 89 Tex. 64 N. Y. 188; Pussell v. Gregg, 626, 35 S. W. Rep. 1063; Bur- 113 XJ. S. 550; Masterson v. bage v. Fitzgerald, 98 Ga. 582; Cheek, 23 111. 72; Marshall v. Sherin v. Braokett, 36 Minn. Barr, 35 111. 106; Sanford v. 152; Ashmead v. Wilson, 22 Mangin, 30 Ga. 355; Goulding Pla. 255; Lum v. Reed, 53 Miss. V. Clark, 34 N. H. 148; Stehman 73; Clarke v. Clarke, 51 Ala. V. Crull, 26 Ind. 436; Opel v. 498. Kelsey, 47 Ark. 413; Kelley v. ss See Benson v. Musseter, 7 McKeon, 67 Wis. 561. H. & J. (Md.) 212; Rupert v. soMcKibben v. Newell, 41 111. Mark, 15 111. 540; Martin v. 461. Neal, 125 Ind. 547. 2i0 THE PEOOFS. [§ 231. proof shows only an undivided interest,^* or if lie claims a specific undivided interest and the evidence discloses a differ- ent and much smaller interest,^^ he may still recover such in- terest, notwithstanding the apparent departure. But where the allegation is of an estate in fee it seems it will not be supported by proof of an estate for years/" and, gen- erally, where the declaration is laid on a legal title plaintiff cannot prove and recover on an equitable one.*' Neither can the plaintifif set up several inconsistent titles and then recover on the ground that one or the other of them is good. Some sound and sufficient title must be alleged and established on the trial.** Nor can he be permitted to allege title in one tract and prove title to another ; as where the declaration alleges title in the west half of a quarter section and the proof shows title in east half. This has been held to be a fatal variance,*^ yet under the statute of amendments as it exists in some states it may be that such a defect might be cured if taken in time. But where the declaration describes the land sued for as the east half of a certain tract and the deed offered in evidence is for the south half of the same tract, notwithstanding there is a palpable var- iance in description, yet, since one is necessarilj"- overlapped in part by the other the deed may still be admitted."" § 231. Variance between allegations and proof. — A vari- ance is a substantial departure from the issue, in the evidence adduced, and must be of some matter which, in point of law, is essential to the claim. "^ Formerly the plaintiff was held strictly to his allegations and could recover only on the case made by his declaration. He could not recover a different es- tate from that which he claimed, nor a different share or in- terest from that alleged,''^ and the early cases show tliat these 84 Almond v. Bonnell, 76 III. Tex. 461. But see Leary v. New, 536. 90 Ind. 502; St. Louis v. Risley; 85 Gray v. Givens, 26 Mo. 303. 28 Mo. 415. 86 Hunt , T. Campbell, 83 Ind. so McCormick v. Huse, 78 111. 48; Almond v. Bonnell, 76 111. 363. 536; Rawson v. Taylor, 57 Me. soOreen v. Jordan, 83 Ala. 343. 220. 87 Sutton v. Aiken, 57 Ga. 416 ; 9i Keiser v. Topping, 72 111. Kirkland v. Cox, 94 111. 400; 226. Stout V. McPheeters, 84 Ind. 585. s2 Winstanley v. Meaoham, 58 88 Brownsville v. Basse, 36 111. 97. § 232.] EY THE PLAINTIFF. 241 rules were applied at times with much harshness. To obviate in some measure the difficulties which the rule occasioned, and to provide against possible variances between the allegations and proof, it was custommary for the pleader to insert a num- ber of counts in his declaration, and this course may still be resorted to in cases of doubt. The statute has greatly relaxed the rigor of the old rules above mentioned and removed many of the causes that formerly resulted in a variance, yet the gen- eral rule, that the proofs must correspond with the allegations, still holds good and is often administered with considerable rigidity. If the variance can be reconciled, however, this should al- ways be done, and courts are ever inclined to treat matters of this kind with leniency. Opportunities for the application of this rule will frequently be presented in the matter of des- cription of the land sued for. Thus, if the description in the declaration calls for a lot bounded on the west by A street and the proof offered is for a lot bounded on the west by B street, there will be a palpable variance. But the variance, in such case will be immaterial if by rejecting the western boundary the land may still be sufficiently identified by the other boun- daries and by the calls for dimensions."^ On the other hand, if the variance cannot be reconciled it will be fatal to action. As if the declaration describes a tract of land lying west of a certain meridian and the deed oflfered in evidence purports to convey a tract lying east of the same meridian, such evidence must be excluded as it is apparent that the land described in the deed cannot be the land in controversy.^* § 232. Objection to variance — When taken. — An objec- tion as to a variance between the declaration and evidence in an action of ejectment should be interposed when the evidence is offered, or, at least, a motion to exclude it from the jury should be made after the evidence has been closed. The plaint- iff, in such case would be afforded an opportunity of amending his declaration so as to correspond with the facts proved. If, in case of variance, the defenant remains silent, raises no ob- 9s Chicago, etc. R. R. Co. v. 'i Shackleford v. Bailey, 35 Morgan, 69 111. 492; Lochte v. III. 387. Austin, 69 Miss. 271. 18 242 THE PEOOFS. [§ 233. jection to the relevancy of the evidence, and finally goes to the jury on the proofs as submitted, speculating on the chances of a verdict in his favor, he cannot, if unsuccessful, make the ob- jection for the first time in a court of review."^ § 233. Extent of proof required. — In an action to recover the possession of land the burden of establishing his title and right to possession by affirmative proof is cast tipon the claim- ant.*" This duty he fully discharges, in the absence of proof that both parties claim under the same person or from a com- mon source of title, by showing a grant from the state or Uni- ted States and a regular and uninterrupted chain of title to him- self,^' or by proving a title by adverse possession under the statute of limitations."^ But, while it is fundamental that the plaintiff in ejectment must recover, if at all, on the strength of his own title, and not on the weakness of that of his adversary, }'et it is not always necessary for him to commence by deraigning his title from its source and, then to trace each successive transfer down to him- self. As has been shown, if both parties claim under the same person, this is an admission that such person possessed title. So, also, if the defendant acquired his possession as a tenant of the plaintiff, this fact will warrant a presumption of title in the latter."" It would seem further, that, if plaintiff claims by descent, it is sufficient for him, in the first instance, to prove his heirship, and that the ancestor under whom he claims was the person last seized of the lands in controversy.^ If the claims by pur- chase he must connect himself by deed or will with the prior owner and show by proper proof the validity of such deed or will and the seizin of his grantor or devisor.- The seizin, in all such cases, may be established by proof of the possession of such ancestor, grantor or devisor, either in person or by ten- 95 Schoonmaker v. Doolittle, 383; Jacks v. Chaffin, 34 Ark. 118 111. 605. 534. 98 Pittsburg, etc. Ry. Co. v. so Jones v. Bland, 112 Pa. St. O'Brien, 142 Ind. 218; Grandin 176. V. Hurt, 80 Ala. 116. - 1 Weaver v. Rush, 62 Ark. 51; 97 Omalia R. E. & T. Co. v. Jones v. Bland, 112 Pa. St. 176. Kragscow, 47 Neb. 952. = Florida S. R. Co. v. Burt, 9s Wilson v. Glenn, 68 Ala. 36 Fla. 497. § 234.] ET THE PLAINTIFF. 243 ant.^ As against a defendant who is a stranger to the party from whom the plaintiff derives title it would seem the latter makes a prima facie case by showing the possession of his grantor at the time the deed was delivered or that his ancestor or devisor died in possession of the lands in question.* This will be sufficient to throw upon the defendant the burden of proving his own title or that some third person owns the land and is entitled to its possession.' As against a naked trespasser, proof of actual possession or receipt of rent prior to the eviction, is prima facie evidence of title on which a recovery may be had.** No presumption should be resorted to for the purpose of helping out the pos- session of a trespasser.^ Where title is claimed through execution or judicial sale it will be sufficient, in all cases where the suit is brought against the judgment debtor, to show the judgment and proceedings under it resulting in sale.' So, too, where lands have been sold hy an administrator under a decree of the probate court, and the purchaser brings ejectment against the heirs of the dece- dent, the deed of the administrator, together with the order of sale and decree of confirmation, will constitute a prima facie case," and raise a presumption that all of the necessary ante- cedent steps were taken. ^° § 234. Prima facie title. — The matters discussed in the last paragraph have reference to what is generally known as prima facie title, that is, a title which on its face appears to be sufficient without demonstration. There is some confusion in the books with respect to the character and extent of title that 3 Jones V. Bland, 112 Pa. St. Williamson, 64 Ark. 100; Cook 176^ V. Bertram, 86 Mich. 359. •1 Mobley v. Bijuner, 59 Pa. ' Western TJ. B. Co. v. Thur- St. 481; Florida S. R. Co. v. man, 70 Fed. Rep. 960. Burt, 36 Fla. 497; Douglass v. s Bank v. Raynor, 61 Cal. 145; RuiBn, 38 Kan. 530; Jones v. ^cKee v. Lineberger, 87 N. C. Bland, 112 Pa. St. 176. 181; Shipley v. Shook, 71 Ind. 5 Weaver v. Rush, 62 Ark. 51. 511. (5 Burt V. Panjaud, 99 U. S. Moore v. Cottingham, 113 180; Casey v. Kimmel, 181 111. Ala. 148. 157; House v. Reavis, 89 Tex. 10 Price v. Springfield, etc. 626; Hen tig v. Pipher, 58 Kan. Ass'n, 101 Mo. 107. 788; John Henry Shoe Co. v. 244 THE PEOOFS. [§ 235. plaintiff must deraign in the first instance in order to justify a verdict of recovery. Wliere the general issue o'nly is pleaded it would seem that proof of prior possession, under claim of ownership in fee, by the grantor, or others under whom the plaintiff claims, or by those to whose title he is privy, is prima facie evidence of ownership and seizin sufficient to authorize a recovery,!^ unless the defendant shows a better title. ^^ The conflict is with respect to the title or possession of plaintiff's grantor. § 235. Character of title. — At the present time there ex- ists much uncertainty with respect to the character of the title that must form the basis for the plaintiff's recovery. At com- mon law, to authorize a recovery in ejectment, where the de- fendant is in possession, a valid legal title must be shown.^' This rule is of general and uniform observance, and, except as it may have been altered or modified by statute, seems to be rigid land vmyielding in all cases where the action depends upon the title and not upon some relation or agreement between the parties, affecting the right of possession.^* Where the rule, as stated, prevails, the plaintiff must estab- lish his legal title, at the time of the demise laid in the declar- ation, either upon a connected documentary chain of evidence, or upon proofs of possession under a claim of right of suf- ficient duration to warrant the conclusion of the existence of such written title.'-^ An equitable title will not be sufficient unless it also confers a present legal right to the possessions^ In a number of states the rule of the common law has been changed by statute or judicial construction, and actions are 11 Stowell V. Spencer, 190 111. Phelps, 62 U. S. 294, 16 L. Ed. 453. 140. 12 Harrell V. Bank, 183 111. 1* Jackson v. Demont, 9 Johns. 538; Stowell v. Spencer, 190 111. (N. Y.) 60; Dale v. Hunneman, 453; Motley v. Bruner, 59 Pa. 12 Neb. 221; Laurissini v. Doe, St. 481; Douglass v. Ruffin, 38 25 Miss. 177; Walton v. Follans- Kan. 530. bee, 131 111. 147; Grandin v. 13 See Eaton v. Smith, 19 Wis. Hurt, 80 Ala. 116 ; Langdon v. 537; Leonard v. Diamond, 31 Sherwood, 124 U. S. 74. Md. 541; Ruffners v. Lewis, 7 is Fenn v. Holme, 21 How. Leigh (Tenn.), 720; McKay v. (U. S.) 481; Craig v. Bennett, Williams, 67 Mich. 547; Lang- 146 Ind. 574. don V. Sherwood, 124 U. S. 74, le Perciful v. Piatt, 36 Ark. 31 L. Ed. 344; Morehouse v. 456. § 235.] BT THE PLAINTIFF. 2-1:5 permitted on incipient equities. This change seems to have grown out of the early exigencies of purchasers of govern- ment lands. It frequently happened that after land had been duly entered by the purchaser the patent therefor did not issue for a number of years. The receiver's receipt, coupled with possession, was all the evidence of title the land-owner could produce and this, after a time, came to be regarded as equiv- alent to full legal investiture. Accordingly we find decisions in many of the Western and Southern states at a comparatively early day which recognize and uphold titles based upon equities of this kind, and after a time it became a settled doctrine in such states, that an equity, if perfect, however the same may have been created, may be shown in a legal action for the re- covery of land.^'^ This doctrine has been incorporated in many of the codes and now prevails in a number of states. In the Federal courts the rule has always been that equitable interests cannot be enforced in an action of ejectment,^'* but to this rule there are exceptions in respect of particular titles. Thus, under Acts of Congress confirming claims to lands as valid, after a survey has been made, approved, and recorded in the surveyor-general's office, an action may be maintained on such titles in the courts of the United States.^" But this is about the full extent of the exception, and notwithstanding a state law may permit an ejectment to be brought on an entry with a register and receiver, su.ch law has no force or effect in the Federal courts.^" A purely possessory title, if properly established, will be all sufficient for the purposes of an ejectment,^'- and possession, if sufficiently proved, will serve as a substitute for a deed con- stituting a link in the plaintiff's chain of title. ^^ But a plaint- "See Tobey v. Secor, 60 "Wis. 13 Wall. (IT. S.) 480; Langdou 310; Hill V. Punkett, 41 Ark. v. Sherwood, 124 U. S. 74. 465; Hicks v. Lovell, 64 Cal. 17; is> Stoddard v. Chambers, 2 Dodge v. Spiers, 85 Ga. 585; How. (U. S.) 284; McCall v. Hurd v. County Com'rs, 40 Kan. Carpenter, 18 How. (XT. S.) 297. 92; Merrill v. Bearing, 47 Minn. 20 Hooper v. Scheimer, 23 137; Brousard v. Brousard, 43 How. (U. S.) 235. La. Ann. 921; Pierce v. Frace, 21 Hackett v. Marment Co., 52 2 Wash. 81; Strother v. Lucas, Fed. Rep. 268. 31 V. S. 763. 22 Martin v. Bowie, 37 S. C. isCarpentier v. Montgomery, 102. 246 THE PEOOFS. [§§ 236, 23 T. iff who relies solely upon a title which had its inception in an adverse holding must show that it continued uninterrupted for the statutory period necessary to perfect the title in fee and cannot recover, in the absence of such showing, merely because the deeds under which defendant claims may be void.^^ § 236. Against grantee for condition broken. — The gen- eral subject of conditions in avoidance of a grant, and the right of re-entry for condition broken, has been discussed in other parts of this work. At this point the only matter to engage our attention is the proof necessary to be adduced by a plaint- iff who seeks to recover possession by reason of a breach of condition. It would seem that where an action is brought on these grounds no formal proof of title is required, for, as in the case of a tenant, if the condition is enforcible the defendant is estopped to deny the title under which he entered. Neither is it necessary, in order to enable the plaintiff to recover, that he should show where or how he procured his title, nor even what that title was.^* It is enough to show the deed under which defendant entered; to establish the validity of the con- dition upon which the grant was made ; and to prove a viola- tion of the condition. This done, the plaintiff is entitled to re- cover unless the defendant can show that the condition has been released, waived or discharged.-^ § 337. As against mere intruders. — While the funda- mental rule that a plaintiff in ejectment must recover, if at all, on the strength of his own title and not upon the weakness of that of his adversary, is everywhere admitted and enforced, yet a recovery may be had in some cases on bare possession only. This may occur where there has been an actual ouster of a ten- ant, or where recovery is sought against a naked trespasser.-" In such event a judgment may be rendered on simple proof of prior possession." Nor does such a course militate against 23 Murray v. Hoyle, 97 Ala. 703; Dothard v. Denson, 72 Ala. 588. 541; Ashmead v. Wilson, 22 Fla. 2* "Wakefield v.' Van Tassell, 259; Sherwin v. Brackett, 36 202 111. 41. Minn. 152; Casey v. Kimmel, 25 Hutchinson v. Ulrich. 145 181 111. 157. 111. 342; Gray v. Blanchard, 25 ^t Dothard v. Denson, 72 Ala. Mass. 284; Pepin County v. 541; Probst v. Trustees, 3 N. M. Prindle, 61 "Wis. 301. 237; Am. Mtg. Co. v. Hopper, 26Bagley v. Kennedy, 85 Ga. 48 Fed. Rep. 47. § 238.] BY THE DEFENDANT. 2Vi the fundamental rule first stated, for possession, in itself, is prima facie evidence of title,^* sufficient to sustain a recovery from a mere, intruder.^' In making proof of prior possession it does not seem that any more is necessary than to show that the possession was quiet and peaceable and held under a claim of right. No evidence of investure of title is required and any competent testimony which tends to show a rightful occupation is sufficient. Thus, plaintiff may show a contract between the owner of the land and himself, or he may introduce letters from such person showing a recognition of his possessory rights.^" § 238. On default of defendant. — The rule is general that, if a defendant served with summons fails to enter his ap- pearance, or to plead to the declaration, the latter may be taken against him as confessed. A default, in an action of ejectment admits all the material allegations of the plaintiff's declaration, including that of the ownership of the land, and no proof of title in such case is necessary.''- ' II. By the Defendant. § 239. 240. 241. Generally considered. Order of proof. Under the general issue. 242. Continued — Estoppels. 243. Under special pleas. 244. Inconsistent defenses. 245. Affirmative defenses. 246. Outstanding title in stranger. 247. Outstanding title by lease. § 248. Outstanding Mortgage. 249. Outstanding easement. 250. Adverse possession. 251. Claim by descent. 252. Against breach of con- dition. 253. Ejectment for dower. 254. Fraud and circumven- tion. 255. Equities — At common law. 28 Plume V. Seward, 4 Cal. 94; Coombs V. Hertig, 162 111. 173. 29 Rau V. Railway Co., 13 Minn. 442; Nagle v. Macy, 9 Cal. 427; McCall v. Doe, 17 Ala. 533; Bagley v. Stephens, 18 Ga. 304; Christy v. Scott, 55 U. S. 282, 14 L. Ed. 422; Wilson v. Fine, 38 Fed. Rep. 789; Barger v. Hobbs, 67 111. 592; Mobley v. Bruner, 59 Pa. St. 481; Hall v. Gallamore, 138 Mo. 638; Sherin V. Brackett, 36 Minn. 152. But see contra, Hubbard v. Godfrey, 100 Tenn. 150. 30 Nolan v. Pelham, 77 Ga. 262. 31 Tucker v. Hamilton, 108 111. 464. 24:8 THE PEoors. [§ 239. 256. Continued — Qualifica- tions of the rule. Continued — Under the statue. Equities in the Federal courts. 258a. Equities in the federal courts. 257. 258. § 259. 260. 261. 262. 263. Character of equities set up. Estoppels in pias. Continued — Parol agree- ments respecting boun- daries. Equitable mortgage. Easement — Rights of way. § 239. Generally considered. — Inasmuch as the claimant in ejectment must recover, if at all, upon the strength of his own title, without regard to the weakness or defects of that of the defendant, and as the burden of showing a clear and sub- stantial title as well as a present right of possession of the premises in dispute, devolves upon him, it follows that the de- fendant's evidence will usually be mainly of a negative char- acter, confined largely to falsifying the plaintiff's proofs or re- butting the presumptions which may arise out of them. He is not required to produce affirmative evidence of his own rights, nor to show title subsisting in himself or a third person, but is entitled to a verdict by simply showing that the plaintiff is without title or a present right to hold and enjoy the land. In other words, the defendant's evidence depends on the nature of the proofs advanced by the plaintiff and need not be extended beyond the rebuttal of them. In a general way the defense has been incidentally discussed in treating of the nature and order of the plaintiff's proofs and but little remains to be said in addition thereto. As a rule the burden of proof remains where the issue made by the pleadings places it,^^ but where a person wishes to sup- port his case by a particular fact which lies more particularly within his own knowledge, or of which he is supposed to be cognizant, then, so far as the particular fact is concerned the burden of proving same is upon him. And where the defend- ant offers an affirmative defense, either by showing title in himself or a stranger, the burden falls upon him and he is re- quired to establish the fact which constitutes such defense in much the same manner as is required of the plaintiff in the first instance.^' s2 Blunt y. Barrett, 124 N. Y. 117. ?•» Horton y. Murden, 117 Ga. 72; Soper v. Guernsey, 71 Pa. §§ 240, 241.] BY THE DEFENDANT. 249 § 240. Order of proof. — The case made by the plaintiff must, to a large extent, influence the nature and order of the defendant's proof. Where this consists merely of negations, or matters which go to rebut the plaintiff's evidence, the man- ner of presentation will in most cases be shaped by what has preceded. Where affirmative proof is offered the remarks re- specting the relevancy of the plaintiff's proofs will apply, as the defendant, in such case, becomes for the purposes of the suit a claimant of title. But the defendant in ejectment, in establishing title in himself or another, has a right to com- mence an3rwhere in his chain of title he may see fit. If, when he is through, a link is wanting his case fails and the whole of his evidence must on motion be excluded from the jury.^* § 241. Under the general issue. — The defendant's plead- ings are usually confined to the general issue of not guilty, or a general denial of the plaintiff's allegations. Under this plea, as a rule, the defendant will have a right to introduce in evi- dence any fact which may show, or tend to show, that the plaintiff had no right of entry when the suit was brought, or which may tend to defeat the plaintiff's claim of title. ^^ Thus, he may always show a subsisting paramount title in a third person, and this will defeat the plaintiff's recovery.^" Or, he may show a right of property and present possession in him- self, either by a connected chain of title or by an adverse pos- session." So, too, he may show that the deed under which plaintiff claims is void for want of capacity in the vendor,^' or because it was made in violation of some positive provision of St. 219; Weaver v. Rush, 62 ss Boyer v. Thornburg, 115 111. Ark. 51; Enos v. Cook, 65 Cal. 540; Doswell v. De la Lanzo, 20 175; Grigsby v. Akin, 128 Ind. How. (U. S.) 29; Smith v. Mc- 591; Hartley v. Ferrell, 9 Fla. Cann, 24 How. (U. S.) 398; 374. Bear Valley Coal Co. v. Dewart, 34 Asher v. Mitchell, 92 111. 95 Pa. St. 72. 480. sTDutton v. Clark, 59 S. C. SB Sparrow v. Rhoades, 76 Cal. 440; Neal v. Spooner, 20 Fla. 38; 208; Kimball v. Gearhart, 12 Lum v. Reed, 53 Miss. 73; Prior Cal. 50; Lain v. Shepardson, 23 v. Scott, 87 Mo. 303. Wis. 224; Stubblefield v. Bor- ss Fitzgerald v. Shelton, 95 N. ders, 92 111. 279; Wood v. Eck- C. 519. house, 79 Ind. 354; Fairbanks V. Long, 91 Mo. 628. 250 THE PEOOFS. [§ 241. law,^^ or that it was not delivered absolutely but as an es- crow.*" If the plaintiff claims as an heir, the defendant may show a deed or devise by the ancestor to a stranger,*^ or that the claim- ant is a bastard, and hence without inheritable blood, or he may show that the ancestor by his own declarations did not claim title to the land.*- The admissions of an ancestor, which could affect him were he a party, are generally receivable in evidence against his heirs,*^ under the general principle that declarations of one in possession or claiming ownership, when made in dispargement of the title of the declarant, are admissi- ble against him and those claiming in privity with him.** Where he defends against a purchaser at sheriff's sale, he may dispute the validity of the judgment and execution under which the sale and conveyance of his land was made, and thus destroy the purchaser's title. *■"' This, however, would be the extent of his rights, for, as he is regarded in law as the real grantor he would not be permitted to dispute the purchaser's title.*" If plaintiff claims by virtue of a tax deed he may nega- tive the prima facie title made by its introduction by showing that the property was not subject to taxation for the year or years named, or that the taxes had been paid before the sale.*' So, too, without disputing the plaintiff's title he may show that it confers no right of immediate entry,** and so strictly is this right construed that a plaintiff will be denied a recovery when it appears that at the time of the commencement of the suit his right of possession was intercepted by a temporary in- junction obtained from a court of competent jurisdiction, al- 39 Sparrow v. Rhoades, 76 Cal. N. C. 563; Rowell v. Doggett, 208. 143 Mass. 483; Elgin v. Beck- 40GofE V. Roberts, 72 Mo. 570. with, 119 111. 367. 41 Brandt v. Livermore, 10 "5 Crenshaw v. Julian, 26 S. Johns. (N. Y.) 358. C. 283. ■laFincli v. Garrett, 102 Iowa, 46 Gould v. Hendrickson, 96 381. 111. 599. " Terry v. Rodahan, 79 Ga. "Moore v. Byrd, 118 N. C. 278; Burnett v. Harrington, 70 688. Tex. 213. 48 Hurst V. Sawyer, 2 Okla. 4-1 Wilson V. Albert, 89 Mo. 470. 537; Magee v. Blankenshlp, 95 § 242.] BY THE DEFENDANT. 251 though such injunction may have subsequently been dissolved and the bill dismissed.^" It has been held, that the defendant may show that the deed under which plaintiff claims, although absolute in form, is, in fact, only a mortgage.^" But this applies only in those states where equities may be shown by way of, defense. In other states, where the strict rule that the legal title must prevail still obtains, such a defense could not be interposed ^"^ and the deed would be given its legal effect. Where the defense is permissi- ble it is still incumbent on the defendant to show an offer to re- deem before the plaintiff can be deprived of his possession un- der the deed.^^ It is a further rule, that actions of ejectment are- determined upon the facts as they existed at the times they were com- menced. This applies as well to the defendant as to the plaint- iff, and matters of defense arising after suit brought are not available under a plea of the general issue, ^■'' although, as here- tofore shown,^* they may in some cases be shown by a supple- mental plea. This rule, which is fully in consonance with all of the rules of pleadings and evidence, has been infringed in some states,^^ but, generally, unless the circumstance is of a very peculiar character, as where the defendant has purchased the plaintiff's title pending suit,"" the case must be tried and de- termined on the issues presented when the suit was commenced. § 242. Continued — Estoppels. — The remarks of. the fore- going paragraph apply only where the relations of the parties are such that no estoppels can arise to interfere with the char- acter or course of the proof. Where, however, the plaintiff sues as a landlord the defendant will ordinarily be estopped from disputing the plaintiff's title and the latter will not be re- quired to show more than the lease under which defendant en- 49 Gofer v Schening, 98 Ala. 53 Johnson v. Briscoe, 92 Ind. 338. 370. 50 Dobbs V. Kellogg, 53 Wis. si See § 214; 448; Walls v. Endel, 20 Fla. 86. ss See Pollard v. Hanrick, 74 51 McGinnis v. Fernandes, 126 Ala. 334; Duggan v. McCul- 111. 228. lough, 27 Colo. 43; Roper v. Mc- 52 Hughes v. Davis, 40 Cal. Fadden, 48 Cal. 346. 117. 50 Hardin v. Forsythe, 99 111 312. 252 THE PROOFS. [§ 242. tered and the expiration of the tenancy."'' But the defendant, in such case, while he may not deny the title under which he entered may still show that the plaintiff had no right of entry at the time suit was brought. Thus, he may show that the plaintiff's interest had expired,^^ as where he had sold and con- veyed the land to a third party,^' or where it had been sold on execution,'" or at tax sale.'^ There is also an exception to the general rule preventing a tenant from denying his landlord's title, and this occurs where he has been induced by artifice or fraud to accept the lease. In such case he may show a better title in himself, or in a third party under whom he claims.''^ But, while the rule is undisputed, that a tenant in possession is estopped from denying the landlord's title, yet this estoppel is available only for the recovery of possession. It is not equivalent to an admission of title in f ee,''^ and, at best, admits nothing more than that the tenant's rights rest upon the corre- sponding rights in the landlord. The estoppel continues onl}" so long as the lease remains in force, and if the tenant surrend- ers the possession he acquired under the lease, he is as free to dispute the landlord's title and to set up an independent right in himself as any other person."* One who enters into posses- sion by the consent of the tenant is subject to the same estoppel, and cannot dispute the landlord's present right of recovery, but, like the tenant, he is bound no further."' Hence, either a ten- ant, or one coming into possession under him, may surrender the term to the lessor and may then re-enter and actively assert a title adverse to that of the landlord. BT Cressler v. Cressler, 80 Ind. si Miller v. Bonsadon, 9 Ala. 366; Bertram v. Cook, 44 Mioli. 317. 396; Carter v. Marshall, 72 111. 02 Carter v. Marshall, 72 111. 609. 609. 68 Prestman v. Silljacks, 52 ea Bertram v. Cook, 44 Mich. Md. 647; Hardin v. Forsythe, 396. 99 111. 312. M Fuller v. Sweet, 30 Mich. 59 Supervisors v. Herrington, 237; Page v. Kinsman, 43 N. H. 50 111. 232; Otis v. McMillan, 70 328. Ala. 46; Grundin v. Carter, 99 es Lowe v. Emerson, 48 111. Mass. 15. 160; Abbott v. Cromartie, 72 60 Lancashire v. Mason, 75 N. N. C. 292; Longfellow v. Long- C. 455; Hardin v. Forsythe, 99 fellow, 61 Me. 590; Brenner v. 111. 312. Bigelow, 8 Kan. 496; Mattis v. Kobinson, 1 Neb. 3. § 243.] BY THE DEFEMDANT. 263 Another phase of estoppel is presented where a purchaser at execution sale sues the defendant in execution to recover pos- session of the lands sold. The legal theory is that the execu- tion debtor is really the grantor and hence, that he will not be heard to deny his own grant. At all events, whatever may be the theory, the rule is that a purchaser at sheriff's sale takes exactly the same estate as was vested in the judgment debtor,"" which he holds by the same title.*" This being so it follows that when the debtor is sued in ejectment, by the purchaser un- der the execution, he is estopped to dispute the plaintiff's title."* There are cases which hold that the grantee of a husband is estopped from denying the seizin of the latter in an action of ejectment brought by the widow to recover dower,"" but later cases have rejected this doctrine.''" § 243. Under special pleas. — The general nature of spe- cial pleas in ejectment, as well as the necessity therefor, have been discussed in the chapter on pleading, to which the reader is referred. Except in the case of an affirmative defense special pleas will rarely be required, but in some states even negative proofs, like the statute of limitations, must be specially pleaded to admit the introduction of evidence relating thereto. As a rule, pleading specially what is admissible under the general issue does not abridge the scope of the proof under the gen- eral issue,^^ and the necessity for special pleas can arise only in a few cases. Where the statute of limitations is pleaded specially the bur- den of proving that the cause of action in suit is barred by limitation rests upon the defendant,''^ yet he may rely on plaint- iff's proof to establish such defense.'^ 66 Morgan v. Bouse, 53 Mo. 'o Sparrow v. Kingman, 1 ;J 219; "Williams v. Amory, 16 Y. 242. ' Mass. 186. '1 Gregory v. Tomlinson, 68 67 Hicks V. Skinner, 71 N. C. Vt 410, 35 Atl. Rep. 350. 539; Cameron v. Logan, 8 Iowa, 72 This is simply a statement 434. of the general rule that where 68 Gould V. Hendrickson, 96 the defendant asserts a fact 111. 599. upon which he tenders an af- 69 Hitchcock V. Harrington, 6 firmative issue, the burden is Johns. (N. Y.) 290; Davis v. upon him to establish such fact. Darrow, 12 Wend. (N. Y.) 65. 73 Noel v. Noel, 93 Va. 433. 254 THE PEOOFS. [§§ 244, 245. § 244. Inconsistent defenses. — While a defendant is now generally permitted to plead as many matters of fact in several pleas as he may deem necessary for his defense, the rule still is that he must preserve consistency. An issue must be presented and the proof offered in support of same must not be contra- dictory. Hence, a plea of not guilty and a disclaimer should not be joined, as the two are inconsistent,''* and, usually, where pleas of this kind are filed the defendant will not be permitted to give evidence of a disclaimer when by his plea of the general issue he has admitted a possession under claim of title. § 245. Affirmative defenses. — ^The defendant is not con- fined to merely negative testimony. He may also set up a sub- stantive claim of right in himself, in which event he in turn becomes a claimant and the title so asserted is to be proved in the same manner and is subject to the same conditions as though he was the plaintiff in the action. All of the remarks heretofore made with respect to the plaintiff's claim apply with equal force to the assertions of the defendant whenever he re- sorts to an afErmative defense, and he will never be permitted to defend his possession against the plaintiff upon a title in himself by which he could not recover the possession if he were out and the plaintiff in possession.'^ The general rule, that the burden of proof rests upon him who holds the affirmative, would seem to apply to a defendant as to the issues tendered by him in the allegations of new mat- ter in his plea or answer, upon which he holds the affirmative, although in some of the cases the idea has been very much ob- scured by subtle distinctions between the burden of proof and the weight of evidence. But, even where this rule applies with- out question, it is still incumbent on the plaintiff to establish a p-^ima facie case for recovery by his allegations and proofs, be- fore he can require defendant to su.stain the affirmative allega- tions of his answer.'^ A defendant may avail himself of any legal defense, and where such defense assumes an affirmative character he is tiot T4 McQueen v. Lampley, 74 (U. S.) 750; F. A. Hihn Co. v. Ala. 408. Fleckner, 106 Cal. 95. 75 Hickey v. Stewart, 3 How. "s Bryant v. Groves, 42 W. Va. 10. § 246.] BY THE DEFENDANT. 255 compelled to rely upon one title but may show as many as he has been able to acquire. Tlius, if he has purchased the same land from two different persons, he may, if sued in ejectment by a third person, rely on either or both of the titles he has pur- - chased.^'' In every event, however, he must show a paramount right, and if he relies upon an adverse claim he will be obhged to make such a case as shall effectually displace or overcome the title' proved by the plaintiff .''* § 246. Outstanding title in stranger. — As previously shown, a defendant in ejectment is always at liberty to show that the legal title, or present right of possession, is vested in a third person, and thus prevent a recovery.^" In such event it is immaterial that the defendant may fail to connect himself with such outstanding title. ^^ It is enough for him to show that some person other than the plaintiff has a better right to the land,^^ and if this shall be done it effectually bars the further maintenance of the action. But, where an outstanding title in a stranger is relied upon as a defense, it devolves upon the de- fendant to prove that such title is not only paramount to the one asserted by the plaintiff but that it is still subsisting and enforcible.^^ In other words, it must be of such a character that, if asserted by action, it would enable the stranger to re- cover the land in controversy from both the plaintiff, and the defendant,^' although some cases hold that it is sufficient if it is subsisting and valid as against the plaintiff at the time of trial, but need'not be so as against the defendant.^* It has further 77 Ford v. Harrison, 69 Ark. wart, 95 Pa. St. 72; Jenkins v. 205, 86 Am. St. 192, 62 S. "W. Railway Co., 109 Ga. 35. Rep. 59; Kalin v. Mining Co., 2 82 Clayton v. Feig, 179 111. Utah, 174. 540; Robinson v. Thornton, 102 78 Griffin v. Mulley, 167 Pa. St. Cal. 675 ; Bernstein v. Humes, 71 339. Ala. 260. T9 Boyer v. Thornburg, 115 111. 83 c. & E. I. R. R. Co. v. Clapp, 540; Bear Valley Coal Co. V. 201 111. 418; Parkersburg Indus- Dewart,, 95 Pa. St. 72; Price v. trial Co. v. Schultz, 43 W. Va. Cooper, 123 Ala. 392; Dyke v. 470; Putnam v. Tyler, 117 Pa. "White, 17 Colo. 296; Lee v. St. 570, 12 Atl. Rep. 43; Reusens Clary, 38 Mich. 223. v. Lawson, 91 Va. 226; Freeman so Cobb V. Lavalle, 89 111. 331; v. Cunningham, 57 Miss. 67. Trenouth v. Gordon, 63 Cal. 379; 84 Henderson v. Wanamaker, Guilmartin V. Wood, 76 Ala. 204. 79 Fed. Rep. 735; Humble v. 81 Bear Valley Coal Co. v. De- Spears, 8 Baxt. (Tenn.) 156; ' 256 THE PROOFS. [§ 24:6. been held, that a defense of an outstanding title, with which the defendant does not connect himself, is overcome b)^ proof that since the beginning of the action such title has ceased to exist. ^ A deed fraudulent on its face and therefore void, cannot be used to defeat a recovery in ejectment, by showing an outstand- ing title ; '" and, generally, anything that serves to impeach the outstanding title will prevent it from being used to support the defendant's possession. ^^ To the foregoing rule there seems to be an exception in the case of a trespasser, or one who enters without color or claim of title, and it has frequently been held that a mere intruder cannot enter upon a person actually seized and eject him, and then question the title of the latter or set up an outstanding title in another.*^ A further exception is made where the plaintiff sues as a purchaser at sheriff's sale to recover from the execution de- fendant. In such cases it has been held that the defendant will not be permitted to show an outstanding paramount title in a third person. The reason for this is, that the sheriff, in making a sale of all the defendant's right, title and interest in the land, acts merely as the defendant's agent ; that the defendant, in fact, makes the conveyance through the agency of the sheriff, and hence, the law will not permit him to say, in defense of his pos- session, that there is a better title in some other person than that which he has conveyed to the purchaser at the sheriff's sale.^" But if the defendant in execution abandons the land, and after- wards returns to it and is then sued in ejectment, a different rule will apply. In such case he may show an outstanding title, provided he further shows that he has taken possession and holds under it, and his grantee may avail himself of the same defense.^" Bennett v. Horr, 47 Mich. 221; ss ciiristy v. Scott, 14 How. McDonald v. Schneider, 27 Mo. (U. S.) 2S2; Sullivan v. Eddy, 405. 164 111. 396; Sparks v. Conrad, 85 Robinson v. Thornton, 102 99 Ga. 643; Foot v. Murphy, 72 Cal. 675, 31 Pac. Rep. 936. Cal. 104. ssForsythe v. Hardin, 62 111. 89 Crenshaw v. Julian, 26 S. 206. C. 2S3. 87 See Griffin v. Sheffield, 38 so Gould v. Hendrickson, 96 Miss. 359; Tatten v. James, 55 111. 599. Mo. 494; Wilson v. Broden, 48 W. Va. 196. §§ 2i7-250.] BY THE DEFENDANT. 257 § 247. Outstanding title by lease. — The rule is funda- mental that a plaintiff in ejectment cannot recover, notwith- standing he has title to the lands in controversy, when the legal right to the immediate possession thereof is vested in another. Under this rule a lessor of lands cannot recover the demised premises during the term, or while the lessee has the right of possession under the lease, even against one not claiming under such lease."^ As a defendant in ejectment may always show a right of possession in a third person, and thus defeat a recov- ery, so he may show an undetermined outstanding lease, al- though he does not connect himself with it, and this will con- stitute a substantial defense to the action."^ § 248. Outstanding mortgage. — In a few states the an- cient doctrine with respect to mortgages is still retained in a modified form and the effect of instruments of this kind, when they are brought in question in an action at law, is according to their legal import. But even where this doctrine prevails it has been shorn of much of its ancient- significance and its oper- ation confined to parties to the mortgage or their privies. Hence, an outstanding mortgage with which the defendant fails to connect himself, is no defense in an action of ejectment.^^ As to strangers the mortgagor is regarded as the owner of the property, and a mortgage made by the plaintiff in an action of ejectment does not show an outstanding title which will defeat the action."* § 249. Outstanding easement. — The doctrine of out- standing titles, as a defense to an action of ejectment, has no application to special privileges that may be exercised on the land by third persons. Hence, a mere easement in a third per- son is no bar to an action by the owner against a stranger. ''^ § 250. Adverse possession. — Where the common-law practice prevails, proof of title by adverse enjoyment and pos- session is generally permitted under the plea of the general is- siCobt V. Lavalle, 89 111. 331. siHall v. Lance, 25 111. 277; 92 Cobb v. Lavalle, 89 111. 331. Moreau v. Detchmendy, 41 Mo. 93 Emory t. Keighman, 88 111. 431; Cotton v. Carlisle, 85 Ala. 482; Dunton v. Keel, 95 Ala. 175; Dimon v. Dimon, 10 N. J. 159; Johnson v. Cornett, 29 Ind. L. 156. 59; Burr v. Spencer, 26 Conn. ss Talum v. St. Louis, 125 Mo. 159. 647; Lott v. Payne, 82 Miss. 218. 17 258 THE PEOOFS. [§ 251. sue,"" but in many of the code states a special plea of title is re- quired when the defendant relies upon an affirmative defense. But in such cases it would seem that it will only be necessary for him to allege that he is the owner in fee of the land in dis- pute and lawfully seized of the same, and that under such plea he may prove upon the trial that he has been in the open and notorious possession of the land for the requisite statutory period of limitation.^^ This proof, however, cannot be made by statements of the defendant that he has been in open, notor- ious and actual possession of the disputed land. Such evidence is simply the mere opinion of the witness on a material issue of fact, which issue it is the province of the jury to settle under instructions from the court. "^ In all cases the burden of establishing an adverse possession is cast upon the party who asserts it against the holder of the legal title,"^ and he will be required to prove all of the facts re- quisite thereto.^ He must satisfy the jury, by the weight of evidence, that he or those under whom he claims entered into possession at such time prior to the commencement of the action as will make the requisite period of adverse holding under the statute, and that such possession was uninterrupted^ continued from that time. He must further show the elements of notor- iety, hostility, and exclusiveness in his occupation, together with the limits, location and extent thereof. These are the general requirements in all states, but in some states the burden is rendered still more onerous by a statutory presumption that every occupation is in subordination to the legal title. Where this rule prevails the presumption can only be overcome by clear and convincing proof. ^ § 251. Claim by descent. — As before remarked the onus of proving his- claim of title rests upon the plaintiff and seHorae v. Carter, 20 Fla. 45; Brace, 38 Fla. 265, 20 So. Rep. Fulkerson v. Mitchell, 82 Mo. 13, 991. S7 Rogers v. Miller, 13 Wash. 1 Wilkins v. Pensacola, 36 Fla. 82. And see Stiff v. Cobb, 126 36, 18 So. Rep. 20; Griffin v. Ala. 381; Briscoe v. Holder, 111 Mulley, 167 Pa. St. 339. Ga. 877. 2 See Allls v. Field, 89 Wis. sswatrous v. Morrison, 33 327, 62 N. W. Rep. 85; Barrs v. Fla. 261. Brace, 38 Fla. 265, 20 So. Rep. OS McConnell v. Day, 61 Ark. 991. 464, 33 S. W. Rep, 731; Barrs v. § 252.] BY THE DEFENDANT. 259 when he asserts a right of ownership by virtue of a descent from a former proprietor he is required to satisfactorily estab- lish all of the various steps that lead to the right of property and possession, irrespective of any defense on the part of the defendant. Nor is it necessary that any affirmative defense be made, for the party disputing the descent may confine himself solely to a falsification of the plaintiff's testimony. He may show any infirmity in the plaintiff's pedigree, as that there is no connection with the ancestor's title ; that other and more nearly related heirs are living ; that the ancestor was never married ; that he died without issue ; that plaintiff is a false claimant, or any other matter or thing that puts in issue the right or title which the claimant asserts. He may attack the title asserted by showing a deed from the ancestor to a stranger, or a will which has been duly proved whereby the land is devised to others, or any other circumstance that may tend to invalidate the plaintiff's claim. On the other hand, he may assert a right of inheritance in himself and by showing that his ancestor died in p ^ssion of the land under a claim of ownership and color of title make a prima facie case in his own favor. The elements of descent and the proofs necessarv to establish them, are fully discussed in a subsequent chapter. § 252. Against breach of condition. — It is asserted that a breach or nonperformance of a condition annexed to a grant is not a reversion, though often treated as such. In other words, that it does not create an estate in the land, but simply a right of action, and, if enforced, the person entering is in by a forfeiture and not by reverter. It is unnecessary, however, to discuss this phase of the subject. For all of the practical purposes of the action of ejectment we may regard it as a re- verter and the grantor as occupying the position of a rever- sioner. It is generally conceded that a grantor, in conveying land, has a right to annex to his grant any condition he may desire that is not subversive of any rule of public policy, so long as it does not defeat the grant itself, and, in the case of a condition subsequent, to enter and repossess himself of such land in the event that the condition shall be broken. In the further event- that such entry shall be resisted he may secure possession by 260 THE PEOOFS. [§§ 253, 254. ejectment. It is contended, however, that the imposition of conditions, the breach of which will work a forfeiture, must be for some honest and beneficial purpose, and not to secure an un- just advantage to the grantor, and that where this latter is made to appear a forfeiture will be denied. Thus, a grantor has a right to insert in his deed a condition that the grantee shall not make or vend intoxicating liquors upon the premises. This condition has frequently been sustained and is within the public policy of most of the states.^ But, it seems, courts will not en- force such a condition when its purpose is to enable the grantor to obtain a monopoly of such business by restraining others from engaging in it, and this fact, if proved, would be a per- fect defense to an action brought to recover the land because of a breach of the condition.^ § 253. Ejectment for dower. — The right to bring eject- ment for the recovery of dower was once freely conceded and special provision was made by statute for suits of this character. At present, however, the right is recognized in only a few states and the tendency is to further limit it. It would seem that where this form of the action is permitted the defendant is at liberty to show in his defense that the husband was not seized during the marriage of an estate of inheritance, and thus defeat the claim. ^ There are some ancient cases which deny this, and which maintain that so long as the defendant holds under a title derived from the husband he is estopped from denying the hus- band's seizin when sued in ejectment for dower by the widow.® But this rule has been set aside in states where it had formerly prevailed ' and it is doubtful whether it possesses any efficacy at this time. § 254. Fraud and circumverition. — It is a cardinal prin- ciple of law that, as between the parties and those in privity with them, fraud vitiates all acts into which it enters. It is a 3 Smith v. Barrle. 56 Mich. Y. 242; Small v. Procter, 15 314; Sioux City, etc. R. R. Co. Mass. 495. V. Singer, 49 Minn. 301; Plumb « See Hitchcock v. Harrington, V. Tubhs, 41 N. Y. 442. 6 Johns. (N. Y.) 290; Hamblin * Chippewa Lumber Co. v. v. Bank, 19 Me. 66; English v. Tremper, 75 Mich. 36, 13 Am. St. Wright, Coxe (N. J.) 437. 420. 7 See Sparrow v. Kingman, 1 6 Sparrow v. Kingman, 1 N. N. Y. 242. § 254.] BT THE DEFENDANT. 261 further rule, that fraud is cognizable in a court of law as well as in equity. In fact, the jurisdiction of the two courts is al- most equal so far as respects their right to try and determine questions of fraud, notwithstanding their means of proving fraud are not equal and their mode of granting relief is widely different. The superior facilities of a court of equity to in- vestigate the question and grant relief, render it frequently ad- visable to resort to that court at once, but a party may still avail himself of such relief as a court of law may afford, and where it can be shown that the title of the claimant had its inception in fraud, it is generally competent for the defendant to avail him- self of the fact as ■ a defense to the action. This principle, which seems to have found a recognition at a comparatively early period, has always been consistently maintained and the books abound with cases where, in actions of ejectment, an ap- parently valid title is treated as a nullity because it was ob- tained by fraud.' Hence, if a party has been induced to exe- cute a deed by some fraudulent artifice, as where it was mis- read and its contents falsely stated, or where a different paper than the one he intended to sign has been surreptitiously im- ' posed upon him, this fact, if proved, would justify a court in pronouncing the fraudulent deed a nullity and of no effect as a conveyance, and in an action of ejectment brought upon such deed it would be competent for the defendant to show such fact.® So, too, where a subsequent purchaser has notice of a prior conveyance of the same land his deed may be avoided in action at law when an attempt is made to predicate rights upon it.^° Indeed, so general has this rule become that courts of law will even investigate questions of fraud where there has been no fraud in fact but merely in law, and objections of this character may be made available in actions of ejectment and without recourse to a court of equity.^'- 8 Rogers v. Brent, 5 Gilm. « Jamison v. Beaubien, 3 (111.) 573; Jackson v. Burgott, Scam. (111.) 113; Kirkpatric v. 10 Johns. (N. Y.) 457; Morris Clark, 132 111. 342. V. Gill, 1 Chip. (Vt.) 49; Bs- lo Jackson" v. Burgott, 10 cherick v. Traver, 65 111. 379; Johns. (N. Y.) 457. Eaton V. Eaton, 37 N. J. L. 108. uDen v. McKnight, 6 Halst. But see contra. Harriett v. Kin- (N. J.) 385. ney, 44 Mich. 457. 263 THE PEOOFS. [§ 255. There is, however, a distinction between equitable and legal fraud, and where this distinction continues to find recognition there are certain fraudulent practices that cannot be set up to defeat the title at law. Thus, misrepresentations, or false statements, would not be received where there is no question with respect to the execution of a deed, and, generally, all such forms of fraud as relate only to the consideration are cognizable only in equity.^^ Ic states where equitable defenses of every kind may be interposed, no question will arise, and the decisions, in such states, are numerous and harmonious in declaring that invalidity of title by reason of fraud may always be shown in ejectment.^^ Usually, in order that a defendant may avail himself of a defense of this character, it is necessary that he should be inno- cent of any fraudulent intent, but it is also a rule that parties in pari delicto are without a remedy against each other, and hence, notwithstanding the defendant may have been a participant in the fraud which he charges, it may still be successfully urged as a defense to the plaintiff's claim. As, where a deed is executed without consideration and for the purpose of defrauding credit- ors, if the grantor is suffered to remain in possession, the law will leave the parties as it finds them ; the defendant, although he participated in the wrongful act, may still plead and show the mutual fraud and the plaintiff will be denied a recovery.^* § 255. Equities — At common law. — It is a rule of gen- eral and unifgrm observance, wherever the common law pre- vails, that in ejectment neither equitable titles nor equitable de- fenses can avail either party as a basis of recovery or defense.^'' Equitable interests are enforceable only in an equitable pro- ceeding where they can be properly investigated, and, notwith- standing the legal title against which they are opposed may i2Esclierick v. Traver, 65 111. Mich. 547; Barrett v. Hlncklej', 379. 124 111. 32; Jackson v. Deyo, 3 1' See Cheney r. Crandell, 28 Johns. (N. T.) 422; Buell v. Colo. 383; Stebbins v. Kay, 123 Irwin, 24 Mich. 145; Kennedy v. N. Y. 31. Johnson, 69 N. C. 249; Phillpots "Klrkpatric v. Clark, 132 v. Blasdel, 8 Nev. 61; Morton v. 111. 342; Harrison v. Hatcher, 44 Grenn, 2 Neb. 441; Williams v. Ga. 638. Peters, 72 Md. 5S4; Johnson v. 16 McKay v. Williams, 67 Pontious, 118 Ind. 270. § 256.] BT THE DEFENDANT. 263 have been acquired through actual or constructive fraud, it must first be attacked and declared void by an action in chan- cery." At law the courts deal only with the legal title, and will not inquire as to who is the beneficial owner of the prop- erty. ^^ This rule, in the absence of specific statutory provisions to the contrary, is inflexible and unyielding and is to be strictly enforced whenever occasion shall arise for its application.^* Under some circumstances a court of law may investigate ques- tions of fraud, and, when proved, treat a deed as a nullity and hence of no effect as a conveyance of title, as where a party has been induced to execute a deed, supposing it to be another paper, or where a different paper has been surreptitiously ex- changed for the one he intended to execute, but, in general, it will not go behind the naked legal title and inquire where the equities are.^° § 256. Continued — Qualifications of the rule. — It must be understood, however, that the rule, as above stated, applies only where the legal title has been fully established and evi- dence of an equitable title is sought to be introduced to over- throw the same. If the plaintiff is without title, or claims un- der a title which is shown to be invalid,^" or asserts only a right of possession under color of title that would be effective only as against a mere intruder, a different rule will prevail, and it seems that in such event a defendant in possession may show in defense of the action an equity unconnected with and inde- pendent of the plaintiff's claim.^^ So, too, while courts of law take no cognizance of equitable estates and deal only with legal 18 Walker v. Kynett, 32 Iowa, v. Watson, 87 111. 535; Eaton v. 524; Rountree v. Little, 54 111. Smith, 19 Wis. 537; Trumbull 323. But see § 254. V. Simmons, 17 Ala. 411; Shaw "Mulsford V. Tunis, 35 N. J. v. Hill, S3 Mich. 322; Johnson L. 256; Edwards v. Miller, 4 v. Pontious, 118 Ind. 270. Heisk. (Tenn.) 314; Grubbs v. if Peece v. Allen, 5 Gilm. Boone, 201 111. 104. (111.) 236; Wakefield v. Van 18 See Leonard's Lessee v. Dia- Tassell, 202 111. 49 ; Shaw v. mond, 31 Me. 536; Beal v. Har- Hill, 83 Mich. 322; Morgan v. mon, 38 Mo. 435; Garther v. Blewett, 72 Miss. 903. Lawson, 31 Ark. 279 ; Nelson v. 20 McKay v. Williams, 67 Mich. Triplets, 81 Va. 236; Moody v. 547. Farr, 33 Miss. 192; Deitzler v. 21 Shaw v. Hill, 83 Mich. 322. Mishler, 37 Pa. St 82; Johnson 264: THE PEOOFS. [§ 257. titles, yet, as against a mere intruder, the plaintiff would be entitled to recover, even though without title, by a simple show- ing of prior possession,^- and without reference to the validity or sufficiency of the muniments of title which he might .pro- duce.^' With this qualification, however, the rule is beyond dispute, and as a corollary thereof it is further laid down that not only must the prevailing party possess the legal title but he must have had it at the commencement of the suit. A title acquired sub- sequent thereto is unavailing.^* Yet to this latter statement there is also an apparent exception where the subsequent title is but a consummation of a prior inchoate title. Under the doc- trine of relation it may then be admitted to repel the attack on the previous inchoate right,^^ but this is about the only instance in which it can be employed, and even this right has in some cases been denied.^" § 257. Continued — Under the statute. — The blending of legal forms of action and the abolition, or attempted abolition, of the distinction between law and equity, which now prevails in many states, has done much to unsettle the long received rules relative to the production of evidence in actions for the establishment of title and recovery of lands. While the codes have to a certain extent obliterated the distinctive forms of ac- tion, the principles which govern them remain much the same, and while law and equity are administered in the same tribunal, and frequently in the same action, the courts, as a rule, have carefully preserved the underlying principles which distinguish the two systems and apply them in much the same way that was customary prior to the union. The observations of the preceding section may be regarded as the settled law of the country, both in the common law and code states, except that in some of the latter a broad construc- tion of the code on the one hand or specific statutory enact- 22 Wilson V. Glenn, 68 Ala. sb Green v. Jordan, 83 Ala. 383; Shaw v. Hill, 83 Mich. 322. 220. 23 "Wilson V. Glenn, 68 Ala. 26 See Paul v. Fries, 18 Fla. 383. 573. 24 Goodman t. Winter, 64 Ala. 411. § 257.] BY THE DEFENDANT. 265 ments on the other, have broken the force of the old rule by permitting equitable defenses, and, in some cases, equitable claims. This innovation, for such it must be considered irre- spective of whatever merit may attach to it, originated in the western states and territories and undoubtedly grew out of the practice of the general government in dealing with the public lands. Possession was always given upon entry at the land office and the receiver's receipt was frequently the only muni- ment of title desired or used. The patent did not issue until a long interval of time had elapsed and in thousands of cases was never called for. Hence it was that the receipt for the pur- chase money came to possess the potency of a deed, and was allowed to vest in the purchaser such a title to and interest in the land as would enable him to maintain ejectment therefor against any intruder into his possession." The precedent thus established has led to legislation in many states which has materially changed the general doctrine as previously stated, and equitable defenses, in such states, are permitted to be interposed in contravention of the legal title. ^^ Where this rule obtains, — and it has received a general recogni- tion in a number of states that have adopted reformed codes of civil procedure, — a defendant in an action of ejectment may in- terpose an equitable defense, and the issues thus raised may be tried and determined directly in the same action, without having to resort to an independent suit in equity.^' It would further seem, that where an equity may be brought before the court, such relief may be granted as the equity may seem to require. Thus, a defendant, for the purpose of defeat- ing the plaintiff's recovery, may have the, plaintiff's deed cor- rected by excluding therefrom the land in question, where it appears that it was included in such deed by mistake ; ^^ or he 27 See Truelock v. Taylor, 26 29 St. Louis v. Lumber Co., Ark. 54; Stanway v. Rubio, 51 98 Mo. 613; Hyde v. Mangan, 88 Cal. 41; Prentiss v. Brewer, 17 Cal. 319; Spaur v. McBee, 19 Wis. 635; Crary v. Goodman, 12 Oreg. 76; Prentiss v. Brewer, 17 N. Y. 506; Nell v. Keese, 5 Tex. Wis. 635; Neil v. Keese, 5 Tex. 23. 23; Crary v. Goodman, 12 N. Y. 28 This would seem to be the 506; Williams v. Murphy, 21 rule in California, Texas, New Minn. 534; East v. Pedin, 108 York, Wisconsin, Missouri, Ore- Ind. 92 N. E. Rep. 722. gon, Arkansas, Indiana, so Hoppough v. Struble, 60 N. 266 THE PEOOFS. [§ 258. may have the deed set aside as a cloud upon title so far as it relates to such land.^^ This is certainly a wide departure from the old rules, but where a court is permitted to acquire jurisdic- tion for all purposes in an action of ejectment, and to make all orders respecting the title, there is, perhaps, no incongruity in permitting it to quiet defendant's title by a reformation of the deed upon which plaintiff bases his demand, which, unaided by extraneous proof, gives color to the plaintiff's claim. But while a defendant may interpose his own equities to de- feat a recovery, and, if the facts shown are such as in a court of chancery would work a denial of plaintiff's claim, may have a verdict in his own favor, yet this would appear to be the limit of his rights in this respect. He cannot show the equities of strangers. Thus, he cannot defend on the ground that a third party, with whom he is not in privity, is the equitable owner of the land.^^ § 258. Theory of equitable defenses. — It will be remem- bered that the action of ejectment, in its evolution from a mere action of trespass, was largely influenced by equitable princi- ples which the common law courts adopted, and that, in many of its phases, it partakes of an equitable character. But not- withstanding this, the rule that legal titles only would be con- sidered in determining the rights of the litigants long prevailed in all of its unbending rigidity, and whatever of depai'ture there may be from the strictness of the rule depends almost wholly on legislation. Under the -modern codes a defendant is now permitted to bring forward any defense which he may have to the plaintiff's action, whether it be legal or equitable or both. This follows from the abolition of the distinction between ac- tions at law and suits in equity and the merging of all iorensic contests into a single form of civil action. Where this has been done the question in an action is not whether the plaintiff has a legal right or an equitable right, or the defendant a legal or an equitable defense against the plaintiff's claim, but whether, ac- cording to the whole law applicable to the case the plaintiff makes out the right which he seeks to establish or the defend- Y. 430; Green Bay, etc. Canal siDe Forest v. Walters, 153 Co. V. Hewitt, 62 Wis. 316. N. Y. 229, 47 N. E. Rep. 294. 32 East V. Pedin, 108 Ind. 92. § 258.] BT THE DEFENDANT. 267 ant shows that the plaintiff ought riot to have the rehef sought for.^^ This would seem to be the interpretation of the law re- lating to procedure in those states where but one form of action exists, and, while the fundamental distinction of law and equity- may remain, the distinction between legal and equitable actions has been so far abolished as to permit a defendant, in an action to recover the possession of land founded on a legal title, to al- lege and prove that he is the equitable owner. § 258a. Equities in the federal courts. — In the courts of the United States the rule seems to be inflexible and without exception, that suits for the recovery of land can be maintained only upon a legal title ^^ to which is united a present right of possession ; ^^ and that incipient equities, even though sufficient to sustain the action under state statutes in the courts of the state in which the federal court is sitting, are insufficient to authorize a recovery.^" The principle that equitable interests can be enforced only in equity, where they can be properly in- vestigated with due regard to the rights of others, seems to be applied in unbending rigidity.^^ In the judicial system of the general government the distri- bution of law and equity powers is sharply defined, the distinc- tion between them is marked, and the administration of those powers conforms closely to the practice that prevailed generally prior to the adoption of the codes. The distinction between law and equity being preserved, it follows that a party who claims legal title must seek relief at law, or if an equitable one, tjien according to the rules which regulate proceedings in equity. It is true, that in legal proceedings the practice and 33 Crary v. Goodman, 12 N. Y. 423; Claggett v. Kilbourne, 1 266. Black. (U. S.) 346; Oaksmith 3* Morehouse v. Phelps, 21 v. Johnston, 92 U. S. 343. As How. (U. S.) 294; Swayze v. where a deed, by reason of an Burke, 12 Pet. (U. S.) 11; Smith imperfect description, is not ef- V. McCann, 24 How. (IT. S.) 398. fectual to convey the land, al- 35 Cincinnati v. White, 6 Pet. though it may be reformed in (U. S.) 431; Dickerson v. Col- equity, it will not sustain an grove, 100 tJ. S. 578; Kirk v. action of ejectment. Prentice Hamilton, 102 V. S. 68. v. Stearns, 113 TJ. S. 435. 36 Morehouse v. Phelps, 21 37 Carpenter v. Montgomery, How. (U. S.) 294; Sheirhum v. 13 Wall. (U. S.) 480. DeCordova, 24 How. (TJ. S.) 268 THE PEOOFS. [§§ 259, 260. forms of the state courts may be followed, and in many states there is no formal distinction between cases at law and in equity. But although the forms of practice in the state courts have been adopted in law cases, yet such adoption must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.'*^ Hence, it would seem, that whatever may be the laws of the state courts in this respect, they do not govern pro- ceedings in the courts of the United States.^' § 259. Character of equities set up. — Where a defendant is permitted to set up his equities against the plaintiff's demand, based upon a legal title, they should, as a rule, be of such a character as, under the old practice, would justify a court of equity in enjoining the legal owner from proceeding at law, upon a bill filed for that purpose.*" The facts alleged must not, . however, make such a defense as is available to the defendant in the common law action, and it seems that the court in such a case would be justified in refusing to allow such a plea to be filed, or in striking it out if filed.*^ § 260. Estoppels in pais. — In connection with the general subject discussed in the paragraphs immediately preceding and growing out of the conclusions therein reached, the question is suggested as to how far a defendant in ejectment may avail himself of an equitable estoppel to defeat the plaintiff's right of recovery upon a legal title. To this question, however, no posi- tive answer can be returned, and local policy, as a rule, must determine the rights of the parties in this respect whenever the question is raised. 3s Bennett v. Butterworth, 11 any case where a plain, adequate How. (U. S.) 669. and complete remedy may be 39 In the act of congress to had at law," at the same time "establish the judicial courts of affirming and separating the the United States" the distribu- two classes or sources of judi- tion of law and equity powers cial authority. See Fena v. is frequently referred to, and by Holme, 21 How. (U. S.) 481. the sixteenth section of that act, *o "Williams v. Murphy, 21 as if to place the distinction be- Minn. 534; Johnson v. Drew, 34 tween those powers beyond mis- Fla. 130. apprehension, it is provided *i Dickson v. Gamble, 16 Pla. "that suits in equity shall not 687; Johnston v. Allen, 22 Fla. be maintained in either of the 224. courts of the United States in § 260.] ET THE DEFENDANT. 269 In consonance with the old and long established rules of the action it has been held in many of the states that neither party may invoke estoppels in pais in order to defeat the legal title to permanent interests in land,*^ and that relief of this character must be sought for in equity.*^ This is practically but a re- statement of the common law doctrine with respect to equitable titles, and, where the common-law rule prevails, if there has been no fraud, an estoppel will not be permtited to interfere with the assertion of a legal title." Thus, a mistake of fact honestly made by the plaintiff as to the location of the bound- ary line of his lot, by which he was induced to assent to the placing 'of a wall thereon by the defendant, will not operate to estop the plaintiff from asserting hi^ title thereto in an action of ejectment.*' In many of the states an equitable estoppel is available by way of defense at law as well as in equity,*" and may be given in evidence in actions of ejectment under the plea of the gen- eral issue.*^ The same rule has been announced in some cases in the federal courts,*^ particularly when the matters relied on give a legal right to possession.*'' The principal objection to the admission of this kind of testimony is, that it contravenes the general rule that title to land cannot be extinguished or transferred by acts in pais or by oral declarations. It became a rule of property in courts of equity, however, at a very early period, that where a man remains silent when good faith re- quires him to speak, he cannot afterward be heard to say that that is not true which his conduct unmistakably declared was true, and upon the faith of which others have acted. The rule 42 Winslow v. Cooper, 104 111. is See Dickerson v. Commis- 235; Linnertz v. Dorway, 175 sioners, 6 Ind. 128; Shawhan v. 111. 508; Hayes v. Livingstone, Long, 26 Iowa, 488; Meeker v. 34 Midi. 384; Shaw v. Cham- Dalton, 75 Cal. 154; Hurd v. hers, 48 Mich. 355; Tolman v. Harvey County, 40 Kan. 92. Sparhawk, 5 Met. (Mass.) 469. it Hogan v. Ellis, 39 Fla. 463; 43 Grubhs v. Boone, 201 111. Tyler v. Hall, 106 Mo. 313. 98; Stone v. Perkins, 85 Fed. 48 Dickerson v. Colgrove, 10 Rep. 616. Otto (U. S.) 578; Kirk v. Hamil- 44 Tolman v. Sparhawk, 5 ton, 12 Otto (U. S.), 68. Met. (Mass.) 469. *9 Schoolfleld v. Rhodes, 82 45 Proctor v. Putnam Mach. Fed. Rep. 153. Co., 137 Mass. 159. And see Linnertz v. Dorway, 175 111. 508. 270 THE PEOOFS; [§ 261. has never been departed from, and it is now an established principle that a party who has induced another to believe a certain state of facts to be true, either by his silence, declara- tions or acts, is estopped from denying its truth, where such course was intended to influence, and did influence, the con- duct of the other.'"' Hence, where an owner of land fails to give notice of his title, under circumstances where the omis- sion operates as a fraud, as where he suffers another to pur- chase and expend money on land under an erroneous belief re- specting the title, he will not be permitted to exercise his legal right against such person.^^ In other words, his conscience will be bound by an equitable estoppel. But while this doctrine originated in a court of equity, where it is freely applied to all species of property, it has also long been employed in courts of law in matters pertaining to chat- tels. There is, however, no good reason, at this time and under the rules of modern practice, why its application should be re- stricted in courts of law. As has been well said, protection against fraud is equally necessary, whatever may be the interest at stake ; and there is nothing in the nature of realty to exclude those wise and salutary principles which are now adopted with- out scruple, in both jurisdictions, in the case of personalty.^^ Wherefore, we find a number of instances where a plea of equitable estoppel has been permitted to operate as a sufficient defense in an action of ejectment.^' § 261. Continued — Parol agreements respecting bound- aries. — It is now a universally recognized rule, that adjoin- ing proprietors may conclude themselves, with respect to coter- minous boundaries, by parol agreements establishing a line in accordance with which they afterward hold.^* This method of determining boundaries is frequently resorted to in cases of 50 Blair v. Wait, 69 N. Y. 116; 52 2 Smitli, L. Cas. 733. Abeel v. Van Gelder, 36 N. Y. «3 Kirk v. Hamilton, 12 Otto 514; Markham v. O'Connor, 52 (U. S.) 68; Jarvis v. Lynch, 157 Ga. 183; Gray v. Bartlett, 20 N. Y. 445. Pick. (Mass.) 186. 54 Henderson v. Dennis, 177 51 Wendell v. Van Rensseaer, 111. 547; Turner v. Baker, 64 1 Jolins. Ch. {N. Y.) 344; Evans Mo. 218; Thaxter v. Inglis, 121 V. Snyder, 64 Mo. 516; Mark- Cal. 593. ham V. O'Connor, 52 Ga. 183. § 262.] BY THE DEFENDANT. 271 doubt, where the true Hne is in dispute or unknown, and when an agreement of this kind is followed by possession, the line so hxed is generally held to be binding and conclusive on the im- mediate parties and all others who claim by, through, or under them.^^ But where the distinction between law and equity is preserved, this procedure is regarded only as a method of set- tling the extent of ownership, and not as passing the title to land.°^ Hence, where the legal title is in question the estoppel of the agreement has been held inoperative in an action of eject- ment and unavailable as a defense.^' Where this doctrine ob- tains, it would seem that a defendant who seeks to avail him- self of the' estoppel is required to apply to a court of equity for necessary relief. In such event he would be entitled to an in- junction restraining the further prosecution of the ejectment suit until the suit in equity could be heard and determined.^' On the other hand, where estoppels in pais are received in evi- dence in legal actions, they may be relied upon as a defense in ejectment, and, it has been held, may be shown under the gen- eral issue. § 262. Equitable mortgage. — It is a general and well es- tablished rule, that a conveyance of land in any form, intended merely as a security for a debt or the performance of an obliga- tion, will be taken and treated in equity only as a mortgage and will be subjected to the incidents of a mortgage. But at law the instrument must be given its declared effect,^" and, in those states where the distinction between law and equity has been preserved, in an action of ejectment by the grantee of a deed absolute on its face, against the grantor in possession, such deed cannot be impeached by a showing that it was intended by the parties as a mortgage security. In such event the deed must stand for what, on its face, it purports to be, and the remedy of the grantor, if any, is in equity. There he may show the true character of the instrument and obtain such relief against it as 55 Cutler v. Callison, 72 111. compare Kuglin v. Book, 181 113. 111. 165. 56 Grubbs v. Boone, 201 111. 98. ss Grubbs v. Boone, 201 111. B^Hayden v. McCloskey, 161 98; Duggan v. Uppendahl, 197 111. 351; Proctor v. Putnam 111. 179. Maob. Co., 137 Mass. 159. But 59 Bragg v. Massie's Adm'r, 38 Ala. 89. 272 THE PROOFS. [§ 263. the necessities of his case may demands Including an order en- joining the ejectment suit.°° In many states, however, the ancient rule above stated has been abrogated by statute or the operation of civil codes, and the equitable doctrine is made to apply in all cases.^^ In these states, a conveyance, absolute in form, but intended as a mort- gage, transfers no title to the grantee. In such event, as the grantee is without title, it follows that he cannot maintain eject- ment upon his deed and the facts which fix the character of the conveyance may be shown in the ejectment suit."^ § 263. Easements — Rights of way. — As a general rule a municipal corporation may always defend ejectment at the suit of the owner of the fee, by setting up possessory rights in a street or common acquired by virtue of a dedication to public uses, and the same rule, in some instances, has been held to ap- ply to gMa^f-public corporations. But in a case where the servi- tude is a mere private easement the rule is otherwise. Usually, the existence of an easement, as in the case of a right of way, will not justify an exclusive possession of the servient land, and the fact that the defendant is the owner of such easement is no defense to an action of ejectment by the owner of the fee. The right to a fee and the right to an easement in the same land are each independent of the other and may well subsist together at the same time when vested in different persons. In such case each owner may maintain an action to vindicate and establish his own right, the former to protect and enforce his seizin of the fee, the latter to prevent a disturbance of or interference with his easement, and a recovery in either case will not affect or impair the rights of the other."^ eoFlnlon v. Clark, 118 111. 32; 62 Snyder v. Parker, 16 Wash'. McGinnls T. Fernandes, 126 111. 276; Smith v. Smith, 80 Cal. 323. 228. 63 Morgan v. Moore, 5 Gray 61 Turner v. McDonald, 76 Cal. (Mass.) 319; Hoboken Land Co. 177; Bank v. Mathews, 45 Neb. v. Hoboken, 36 N. J. L. 540; 659; Perot v. Cooper, 17 Colo. Burnet v. Crane, 56 N. J. L. 285. 80. § 264.J CLAIMING FEOM COMMON SODECE. 273 III. Where Both Parties Claim from a Common Source. 264. General doctrines. 265. Extent of proof— Denial of claim. of 266. Defendant's assertion outstanding title. 267. Effect of former adjudi- cation. § 264. General doctrines. — It will often happen that both plaintiff and defendant base their respective claims upon the same root, and when this occurs the order and extent of proof is materially affected. It is a well established rule of the ac- tion that, where plaintiff and defendant both claim from a common source of title, it is sufficient for the plaintiff, in the first instance, to deduce his title therefrom without going further,** and the rule applies with the same force whether both parties claim by descent or by purchase.*^ In such event, in order to insure a recovery, it is only necessary for the plaint- iff to show that he has a better title from the common source ; "" no evidence of a prior investiture- of title in such common source is necessary,*'' nor is it competent, as a general proposi- tion, for either party to deny the validity of the original title through which they both claim."' Where it is shown that both parties derive title from the same person, the nature of such original common title becomes immaterial, so far as the rights s^Myrick v. Wells, 52 Miss. 149; Miller v. Hardin, 64 Mo. 545; Spect v. Gregg, 51 Cal. 198; Cronin v. Gore, 38 Mich. 381; Orton V. Noonan, 19 Wis. 350; Lake Erie, etc. R. R. Co. v. Whit- ham, 155 111. 514; Cox v. Hart, 145 XT. S. 376; Sellman v. Har- din, 58 Tex. 86. 65 Myrick v. Wells, 52 Miss. 149. 68 Union Bank v. Manard, 51 Mo. 548; McCready v. Lansdale, 58 Miss. 877; Smith v. Laatsch, 114 111. 271; Lasater v. Van Hook, 77 Tex. 650; Carson v. Dundas, 39 Neb. 503; Luen v. 18 Wilson, 85 Ky. 503; Drake v. Happ, 92 Mich. 580. 67 Butcher v. Rogers, 60 Mo. 138; Doe v. Dugan, 8 Ohio, 87 Bishop V. Truett, 85 Ala. 376 Glover v. Thomas, 75 Tex. 505 Frink v. Roe, 70 Cal. 296; Stal- ford V. Goldring, 197 111. 162. 68 Whissenhunt v. Jones, 78 N. C. 361; Ames v. Beckley, 48 Vt. 395; Merchants' Bank v. Harrison, 39 Mo. 433; Roose- velt V. Hungate, 110 III. 595; Lewis V. Watson, 98 Ala. 479; Scliwalback v. Railway Co., 69 ' Wis. 292; Christenbury v. King, 85 N. C. 229; Doyle v. Wade, 23 Pla. 90. 274: THE PROOFS. [§ 265. of the contending parties are concerned, nor is it necessary that such original title be established by documentary evidence ; it may be shown by parol. ^^ When this has been done the plaintiff will only be required to show a connected title from the common source down to himself, and if he shows the su- perior title, even though not altogether free from objections, he will be entitled to recover, unless a paramount outstanding title is shown in anotherJ" This latter observation brings up the only matter of practical difficulty in the general statement above made and a consideration of the questions which it involves is reserved for further discussion later on. The rule of estoppel above discussed, where both parties claim through a common source of title, is not an arbitrary fiction of law.'''- It is founded in sound legal reason and follows as a logical deduction. Thus, if two parties claim title from A, it must be conceded by them that A had title, otherwise they would not claim under him. This being so, it is unnecessary to consume time in proving what both admit to be true. All that is left is to determine who has A's title, either directly or through mesne conveyances. '^^ It ^^•ill be seen, therefore, that in cases of this kind, the comparative strength of the titles as- serted by the parties is the ultimate test by which the question of recovery is to be determined.'^ § 265. Extent of proof — Denial of claim. — In the earlier stages of practice in this class of cases, the plaintiff, in order to relieve himself from the burden or danger, as the case might be, of deducing title from its original source, was bound to show not only his own claim of title back to the common source, but that of the defendant also, and if, upon this showing, the plaint- iff appeared to have the better title he was permitted to recover, but not otherwise.''^ To remove the difficulties of such a course, as well as to simplify the action, the statute, in some ssSmitli v. Lindsey, 89 Mo. rell, 109 IT. S. 60S; Gaines v. 76; Pinch v. Ullman, 105 Mo. New Orleans, 6 Wall. (U. S.) 255. 642. ^o Smith v. Laatsch, 114 111. 73 Wallace v. Jones, 93 Ga. 271. 419; Wade v. Thompson, 52 "Alexander v. Gibbon, 118 Miss. 367. N. C. 796, 54 Am. St. 757. 74 See Holbrook v. Brenner, 31 72 Alexander v. Gibbon, 118 111. 501. N. C. 796; Robertson v. Pick- § 266.] CLAIMING FEOM COMMON SOUECE. '275 States, permits the plaintiff to allege, under oath, that he claims title through a common source with the defendant, and, in such event, it will be sufficient for him to show his own title from such common sovirce, unless the defendant shall deny, on oath, that he also claims therefrom, or will swear that he claims through some other source. The effect of such a statute is, not to cut off the plaintiff's common-law right to show the two chains of title devolving from the common source, but merely to relieve him from the burden of proving defendant's claim as well as his own. If the defendant denies by counter affida- vit that he claims from the alleged common source, the burden still remains, just as it did before, of proving both claims.^" Where the defendant denies that he claims from the same source as the plaintiff, the latter may show that he does so claim, by introducing in evidence the various deeds connecting him with such alleged common source; and it is no objection . to the exercise of this right that the evidence offered proves the defendant's title to be worthless. '° If the defendant does not deny that he claims under the source named, the plaintiff is not required to prove that fact.'^ ' Where the defendant denies a derivation of title from the same source as the plaintiff the ef- fect of such denial is to throw upon the plaintiff the burden of proving both chains of title back to the common source, and of showing that he possesses the better right to the land.'^ § 266. Defendant's assertion of outstanding title. — When the plaintiff has proved that he and the defendant claim title - to the land in controversy from a common source, and that of the two titles emanating from that source his is the superior, he shows a prima facie right to recover.'" But, notwithstanding the proof of the insufficiency of his title under the common source, the defendant may still defeat the action by showing that there is a title superior to that of the person or persons un- der whom both parties claim, and that he is the holder of this title.^" It has been intimated that, even without showing that 75 Smith V. Laatsch, 114 111. 78 Bradley v. Lightcap, 201 271; Bradley V. Lightcap, 201 111. 513. 111. 513. '3 Bradley v. Lightcap, 201 7s Bradley v, . Lightcap, 201 111. 111. 513; McWhorter v. Hetzel, 513. 124 Ind. 129. -T Smith V. Laatsch, 114 111. so Rice v. Railroad Co., 87 Tex. :271. 90; Christenbury v. King, 85 N. 270 THE PEOOFS. [§ 266. he holds such superior title, his defense should prevail if he shall affirmatively prove that some one had the title anterior to that of the common source, and that such previous title never vested in such common source. ^^ The weight of authority, however, would seem to indicate that where the plaintiff has proved that both parties claim from the same root, and that his is the superior title emanating therefrom, the defendant, in or- der to defeat a recovery, must not only show that there is an outstanding paramotmt title, but must connect himself with that title.*- In case of his failure so to do the outstanding title becomes an immaterial circumstance.*^ The principle upon which the decisions which uphold the foregoing doctrine seem to proceed is that of estoppel. It is said that evidence that the defendant claims title under the com- mon grantor is prima facie proof that such grantor had the title at the time he undertook to convey the right which the defend- ant claims ; this necessarily involves the assumption that he had acquired the title of all previous owners.*^ Each party, it is held, is estopped to deny this fact, unless he has acquired the paramount title from a third person not bound by the estoppel. *° This theory, while it has been severely criticised, does not seem to have been successfully assailed and is usually of controlling efficacy in all controversies in which it is invoked. In some of the states it is fixed by statute. But as a defendant may avail himself of any legal defense, and has an undoubted right to purchase as many outstanding claims of title as he may see fit, it follows that where he has bought the same land from two different persons he may, if C. 229; Cooke v. Avery, 147 XJ. McCready v. Lansdale, 58 Miss. S. 375; Ford v. Harrison, 69 877; Sell v. McAnaw, 138 Mo. Ark. 205, 86 Am. St. 192, 62 S. 267. W. Rep. 59 ; Wade v. Thompson, 33 Horning v. Sweet, 27 Minn. 52 Miss. 367; Sell v. McAnaw, 277; Butcher v. Rogers, 60 Mo. 138 Mo. 267. 140; Boiling v. Teel, 76 Va. 493; 81 See Rice v. Railway Co., 87 Spect v. Gregg, 51 Gal. 200; Tex. 90. Burns v. Goff, 79 Tex. 236. 82 Cooke V. Avery, 147 XT. S. 84 Rice v. Railway Co., 87 Tex. 375; Cox v. Hart, 145 TJ. S. 376; 90. Caldwell v. Neely, 81 N. C. 114; sb Caldwell v. Neely, 81 N. C. Ames V. Beckley, 48 Vt. 395; 114. Smith v. Lindsey, 89 Mo. 76; Lewis V. Watson, 98 Ala. 476; §§ 267, 268.] DISPUTED BOUNDAKIES. 271 sued in ejectment by a third person, rely on either or both of the titles he has purchased. The fact that he may have pur- chased a title emanating from the common source does not preclude him from setting up a titl6 acquired from another source, and if such independent title shall be superior he will have a perfect defense. ^^ § 267. Effect of former adjudications. — Analogous to the matters discussed in the preceding paragraphs is the nature and extent of the proof required where both parties, even though claiming from different sources, have yet submitted their disputes to a competent tribunal by which they have been adjusted and settled. This is well illustrated in the case of ten- ants in common who submit their respective claims, and the rights which they involve, to the judgment of a court in an ac- tion of partition. Where, in such a case, the rights of all of the parties in the land have been presented, passed upon and determined, it necessarily follows that the determination of the issues so made up is final and conclusive upon all parties to the action, and hence, in an action of ejectment thereafter brought by one of the parties in the former action against the other, the judgment or decree entered in the partition suit would be com- petent and conclusive evidence of title," and the trial of the ejectment suit would proceed upon practically the same lines as though the parties both rested their claim on a common source. IV. Disputed Boundaries. 268. General observations. 269. Tlie original survey. 270. Monuments and land- marks. 271. Parol evidence. § 272. Oral agreements. 273. Common repute. 724. Hearsay — Declarations of persons deceased. § 268. General observations. — No small amount of the litigation of land titles grows out of the disputes of co-term- inous proprietors with respect to boundaries, and the location 86 Ford v. Harrison, 69 Ark. 205; Wade v. Thompson, 52 Miss. 367; Burns v. GofE, 79 Tex. 236. ST Hancock v. Lopez, 53 Cal. 362. 88 Wright v. McCormick, 77 N. C. 158. 278 THE PBOOFS. [§ 269. and position of boundary lines is frequently the only point in- volved in the case. Where the original monuments are still in the field they control, and it will seldom happen, in such cases, that a resort to litigation becomes necessary when no other questions are presented. But where the monuments have be- come lost or obliterated difficult problems often arise, and it is under these circumstances that most of the actions for pos- session are brought. In some instances the suit grows out of mutual mistakes in the running of lines and placing of land marks. In others an encroachment by one of the parties is the gist of the action. The questions involved in ejectment suits arising out of disputed boundaries are many and often perplexing and in this connection no more will be attempted than to show, in a general way, the character and extent of the proof that is required to establish rights thus aiifected. Pos- session under a claim of right and its effect in the trial of dis- puted titles is reserved for more ample discttssion in that part of the work which treats of adverse possession and limitation.^" In a contest concerning the true boundary line between ad- jacent owners, and, generally, when in a dispute concerning boundaries there exists any doubt with respect to monuments, courses or lines, these are all issues of fact to be determined by the jury from all of the evidence."" § 269. The original survey. — In all of the states and ter- ritories carved out of the public domain disputes as to the boundary of land are governed by the government survey, in the absence of any statute to the contrary. In such cases the field notes and plats of the original surveyor are the primary and controlling evidence of boundary, and the lines of sections and their divisions must be referred to and settled by the orig- inal survey."^ In establishing an original line of survey, ac- cording to the field notes thereof, attention is first given to the calls for natural or artificial monuments, and, if these are not found, then to courses and distances, with the variation of the needle from the true meridian as indicated, and, in all cases, as See § 440 et seq., post. Conn. 511; Menasha v. Lawson, 90 Taylor v. Fomby, 116 Ala, 70 Wis. 600. 621; Fitzgerald v. Brennan, 57 »i Taylor v. Fomby, 116 Ala. §§ 270, 271.J DISPUTED BOUNDAEIES. 279 the lines as actually run by the original survey will govern if the monuments and corners then established can be proved."^ An original map to which reference is made in a deed is al- ways admissible for the purpose of establishing the boundary line of the premises conveyed,''^ and it has been held that maps may be introduced in evidence upon the question of the location of boundaries, in connection with the testimony of the wit- nesses who made them from their own notes of survey and as explanatory of their testimony, although such maps are not au- thenticated in the manner required by law with reference to the platting of lands or la3ang out additions to towns, ^* § 270. Monuments and landmarks. — It is a settled rule in construing a description of land that monuments, whether natural or artificial, will control courses and distances.^^ Hence, if different parts of a description of boundaries conflict, re- course should be had to known and visible monuments, if any such there are, and they will be preferred to courses, distances, or other measurements."' In all cases of disagreement as to lines and distances, m.onuments set by the original survey and named or referred to in the plat, are the highest and best evi- dence that can be adduced. If there are no calls of this kind, or if the monuments have disappeared, then stakes set by the survej'or to indicate corners or the lines of streets, are the next best evidence. Fences, or other structures, erected ac- cording to such stakes, and while they were still in place, will become monuments after the stakes have been removed, and will constitute the next best evidence of the true line."'' § 271. Parol evidence. — The general rule is that a survey, when the lines in fact were actually run upon the ground, may 92Watrous y. Morrison, 33 560; Richardson v. Cliiclsering, Fla. 261; Majors v. Rice, 57 Mo. 41 N. H. 381. 384; Bauer v. Gottmanliausen, ss Adair v. Wliite, 85 Cal. 314; 65 111. 499; Hess v. Meyer, 73 Redmond v. Stepp, 100 N. C. 212; Mich. 259. Bloom v. Ferguson, 128 Pa. St. 93 Olsen v. Rogers, 120 Cal. 362; Scott v. Pettigrew, 72 Tex. 225. 321; Crampton v. Prince, 83 Ala. 84 Justen v. Schaaf, 175 111. 45. 246. 95 Taylor v. Fomby, 116 Ala. s' Racine v. Emerson, 85 Wis. 621; King v. Brigham, 19 Oreg. 80; Johnson v. Archibald, 78 Tex. 96. 280 THE PEOOFS. [§ 272. always be shown by proper evidence,"^ and for the purpose of . ascertaining the boundaries of a grant a map of the survey, properly authenticated, is admissible.^^ Where the boundary is in dispute the testimony of the surveyor who estabHshed it may be received to show the location of monuments or stakes .set by himself/ and he may state his own knowledge of its true position derived from his survey of the land.^ Witnesses, who were present and saw corners located by the original sur- vey may testify to such fact,^ and their testimony, if uncon- tradicted, will prevail over a new survey made years after- ward.^ As a general proposition, parol evidence is admissible to show the boundaries by which a lot was purchased, when the deed does not in any way give a specific description thereof,' and where monuments are lost or destroyed those who saw and re- cognized them while in place may testify to such facts and the evidence should go to the jury as an aid in solving the question of primary location.^ The declarations of deceased disinterested persons who were in a position to know the actual facts have also been held com- petent evidence to establish a boundary,^ while the declarations of a prior owner, made while in possession, are always admis- sible against a party claiming under him.^ § 272. Oral agreements. — While the title to land cannot be transferred by mere oral agreement, yet, if the boundary between contiguous lands is uncertain and in dispute, and the respective owners agree upon a fixed and certain line as a boundary, then, if the agreement is followed by actual occu- pation, and particularly where improvements are made on the faith of the agreement, the line so fixed will be binding on the 88 Johnson v. Archibald, 78 * Racine v. Emerson, 85 Wis. Tex. 96. 80. 99 Payne v. English, 79 Ca). s Diggs v. Kurtz, 132 Mo. 250. 540; Racine v. Emerspn, 85 Wis. eArneson v. Spawn, 2 S. Dalt. 80. 269; Baker v. McArthur, 5-1 1 Racine v. Emerson, 85 Wis. Mich. 139; Coy v. Miller, 31 Neb. 80; Ameson v. Spawn, 2 S. Dak. 348. 269. 1 Tucker v. Smith, 68 Tex. 473. 2 Wineman v. Grummond, 90 » Austin v. Andrews, 71 Cal. Mich. 280. 98; Potter v. Waite, 55 Conn. 8 Mills V. Penny, 74 Iowa, 172. 236. § 273.] DISPUTED BO0NDAEIES. 281 parties and their successors in title." In such event it is im- material that the line so agreed upon may, in fact, change the line called for in the deeds,^° for parties have a right to end a dispute by a verbal agreement, and when this has been done in good faith and a line is definitely fixed as the true line, they will thereafter be estopped from asserting anything to the con- trary.^^ Nor is such an agreement obnoxious to the statute of frauds, nor to the rule forbidding the introduction of parol evi- dence to contradict a deed,^^ and the same may be given in evidence under the general issue.^^ This point is not altogether clear, however, and local decisions, depending on the legal policy of the state of the forum, may at times militate against it.i* § 273. Common repute. — It must sometimes happen that the only available evidence as to boundaries and lost monu- ments is the common repute of a neighborhood. There appears to be considerable difference between the English and Ameri- can doctrines with respect to the admission' of evidence of com- mon repute on the question of boundaries. In England, it would seem, the rule which admits such evidence confines it to cases of boundaries that are matters of ptiblic or common interest, such as the boundaries of counties, parishes or man- ors, but the American decisions, in many instances, go far beyond this and extend the scope of the rule so as to permit it to apply to cases of purely private boundaries, where no one has any interest in the question other than adjoining owners. The original rule rests on necessity, better evidence of the boundary having ceased to exist, and is justified on the theory that where many persons, members of a community, are in- terested in a common boundary, they will know where it is, and their common assent will prove what they know.^^ As 9 Watrous v. Morrison, 33 Fla. 12 Leoompte v. ToudO'Uze. 82 261; Cutler v. Callison, 72 111. Tex. 208. 113; Turner v. Baker, 64 Mo. 13 Diggs v. Kurtz, 132 Mo. 250. 218; Clark v. Hulsey, 54 Ga. "See Grubbs v. Boone, 201 608; Thaxter v. Inglis,. 121 Cal. 111. 98. 593. iBTlioen v. Roche, 57 Minn. 10 Diggs V. Kurtz, 132 Mo. 250. 135; Taylor v. Fomby, 116 Ala. 11 Cutler V. Callison, 72 111. 621. 113. Compare Pickett v. Nelson, 79 Wis. 9. 283 THE PROOFS. [§ 274. coming fully within the reason of the rule it has been held, that evidence of common repute as to a boundary established under the United States system of surveys is competent to establish the facts where the monuments originally set have disap- peared/" and the same principle has been applied to the streets and blocks of cities/'' as well as to suburban lands. ^^ 'Wliile the rights of parties with respect to boundaries will not be concluded by evidence of this character, nor by traditionary evidence generally, yet in the effort to establish ancient and ob- literated landmarks it must often happen that such evidence must be resorted to.^^ § 274. Hearsay — Declarations of persons deceased. — While the law, under a choice of difficulties, permits the intro- duction of evidence of common reputation to establish boun- daries which are in dispute, this has not affected the general in- tegrity of the rule which excludes hearsay, and when evi- dence of this kind is offered, it must, as a rule, be rejected. But the rule excluding hearsay has long been subject to several exceptions, and when the evidence, although hearsay, can be brought within the exceptions it may yet be competent. Thus, declarations made by a deceased person, concerning facts pre- sumably within his knowledge, if revelant to the matter of in- quiry, are admissible in evidence in suits between third parties, when it satisfactorily appears that the declarant is dead ; that the declaration was against his pecuniary or proprietary in- terest ; was of a fact in relation to a matter of which he was personally cognizant, and that he had no probable motive to falsify the fact declared.^" Where these facts appear the dec- larations are admissible, irrespective of the question as to 16 Thoen v. Roche, 57 Minn. Iowa, 172; Arneson v. Spawn, 135; Mills V. Penny, 74 Iowa, 2 S. Dak. 269. 172 ; Arneson v. Spawn, 2 S. is Baker v. McArtliur, 54 Dak. 269. And see Racine v. Mich. 139; Coy v. Miller, 31 Emerson, 85 "Wis. 80. Neb. 348; Tucker v. Smith, 58 IT Ralston V. Miller, 3 Rand Tex. 473. (Va.) 44; Racine v. Emerson, 20 Halvorsen v. Lumber Co., 85 Wis. 80. 87 Minn. 18, 91 N. W. Ren. 28, isBeaubien v. Kellogg, 69 94 Am. St. 669; Field v. Boyn- Mich. S33; Mills v. Penny, 74 ton, 33 Ga. 239; Mahaska County V. Ingalls, 16 Iowa, 81. § 274.] DISPUTED BOUNDARIES. 283 whether any privity existed between the declarant and the par- ties to tjie suit.^^ In controversies concerning boundries the exception lias fur- ther been extended to include declarations not strictly against interest, provided it is shown that the declarant was in a pos- ition to possess information on the subject and had no appar- ent interest to misrepresent.^^ This was always the rule at common law in cases involving questions of general or public interest, but proof of this kind was received in matters con- cerning private lines only when the boundary in question was a public or quasi public one, with which the private right was coincident. In the United States, however, the constant ten- dency has been to disregard the ancient distinctions respecting public and private bormdaries and to place -all questions of this kind upon the same basis. It is said, that this tendency is the result of the necessity of resorting to evidence of this char- acter by reason of the constant destruction of landmarks in this country, and that in many cases it would be impossible to es- tablish old boundaries without a resort to hearsay. ^^ At all events, evidence of this kind is now freely received and while some of the cases contend that the declarant must, at the time of making the declaration, have been the owner or in posses- sion of the land in question,^'' the better and more widely ob- served rule would seem to be, that such interest is not necessary and that the mere fact of knowledge as to boundaries, with no apparent inducement to misrepresent, is sufhcient.^^ It is generally held that the declarations of surveyors,^" or even of chainmen," where such declarations were made upon 2iFriberg v. Donovan, 23 111. 37 Me. 59; Long v. Coltsn, 116 App. 62; Bartlett v. Patton, 33 Mass. 414; Curtis v. Aaronson, W. Va. 72; Baker v. Taylor; .54 49 N. J. L. 68, 7 Atl. Rep. 886. Minn. 73; Morton v. Folger, 15 =5 Smitli v. Headrick, 93 N. C. Cal. 275. 210; Tucker v. Smith, 68 Tex. 22 Stroud v. Springfield, 28 473; Cornwall v. Culver, 16 Cal. Tex. 650; Morton v. Folger, 15 424; Melvin v. Marshall, 22 N. Cal. 275; Lawrence v. Tennant, H. 379. 64 N. H. 532; Halsted v. Mullen, 26 Bender v. Pitzer, 27 Pa. St. 93 N. C. 252. 333; Morton v. Folger, 15 Cal. 23 Stroud v. Springfield, 28 275 ; Adams v. Blodgett, 47 N. Tex. 650; Adams v. Stanyan, 24 H. 219. N. H. 405. '27 Fry v. Stowers, 92 Va. 13. 24 See Chapman v. Twitchell, 284 THE PEOOFS. :§g 275, 276. the land and at the time of running lines, may be received to establish a boundary. V. Landlord vs. Tenant. 275. Introductory. 276. Landlord's title, proved. 277. Forfeiture of lease. how § 278. Re-entry for non-pay- ment of rent. 279. Tenants' defenses. § 275. Introductory. — The action of ejectment, though now confined largely to the trial of disputed titles, was formerly a common remedy for landlords, on the determination of ten- ancies, to recover the possession of their lands from refractory tenants, and while the more speedy and summary action of un- lawful detainer has generally superseded ejectment in matters of this kind, yet there are many cases in which the latter is still the appropriate remedy. In the paragraphs following it is proposed to briefly discuss the nature and extent of proof re- quired where a landlord sues to regain possession and the de- fenses that may be interposed. The question of title is not usually raised in actions of this kind, but where the tenant re- pudiates the relation and claims under a right superior to that of his landlord, it may become the controlling factor of the case. In this latter event the general rules heretofore stated will apply with the same force as between other litigants. This section, however, assumes to treat only of the questions raised by the relation of landlord and tenant and of the means whereby the landlord's" right of entry may be rendered ef- fective. The general characteristics of the several phases of the relation, the nature of the tenancies that may be had in land, and ways in which tenancies are determined, are treated in the chapter relating to parties to the action, and to this the reader is referred. § 276. Landlord's title, how proved. — As a general pro- position, for the purpose of proving the landlord's title in an action between him and his tenant, a lease from the former to the latter is com.petent and generally sufficient evidence."' It 28 Williams v. Wait, 2 S. Dak. 210, 39 Am. St. 768; Silver v. Summer, 61 Mo. 253; Pope v. Harkins, 16 Ala. 321; Ahvood § 277.] LANDLOED VS. TENANT. 285 has been held, in some instances, that the relation is not proved by the mere production of the lease, btit that the entry of the tenant thereunder, or a holding by him referable to it, must also be shown. ^^ As this may easily be accomplished in the majority of cases it has become a general practice to introduce proof of this kind and because such proof serves to strengthen the plaintiff's contention the practice is eminently proper. It does not seem, however, that such latter proof is at all neces- sary, nor do the cases which have announced the doctrine seem to be sustained either by reason or authority, and the cases are numerous in which the defendant, although not acquiring pos- session from the plaintiff or through the lease, has yet been held bound thereby and estopped from denying the lessor's title. ^'' If the defendant is in fact in possession, and this is shown, it does not seem, in order to claim the benefit of the estoppel, that it is necessary to show an entry and occupation under the lease other than by the recitals of the lease itself. Where the lease is in writing, it is sufficient to produce same, and generally to show an entry thereunder, yet it is im- material whether the lease was in writing or by parol, and, if the latter, a proof of entry under the landlord is sufficient. Any competent evidence which establishes the relation of land- lord and tenant will preclude the tenant from denying the landlord's title,'^ or from showing title either in himself or in a third person,^^ while the rule which thus estops the tenant applies as well to all who claim by, through or under him.'^ § 277. Forfeiture of lease. — As forfeiture of a leasehold interest in land, for breach of a covenant or condition, is neither implied nor favored in law, it follows that when a for- feiture is claimed it must be shown by affirmative proof .^* A clause of forfeiture in a lease, is not, as a rule, self-executing, V. Mansfield, 33 111. 452; Ricli- Ga. 224; Sage v. Halverson, 72 ardson v. Harvey, 37 Ga. 224. Minn. 294. 29 Caldwell v. Center, 30 Cal. 32 Williams v. "Wait, 2 S. Dak. 539. 210. 30 See Prevot v. Lawrence, 51 as Rose v. Davis, 11 Cal. 133 ; N. Y. 219; Thayer v. United Blackney v. Fergnsen, 20 Ark. Brethren, 20 Pa. St. 60. 547; McCravey v. Remson, 19 31 Carson v. Broady, 56 Neb. Ala. 430. 648; Richardson v. Harvey, 37 s* Williams v. Vanderbilt, 145 111. 283. 2S6 THE PEOOES. [§ 378. but requires the performance of some act by the person to be benefitted therebj^ and this, as a further rule, must be shown whenever an advantage of "this kind is sought.^° The general rule also is, that a forfeiture must be enforced promptly,^" or the right will be deemed to have been waived,'^ and slight cir- cumstances have . in many cases been treated as waivers. ^^ Where the conduct of the landlord has been such as to induce a belief that a forfeiture is not intended, and the tenant has acted on such belief, an estoppel may arise that will preclude a forfeiture afterward.^' § 278. Re-entry for nonpayment of rent. — The power generally reserved in leases, allowing the landlord to re-enter upon the premises in case the rent shall remain in arrears for a certain time after it has become due, is a common proviso upon which ejectments for forfeiture for breach of covenant are founded. Formerly, however, this required a very tech- nical procedure to' render the power effective and a correspond- ing degree of strictness was necessarily involved in the proof. It would seem that when provisions for re-entry were first introduced the law abounded in many subtleties and the pre- liminaries required, before a landlord could bring an ejectment for non-payment of rent, were so numerous that it was next to impossible for any person, not versed in the practice of the courts, to take advantage of a proviso of this nature. A de- mand of the rent was invariably required as a condition pre- cedent to the action. This demand could only be made by the landlord in person or by his agent thereunto duly authorized ; it was required to be of the exact sum due, and a penny in ex- cess vitiated the demand ; it was further required to be made upon the very day when the rent became due and payable and at some convenient time before sunset. It was a further re- 35 Miller v. Havens, 51 Mich. Va. 385; Garnhart v. Finney, 40 482; "Wills v. Gas Co., 130 Pa. St. Mo. 449. 222; Read v. Tuttle, 35 Conn. ss Catlin v. Wright, 13 Neb. 25; Walker v. Engler, 30 Mo. 558; Bowman v. Foot, 29 Conn. 331; Moses v. Loomis, 156 111. 130. 36 Walker v. Engler, 30 Mo. 392. 130. 39 Moses V. Loomis, 156 111. 3T Bowman v. Foot, 29 Conn. 392; Johnson v. Douglass, 73 231; Thomas v. Hukill, 34 W. Mo. 168. § 279.] LANDLOKD VS. TENANT. 287 quisite that the demand be made upon the land and at the most prominent place, and a demand in fact had to be made, not- withstanding there was no person on the land to pay it.*" Nor were these the only v&xatious difficulties to which a landlord was subject at common law, for the courts, notwithstanding his compliance with all the required formalities, would set the for- feiture aside upon payment of the debt and costs at any time before an execution had been served. This was substantially the law introduced into the American colonies and which, in some or all of its phases, prevailed for many years in all of the older portions of the United States. For many years the matter of forfeiture for non-payment of rent has been regulated by statute in all of the states and the common-law rules have little application at the present time. Neglect to pay the stipulated rent is a breach of one of the con- ditions of the lease and a forfeiture is effected as in other cases of this kind by a notice to quit. The proof is made in the same manner as other forfeitures, as described in the preceding para- graph. § 279. Tenant's defenses. — It is fundamental that a ten-_ ant cannot dispute the title under which he entered, and where from any reason involving the terrnination of the tenant's es- tate, the landlord seeks to recover possession of the demised premises by an action of ejectment, no other or further proof of title is required than the simple fact of the making and ac- cepting of a lease." This, as a general proposition, raises an estoppel which precludes the tenant from any assertion derog- atory of the title of the lessor.*^ It would seem, however, that if the lessee was in possession at the time the lease was executed, he may, under certain cir- cumstances, be permitted to prove that the land is his own, and thus resist the proceedings for eviction. As a reason for this 40 See Adaros, Eject. 149. 42 Springs v. Schenok, 99 N. C. 41 Burke v. Hale, 9 Ark. 328; 551, 6 Am. St. 552; Young v. Hawes v. Shaw, 100 Mass. 287; Smith, 28 IWo. 65; Casey v. Han- Morrison v. Bassett, 26 Minn, rick, 69 Tex. 44; Robinson v. 235; Hogsett v. Ellis, 17 Mich. Holt, 90 Ala. 115: Heisen v. 351. And see cases cited under Heisen, 145 111. 658; Voss v. section 276. King, 33 W. Va. 236. 288 THE PEOOFS. [§ 279. it is said if the landlord fails he is not in a worse condition than he was before the lease. But, in-order to give the tenant this right, it is necessar}!- for him to prove that he accepted the lease in mistake, or that he was induced to -accept it through some fraud or misrepresentation.*^ This doctrine has been distinctly announced in Pennsylvania, where actions of ejectment are re- garded as of an equitable character, and a tenant is there per- mitted to avoid the legal effect of a lease by proof of such facts as would entitle him to relief in equity from any other obligation created by deed. In states where equitable defenses are permitted in legal actions the doctrine would seem to be followed, and in those states it would probably be competent for a defendant to show that the lease was made under such cir- cumstances as would justify its annuhnent in equity.** Where such a course is permitted its effect would be to can- cel the relation of landlord and tenant and free the defendant from its obligations. In this event he would, of course, be al- lowed to offer evidence tending to impeach the plaintiff's title. But this seems to be the full limit, of the doctrine. It is im- material that the tenant did not enter under the lease, or that his title is superior to that of the landlord. If he deliberately recognizes the title of the landlord by accepting a lease he thereby becomes a tenant, and as such is estopped from dis- puting such title in this form of action.*^ 43 Thayer v. United Brethren, 210, 39 Am. St. 758. 20 Pa. St. 60. 45 Williams v. "Wait, 2 S. Dak. 44 "Williams v. "Wait, 2 S. Dak. 210, 39 Am. St. 768. CHAPTER IX. TITLE BY DEED. I. Er-EMENTS AND DbEAISNMENT. II. Deeds of Officials and Fiduciaeies. III. Deeds of Persons Incompetent and Disqualified. IV. Deeds Upon Condiiton. V. Defeasibu] Conveyances. I. Elements and Deraignment. 280. Generally considered. § 295 281. Requisites of deeds. 282. Form and contents. 296 283. Unstamped deeds. 284. Proof of deeds. 285. Continued — Ancient deeds. 297 286. Continued — Grantor's 298 possession. 299. 287. Continued — Technical defects — Acknowl- 300 edgment. 301 28S. Disabilities of coverture. 289. Deeds of corporations. 302 290. Construction of deeds. 291. Identification of par- ties — Presumptions as 303 to grantees. 304 292. Description of the prem- ises. 305 293. Identification of land after conveyance. 306 294. Limitation of the estate. Repugnant clauses and recitals. Continued — Granting clauses and Uaheni- dum. Signing hy one not de- scribed as grantor. Forged deeds. Fraudulent conveyance. Land held In adverse possession. Claimant under deed of bargain and sale. Claimant under quit- claim deed. Deeds to take effect at grantor's death. Deed by donee of a power. Lost deeds. Continued — > Presump- tion of lost deed. § 280. Generally considered. — The most common method of establishing title to land, in all cases of controversy, is by the production of written instruments evidencing a transfer of pro- prietary rights, called, for short, deeds. This was one of the methods of acquiring an estate by purchase according to the 19 290 TITLE BY DEED. [§ 281. common law, and was technically known as alienation. The term, "alienation" seems at first to have been applied only to cases of voluntary transfer, but, in time, as the rights of cred- itors and lienors were extended and seizures of lands were permitted as well as of personal property, it took on a new meaning and now includes all methods whereby the estate of one person is conveyed to another by an act of present transfer, whether the transfer be voluntary or involuntary. The substance, and frequently the form, of deeds of convey- ance, are now prescribed by statute in most of the states, but where no specifications are made the rules of the common law with respect to the alienation of estates are generally of con- trolling efficacy. It is not proposed, nor is it necessary, to en- ter into a minute and circumstantial discussion of deeds, neither will the limits of this work admit of a detailed state- ment of the rules of convej^ancing. In this chapter no more will be attempted than a general survey of the manner of prov- ing title by deed in contests for the possession of land, and the nature, characteristics and operation of instruments of con- veyance will receive only incidental allusion. § 281. Requisites of deeds. — To enable a deed to be in- troduced in evidence it must conform to statutory requirements respecting form, substance and method of execution. With respect to form, literal compliance is not essential, even where the statute prescribes a set phraseology, and a very informal in- strument will be given effect where the intent is clear and the execution is in conformity to law. As a rule it must be signed — subscribed — by the grantor,-" and, unless otherwise provided by statute, must be sealed.*' These are the two essential facts of execution, which is completed by a delivery of the deed to the grantee. The method of signing is immaterial, so long as the name affixed is intended by the grantor to be his signature. That is, the signature may be appended by the grantor or by some other person acting for him,*^ and he may write his name 46 Goodman v. Randall, 44 Underwood v. Campbell, 14 N. Conn. 325; Jones t. Gurlie, 61 H. 393. Miss. 423. 48 Frost v. Deering, 21 Me. 4T Alexander v. Polk, 39 Miss. 156; Conlan v. Grace, 36 Min:i, 737; Floyd v. Ricks, 14 Ark. 286; 276; Lewis v. Watson, 98 Ala. § 281.J ELEMENTS AND DEKAIGNMENT. 291 or only affix a mark.*' The seal has degenerated into a mere scrawl and is regarded only an an arbitrary form. But, unless its use is dispensed with by statute, it is essential, and in all states where the distinction between sealed and unsealed instru- ments is preserved, sealing is still the criterion of a specialty. It is the seal which imparts special character to an instrument, and makes it in fact a deed.'^" Without a seal, where this for- mality is still required, the deed lacks legal sanction and the rights it may confer are cognizable only in equity. Hence, as the plaintiff in ejectment must recover upon a legal title it fol- lows that the equitable title given by a deed without a seal is insufficient.^^ Delivery is, if anything, more essential and important in legal theory than either signing or sealing,^^ but in practice it presents fewer difficulties.^^ It requires no particular act or set phrase of speech and may be presumed, in proper cases, from very slight circumstances.'* In fact, the mere posses- sion of a deed duly executed and acknowledged is prima facie evidence of its delivery,^' and imposes the burden of disproving delivery on the one denying it.^° In such event the presump- tion of delivery can be overcome only by clear and convincing evidence,^'' and, in the absence of anything appearing to the ■contrary, it will further be presumed that the deed was de- 479; Goodell v. Bates, 14 R. I. es Acknowledgment of a deed fi5. is a circumstance tending to 49 Truman v. Love, 14 Ohio show delivery, but it is not con- st. 144; Sellers v. Sellers, 98 N. elusive evidence of that fact. C. 13. Furguson v. Bond, 39 W. Va. 50 Alexander v. Polk, 39 Miss. 561. 737; Taylor v. Morton, 5 Dana 54 Hines v. Keighblinger, 14 (Ky.), 365; United Copper, etc. 111. 469; Connard v. Calgan, 55 ■Co. V. Franks, 85 Me. 321; Bar- Iowa, 538; Newlin v. Beard, 6 rett V. Hinckley, 124 111. 32. W. Va. 110; Kern v. Howell, 180 siGibhs V. McGuire, 70 Miss. Pa. St. 315; Brown v. State, 646. 5 Colo. 496. 53 Williams v. Baker, 71 Pa. 55 Devereux v. McMahon, 108 St. 476; Howland v. Blake, 97 N. C. 134; Snodgrass v. Knight, XT. S. 624; Brown v. Brown, 66 43 W. Va. 294; Wright v. Me. 316; Rogers v. Eich, 146 Wright, 77 Fed. Rep. 795. Ind. 235; O'Connor v. O'Connor, 56 Ward v. Ward, 43 W. Va. 1. 100 Iowa, 476, 69 N. W. Rep. 676. 57 Rohr v. Alexander, 57 Kan. 381, 46 Pac. Rep. 699. 2f2 TITLE BY DEED. [§ 382. livered on the day of its date.^^ Circumstances, however, may rebut the presumption of delivery even though the deed is in the grantee's possession."" Where deeds are offered in evidence they will generally be received on proper proof of the foregoing essential facts, *"• but, while the proof may establish the fact that the instrument of- fered is the deed of the person whose act it purports to be, this will be the full extent of its evidentiary value. The oper- ation and effect of the instrument, as well as the quantity and nature of the interest granted, must appear and be determined from the terms therein employed, and its character as a con- veyance, as a rule, can be shown in no other manner. ^^ But a deed, standing by itself, is generally insufficient to prove title. Other essential facts must also appear, and not- withstanding that a deed may be regular in form and sufficient in substance, yet unless it is also shown that the grantor had been in possession of the land, or had at the "time of conveyance a valid subsisting right of property therein, the deed does not even tend to prove any title in the grantee."^ § 282. Form and contents. — While the art of conveyan- cing was formerly one of great technical nicet)^, and while con- siderable technical skill is still required in limiting certain kinds of estates, yet, under the inffuence of later decisions and the destructive tendency of modern legislation, the form of in- struments of conveyance is now of comparatively little moment. The authorities are all agreed that technical words are seldom required to effect a conveyance of land and that any words B9 Faulkner v. Adams, 126 his own, and claimed no title Ind. 459. thereto, although the deed is in 60 Thus, a finding that a deed the grantee's possession. Foley from a decedent to his son was v. McNamara, 93 Iowa, 707, 62 never delivered is sustained by N. W. Rep. 26. evidence that the grantee im- ei Samuels- v. Borrowscale, 104 mediately after his father's Mass. 207; Keichline v. Keich- death claimed no title to the line, 54 Pa. St. 75. land, and said that his mother 62 Lehndorf v. Cope, 122 111. could rent it to get money for 317. her support, and sell it if she 63 Lake v. Hancock, 38 Fla. 58. wanted to, and that he stood by And see Florida, etc. R. Co. v. while his father was making his Loring, 51 Fed. Rep. 932; Craw- will, knowing that he was at- ford v. Corey, 99 Mich. 415. tempting to devise such land as § 283.] ELEMENTS AND DERAIGNMENT. 893 indicating an intention to transfer the interest or estate of the grantor will be sufficient for that purpose. Where this inten- tion expressly appears, any apt word of conveyance will suffice and the deed is not required to be in any particular or exact form."* So, too, with respect to the limitation of estates. While es- tates are determined, as a rule, from the effect to be given to certain words, which are always inserted by careful and com- petent conveyancers, yet at the present time every grant of land will pass all the estate or interest of the grantor unless a different interest shall appear by express terms or necessary implication. "' The requisites of the description of the parcel will be dis- cussed in detail farther on. It is sufficient in this connection to say that a claimant in ejectment has the burden of proof to show that the land claimed is embraced by or included in the description of the deed under which the claim is made."^ § 283. -Unstamped deeds. — At several times during our aational life Congress has enacted laws requiring the afnx- ment of revenue stamps to deeds of conveyance and providing penalties for a neglect of this duty. One of the penalties was that an unstamped instrument should not be received in evi- dence. But these laws, which were essentially revenue meas- ures, have never been g'iven practical effect by the states so ^ far as they attempted to make a rule of evidence, and it has re- peatedly been held that a deed or other instrument which has no revenue stamp upon it, or not the proper amount of stamps as required by law, is nevertheless admissible in evidence in the state courts.*' The prohibitory provision can apply, if at all, only to courts of the United States, for Congress has no power 64 Evenson v. Webster, 3 S. statutory rule. Consult local Dak. 382; "Watters v. Bredin, 70 statutes. Pa. St. 235; Cross v. Weare seDuff v. Moore, 6S Tex. 270; Com. Co., 153 111. 499. For an Hill v. Weir, 33 Fed. Rep. 100. extreme construction of a deed, e' Insurance Cos. v. Estes, 106 see Harlowe v. Hudgins, 84 Tex. Tenn. 47,2; Kennedy v. Round- 107. tree, 59 S. C. 324; Small v. Slo- es Hawkins v. Chapman, 36 cumb, 112 Ga. 279; Carpenter v. Md, S3; Lehndorf v. Cope, 122 Snelling, 97 Mass. 452; Trow- Ill. 317. This is the general bridge v.' Addoms, 23 Colo. 518. 294 TITLE BY de?:d. [§ 284. to prescribe rules of evidence for tlie state courts or to regulate' the manner in whicli testimony shall be received by such courts."^ § 284. Proof of deeds. — Where the claimant rests his right of recovery upon a deed of the premises in question it will generally be sufficient to produce the deed, and where such deed shows a due compliance with statutory requirements no other or further proof of the instrument will, as a rule, be necessary to establish a prima facie title. If the deed appears to have been executed by all of the grantors, and further pur- ports to have been acknowledged as provided by statute, then the officers certificate of such fact of acknowledgment, if sub- stantially in form, dispenses with formal proof of signing and sealing,'^' while the mere possession of the instrument, in the absence of opposing circumstances, is sufficient evidence of de- livery.'"' The delivery of a deed will always be presumed from slight circumstances where the intention to convey is manifest from the instrument itself,^^ and, in the absence of opposing evidence, it will further be presumed to have been delivered at the time it was executed.'^ In the absence of a certificate of acknowledgment formal proof of execution must generally be furnished. For this purpose the subscribing witnesses should be produced,^' if liv- ing, and even though a witness may have no independent recol- lection of the transaction, yet, if he recognizes his signature and pronounces it genuine, and entertains no doubt that he witnessed the execution, this, if uncontradicted, will usually be 68 Latham v. Smith, 45 111. 31; 71 Crabtree v. Crabtree, 159 111. Davis V. Richardson, 45 Miss. 342, 42 N. B. Rep. 787; Dela- 499. But see contra, Chartier, plain v. Grubb, 44 "W. Va. 612; etc. Co. V. McNamara, 72 Pa. St. Harman v. Oberdorfer, 33 Gratt. 278. ' (Va.) 497. 69 Samuels v. Borrowscale, t2 Wheeler v. Single, 62 Wis. 104 Mass. 207; Clark v. Troy, 20 380; Conley v. Finn, 171 Mass. Cal. 220. 70; People v. Snyder, 41 N. Y. fo Roberts v. Swearingen, 8 397. Neb. 363; Chandler v. Temple, * t3 Melcher v. Flanders, 40 N. Cush. (Mass.) 285; Brown v. H. 139; Brigham v. Palmer, 3 State, 5 Colo. 496; Wallace v. Allen (Mass.), 450. Berdell, 97 N. T. 13; Kern v. Howell, 180 P^. St. 315. § 285.] ELEMENTS AND DEEAIGNMENT. 295 sufEcientJ* If the subscribing witnesses are dead, or for other good cause cannot be produced, the execution of the in- strument may be proved by the testimony of one who saw it executed,^^ or by other competent evidence,'"' and, generally, if there is any evidence, however slight, tending to prove a formal execution the deed should be permitted to go to the jury.'^ § 285. Continued — Ancient deeds. — Where the instru- ment comes within the definition of an ancient deed, that is, when it is more than thirty years old, the rule requiring for- mal proof is dispensed with, where the instrument itself is free from suspicion and is shown to have come from proper cus- tody.'^ In such event the deed is said to prove itself,'* and it will not be necessary to call the subscribing witnesses even though they be living. It has further been held, that where a deed would be received in evidence as an ancient deed without proof of its execution, the power under which it purports to have been executed will be presumed.^" But this has been denied in other cases which hold, that notwithstanding a deed is over thirty years old, yet if it purports to have been ex- ecuted by one acting in an official capacity, it cannot be ad- mitted as an ancient deed in the absence of proof of the author- ity oi the officer to make it.^^ In making proof of ancient deeds it must be shown that the instrument comes from such custody as to raise a reasonable T4 Bank v. Mitchell, 15 Conn, mitting such deed in evidence, 206. where it does not appear that 75 Roane v. Baker, 120 111. 309. the contract was fraudulent or 7« Poote v. Cobb, 18 Ala. 585; unlawful, although supplement- Dudley V. Sumner, 4 Mass. 444; ary evidence of genuineness may Dunbar v. Harden, 13 N. H. 311; be required. Tempi eton v. Luck- Munger v. Baldridge, 41 Kan. ett, 75 Fed. Rep. 254. 236. 79 Whitman v. Henneberry, 73 77 This is the rule laid down 111. 109; Gardner v. Grannis, 57 by Greenleaf and the elder writ- Ga. 539; Geer v. Mining Co., 134 ers generally, but in some states Mo. 85; Parker v. Chancellor, 73 attestation has by statute been Tex. 495. given a meaning wholly- un- so Johnson v. Shaw, 41 Tex. known to the common law. Con- 428; Hughes v. McDivitt, 102 suit local statutes. Mo. 77. 78 The possession and control si So held in the case of a deed of an ancient deed by the party by one professing to act as an ad- claiming the land is a proper ministrator. Pell v. Young, 63 custody for the purpose of ad- 111. 106. Compare Hughes v. McDivitt, 102 Mo. 77. 290 TITLE BT DEED. [§ 286. presumption of its genuineness, and such further circumstances must be shown as will establish the fact that the deed has been in existence the length of time indicated by its date.^^ It has been held that indorsements or memoranda upon the deed may be considered as circumstances indicating that it is genuine, when they are of such a character as to satisfy a cautious and discriminating mind that they would not be there if the paper was a forgery, and if it can be shown that it has been on record for more than thirty years this is a strong circumstance in its favor.*^ Evidence of acts of possession also afford strong support to a deed of this character and go far to establish the genuineness of the instrument,^* though it would seem that it is not necessary that possession under the deed should be proved.^^ Where a proper foundation has been laid for the introduc- tion of an ancient deed, and the deed itself, on its face, purports to be more than thirty years old, the burden of proving that it is not an ancient deed is on the one so asserting.^" In order that a copy from the record of an ancient deed may take the place of the original, when the latter is lost or des- troyed, the registration must be shown to be ancient, just as the deed must appear to be ancient when it is itself offered in evi- dence.^'^ § 386. Continued — Grantor's possessioii. — ^Where title is claimed through a grant, all that is necessary to establish prima facie title is to produce and prove the deed together with proof of title in the grantor and of his previous possession of the land.^' But where the claimant relies upon the deed of his immediate grantor and the possession of the latter, he must 82 Whitman v. Henneberry, 73 697; Amons v. Dwyer, 78 Tex. 111. 109; Swicard v. Hooks, 85 639. Ga. 580; Williams v. Conger, 125 S5 Woods v. Bonner, 89 Tenn. U. S. 397; Geer v. Missouri Lum- 411. ber, etc. Co., 134 Mo. 85; Woods se wisdom v. Reeves, 110 Ala. V. Montevallo, etc. Co., 84 Ala. 418, 18 So. Rep. 13. 560. 87 Brown v. Simpson, 67 Tex. 83 Whitman v. Henneberry, 73 225, 2 S. W. Rep. 644. ni. 109; Geer v. Missouri Lum- ss stowell v. Spencer, 190 111. ber, etc. Co., 134 Mo. 85. 454; Harrell v. Bank, 183 111. 84 Bell v. McCawley, 29 Ga. 541; Crawford v. Corey, 99 Mich. 355; Crane v. Marshall, 16 Me. 415. 27; Nixon v. Porter, 34 Miss. § 287.] ELEMENTS AND DEEAIGNMENT. 29*^ show that such possession was at or near the time of the ex- ecution of the deed ; it will not be sufficient to show such pos- session at some remote period.'^ It is contended that the same principle applies to ancient deeds, for, notwithstanding formal proof of execution may be dispensed with, it is yet necessary to connect the rights claimed under it with the facts of possession and claim of title. Hence, it has been held that ancient deeds cannot be shown as evi- dence against an adverse claimant in possession under a record title, to establish a right of entry on the part of the plaintiff, where no possession is shown to have been had prior to its execution, and no subsequent possession, under the same chain of title, after its execution.'"' The volume of authority, how- ever, does not seem to favor this view and the more generally received rule is, that ancient deeds are admissible without first requiring the party offering them to show acts of possession over the lands embraced in them.°^ § 287. Continued — Technical defects — Acknowledgment. Objection may be interposed to the reception in evidence of a deed palpably defective in some matter of formal execution, as where it appears, upon inspection, to be insufficiently signed or sealed. So, also, if it is defectively acknowledged, as where the essential facts necessary to authentication do not appear from the officer's certificate, an objection will properly lie. While it is the policy of the law to uphold conveyances of lands and not to suffer them to be defeated by technical or un- substantial objections,^^ yet the proof offered must conform to the requirements of law,"' and as nothing is presumed in favor of an official certificate, it follows that to be effective is m.ust state all of the facts necessary to a valid official act.^* Courts have no authority to presume that substantial requirements of 8» Florida S. R. Co. v. Burt, 36 :>2 Soharfenburg v. Bishop, 35 Pla. 497. And see Crawford v. Iowa, 60; Wells v. Atkinson, 24 Corey, 99 Mich. 415. Minn. 161; Barnet v. Praskauer, 80 Davidson v. Morrison, 86 62 Ala. 486. Ky. 397, 5 S. W. Rep. 871. ss Meskimen v. Day, 35 Kan. "Holmes v. Coryell, 58 Tex. 46; Little v. Dodge, 32 Ark. 453:" 680; Woods v. Bonner, 89 Tenn. Clark v. Wilson, 127 111. 449. 411. 94 Hartshorn v. Dawson, 79 111. lOS. 298 TITLE BY DEEr-, [§ 288. the statute have been complied with any further than the cer- tificate affirmatively shows, and if there appears to be a material omission, construction cannot aid it.^^ The party acknowl- edging must in all cases be sufficiently identified,'"' and the fact of acknowledgment must be explicitly stated." If the grantor is a married woman and the statute has prescribed special formalities, these formalities become matters of substance and a certificate defective in this respect is void.'' The acknowledgment must not only be made before some person authorized to take proof of deeds, but this fact must also be in some way apparent from the certificate,^' or from some other paper annexed thereto.^ If the instrument was acknowl- edged without the state, a certificate of magistracy is gen- erally required by statute to accompany the certificate, except where the officer is a regularly appointed commissioner of deeds, in which event no proof of authority beyond the or- dinary method of authentication is necessary.- It must be remembered, however, that a certificate of ac- knowledgment is no part of the deed and that a defective ac- knowledgment does not invalidate it. Hence, a deed is still ad- missible in evidence on proper proof of execution, even though defectively acknowledged or certified.^ § 288. Disabilities of coverture. — At the present time few questions can be raised with respect to the deeds of married women as the disabilities of the marriage relation have been generally removed in all of the states. But where the deed is ancient, it may give rise to serious c[uestions concerning its val- idity and unless re-inforced by possession and limitation it may be inoperative for want of statutory requirements. At com- mon law a married worhan was utterly powerless to convey MTully v. Davis, 30 111. 103; 111. 273; Landers v. Bolton, 26 Hiss V. McCabe, 45 Md. 77; Bern- Cal. 408. hardt v. Brown, 122 N. C. 587. 00 Russ v. Wingate, 30 Miss. 96 Fryer v. Rockefeller, 63 N. 440; Colby v. McOmber, 71 Y. 268; Smith v. Garden, 28 Wis. Iowa, 469. 685; Gove V. Gather, 23 111. 634. 1 De Segond v. Culver, 10 07 Bryan v. Ramirez, 8 Cal. Ohio, 188. 461; Short v. Conlee, 28 111. 219; 2 Smith v. Van Gilder, 26 Ark. Cab«ll V. Grubbs, 48 Mo. 353. 527. 98 Silliman v. Cummins, IS 3 Rullman v. Barr, 54 Kan. 643. Ohio, 116; Mason v. Brock, 12 § 288.] ELEMENTS AND DBEAIGNMENT. 299 her land by deed or other instrument and could accomplish this object only by levying a fine or suffering a common recovery. In this country at an early period provision was made whereby a married woman might convey her lands by joining with her husband in a deed therefor properly acknowledged and cer- tified, but her acknowledgment was the operative act to pass title and not delivery of the deed, and unless there was a substantial compliance with the statute the deed was void. Sub- sequently the rigors of this rule became relaxed and a wife might, by joining with her husband in the execution of a deed, bind and conclude herself the same as though she were un- married. Under these laws the acknowledgment ceased to be the effective means to work the transfer of title and the cer- tificate thereof was placed on the same footing as that required for an unmarried woman. Finally, all disabilities arising out of coverture were abolished and a married woman was given the same contractual freedom as though she were sole, and at present she may convey her lands to the same extent and in the same manner as the husband may sell and convey property be- longing to him. No joinder is necessary, other than for the purpose of waiving homestead or dower rights and for all practical purposes of transfer a married woman is not dis- tinguished from one who is unmarried. It will be seen, therefore, that the date of execution may be an important factor in determining the validity of a married woman's deed ; that during certain periods it will be valid only when the husband has joined, and the certificate of acknowl- edgrnent shows a special method of authentication ; that during certain other periods while the husband must still be joined the acknowledgment may be made as in other cases of transfer ; that during still other periods a married woman's deed is not distinguished from that of her husband, requiring no joinder and no special method of acknowledgment. These various periods will be fixed by local statutory law, and hence no gen- eral rules can be framed concerning them. About all that can be said with certainty is, that under existing legislation in most states, both the common law and early statutory disabil- ities of coverture are completely abrogated; that the common law rights of the husband in the wife's property are abolished, and that as respects her separate property the husband and 300 TITLE BY DEED. [§ 2S9. wife stand before the law as strangers.* In the few states where the old rules have been retained they are generally ap- plied strictly and a non-compliance with statutory requirements will render a deed invalid.^ As a general rule, an objection based upon personal status, to be available as a defense, should be pleaded, and where a dis- ability arising out of coverture is relied on, if the action is ex contractu, this rule will undoubtedly apply." But in ejectment there is scarcely any defense that may not be urged under the general issue and if the rule is permitted to have any applica- tion in that action it should not be extended further than to re- quire a defendant to make his objection upon the trial. § 289. Deeds of corpKDrations. — While the old rule, as stated by Blackstone, and other elementary writers, that a cor- poration can act only under its corporate seal, has long been aljrogated so far as ordinary contracts are concerned, yet with respect to deeds the rule still holds good. And in making proof of a deed of a corporation it is generally essential to show that the seal affixed is, in fact, the common seal of the corporation and that it was affixed by proper authority.'' The attestation of the officer having custody of the seal,^ particu- larly where he acknowledges the act, would probably be suf- ficient if not contradicted. It should further be remembered, that where a deed pur- ports to be the act of a corporation the acknowledgment must also be a corporate act. In such event the deed must be ac- knowledged by the officers of the corporation as and for the corporation as well as for themselves, and a corporate deed is not proved by the mere acknowledgment by individuals, not- withstanding they may have been officers." Indeed, a deed by a corporation, with individual acknowledgment, has frequently been rejected by reason of the invalidity of the certificate of * Tomlinson v. Matthews, 98 Hockman v. McClanahan, 87 Va. 111. 178. 33. s As where the statute requires e Work v. Cowhick, 81 111. 317. a privy examination and this is ^ Osborne v. Tunis, 25 N. J. L. not done. McCaskill v. McKin- 633. non, 121 N. C. 214. And see a Galloway v. Hamilton, G8 Belcher v. Weaver, 46 Tex. 293; Wis. 651. Bayne v. Wiggins, 139 U. S. 210; 9 Bernhardt v. Brown, 122 N. C. 587. § 290.] ELEMENTS AND DERAIGNMENT. 301 acknowledgment.^" Local statutory policy may to some extent modify the doctrine last stated but a review of the methods employed in a majority of the states shows that the prevailing practice is as above indicated and that mere individual ac- knowledgments are not sufficient, even where the officer de- scribes himself and the capacity in which he acts. With respect to execution a corporate deed should be signed with the name of the corporation, the individual names of of- ficers being added to show the act of procuration. It has been held, however, in a number of instances, that a deed purport- ing to bind a corporation, but signed only by the president or other executive officer, and not in the name of the corporation, , may yet be regarded as the corporate act if the seal of the cor- poration is attached, and that in such case it will be presumed that the deed was executed by sufficient authority and that the seal annexed is the seal of the corporation.^^ In the case of private corporations it will not be necessary, as a rule, to show the authority of the officers to execute the deed, as the law presumes a precedent authorization in pursu- ance of which the deed was executed.^^ Where, however, the deed is the act of a public corporation, as a city or other municipality, the authority for its execution must generally be put in evidence. ^^ Uusally, in actions on simple contracts, the existence and legality of a corporation are not required to be shown, unless these facts are put in issue by denials, but in ejectment where a party seeks to establish title by deraigning same through a corporation, the legal existence of such corporation becomes a material fact and must be shown in evidence where the oppos- ing party claims title from another source.^* § 290. Construction of deeds. — It will often happen in the trial of actions of ejectment, that the questions at issue can 10 See Clark v. Hodge, 116 N. Gorder v. Pattsmoutli Co., 36 C. 761. Neb. 548; Anderson v. South, "See Sawyer v. Cox, 63 111. etc. Co., 173 111. 213. 130; Phillips v. CofCee, 17 111. 13 ward v. Lumber Co., 70 154. Wis. 445. 12 National Bank v. Bank, 141 i* See Sonoma "Water Co. v. Ind. 352; Merchants' Bank v. Lynch, 50 Cal. 503; Ward v. Citizens', etc. Co., 159 Mass. 505; Lumber Co., 70 Wis. 445. 302 TITLE BT DEED. [§ 290. be determined only by a construction of the grants under which the parties claim, and an ascertainment thereby of the pre- sumed intention of the grantors in the deeds given to evidence such grants. As a rule, when the words of a grant are clear and consistent, when they contain no ambiguity, and no fraud or mistake is alleged, the intention of the parties cannot be shown to override the obvious meaning thus disclosed. ' But if there is anything in the words of the grant which would in- dicate a probable different intent, the question, in the absence of mistake or fraud, is one for construction of the court f-^ or if there be extraneous facts alleged which would, if established, bear upon the construction, the question may, under proper instructions, become one for the jury.^^ The general rule in all cases is, that a deed will be so interpreted as to give effect to the intention of the parties when this can be accomplished with- out contravening some established rule of law or principle of public policy.^' Inconsistencies are always to be reconciled, if possible, and if reconciliation is impossible the earlier clauses will control the later ones.^' This rule, however, may be invoked only in extreme cases, for, generally, if it is the clear intent that two apparently inconsistent provisions shall both stand, then such limit'itions upon and interpretations of the literal significance of the language employed should be adopted as will serve to give effect, if possible, to all of the provisions.^" But if the in- tention is clearly and decisively shown by one clause, the in- tention thus disclosed will control, notwithstanding ambiguities and inconsistencies in other clauses.^" "Rosenthal v. Ogden, 50 Neb. St. 162, 15 Am. St. 708; Harris 218. In this case it was held that v. Mott, 97 N. C. 103; Church v. it is the dT,ity of the court to in- Melville, 17 Oreg. 413; East terpret a written contract if it is Hampton v. Vail, 151 N. Y, 463. to he construed with reference it Farnam v. Thompkins, 171 to its terms alone but If the 111. 519; Richter v. Richter, 111 construction or application de- Ind. 456. pends on extrinsic facts, the con- is Waterman v. Andrews, 14 tract in connection with such R. I. 589 facts should be submitted to the is Coleman v. Beach, 97 N. Y. jury under proper instructions. 545; Waterman v. Andrews, 1:. And see East Hampton v. Vail, R. I. 589. 151 N. Y, 463. 20 Bent v. Rogers, 137 Mass. 16 Palmer v. Farrell, 129 Pa. 132. § 290.] ELEMENTS AND DEEAIGNMENT. 303 In construing a deed the rights of the parties must be pred- icated upon the language therein employed, and the intention must be gathered from the words of the instrument,^^ but the court may also read the instrument in the light afforded by surrounding circumstances,-^ and for this purpose may always consider the situation of the parties and the state of the thing granted.^' In all cases the construction of a grant must be favorable and as near the intention of the parties as the rules of law will admit.^* Parol evidence may in some cases be resorted to, not to contradict or vary the words of the grant, but to ex- plain it by showing the situation and condition of the subject- matter, and to aid in arriving at the meaning that the parties may have attached to the words used, especially in matters of description.^^ So, too, the subsequent acts of the parties in dealing with the land and their declarations in respect of it, may, in proper cases, be shown to give effect to the deed.^" But, generally, where there is no ambiguity in a grant, then whatever the parties may have ■ intended by its terms, or in what manner they subsequently may have treated it, are wholly immaterial circumstances and have no bearing upon the con- struction of the deed." It is a further rule, that, while a deed is to be construed lib- erally and the intention of the parties is to be effectuated if pos- sible, and that for this purpose all of the terms of a grant may be considered together, yet, whatever the intention may be, nothing will pass by the deed except what is described therein.^* 21 Butterfleld v. Sawyer, 187 Bassett v. Budlong, 77 Mich. 111. 598, 58 N. B. 602, 79 Am. St. 338; Cravens v. White, 73 Tex. 246 Donahue v. McNulty, 24 577. Cal. 411. 25 Lyman v. Babcock, 40 Wis. 22Truett V. Adams, 66 Cal. 512; Wilson v. Cochran, 48 Pa. 218; Louisville, etc. R. R. Co. v. St. 107; Shore v. Miller, 80 Ga. Koelle, 104 111. 455; Gray v. 93; Blow v. Vaughn, 105 N. C. Water-Power Co., 85 Me. 526. 198; Hammond v. Johnston, 93 23 Batavia Mfg. Co. v. Newton, Mo. 198. 91 111. 230; Abbott v. Abbott, 53 26 Simpson v. Blaisdell, 85 Me. Me. 356; Pollard v. Maddox, 28 199. Ala. 325; Prentice v. Storage Co., 27 Wilkins v. Young, 144 Ind. 1. 58 Fed. Rep. 437; Robinson v. 28 Thaver v. Finton. 108 N. Y. Railroad Co. 59 Vt. 426. 394. 2* Lego V. Medley, 79 Wis. 211; S04 TITLE BY DEED. [§ 291. § 2gi. Identification of parties — Presumptions as to grantees. — As a general proposition identity of name is prima facie evidence of identity of person, and is sufScient proof of the fact in the absence of all evidence to the contrary. ^^ The presumption arising from identity of name is, of course, rebuttable, but it is sufficient to shift the burden of proof to the party denying it.^" So, too, similarity of name is generally sufficient evidence of identity of person in a chain of title, in the absence of evidence casting a doubt upon the identity, where the execution of the deed is proved and the instrument is shown to have come from proper custody. ^^ But where any circum- stance appears to cast a reasonable doubt upon the identity of persons, upon whose identity the title depends, a mere similarity of names will not suffice to establish a presumption of identity.'^ In cases of doubt, parol evidence is always admissible to ex- plain the description given in a deed so as to ascertain the par- ticular person or persons intended to be embraced in that de- 29 Wilson V. Holt, 83 Ala. 528; Douglas V. Dakin, 46 Cal. 49. But see Sitler v. Gehr, 105 Pa. 577. so Williams' Estate, 128 Cal. 552, 61 Pac. Rep. 670, 79 Am. St. 67. Explanatory descriptions may g,lso serve to raise the pre- sumption. Thus, a woman to whom & devise is made as "Sarah V. Laughlin," who sub- sequently reconveys the prem- ises as "S. V. Butler," describ- ing herself in the deed as for- merly "Sarah V. Laughlin," will be presumed to have acquired her new name by marriage, and no further proof of identity is required. Dowdy v. McArthur, 94 Ga. 577, 21 S. E. Rep, 148. 31 Smith V. Gillum. 80 Tex. 127, 15 S. W. Rep. 794. 32 Thus, it has been held that where the name of the grantee in a deed and that of the grantor in a subsequent deed of the same land are the same, ex- cept as to the initial letter of the middle name, it will not be presumed that they were the same persons. Ambs v. Railway Co., 44 Minn. 266. On the other hand, it has been held that the omission of the middle initial from the name of the grantor in a' deed is not sufficient to pre- clude it from admission in evi- dence, on the ground that such grantor is not identified as the grantee in a former deed which contained such initial, when the residence stated in both deeds is the same. Clow v. Plummer, 85 Mich. 550. So, too, a descrip- tion of the person may cure a de- fect of this kind, as where the grantor of a deed is described as the heir of one deceased, then, notwithstanding the insertion of a middle initial in the name signed to the deed, the identity of the grantor with the heir is prima facie established. Blom- berg V. Montgomery, 69 Minn. 149. § 291. J ELEMENTS AMD DEEAIGNMENT. 305 scription,'' and it seems the evidence need not be of the same high character and tendency as that which would authorize the correction of a mistake.^* So, too, it is always competent to show that different names may, in fact, identify or relate to the same person. ^^ A question will sometimes arise with respect to identity of persons where two or more individuals bearing the same name claim title or have assumed the right to make conveyances. These questions, as a rule, must be determined by affirmative proof, but, in some instances, the law will raise presumptions which will be of controlling efficacy in the absence of proof to the contrary. Thus, where a father and son have the same name, and a conveyance of land is made to a grantee bearing such name, without designating whether to the father or the son, the law will presume that the father was intended for the grantee.^" In a case of this kind it devolves upon the son, or the party claiming under him, to introduce evidence sufficient 'o overcome or rebut the presumption. Should this be done, however, the burden of proof will be shifted to the person claiming under the father, and he will then be bound to pro- duce evidence sufficient to overcome, or at least equal in pro- bative force, the case of the adverse party. ^' It does not seem that the foregoing rule is sustained by any very cogent reasoning. Where the father is an adult and the son an infant we may discover some show of authority for the presumption, but where both are equally competent it can be regarded only as an arbitrary rule raised from the necessities of the case. It is probably borrowed from the customs and usages of the civilians, as the common law is generally strenu- ous in its insistence that all questions of fact shall be determined by proof. S3 Salmer v. Lathrop, 10 S. 203; Padgett v. Lawrence, 10 Dak. 216; Andrews v. Dyer, 81 Paige (N. Y.), 170. Me. 104. 37 Graves v. Colwell, 90 111. 3* Houston V. Bryan, 78 Ga. 612. The reader is referred to 181. ' the learned opinion in this case, 35 Rudlcel V. State, 111 Ind. by Baker, J., for an able exposi- 595. tion of the probative value of ■ 36 Graves v. Colwell, 90, 111. presumptions of law and the evi- 612; Kincaid v. Howe, 10 Mass. 20 306 TITLE BY DEED. [§ 292. § 292. Description of the premises. — AVhere the claim- ant of title relies upon a deed of conveyance it is well settled, both by reason and authority, that in order to be effective as an evidence of title, it must, either in terms or by reference or other designation, give such a description of the subject-matter intended to be conveyed as will be sufficient to identify the same with reasonable certainty f,^ failing in this the deed will be in- operative.^^ It is a further rule, however, that deeds and conve3'ances of land must be upheld if possible ; that the terms and phraseology of description should be interpreted with a view to that end whenever this can reasonably be done,*" and that that will be considered certain which may be made certain.*^ Hence, not- withstanding the terms of the description may not, of them- selves, clearly indicate the dimensions of the land, yet, if they sufficiently point to a particular tract, which is so described that it may be identified by parol, if the claimant by proper evi- dence can upon the trial definitely locate it, this would seem to be sufiicient.*- Nor is a deed void because it fails to specifically describe any land, provided it is certain. Thus, a general de- scription only, if certain in its terms, will be given operation when aided by extrinsic evidence.*^ This is well illustrated in the case of a deed of all the lands belonging to the grantor, wherever the same may be situated. Such a deed is not void for want of description but will operate to transfer the title to any and all lands which the grantor ma}' own or in which he may have an interest.** So, too, a description not sufficiently dence necessary to overcome « Nixon v. Porter, 34 Miss, them. 697; Dwight v. Packard, 46 Mich, ssLong V. Wagoner, 47 Mo. 614; Smith v. Crawford, 81 111. 178. 296; Bltner v. Land Co., 67 Tex. 39 Coleman v. Improvement 341. Co., 94 N. Y. 229; Deaver v. 42 Edwards v. Bowden, 99 N. Jones, 114 N. C. 649; Harris v. C. 80; Smith v. Crawford, 81 111. Shafer, 86 Tex. 314; White v. , 296; Church v. Church, 60 Fed. Stanton, 111 Ind. 540. Rep. 937; Peart v. Price, 152 Pa. *o Edwards v. Bowden, 99 N. 277. C. SO; Grandy v. Casey, 93 Mo. 43 Gress Lumber Co. v. Coody, 595; Case v. Dexter, 106 N. Y. 94 Ga. 519; Griffin v. Hall, 115 548; Campbell v. Carruth, 32 Ala. 482. Fla. 264. "McCulloh v. Price, 14 Mont. 320; Pettigrew v. Dobbelaar, 63 §293.] ELEMENTS AND DEEAIGNMENT. 307 certain in itself may be made so by reference to other deeds in which it is sufficient.*^ In case a. general description only is followed by a clause summing up the intention of the parties as to the premises conveyed, it will have a controlling effect upon all the prior phrases used in the description.*^ A difficulty will sometimes be experienced in case of double descriptions inconsistent in their terms. But where there is , a doubt as to the construction of a deed the general rule is, that it shall be taken most favorably for the grantee.*^ Acting upon this rule it has been held that if there are two descriptions of the land intended to be conveyed, and they do not coincide, the grantee is at liberty to select that which is most favorable to him.*' In any event, if the descriptions are inconsistent, and the deed will operate as to one of them, the other may be re- jected as surplusage.*" Where a description, correct as far as it goes, is not com- plete, it may generally be completed by parol evidence, provided a new description is not introduced. This will frequently be the case where land is described in general terms by some par- ticular name or designation, and, in such cases, it has frequently been held that parol evidence is admissible to show that in the community where the land is situate it was known by the de- scription employed in the deed.°° § 293. Identification of land after conveyance. — Notwith- standing a deed, in itself, may be inoperative for want of a Cal. 396; Coleman v. Improve- ticular person. See Plummer v. ment Co., 94 N. Y. 229. Gould, 92 Mich. 1. 4B Rupert V. Penner, 35 Neb. 47 Cottingham v. Parr, 93 111. 587; Hoffman v. Port Huron, 102 233. Mich. 417; Russell v. Brown, 41 ^s Sharp v. Thompson, 100 111. 111. 184; Credle v. Hays, 88 N. C. 447. 321; Koenigheim v. Miles, 67 *9 Bray v. Adams, 114 Mo. 486. Tex. 113. 60 Hammond v. Johnston, 93 46 Oushy V. Jones, 73 N. Y. 621; Mo. 198. Thus, where land was Barney v. Miller, 18 Iowa, 460; described as "Fish Lake Lot," Bates V. Poster, 59 Me. 157. As held, that if there is any doubt where lands are conveyed gen- of the intention of the parties, «rally, that is, with no specific evidence of what was known by descriptions, and such lands are common reputation as "Fish further described as all the Lake Lot" may be received. lands to which the grantors are Case v. Dexter, 106 N. Y. 548. entitled as heirs at law of a par- 308 TITLE BY DEED. [§ 294. sufficient description of the land intended to be conveyed, it may yet be given effect by reason of the subsequent acts or dec- larations of the parties, and the construction put upon the words of description by them may be resorted to for the pur- pose of identification. Thus, where a tract of land intended to be conveyed is not sufficiently ascertained or identified by the deed, the parties may afterward survey and mark out the shape and dimensions, and if this is done and the grantee then takes possession this will ascertain the grant and gi\^e effect to the deed." So, too, if land is conveyed by a definite general loca- tion but with unascertained boundaries, the declarations and ad- missions of the grantor subsequently made as to the boundaries of the land so conveyed are admissible in evidence against him or any one claiming title under him.^^ As a further general rule, courts should not give a construction to a deed in direct conflict with that which the parties have themselves put upon it.-" But these principles are applicable only where the grant is uncertain or ambiguous, for, if there is no uncertainty or ambiguity with respect to the land conveyed, the manner in which the parties may have subsequently treated it has no bear- ing whatever on the construction of the deed.^* § 294. Limitation of the estate. — In the action of eject- ment the specific interest of the claimant in the land sought to be recovered is always an important fact, and this fact is gen- erally required to be found by the jury in making up their ver- dict. Uusually the pleader is required to declare the quantity and quality of the estate claimed, although in some states this may be shown on the trial under the general allegation of own- ership. But little difficulty is now experienced with respect to the estate intended to be conveyed, particularly where the inter- est claimed is a fee, and much of the old learning of this sub- ject is practically obsolete. Formerly much technical nicety was required in framing grants of an estate and unless appro- priate words of limitation were inserted, the grant, in many in- 51 Simpson v. Blaisdell, 85 Me. 52 Simpson v. Blaisdell, 85 Me. 199; Armstrong v. Mudd, 10 B. 199. Hon. (Ky.) 144. And see Wil- 53 Mansfield v Place, 93 Mich, son v. Carrico, 140 Ind. 533. 450. 51 Wilkins v. Young, 144 Ind. 1. § 295.] ELEMENTS AND DEEAIGNMENT. 309 stances, would be ineffective to convey the interest intended. Special words of limitation were always necessary to create or convey a fee, and the early cases abound in many fine-spun dis- tinctions and much subtle reasoning. But, for many years a familiar provision of the statute, in most of the states, has abro- gated the old doctrines by declaring that every grant of lands will pass all the estate or interest of the grantor, unless a differ- ent interest shall appear by express terms or necessary implica- tion.^= Where the foregoing rule prevails technical words of limita- tion are not required to create or transfer a fee. If any lesser estate is intended apt words for such purpose should be em- ployed, for unless a contrary intent can reasonably be inferred from the terms employed the deed must be held to convey all of the interest of the grantor, whatever it may be. § 295. Repugnant clauses and recitals. — At law, no less than in equity, courts are frequently called upon to construe deeds and declare the rights of parties thereunder and the ac- tion of ejectment will furnish many opportunities of this kind. The general rule undoubtedly is, that in a deed which purports to evidence an absolute grant, any portion thereof which re- stricts the absolute conve3rance of the fee, whether it be caller! a condition, reservation, or exception, being repugnant to the grant is null and void. But, while the general integrity of this rule is unassailable, the rule itself is not without qualification, and in the cases which support the rule the repugnancy has generally been of such a character that the intention of the parties could not be ascertained from the whole instrument, or if ascertained could not be carried into effect consistently with established legal principles. The controlling motive in every contract is the intention of the parties. Whenever this inten- tion clearly appears upon the face of a deed effect should be given to it, however unusual the form of the instrumentj^" and a reservation should never be regarded as repugnant, where 65 See Hawkins v. Chapman, 577, 15 Am. St. 803 ; Bassett v. 36 Md. 83; Lehndorf v. Cope, 122 Budlong, 77 Mich. 338, 18 Am. 111. 317; Eiseley v. Spooner, 23 St. 404; Williams v. Bently, 27 Neb. 470. Pa. St. 294; Cooney v. Hayes, 56 Cravens v. White, 73 Tex. 40 Vt. 478. 310 TITLE BY DEED. [§ 295. the grantee, if it is permitted to be effectual, may yet acquire a valuable interest in the thing granted." In all cases the rules of construction are imperative that all of the language of a grant must be considered and effect given to it, unless it is so repugnant and meaningless that this cannot be done ; ^'^ and, when this condition is manifest, the repugnant or senseless por- tion may, in proper cases, be rejected as surplusage,^" while in some instances words ma)r be supplied bj^ intendment."" It will sometimes happen that a deed discloses two conflicting intentions, one as clearly expressed and emphatic as the other. Thus, the granting clause may express an intention to convey the entire interest in the land, while the habendum may express an intention to convey only an undivided half of such interest. The ancient rule is, that where two clauses of a deed contra- dict each other the first shall stand as the expression of the grantor's intention,"^ and where the habendum is repugnant to the premises it is void. This proceeds on the principle that all deeds shall be construed most strongly against the grantor, and therefore, that he shall not be allowed to contradict or retract by subsequent words, the grant made in the premises. Thus, if lands are given in the premises to one and his heirs, and in the habendum to him for life, the later would be void, because utterly repugnant to and irreconcilable with the premises. This rule is generally recognized and applied in cases of conflicting intention, but, as it is purely arbitrary, is never resorted to un- less it shall become absolutely necessary. If, from the whole instrument, the true intention can be gathered, that intention should prevail,"^ but where conflicting intentions are plainly and unequivocally expressed, there is no alternative but to construe it by the rule first stated, even though it may be arbitrary."^ 57 Gay V. "Walker, 3G Me. 54. eo Case v. Dexter, 106 N. Y. ssRichter v. Richter, 111 Ind. 548. 456; Lehndorf v. Cope, 122 111. ci The old maxim is, "The first 317; Robinson v. Railway Co., deed and the last will shall op- 59 Vt. 426; Case v. Dexter, 106 erate." N. Y. 548. 02 Coles v. Yorks, 36 Minn. 388; B9 Cooper V. Cooper, 76 111. 57; Grandy v. Casey, 93 Mo. 595. Coles V. Yorks, 36 Minn. 388; ss pynchon v. Stearns, 11 Met. Birch v. Hutohings, 144 Mass. (Mass.) 316; Green Baf, etc. Co. 561. V. Hewitt, 55 Wis. 96. §§ 296, 297.] ELEMENTS AND DEBAIGNMENT. 311 § 296. Continued — Granting clause and habendum. — It will frequently happen that the granting clause and the haben- dum of a deed are inconsistent. When the inconsistency amounts to a clear repugnance between the nature of the estate granted and that limited in the habendum, the general rule is that the latter must yield to the former, which controls the ef- fect of the deed.'* But this rule, it is said, applies only when, from a survey of the whole instrument, and the attendant cir- cumstances, it cannot be determined with reasonable certainty that the grantor intended that the habendum should control."'^ On the other hand, notwithstanding the repugnancy, if it shall satisfactorily appear that the grantor intended that it should enlarge or diminish the estate previously granted, it may be considered as an addition to the granting clause which must govern the construction of the same, even though such con- struction may practically destroy its effect.'"' The statute has eliminated many of the perplexing questions of this kind by providing a form of deed in which the haben- dum is wholly omitted. Where these statutory forms are used, of course, none of the questions we are now considering can arise, but there are many forms of conveyance for which the prescriptions of the statute do not seem adequate, as where the grant is burdened with conditions, or where it is desired to limit one estate upon another, and in such cases, as well as in ancient deeds, resort must sometimes be had to the rules of construction relative to inconsistent provisions. § 297. Signing by one not described as a grantor. — There is some conflict of opinion with respect to the legal effect of a deed signed by persons who are not described therein as grant- ors. The volume of authority, however, seems to sustain the proposition that in order to convey by grant the person pos- sessing such right must be described in the deed as grantor and must use apt and proper words to transfer his interest to the grantee."^ Hence, notwithstanding a person may sign, seal 64Ratlifte V. Marrs, 87 Ky. 26; se Henderson v. Mack, 82 Ky. Berry v. Billings, 44 Me. 416; 379; Fogarty v. Stack, 86 Tenn. Rines V. Mansfield, 96 Mo. 394; 610. Riggin V. Love, 72 111. 553. 67 Agricultural Bank v. Rice, 65 Bodine's Adm'rs v. Arthur, 91 Ky. 53, 34 Am. St. 162. 312 TITLE BY DEED. [§ 298. and deliver an instrument intended to be an operative deed of conveyance, yet, if his name appears in no other part thereof, his interest in the premises will not pass by such instrument."* In cases where one not otherwise mentioned has signed with others who are described as parties the rule has many times been announced that merely signing, sealing and even acknowl- edging an instrument in which another person is grantor is not sufficient.^* In a few instances a contrary rule has been stated.''" In these cases it is contended that the signing of a deed manifests the intention of the signers to be bound by it, and that courts should so construe the instrument as to give effect to such in- tention. To this it is replied that the intention of the parties to a written agreement must be derived from the language of the contract, and not from inference ; that where there is noth- ing in a deed to show a purposeon the part of one of the signers to make a conveyance his mere signature does not manifest such purpose and, therefore, as to him the. deed is wholly in- operative.'^ Where a deed operates only as an estoppel and not as a con- veyance, signing, sealing and acknowledging may be sufficient for the purposes of the estoppel, as where either husband or wife unite in the execution of a deed conveying the separate property of one of the spouses. This has been held sufficient as an assent" and joining under statutes providing for convey- ances by married women, or relinquishment of dower by wives, by the joint deed of the spouses.'''^ § 298. Forged deeds. — Any document relied upon as a muniment of title must, as a rule, be susceptible of being proved, unless it ante-dates the period of limitation, in which 4 How. (IT. S.) 225. TWs is one 'o Armstrong v. Stovall, 26 of the early leading cases on Miss. 275; Elliot v. Sleeper, 2 this point. The opinion is by N. H. 525. Taney, C. J. 71 stone v. Sledge, 87 Tex. 49. 68 Peabody v. Hewett, 52 Me. t2 Peter v. Byrne, 175 Mo. 233, 33. 75 S. W. Rep. 433, 97 Am. St. 69 See Catlin v. Ware, 9 Mass. 576; Pease v. Ridge, 49 Conn. 218; Puroell v. Goshorn, 17 Ohio, 58; Miller v. Shaw, 103 111. 277; 105; Harrison v. Simons, 55 Ala. Chapman v. Miller, 128 Mass. 510; Stone v. Sledge, 87 Tex. 49. 269; Merrill v. Nelson, 18 Minn. 374. § 298.] ELEMENTS AND DEEAIGNMENT. 313 case, in the absence of other controlling circumstances, it may be offered under the rules relating to ancient deeds. As a gen- eral proposition, a forged deed, having never had a legal in- ception, is absolutely void ; '^ it conveys no right, title or inter- est, nor will the recording of same affect the legal rights of the parties concerned.'* Where the fact of forgery is established the question of good faith is not usually involved,'^ and it is immaterial that a purchaser may have entered thereunder with- out notice of the infirmity. The operation of a deed of this character may, however, be affected by the statute of limitations and where there has been an actual adverse possession, commenced without notice and in good faith, and such possession has continued uninterruptedly for the entire statutory period, such deed may be effective as an estoppel considered in connection with the statute of limita- tions.'" But where the parties are all living, scarcely any length of time short of the full period of limitation will prevent an action to recover land from an innocent purchaser or estop the claimant to deny the execution of the deed." Where the execution of a deed, alleged to have been forged, forms the main issue in an action of ejectment brought to dis- possess one holding thereunder, and the grantor therein is dead, the jury have a right, in the determination of the question, to take into consideration the subsequent conduct of such grantor, and whether, after the date of the deed, he ever set up any claim to the land or made any demand for possession of the parties in actual occupancy ; whether he paid the taxes, or did any act indicative of ownership or in assertion of proprietary rights.'^ In like manner the acts and conduct of an alleged grantor still living may in proper cases be shown to rebut the charge of forgery, particularly where the rights of third per- sons have intervened. In such event the doctrine of estoppel might be invoked, but this, in most instances, would be a diffi- 73 Haight v. Vallet, 89 Cal. tb McGinn v. Tobey, 62 Mich. 245; Meley v. Collins, 41 Cal. 252. 663; McGinn v. Tobey, 62 Micli. t6 parker v. Railroad Co., SI 252. Ga. 387. ^i Haight v. Vallet, 89 Cal. 245. " Meloy v. Collins, 41 Cal. 663. '8 Haight V. Vallet, 89 Cal. 245. 314 TITLE BY DEED. [§ 298. cult undertaking, even in those states where an estoppel in pais may be employed in a legal action. To conclude a party by ars equitable estoppel there must either be a fraudulent purpose of the party against whom it is applied, or his acts must produce a fraudulent result.'''' Hence, evidence of the acts and conduct of the grantor before he had knowledge of the forged deed would not be admissible. Such evidence would have no bear- ing on the question of the genuineness of the instrument nor could it be used' to contradict his testimony that the deed was not his.'" And even though he may have had knowledge of the forgery his mere delay in attacking the forged deed would not be material, if it did not extend over a period that would call into operation the statute of limitations.^^ A still stronger case is presented where the grantor is in possession and an effort is made to evict him in ejectment. 'While it would be his duty to correctly inform all persons who might apply to him for in- formation respecting the title, and in the event of his failure so to do might be estopped to plead the truth as against those whom he had deluded, yet the law does not require a land- owner to take positive steps to counteract a forgery by which an attempt is being made to rob him of his property, nor does it require him, within any particular period, to commence pro- ceedings to vindicate his title against the fraudulent claim of the forger or one claiming under him. He may bide his time and trust to the strength of his title when assailed.^^ An instrument, though properly and legally executed, may acquire the character of a forged deed by changes and altera- tions made subsequent to delivery. In such cases, if it is in- tended to contest the deed, the statute frequently requires the filing of an affidavit of forgery by the contestant, and, usually, in the absence of such affidavit the law will presume that a duly registered deed was executed as offered in evidence, and if al- terations appear to have been made therein, that they were made at or before the time of its execution.^' 70 Flower v. Elwood, 66 111. ss ciiandler v. "White, 84 III. 447. 435. 80 Baird v. Jackson, 98 111. 7S. ss Collins v. Boring, 96 Ga. 360, 81 Meloy v. Collins, 41 Cal. 663. 23 S. E. Rep. 401. § 299.] ELEMENTS AND DEEAI6NMBNT. 315 § 299. Fraudulent conveyance. — As a general rule, a deed fair and regular upon its face and purporting to have been given for a valuable consideration, is not subject to impeach- ment or collateral attack in an action at law. In some states, however, it would seem that this rule has been denied from a comparatively early period and Courts of law have been per- mitted to pass upon the question of fraudulent intent even when incidentally presented. In these states it has been held that in the trial of actions of ejectment, where the question arises whether a deed relied upon by either part)"" as a part of the chain of title was executed for the purpose of hindering, delay- ing or defrauding creditors, evidence may be heard to attack or sustain the conveyance, notwithstanding the action was not brought to directly impeach its character.** Where codes of procedure have been adopted there has been a tendency to re- tain this principle, particularly in states where it was allowed to obtain under the old practice, and recent decisions in such states announce the doctrine that in statutory actions foV the recovery of land, as in the old action of ejectment, any deed offered as a link in a chain of title is thereby exposed to attack for fraud in its inception,'^ and the same proof that would in- validate same in a direct proceeding in equity may be shown.*" Where the rule we are now considering prevails a creditor may place his demand in judgment, levy execution upon the property alleged to have been fraudulently transferred and cause the same to be sold in satisfaction of the judgment. The purchaser at sheriff's sale may then contest the validity of the fraudulent grantee's title in an action of ejectment. It is well settled, however, that transfers made for the purpose of hinder- ing or delaying creditors are not absolutely void, even though the statute may so pronounce them. At most, they are void- able only, and until impeached by a proper proceeding the title, Si See Flaqnagan, 7 Ired. (N. ss Helms v. Green, 105 N. C. C.) 471. 251, 18 Am. St. 893; Potter v. 85 Jones v. Cohen, 82 N. C. 75; Adams, 125 Mo. 118, 46 Am. St. Helms v. Green, 105 N. C. 251, 478; Stebbins v. Kay, 123 N. Y. 18 Am. St. 893; Fulton v. Han- 31; Cheney v. Crandell, 28 Colo. Ion, 20 Cal. 450; Stuart v. Mays, 383. 54 Ga. 554; Comings v. Leely, 114 Mo. 454. 316 TITLE BY DEED. [§ 300. with all its incidents, vests in the grantee. It follows therelore, that a plaintiff, in such a case, cannot be permitted to recover possession without first obtaining a judicial determination that the transfer was in fact fraudulent and the resulting deed void. But these questions, it seems, may be presented and determined in the ejectment suit, and the plaintiff, by proving the fraudu- lent character of the conveyance may defeat it. Where this is done the fraudulent deed becomes void from the beginning and the sheriff's deed is held to convey the legal title.*' § 300. Land held in adverse possession. — It was long the policy of the law to deny effect to all sales and conveyances of land of which any other person, at the time of such sale, con- tract or conveyance, had an adverse seizin and possession, and deeds made in pursuance of such sales were held to be null and void.** This was not only the recognized doctrine of the com- mon law but the statutory rule of many states and such rule may still be found upon the books of some of the older juris- dictions.*^ When such rule obtains a conveyance of this char- 87 Chandler v. Bailey, 89 Mo. 643; Campbell v. Jones, 25 Minn. 155; Tiomason v. Neeley, 50 Miss. 310; Bank v. Risley, 19 N. Y. 369. The judgment creditor has the election of two remedies against a fraudulent convey- ance; that is, he may bring his action to set aside the convey- ance, or he may levy upon the land and sell it for, the payment of his debt. Lynn v. Le Gierse, 48 Tex. 140; Bobb v. Woodward, 50 Mo. 102. In the event he takes the latter course, the pur- chaser at such execution sale- gets the title, because at the time of the levy it remained in the fraudulent debtor, the de- fendant in the execution, and was subject to sale. Bump, Fraud. Con. § 471; Scott v. Scott, 85 Ky. 385, 5 S. W. Rep. 423. In the ease last cited the court said: "As against the fraudulent transferee, however, the creditor may seize the property as that of the fraudulent debtor; and the title that may be thus ac- quired is not a mere equity or right to control the legal title, and have the fraudulent sale va- cated by an appropriate proceed- ing, but it is the legal title itself, against which the fraudulent transfer is no transfer at all. The legal title remains in the debtor, as to his creditor, not- withstanding the fraudulent transfer, and the possession of the fraudulent transferee may properly be regarded as that of the debtor." And see further, Willard v. Masterson, 160 111. 443, 43 N. E. Rep. 771; Smith v. Ried, 134 N. Y. 568, 31 N. E. Rep, 1082; Lynn v. Le Gierse, 48 Tex. 138. ss See 3 Wash. Real Prop. .329 (4th' ed.) ; 4 Kent, Com. 446. 89 See Nelson v. Brush, 22 Fla. § 300.] ELEMENTS AND DBKAIGNMENT. 317 acter is not considered as passing a title, but as the mere trans- fer of a right of action, and, being in violation of the earh' laws against the champerty and maintenance, as well as of statutory policy, will not be sustained by the courts."" The English statutes, upon which this doctrine is founded, grew out of peculiar exigencies entirely foreign to our condi- tion and habits. They were passed at the close of revolutions, when, the property of the kingdom having to a great extent changed hands, it became the interest of those who succeeded to power to place every obstacle in the way of the former pro- prietors recovering possession. The principal statute upon this subject, and the one which formerly influenced both legis- lation and the decisions of American 'courts, is that of 32 Henry VIIL, against selling pretended titles, and a pretended title, within the purview of the common law, is where one person lays claim to land of which another is in possession holding adversely to the claim. It was early conceded that the an- cient policy which prohibited the sale of pretended titles' and held the conveyance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in the United States, yet the doctrine prevailed very generally in all parts of the country until comparatively recent years, and, as before shown, was in- corporated in the statutory law of many states. It has been held that a champertous deed, being void, confers no right of entry,'^ but the tendency, even where the rule con- tinues to receive a recognition, is to relax the strictness of the ancient doctrine and it has been held that an entry upon the land, and a delivery there, will evade the letter of the law and give the deed validity."^ At most, the principle will apply only as to the person holding the adverse title at the time of the ex- 374; Ellwood v. Northrop, 106 si Bowling v. Roark, 15 Ky. L. N. Y. 172. Rep. 499, 24 S. W. Rep. 4; Reyes 90 See Sohier v. Coffin, 101 v. Middleton, 36 Fla. 99, 29 L. R. Mass. 179; Jones v. Monroe, 32 A. 66. Ga. 188; Graves v. Leathers, 17 92 Farwell v. Rogers, 99 Mass. B. Mon. (Ky.) 667; Bowling v. 36; Warner v. Bull, 13 Met. Roark, 15 Ky. L. Rep. 499, 24 (Mass.) 4. S. W. Rep. 4; Levy v. 'Cox, 22 Fla. 546. 318 TITLE BY DEED. [§ 301. ecution and delivery of the deed,'^ or those who claim by, through, or under him. To such persons the deed may be void, or, at least, voidable, but as to all others it would be valid and effectual."* But the foregoing doctrine now finds but a small adherence in this country. In many of the states where it formerly ob- tained it has been swept away by express statutory enactments, and in the newer states of the West it never has been accorded a recognition. In such states no conveyance is void because at the time of the execution and delivery of a deed the land in question is in the possession of another who holds by a title ad- verse to that of the grantor,'"' and, generally, under the stat- utes now in force, any one claiming title to land, although out of possession, and notwithstanding there may be an actual ad- verse possession, may sell and convey such land the same as though in the actual possession thereof, and his deed will give the grantee the same right of recovery in ejectment as if the grantor had been in the actual possession when he conveyed."" § 301. Claimant under deed of bargain and sale. — Not- withstanding that the operative forms of conveyance have been very much simplified of recent years and that much of the medieval refinement and subtlety of conveyancing has been abolished as unsuited to our conditions and sj^stem of land titles, yet there have still been preserved distinctions which savor of that subtlety and which call for at least passing notice in a work of this kind. The rights of a claimant are made to depend, in some measure, on the phrasing of his deed, and the operative words of grant are frequently decisive of the question of title. 93 Nelson v. Brush, 32 Fla. under the champerty statute, 374; Ellwood v. Northrop, 106 but only voidable at the in- N. y. 172. stance of the parties In adverse 94 Edwards v. Rays, 18 Vt. possession. Fort Jefferson Impt. 473; Wade v. Lindsay, 6 Met. Co. v. Dupoyster, 21 Ky. L. Rep. (Mass.) 407; Betsey v. Torrence, 515, 48 L. R. A. 537. 34 Miss. 138; Farnum v. Peter- 95 Hall v. Ashby, 9 Ohio, 96; son, 111 Mass. 151. A deed of a Shortall v. Hinldey, 31 111. 219; tract of land by one in posses- Crane v. Reader, 21 Mich. 82; sion of only a part of it, at a Stewart v. McSweeney, 14 "Wis. time when third persons ware 471. in possession of the greater por- o" Chicago v. Vulcan Iron tion claiming under a superior Works, 93 111. 222. title, is not absolutely void g 302.] ELEMENTS AND DERAIGNMENT. 319 The instrument of conveyance now commonly employed is a modification of the old deed of bargain and sale under the stat- ute of uses. As this deed generally contains personal coven- ants of the grantor it has come to be known as a "warranty deed." There is also in common use a form of conveyance, de- rived from the ancient common-law release, known as a "quit- claim deed." Both of these deeds are now regarded as sub- stantive forms of conveyance, and both are adapted to transfer the title to land with all of its incidents, but the rights of the parties thereunder are, in most of the states, dissimilar in many respects. In this and the succeeding paragraph these points of difference will briefly be considered. The legal import of a deed of bargain and sale, whether with or without express covenants, is that of an absolute conveyance with no resulting trust or reversionary rights in the grantor, and when made by a person of full legal capacity, who is under no disability, it precludes the grantor and all claiming under him from any and every right, claim or demand in the granted lands. In practice but few questions can arise with respect to the effect of deeds of this kind, and even where the grantor is without title at the time the deed is delivered, the statute, in many states, saves the rights of the grantee in the event of an after acquired title by the grantor, and this quite independent of the fact that the deed may be without express personal cov- enants. °^ The character of the deed is generally fixed by the operative words of conveyance and where the common-law formula "grant, bargain and sell,'' or its statutory equivalent, is employed, an estoppel is raised, that, for most purposes, is as effectual as though created by express personal covenants."^ § 302. Claimant under quitclaim deed. — There is much diversity of opinion in this country with respect to the operation and effect of 'that form of conveyance popularly known as "quitclaim," as well as regarding the extent and character of the rights that may be asserted by a grantee in a deed of this ST Holbrook v. Debo, 99 111. had the effect of a warranty, 372. and this idea has been preserved 88 By the ancient English in the statutes of many Ameri- statutes (see 4 Edw. I., ch. 6) can states, the words "dedi et concessi" 320 TITLE BY DEED. [§ 302. kind. It would seem that this diversity has arisen, to some ex- tent at least, through a misconception of the office which this form of conveyance is supposed to perform, and to some ex- tent also of the real nature of proprietary right. Thus, a dis- tinction has been drawn between a conveyance of the right, title and interest which a grantor may have in land and a convey- ance of the land itself. Where a deed purports to convey only the former, then it is usually classed as a quitclaim, irrespective of the words of grant employed, and is not permitted to sustain the defense of an innocent purchaser whose title is assailed in an action of ejectment."'' While it is admitted that a quitclaim is as effectual as a deed of bargain and sale,^ yet this effect applies only to present in- terests.- It does not extend to after-acquired title,' nor is a grantee thereunder regarded as a purchaser for value without notice.'' These are the generally received views and they have a marked effect upon all questions of disputed title to which they may apply, whether the action be for ejectment or to quiet and confirm title. But while the rule is general, that a person who takes by quitclaim deed is not regarded as a purchaser in good faith, without notice of outstanding titles and equities,^ and that in accepting such a deed he assumes the risk of title and is bound, at his peril, to inquire and ascertain what outstanding rights exist, if any,'' yet this rule is not without some qualification. A quitclaim deed, when recorded, will take precedence of a prior unrecorded warranty deed from the same grantor, if the pur- chaser under the quit claim had no notice of the prior deed ai 98 Garrett v. Christopher, 74 s Holbrook v. Debo, 99 Tex. 453; May v. Le Claire, 11 372; Harriman v. Gray, 49 Wall. (U. S.) 217; Barclift v. 538. Lillie, 82 Ala. 319; Moelle v. 4 Pleasants v." Blodgett, Sherwood, 148 U. S. 21. Neb. 741; Stoffel v. Sohroed 1 Johnson v. Williams, 37 62 Mo. 147. Kan. 179; Morgan v. Clayton, 61 o Carter v. Wise, 39 Tex. 273; 111. 35; Rowe v. Pecker, 30 Ind. Springer v. Brattle, 46 Iowa, 154. 688. 2 Bennlson v. Aiken, 102 111. e Botsford v. Wilson, 75 111. 284; Pleasants v. Blodgett, 39 132; Thorp v. Coal Co., 48 N. Y. Neb. 741; .Johnson v. Williams, 253; Winkler v. Miller, 54 Iowa, 37 Kan. 179. 476. § 303.] ELEMENTS AND DEEAIGNMENT. 321 there are no words in liis deed suggestive of an earlier convey- anceJ To this extent a quitclaim deed has the same probative force and evidentiary value as a warranty deed. § 303. Deeds to take effect at grantor's death. — There is much confusion of authority with respect to the legal effect of a deed which purports to operate only at or after the death of the grantor. The confusion does not lie in the rules of convey- ancing, for on this point the authorities are substantially in ac- cord, but in the application of the rules to the facts of particu- lar cases. The vital question presented by a deed of this kind is : Shall the instrument be construed as a present conveyance or shall it be deemed of a testamentary character only? It is said that the solution of this question turns upon the question of the grantor's intention. If it shall be found that he intended to convey a present interest to the grantee, then the instrument is a deed, and the mere fact that the enjoyment 'Of such interest is postponed until the death of the grantor is an immaterial cir- cumstance.* If a vested right passes, this is enough to stamp the character of the instrument. In such ev^nt, if the right transferred is to some specific thing then owned by the person executing the instrument, or within his gift, the transaction is not distinguishable from other forms of conveyance by deed, and effect should be given to it accordingly." Where the deed is made for a valuable consideration all of the intendments will be in favor of sustaining the grant, although in most cases of this kind the conveyance is voluntary. But, generally, where an instrument, in form a deed, conveys a present interest, that is, conveys an interest in words of present grant notwithstand- ing it is to be enjoyed only in the future, it is operative as' a deed, and not as a will, and the interest or estate of the grantee 7 Brown v. Coal Oil Co., 97 111. , 367; Abbott v. Holway, 72 Me. 214; Graff v. Middleton, 43 Cal. 298; Shackelton v. Sebree, 86 341; Marshall v. Roberts, 18 111. 616. Minn. 405. » McDaniel v. Johns, 45 Miss. s Wilson V. Carrico, 140 Ind. 632; White v. Hopkins, 80 Ga. 533; Gates v. Gates, 135 Ind. 154; Mitchell v. Mitchell, 108 272; White v. Hopkins, 80 Ga. N. C. 542; Dreisbach v. Serf ass, 154; Graves v. Atwood, 52 Conn. 126 Pa. St. 32. ' 512; Bunch v. Nicks, 50 Ark. 21 322 TITLE BY DEED. [§ 303. cannot be defeated by the grantor after the execution of the deed, even though it is voluntary.^" The true test of the character of an instrument, as to whether it is a will, is not the maker's realization that it is a will, but his intention to create a revocable disposition of his property, to accrue and take effect only upon his death, and passing no present interest. A deed, on the other hand, must transfer to the grantee a present interest in some part of the grantor's estate, and which is in no way dependent on his death. But it is important to note the distinction between the interest trans- ferred and the enjoyment of the interest. The former must be in presenti, the latter may be made to commence in futnro, and to depend for its commencement upon the termination of an existing life or of an intermediate estate.^^ If the language employed is appropriate to a conveyance of a present interest, and the instrument is duly executed and delivered, then, if these facts are found and it further appears that the grantor was un- der no disability and was not impelled by fratid or fear, the in- strument will be regarded as a deed and such construction should be given to it as the circumstances of the case may re- quire. '^^ On the other hand, a conveyance not to take effect until the death of the grantor is an attempt to make a testamentary dis- position without complying with statute of wills,^'' and is there- fore void.^* The question is one of great difficulty, however, and a review of the decided cases shows that it is involved in much doubt and uncertaint}'. The tendency of the courts seems to be to uphold deeds of this kind whenever possible. The fact that the parties have evidenced the grant bv an in- strument in form a deed is a strong circumstance to show that the intention was to make a deed and not a will, and in many of 10 McDaniel v. Johns, 45 is Cunningham v. Davis, 62 Miss. 632; Mattocks v. Brown, Miss. 366; Turner v. Scott, 51 103 Pa. St. 16. Pa. 126. 11 Nichols V. Emery, 109 Cal. i* Wilson v. "Wilson, 158 111. 323. 567; Leaver v. Gauss, 62 Iowa, 1= McDaniel v. Johns, 45 Miss. 314; Carlton v. Cameron, 54 632; White v. Hopkins, 80 Ga. Tex. 72; Bigley v. Souvey, 45 154; Blanchard v. Morey, 56 Vt. Mich. 870. 170. § 304.] ELEMENTS AND DEEAIGNMENT. ^2?> the cases where the language employed verges very close on the "danger line," judicial construction has been somewhat strained to save the instrument from being a nullity.^" § 304. Deed by donee of a power. — But few questions can arise to affect the title to land acquired through a deed made in pursuance of a general power, and such questions will usually relate to the execution or method of exercise of the power. Further, it is a general rule that powers of sale are to be given a liberal construction in order to carry into effect the purpose and intention of the donor. At the same time it must be remembered that a power of disposition does not imply own- ership, but is a mere authority conferred by the instrument cre- ating it,'^ and any conditions attached by the donor to the ex- ecution of the power must be strictly complied with,^'' however unessential they may seem.^'' While resort is frequently had to equity to set aside conveyances by the donee of a power, where such power has not been executed according to its expressed conditions, yet this is by no means necessary in a majority of cases, and it has repeatedly been held that a deed so made may be successfully assailed in a proceeding by ejectment.^' But while liberal intendments will be made for the execution of a general power yet where the power under which a con- veyance purports to have been made is special, as where it can be exercised only on the happening of a certain event, the trans- action will be closely scrutinized and a strict compliance must be shown. The general rule is that a power similar to that just mentioned can be exercised only in the mode, at the time, and upon the conditions prescribed in the instrument creating it,^° and of this all persons interested must, at their peril, take notice.^^ But this rule, while it is unquestioned, applies only 15 See Wilson v. Carrioo, 140 19 See Hull v. Culver, 34 Conn. Ind. 533; Abbott v. Holway, 72 403; Minot v. Prescott, 14 Mass. Me. 298; Sbackelton v. Sebree, 496; Scheldt v. Crecelius, 94 Mo. 86 111. 616. 322. 16 Burleigh v. Clough, 52 N. 20 Matthews v. Capshaw, 109 H. 267; Ducker v. Burnham, Tenn. 480, 72 S. W. Rep. 954, 97 146 111. 9. Am. St. 854; Ervine's Appeal, 16 17 Sears v. Livermore, 17 Pa. St. 256; Sharpley v. Plant. Iowa, 297; Cranston v. Crane, 97 79 Miss. 175, 28 So. Rep. 799. Mass. 459. 21 Matthews v. Capshaw, 109 18 Sharpley v. Plant, 79 Miss. Tenn. 480. 175, 28 So. Rep. 799. SSiv- TITLE BT DEED. [§ 304. where the condition upon which the power is to be exercised is upon the happening of a certain event or independent fact, such as the majority, marriage, or death of some person named, which may be ascertained by anyone with equal certainty. It does not apply where tlie determination of the event upon which the power is hmited requires the exercise of judgment and discretion, as to which there may be an honest difference of opinion; and in cases of this character it has been held that the decision of the donee of the power is conclusive, and that a sale made in pursuance of the power, if conducted in good faith, will be allowed to stand, even though it may afterward appear that the judgment of the donee was erroneous. ^^ In making proof of a deed executed by the donee of a power the grant of the power is an essential circumstance, whether it be a simple power of attorney or a power of disposition under the statute of uses. In the latter case some of the authorities hold that there must be an express intention manifested to work under the power and that special reference thereto must be made in the deed.^^ This, it is contended, will always be the case where the donee of the power also possesses a personal in- terest in the land, and should there be an omission in this re- spect the deed will be taken as a conveyance of the grantor's personal interest and not as an execution of the power.^'' But this rule, though at one time of great potency, has undergone many modifications for the sake of sustaining and not defeating what may appear to be the actual intention of the grantor. ^^ The trend of later decisions strongly tends to establish the doc- trine that it is not necessary that an intention to execute a power of disposal should expressly appear on the face of the deed.^^ If the intention can be collected from all the circum- 22 See Matthews v. Capshaw, ible rule at the present time, 109 Tenn. 480; Randolph v. notwithstanding it is so stated Land Co., 104 Ala. 355, 16 So. in a number of modern text- Rep. 126, 53 Am. St. 64. books. 23 This is the old English doc- m See 4 Kent. Com. 335. trine. It has been followed in 25 Lumber Co. v. O'Neal, 131 some of the earlier American Ala. 117, 30 So. Rep. 466. cases, and has had a marked ef- 28McRae v. McDonald, 57 Ala. feet on later decisions, but it 423. cannot be regarded as an inflex- § 305.J ELEMENTS AND DEEAIGNMBNT. 325 stances ;" or if the transaction is not fairly susceptible of any other interpretation,-' as where the deed cannot operate in any other way,^" this has been held sufficient. But, if from a con- sideration of all the circumstances the intention still remains doubtful, such doubt will prevent the deed from being deemed an execution of the power.'" § 305. Lost deeds. — The general subject of primary and secondary evidence has already been discussed " and the rules which apply where secondary evidence is offered have been sufficiently considered. But in the trial of disputed titles it will frequently happen that original muniments of title cannot be produced, and while the rule is inflexible that the title to land cannot be established by parol, yet parol evidence of writings necessary to establish such title may be and often is received. This is true in the case of lost deeds.^^ Where it is desired to prove the contents or purport of a lost deed it will be necessary, in the first instance, to offer some preliminary proof, both of the actual existence of the instru- ment at one time and of its subsequent loss or destruction. This is addressed, not to the jury but to the court, for the purpose of establishing the right to introduce secondary evidence of the contents of the lost paper.^' Where a proper foundation has been laid for the introduction of secondary evidence, as where it is clearly shown by the preHminary proof that the deed is either lost or destroyed ^* and that it is not in the power of the 2T Matthews v. McDade, 72 111. 485. A finding by the court Ala. 387; Funk v. Eggleston, 92 of the execution of a lost un- til. 515. recorded deed is justified by 28 Bishop V. Remple, 11 Ohio evidence that it was recited in St. 277; Mason v. Wheeler, 19 a deed subsequently executed by K. I. 21. the grantee, and the testimony 29 Lumber Co. v. O'Neal, 131 of a witness that he found such Ala. 117; Terry v. Rodahan, 79 a deed while examining his Ga. 278; Blagge v. Miles, 1 grandfather's papers. Arents v. Story, 427, is the le,ading case Long Island R. Co., 156 N. Y. 1. on this subject in this country. The amount of evidence to show 30 Mason v. Wheeler, 19 R. I. the existence of the original will 21. vary with the circumstances of 31 See § 226, ante. each case. Where no direct issue 82 State V. Bisenmeyer, 94 111. is made upon the fact, slight 96. evidence will be sufficient. Doe 33 Loewe v. Reismann, 8 111. v. Aiken, 31 Fed. Rep. 393. App. 525; Dowden v. Wilson, 71 34 it has been held that where 326 TITLE BY DEED. [§ 305. party to prodtice it,^' its place may be supplied by an abstract of title made in the usual course of business where the record as well as the deed has also been destroyed,^" or, its contents may be shown by witnesses who know of what such contents consisted," if the court is satisfied that no higher evidence can be produced. An examined copy is admissible under the rules of the common law,^^ and, by statute, a certified copy of the record, where the deed has been registered, may be received to supply the place of the original. '^ A lost instrument cannot be proved by a certified copy of its record in the absence of a stat- ute which expressly authorizes such evidence,*" but in a major- ity of the states statutes of this kind are now in force, and when a foundation for introducing secondary evidence of the contents of a registered deed has been properly laid, a certified copy is generally admissible.*^ Contents of lost deeds may al- ways be proved by the record thereof,*^ which, by statute, is a grantee in a deed, who was the custodian thereof, testified posi- tively that the deed had been lost, this was sufficient to allow the introduction of parol testi- mony as to its contents, with- out showing that search had been made for it. Postel v. Pal- mer, 71 Iowa, 157. But, gen- erally, when the testimony sim- ply is that an instrument is lost, with no showing of a search, 6r other facts to support the state- ment of loss, the court will re- fuse to adopt the conclusion of the witness, and secondary evi- dence will be rejected. Anglo- American, etc. Co. v. Cannon, 31 Fed. Rep. 313. 35 Taylor v. Mclrvin, 94 111. Rullman v. Barr, 54 Kan. Baldwin v. Burt, 43 Neb. Windom v. Brown, 65 Minn. 4S8 643 245 394. soRichley v. Farrell, 69 111. 264. And see Butler v. Railway Co., 85 Mich. 246. sTHobbs V. Beard, 43 S. C. 370. Evidence that the grantee named in an alleged lost deed exhibited it to witness, telling him that it was a deed of the premises in question, is insuffi- cient, in the absence of satis- factory evidence that the paper so exhibited was properly ac- knowledged, to establish it as a lost deed, particularly in the face of convincing evidence that the alleged grantor continued in possession of the premises and continued to be recognized as their owner by the alleged grantee. Stovall v. Judah, 74 Miss. 747, 21 So. Rep. 614. ssOtto V. Trump, 115 Pa. 425 3!>Whidden v. Lumber Co., 98 Ga. 700. 40 Union P. R. Co. v. Reed, 80 Fed. Rep. 234. 41 Consult local statutes. The text states the prevailing rule. *2This is statutory in all oE the states, but the text states the general statutory doctrine. See State v. Crocker, 49 S, C. 242; Stanley v. Smith, 15 Oreg. 505. § 306.] ELEMENTS AND DEEAIGNMENT. 32'( generally made evidence of equal dignity with the original. This method of proof, when it can be resorted to, is much more satisfactory than a certified copy of the record. The provisions of the statute will determine most questions that may arise, with reference to the admissibility and evidejiti- ary value of records, but, as a rule and in the absence of specific provision to the contrary, neither the record of a deed nor a certified copy thereof is admissible in evidence without first ac- counting for the non-production of the original.*^ The greatest difficulty, in cases of this kind, will be experienced where the alleged lost deed has never been recorded, and the rules respect- ing the establishment of title under such an instrument are very strict.^* § 306. Continued — Presumption of lost deed.^Long continued possession and use of land in itself creates a presump- tion of lawful origin,*' and upon this presumption it may fur- ther be presumed that the entry was under a grant by a deed which has been lost.*' Courts have always indulged in pre- sumptions of this kind, to quiet and confirm long possession, which might otherwise be disturbed by reason of inability to produce muniments of title, actually given but lost, and of which the witnesses have passed away or their recollection be- come dimmed and imperfect. In most cases these presump- tions arise in actions to quiet title, yet where there has been an ouster there is no reason why they may not also be employed in actions of ejectment. Although the presumption of a deed may be rebutted by proof of facts inconsistent with its supposed existence, yet, where no such facts are shown, and the things done and the things omit- ted with regard to the property, by the respective parties, for long periods of time after the execution of the supposed deed 43 Peerce v. Georger, 103 Mo., of the old ideas concerning pre- 540. scription. The tendency of mod- ii Day V. Philbrook, 89 Me. ern law is to restrict the doc- 462. trine to periods analogous to *B Fitzgerald v. Quinn, 165 111. those provided for an entry upon 354; Dunn v. Eaton, 92. Tenn. lands by the statutes of limita- 743. tion. Mission v. Cronin, 143 N. *« This is an ancient doctrine Y. 624. of the common law, growing out 328 TITLE BY DEED. [§ 307. can be explained satisfactorily only on the hypothesis of its existence, it may be conclusively presumed that a proper con- veyance was in fact made.*' In every instance, however, the presumption of a grant arising from long possession and en- joyment, short of the period of limitation, is one of fact and not of law.** II. Deeds of Officials and Fiduciaries. 307. Generally considered. § 319. 308. Sheriff's deeds. 309. Recitals in sheriff's 320. deeds. 321. 310. Interest levied upon. 322. 311. Description of land sold. 312. Sale under execution on 323. dormant judgment. 313. Sale under execution is- I 324. sued after judgment is ! 325. barred. ] 314. Purchaser under void I 326. execution sale. ( 315. Sale under satisfied 327. judgment. 316. Confirmation of execu- 328. tion sale. 329. 317. Master's and commis- sioner's deeds. 318. Proof of master's deed. ■ 330. Purchaser at void judi- cial sale. Writ of assistance. Administrator's deeds. Administrator's deed of estate of living person. Proof of administrator's deeds. Guardian's deeds. Continued — Invalid sale of ward's land. Continued — Failure give bonds. Continued — Rights ward. Tax deeds. Continued — Defects appearing upon deed. Continued — Matters extrinsic proof. to of ap- the of § 307. Generally considered. — No small number of the land titles of the country are derived, mediately or immediately, through conveyances made by executive or ministerial officers, and in actions concerning title the deeds executed to evidence such conveyances often play an important part. While th>- limits of this book preclude anything like exhaustive treatment of this branch of our subject it is yet a topic that cannot be passed without some mention, and in, the paragraphs immedi- ately following an attempt will be made to discuss in, brief terms « Smith V. Cornelius, 41 W. Va. 59; Hasson v. Klee, 181 Pa. 117; Sulpher Mines Co. v. Thompson, 93 Va. 293; Dunn v. Baton, 92 Tenn. 743. ^sHernden v. Vick, 89 Tex. 469. ] 308.] DEEDS OP OFFICIALS AND FIDUOIAEIBS. 329 some of the more salient features which it presents. More stress will be placed upon deeds made by the officers of courts in execution of judgments and decrees than upon the deeds of purely ministerial officers like trustees. § 308. Sheriff's deeds. — In ejectment by the purchaser of land at sheriff's sale, against the defendant in the judgment upon which it was sold, all that is necessary to be shown, as a general rule, is the rendition of the judgment and the proceed- ings thereunder. As against such defendant the judgment, ex- ecution, and deed from the sheriff, are conclusive, and nothing more is required on the part of the plaintiff to establish a prima facie title.*" The theory in such cases is, that the pur- chaser at a sheriff's sale comes into exactly the same estate as the judgment debtor had, and when the latter is sued in eject- ment, by the purchaser under the execution, to recover posses- sion of the land sold, he cannot dispute the plaintiff's title.'"' On the other hand, it must ever be borne in mind that the power of the sheriff to make a deed depends upon the validity of the anterior proceedings, hence, if the judgment or any of the re- sulting steps are so defective as to render the sale void, these matters may always be shown by the debtor or those claiming under him in defending -against an action for possession. ^^ It will be presumed, in support of a sheriff's deed, that all prior proceedings up to the execution of the deed were regular and in conformity to statutory requirements,^^ and while the deed itself, standing alone, should show upon its face the au- thority of the officer as well as the essential requirements of a valid sale, yet defects, in this respect, are not fatal. The judg- ment, execution and return, as well as the deed, are elements of title, and the authorities are practically unanimous in their holdings that a deed may always be aided by the return upon the execution showing a due compliance with law.'^ 49 Drake v. Brown, 68 Pa. St. bo Gould v. Hendrickson, 96 223; Riddle v. Bush, 27 Tex. 675 Lennox v. Clark, 52 Mo. 115 Hughes V. Watt, 26 Ark. 228 Splahn V. Gillespie, 48 Ind. 397 Fisher v. Eslaman, 68 111. 78 111.. 599. «i Phillips V. Hogart, 113 Cal. 552, 54 Am. St.' 369. 02 Smith V. Crosby, 86 Tex. 15, 40 Am. St. 818; Hill v. Rey- Den V. Despreaux, 12 N. J. L. nolds, 93 Me. 25, 74 Am. St. 329. 182. 63 Welsh V. Joy, 13 Pick. 330 ■ TITLE BY DEED. [§ 309. A sheriff's deed made in pursuance of a sale on execution must be to the person to whom the certificate of purchase was issued or to his assignee, and if the deed is made to another, even though it recites that he is the assignee of the certificate, it is a nulHty, if, in fact, the certificate was not assigned.^* It would seem, therefore, where the claimant asserts title as an assignee of the purchaser the assignment should be proved to- gether with the other matters. This, however, is not essential, and is recommended merely as a cautionary measure, for the re- cital in a sheriff's deed of a certificate of a sale, and the assign- ment thereof, is evidence of their existence, and, after the exe- cution of the deed such certificate and assignments thereof cease to be essential muniments of title. ^^ As before remarked, a purchaser at execution sale takes only the title of the execution debtor, and while the deed, execution and judgment are sufficient to establish this fact and to make out a prima facie case, yet, where the defendant in ejectment is a stranger to the original suit in which the judgment was rendered it is generally essential to show that the defendant in execution had some estate or interest in the lands sold on which the judgment could operate.^^ In other words, as the plaintiff claims under the title of the judgment debtor it is necessary that he produce the same evidence of proprietary right as would be required if the deed had been from the judgment debtor direct. § 309. Recitals in isheriff's deeds. — There are not want- ing authorities which hold that the recitals in a sheriff's deed, particularly with respect to his own acts, are conclusive as be- tween the parties and those in privity with them, and that such recitals cannot be contradicted or overturned by parol evi- dence." But this doctrine is rejected in many 'states as un- sound in principle and dangerous in its tendencies. At best, it is contended, such recitals are nothing more than prima facie (Mass.) 477; Stinson v. Ross, 56 Hendon v. White, 52 Ala. 51 Me. 556; Hayward v. Cam, 557. 110 Mass. 273. 57 Zabriskie v. Meade, 2 Nev. 54 Carpenter v. Slierfy, 71 111. 285; Curette v. Briggs, 47 Mo. 427. Compare Bowman v. Davis, 356; Pringle v. Dunn, 37 Wis.- 39 Iowa, 398. 449; Robertson v. Guerin, 50 55 Gardner v. Eberhart, 82 111. Tex. 317. 316. § 310.] DEEDS OF OFFICIALS AND FIDUCIARIES. 331 evidence of the facts recited, ^^ and when relating to the essential matters of judgment and execution they have frec[uently been held not even evidence of the existence of the fact recited.^'' Indeed, to hold otherwise would be to give to a sheriff an au- thority to recite himself into a power he never had and to make valid a deed otherwise fatally defective.'*'' The general rule, therefore, would seem to be that the recitals of a sheriff's deed are to be regarded only as matters of inducement,"^ but, if the facts are properly stated they may be taken as proved until the contrary is shown."- With respect to the essential facts of judgment and execution it is generally necessary to make inde- pendent proof."^ The mere recital of a judgment and sale thereunder, without showing any writ upon which the sheriff acted, is insufficient to show title in the grantee."'' In all cases the judgment is the foundation of title, ^^ and, as a rule, proof of same is indispensable to validity."" As the sheriff is only the executor of a naked power it fol- lows that his deed should show substantial compliance with the ^erms creating the power as well as a proper execution, yet where it shows a substantial compliance with statutory re- quirements it will not be invalidated by ambiguous recitals or omissions which do not mislead."^ § 310. Interest levied upon. — As a general proposition a sheriff's deed does not purport to be a specific conveyance of the land therein described, but only of all the right, title and interest therein of the defendant in execution. This, however, is an immaterial circumstance. A conveyance of a right in 68 Farrior v. Houston, 100 N. 63 Ayers v. Roper, 111 Cal. C. 369; Willamette Real Estate 651; Leland v. Wilson, 34 Tex. Co. v. Hendrix, 28 Oreg. 485; 79. Carbine v. Morris, 92 111. 555. 64 Burt v. Hasselman, 139 Ind. 59 Phillips V. Hogart, 113 Cal. 196. 552. 65 Todd v. Philhour, 24 N. J. CO Phillips V. Hogart, 113 Cal. L. 796; Leland v, Wilson, 34 552. Tex. 79. 01 Leland v. Wilson, 34 Tex. so Carbine v. Morris, 92 111. ?9; Warner v. Sharp, 53 Mo. 555. 598; Jones v. Scott, 71 N. C. 192. e? Allen v. Sales, 56 Mo. 28; 02 Chase v. Whiting, 30 Wis. Jones v. Scott, 71 N. C. 192; 544; Lamar v. Turner, 48 Ga. Keith v. Keith, 104 111. 397. 329; Willamette R. E. Co. v. Hendrix, 28 Oreg. 485. 332 TITLE BY DEED'. [§ 311. and to property necessarily operates as a transfer of the prop- erty so far as the ownership in question may extend. This is always the effect given to a voluntary conveyance and the same rule applies to levies, sales and deeds made by sheriff's in obedience to executions."' Where land is sold under execution it should be designated with reasonable certainty, but neither the creditor at whose instance the land is sold nor the officer making the sale, is re- quired to ascertain and particularly describe the debtor's in- terest in such lands. It is enough that the interest, whatever it may be, has been levied upon and the sheriff's deed will pass such interest, whether it extends to the whole tract or only to an undivided part."' There are a few cases that seem to militate against the pro- positions last stated and which hold that the estate of the judg- ment debtor must be specifically levied upon, and where a deed recited only a sale of the "interest" of the judgment debtor, without describing the character of the interest, that is, with- out stating whether it was a term, a life estate or a fee, the de- fect was held fatal.'^" This, however, does not represent the prevaiHng doctrine and is supported by very doubtful principle. § 311. Description of land sold. — The general rules which apply to descriptions in deeds executed as voluntary convey- ances apply in the main to deeds executed by the sheriff in pur- suance of involuntary sales. In every instance the land must be designated with reasonable certainty, and this would seem to require that it should be so described as to permit its easy and accurate location.'^ The policy of the law, however, is to uphold deeds of this character and every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with legal rules, the objects they are intended to 68 Smith T. Crosby, 86 Tex. 15; 42 Miss. 18; Cotton v. Carlisle, Humphreys v. Wade, 84 Ky. 85 Ala. 175. 400; Woodward v. Sartwell, 129 to See Whately v. Newsom. 10 Mass. 214; Millet v. Blake, 81 Ga. 74; Williams v. Baynes, 34 Me. 531; Lewis v. Chapman, 59 Ga. 116. Mo. 381.' 71 Herrick v. Morrill, 37 Minn. 69 Smith V. Crosby, 86 Tex. 254; Pfeiffer v. Lindsay, 66 Tex. 15; Greer v. Wlntersmith, 85 123. Ky. 516; Walton v. Hargroves, § 312.] DEEDS OF OFFICIALS AND FIDDOIAEIES. 333 accomplish/^ If the deed contains an accurate but general description extrinsic evidence may be resorted to for the pur- pose of locating and identifying the land intended to be con- veyed/^ and the description should be deemed sufficient. The rules of construction apply to sheriff's deeds in much the same way as to deeds between individuals generally. § 312. Sale under execution on dormant judgment. — It is a general statutory provision, that an execution shall not issue upon a judgment, after a certain period has elapsed, without leave of court This is a retention of the common-law doc- trine respecting executions adapted to the exigencies of modern practice. At common law no execution could be issued upon a judgment after the expiration of a year and a day unless one had been taken out and returned during that period. If this was not done the judgment became dormant and so continued until revived by a writ of scire facias. This was a writ com- manding the defendant to show cause, if any there should be, why such execution should not issue and was designed to en- able the defendant to plead payment or any other matter which would show that the judgment had been satisfied or discharged. The statutes, generally, have either preserved the essence of this ancient proceeding or provided a substitute therefor. As a rule a judgment ceases to be operative after a certain time subsequent to its rendition and unless there has been a revival of some kind, with notice to the party to be affected, no execu- tion is permitted to be issued thereon. In all substantial partic- ulars these provisions of the statutes are the same and are in- tended to effect the same ends. They prescribe the modes to be pursued to obtain leave of court to issue execution and se- cure the fruits of dormant judgments, and are intended to af- ford the same protection to the judgment debtor as was given at common law by scire facias.''^ But it may happen that an execution is taken out after the statutory limit and without leave of court, and that a sale thereunder is had. In such event a question is presented as to 72 White v. Luning, 93 U. S. 74 Eddy v. Caldwell, 23 Oreg. 514. , 163, 37 Am. St. 672. 73 Smith v. Croshy, 86 Tex. 15. 15. 334 TITLE BY DEED. [§§ 313-315. the validity of the sale and the rights that may be exercised thereunder either by waj- of claim or defense. It would seem that at common law an execution issued without a proceeding by scire facias was not void but merely voidable, and might be set aside on the ground of irregularity. The same construction has been given to the statutor}' proceeding by the courts of a number of states,'^ and sales made by virtue of an execution so issued have been sustained in a number of instances.'''' On the other hand there are not wanting decisions which construe the statute strictly and which preclude the issue of ex- ecution after the statutory limit has expired." § 313. Sale under execution issued after judgment is barred. — A different question is presented in the case of a sale made under an execution issued upon a judgment that at the time of such issue was barred by the statute of limitations. Whatever doubts may exist with respect to dormant judgments must be resolved where the judgment is dead, and no execution can issue. thereon, nor can a valid levy and sale be made there- under.''^ § 314. Purchaser under void execution sale. — It has been held that where a sherift''s sale of land is set aside and the deed given in pursuance thereof is vacated, after the purchaser has entered into possession, inasmuch as the only muniment of his title is thereby destroyed his continued possession of the land, thereafter, is that of a mere trespasser.'"' The position of a purchaser in such a case is not materially different from one in possession under a sale made upon a satisfied or vacated judg- ment, a subject that will be considered in the paragraph fol- lowing. § 315. Sale under satisfied judgment. — The rule of caveat emptor applies to all purchasers at execution sale, and if land is sold thereunder, when the judgment upon which the Ts See Mariner v. Coon, 16 77 See Dorland v. Hanson, 81 Wis. 468; Bank of Genesee v. Cal. 202; Garvin v. Garvin, 34 Spencer, 18 N. Y. 154; Lawrence S. C. 388; Lakin v. McCormlck, V. Grambling, 13 S. C. 120. 81 Iowa, 545. 76 Eddy V. Caldwell, 23 Oreg. 78 Ludeman v. Hirth, 96 Mich. 163. And see Ludeman v. Hirth, 17; Isaac v. Swift, 10 Cal. 71. 96 Mich. 17. 79 Scranton v. Ballard, 64 Ala. 402. § 315.] DEEDS OF OFFICIALS AND FIDUCIARIES. 335 execution is based has in fact been paid or otherwise satisfied, such sale will be void as against the owner of the land and the purchaser will not be protected against him.^" One who de- raigns title through a sale of this kind must show, not only the execution and sale, but also a valid and subsisting judgment in support thereof,^^ and it has been held, that notwithstanding there may have been a judgment in existence at the time the writ was issued yet if it was vacated or satisfied before sale the power to make the sale was destroyed ; and the result is the same, it is contended, whether the judgment was directly sat- isfied by payment or vacated by an order of court, or super- seded by any proceeding whose effect is to prevent its execu- tion.^° The theory involved in the foregoing is, that a sheriff, in making a sale, acts under a naked statutory power which is de- pendent for its existence upoii the existence of the judgment that he is attempting to execute, and if there is no judgment in support of the writ of execution when he makes the sale the power to make such sale is wanting,^' and no title passes, even to an innocent purchaser.'* To this general proposition there can be no dissent where the judgment has been satisfied of record, or where it has been vacated or superseded by some judicial act. There are cases which hold, that where land has been levied upon and sold under a judgment which has in fact been paid, then, notwithstanding that it has not been satisfied of record, the owner may treat the sale as void and recover the land in an action of ejectment.^' Upon this point, however, the author- so Pope V. Benster, 42 Neb. ss See Bullard v. McArdle, 98 304; Soukup v. Investment Co., Cal. 355; Frost v. Savings Bank, 84 Iowa, 448; Bullard v. Mo- 70 N. Y. 553; MoClure v. Logan, Ardle, 98 Cal. 355, 35 Am. St, 59 Mo. 234; Boos v. Morgan, 130 176. Ind. 305. 81 Blood V. Light, 38 Cal. 654; 84 Shaffer v. McCraokin, 90 Chapin v. McLaren, 105 Ind. 563; Iowa, 578; Craft v. Merrill, 14 N. Shaffer v. McCrackin, 90 Iowa, Y. 461. 578, 48 Am. St. 465. ss pope v. Benster, 42 Neb. 82 Bullard v. McArdle, 98 Cal. 304, 47 Am. St. 703. And see 355; Craft v. Merrill, 14 N. Y. Craft v. Merrill, 14 N. Y. 456; 465. Shaffer v. McCrackin, 90 Iowa, 578, 336 TITLE BY DEED. [§§ 316, 317. ities are not agreed, and it has further been held that while the parties to a judgment may settle the same upon any terms they may mutually decide upon, and such settlement, as between themselves, will be valid, yet they cannot by such acts destroy the stable evidence of the record to the prejudice of others, and that the title of a bona Mc purchaser at execution sale made under a judgment in full force and unsatisfied of record, can- not be defeated by parol proof of a payment of the judgment debt before the sale.^^ § 316. Confirmation of execution sale. — As a rule no confirmation is required of sales made by the sheriff under an execution. In this respect they differ materially from sales made under a decree. But in some states a fro forma con- firmation is made necessary by statute, the effect being that of an adjudication by the court that the proceedings of the offi- cer as they m.ay appear of record are regular,^'' and that the requirements of the statute have been complied with.^^ Where this procedure is prescribed, a failure to have a sale in satis- faction of a judgment in an action at law confirmed is a mere irregularity, which will not defeat the purchaser's title where all of the other steps are shown to have been regularly taken in conformity with the statute.^" It is conceded that there are no substantial reasons requiring the confirmation of such sales, and that a failure to confirm should have no more serious re- sult than to require proof of the essential matters upon which the sale is based. § 317. Master's and commissioner's deeds. — Where lands are sold by order of court the sale is usually intrusted to a master in chancery, or such other corresponding officer as local procedure may indicate, who also executes the deed of conveyance. The title thus acquired differs in no material respect from that derived under execution sale. The purchaser succeeds to the interest of the defendant in the suit, which he takes subject to all its infirmities, and is presumed to purchase 86 Nichols V. Dissler, 31 N. J. 89 Consult Baxter v. O'Leary, L. 461, 86 Am. Dec. 219. 10 S. Dak. 150, 66 Am. St. 702; 87 Baxter v. O'Leary, 10 S. Challis v. Wise, 2 Kan. 193; Dak. 150. White Crow v. White Wing, f ssKoehler v. Ball, 2 Kan. ISC. Kan. 270. § 317.] DEEDS OF OEFIOIALS AND FIDUCIAEIES. 337 with full knowledge of all defects and pre-existent liens."" He buys at his peril and must suffer any loss that may occur in the event that his title is afterward disputed or denied,"^ nor will the fact that the court is regarded as the vendor confer upon him any additional rights."^ This naturally follows from the reason that the officer selling has no power to warrant the title and because the purchaser is presumed to have examined the title and to know what he is acquiring by his purchase."' But this applies only to defects of title pre-existing, and not to ir- regularities attending the sale, for no principle of law is bet- ter settled than that, where a court has jurisdiction of the sub- ject-matter and of the persons of the parties, its judgment or decree, when questioned collaterally, will be held valid and con- clusive even though the court may have proceeded irregularly, and a purchaser in good faith under its judgment or decree will be protected."* No mere errors can have any effect upon the sale or the title acquired under it."^ But as it is the policy of the law to invest its ministerial officers with only a mere naked power to sell such title as the defendant in the suit had, without warranty or any terms other than those imposed by law, it follows that a purchaser at such sale not only takes the risk of title but also of the validity of the proceeding under which the sale is made."" If the court was without jurisdiction then the sale is void, everywhere and in all courts and may be attacked collaterally,"'' but, as a rule, nothing can be urged against a purchaser under a decree that does not go to the jurisdiction of the court pronouncing it,"^ while every presumption will be indulged in to support the de- cree and the title derived under jt."" 80 Guynn v. McCauley, 32 Ark. 94 Harris v. Lester, 80 111. 307. 97; Capehart v. Dowery, 10 "W. «5Wing v. Dodge, 80 111. 564. Va. 130; Bishop v. O'Connor, 69 aa Bishop v. O'Connor, 69 111. 111. 431. 431. 91 Tilley v. Bridges, 105 111. ^^ Campbell v. McCahan, 41 111. 336. 45; Hollingsworth v. Bagley, 35 92 Parrat v. Neligh, 7 Neb. 546; Tex. 345. Thompson v. Craighead, 32 Ark. as Hedges v. Mace, 72 111. 472. 291. 99Wenner v. Thornton, 98 111. »3Conwell V. Watkins, 71 111. 156. *88. 33 338 TITLE BY DEED. [§§ 318, 319 § 318. Proof of master's deed. — The effect to be giverx t.^ official deeds generally is largely dependent on statutes, par- ticularly in states which employ a reformed code of procedure, and therefore in determining the questions of admissibility and proof, resort, in many cases, must necessarily be had to such statutes. In its essential force as an instrument of conveyance a master's deed is only one incident of devolution of title, and depends upon a number of other incidents for validity and ef- fect. By statute such deeds are usually made prima facie evl- dence that the provisions of law relating to the sale have been complied with, and in case of the loss or destruction of the court records of the cases in which they were issued they may also become prima facie evidence of the rendition and entry of the decrees which authorized them. But it is -only in case of the loss or destruction of the record that a deed of this char- acter can be received without other proof. If a party desires to avail himself of the rights which such a deed confers he must not only produce and prove the deed but also the decree of court authorizing the sale, and, generally, the order of con- firmation.^ While the deed may be received as evidence of the regularity of the sale it is not proof of the prior proceedings which led to such sale.^ § 319. Purchaser at void judicial sale. — The law has pro- vided a specific formula for the disposal of lands in pursuance of a judicial decree, and the due observance of this formula is essential to sustain the title of one who purchases at a sale made thereunder.^ These provisions are for the protection of the rights of the persons ,whose land is thus sold and are usuallv strictly construed in their favor. But where the purchaser at . a judicial sale which afterward is adjudged void has acted in good faith, and the money paid has been applied as directed by the decree, the purchaser will be entitled to be subrogated to the rights of creditors whose debts have thus been paid and the land, in his hands, will be charged with a lien to the extent of the amount he has advanced. In such event possession of the land cannot be recovered from him until he has been reimbursed iReed v. Ohio, etc. Ry. Co., 2 Fischer v. Eslaman, 68 111. 126 111. 48; Moore v. Frazer, 15 78. Oreg. 635, 3 stancill v. Gay, 92 N. C. 462. § 320.] DEEDS OF OFPIOIALS AND FIDUCIARIES. 339 for his expenditures, or at least, for so much of same as has been applied to the extinction of debts that were enforcible against the property.* The same principle, it has been held, may also be invoked in case of sales under execution,^ but this point does not seem to be well settled and cases to the contrary may be found.® The theory upon which the doctrine of subrogation proceeds is, that it would be unconscionable to permit a claimant to re- cover the lands in controversy discharged from the burden of the debt for the payment of which they had been sold, and which, in good faith, had been advanced by the purchaser. Therefore, to the extent that such purchaser had relieved the land he should be reimbursed, and to secure this the amount due him should be charged upon the land.^ § 320. Writ of assistance. — In connection with the gen- eral subject of title derived under judicial sale it seems proper that a brief reference should be made to the nature and func- tions of the writ of assistance. While the allowance of this writ is to a large extent discretionary, yet it is always granted in a proper case where land has been sold under a decree and the defendant, or some one holding in privity under him, on demand made refuses to surrender possession.^ Courts of equity, from the earliest times, seem to have assumed authority to issue this writ where the rights of the parties to the title or possession of land have been fully determined, as a means of enforcing their judgments instead of compelling the successful litigant to resort to an action of ejectment at law to recover possession. But the weight of authority fully establishes the proposition that the writ can be issued only against parties who have been * Bland v. Bowie, 53 Ala. 152 Duncan v. Gainey, 108 Ind. 579 Gaines v. Kennedy, 53 Miss. 103 Evans V. Snyder, 64 Mo. 517 Mayes v. Blanton, 67 Tex. 246 Hatcher v. Brigss, 6 Oreg. 31 505; McGee v. Wallis, 57 Miss. 638; Howard v. North, 5 Tex. 290. Also Freeman, Void Jud. Sales, § 52. 8 Consult Scranton v. Ballard, 64 Ala. 402. Lillibridge v. Tregent, 30 Mich. 7 Perry v. Adams, 98 N. C. 167. 105. And see Freeman, Void s Stanley v. Sullivan, 71 Wis. Jud. Sales, § 52 et seq. 585; Langley v. Voll, 54 Cal. 5 See Davis v. Gaines, 104 U. 435; Barton v. Beatty, 28 N. J. S. 405; Short v. Sears, 93 Ind. Eq. 412. 340 TITLE BY DEED. [§ 321. concluded by a decree, and who refuse to let the purchaser at a sale under such decree into possession.' As to strangers to the suit, or those who have acquired possession in such a man- ner as not to be bound by the estoppel of the decree entered therein, the writ is unavailing,^" and questions of title cannot be tried on an application therefor.^^ § 321. Administrator's deeds. — The ancient authorities furnish us with no information respecting titles based upon a deed by an administrator, for the reason that titles of this kind were unknown to the common law. Both the power to sell and its method of exercise are wholly statutory and the decisions all agree in declaring that the statute must be strictly pursued. An administrator's deed derives its primary validity from the order of court directing a sale of the land in question and where title is asserted under a conveyance of this kind the general rule is that full proof of statutory requirements must be shown.^^ The basis of a title derived through the deed of an admin- istrator is jurisdiction in the court pronouncing the decree of sale. This does not rest, as is sometimes said, upon the pe- tition for sale or the averments of the pleadings in the pro- ceeding.^^ The jurisdiction, in cases of this kind at least, is conferred only by the existence of a substantive fact, and it is fundamentally requisite to the exercise of such jurisdiction that there shall be an intestate upon whose property rights the court can act. Administration is never granted upon the estate of a living person, notwithstanding he is supposed to be dead, and any attempt so to do is a nullity.^* A deed executed under stich circumstances convej's no title whatever.^° It is absolutely 9 Howard v. Bond, 42 Mich. is Thomas v. People, 107 111. 131. 517. 10 Exum V. Baker, 115 N. C. 1* Springer v. Sbavender, 118 242. N. C. 33, 54 Am. St. 708; Melia "Barton v. Beatty, 28 N. J. v. Simmons, 45 Wis. 334; Mor- Eq. 412; Stanley v. Sullivan, 71 gan v. Dodge, 44 N. H. 259; Wis. 585. Thomas v. People, 107 111. 517; 12 La Plante v. Lee, 83 Ind. Perry v. Railroad Co., 29 Kan. 155; Ury v. Houston, 36 Tex. 420; Stevenson v. Superior 260; Fell v. Young, 63 111. 106; Court, 62 Cal..60. Dawson v. Parham, 47 Ark. 215. is Withers v. Patterson, 27 111. 497. § 322.] DEEDS OF OFFIOIALS AND PIDUCIAEIES. 341 void, both as to the ancestor and his heirs, nor will the latter be estopped from proceeding to recover possession of the land for the reason that they may have been made parties to the proceedings for sale. As the decree, in such a case, is void for want of power in the court by which it was entered, it follows that no estoppel was created and that it may be collaterally at- tacked in any subsequent proceeding.^" The c[uestion will be further considered in the succeeding paragraph. But where the court has jurisdiction no mere errors can have any effect upon the sale or the title thereby derived. As for instance, an administrator is authorized to sell only- where there are proved debts in excess of the personal estate in his hands. But although there may in fact have been no debts remaining unpaid at the time of sale this circumstance will not render the sale void. A bona ftde purchaser at such sale, with- out notice that there were no debts to be paid, will be protected in his purchase and the sale will not be open to attack in a collateral proceeding.^' § 322. Administrator's deed of estate of living person. — An interesting as well as difficult question is presented when we come to consider the validity and effect of a deed made in the due course of administration of the estate of a person sup- posed to be dead but afterward shown to be alive. The dif- ficulty of the subject is further increased by reason of the con- flicting decisions which it has produced. In a number of in- stances it has been held that letters of administration on the estate of a living person are absolutely void and all acts done under them without effect.^^ This logically follows from the reason that the probate jurisdiction extends only to the settle- ment of estates of persons who are dead, and the fact of death is absolutely essential to confer the jurisdiction.^" It is true, 16 Springer v. Shavender, 118 Dodge, 44 N. H. 259; Duncan v. N. C. 33. And see Wall v. Wall, Stewart, 25 Ala. 408; Springer 123 Pa. St. 545; Adams v. v. Sia vender, 116 N. C. 12. Cowles, 95 Mo. 501. is Griffith v. Frazier, 8 Cranch iTBowen v. Bond, 80 111. 351. (U. S.), 23; London v. Railroad IS Thomas v. People, 107 111. Co., 88 N. C. 584; Johnson v. 517; Melia v. Simmons, 45 Wis. Beazley, 65 Mo. 250; Melia v. 334; Devlin v. Commonwealth, Simmons, 45 Wis. 334; Withers 101 Pa. St. 273; Morgan v. v. Patterson, 27 Tex. 497. 3i3 TITLE BY DEED. [§ 322. that the jtidgments of the probate court have the same con- clusive effect as judgtnents of other courts, and, as a rule, may not be attacked collaterally, but this rule applies only to judg- ments rendered in the exercise of its jurisdiction and in pro- ceedings authorized by law. Every judgment must depend upon the povi^er of the court to render it and if such power does not exist the judgment is a mere nullity and may be so treated in all other proceedings.^" It does not seem that the doctrines above stated have been controverted or denied until within very recent years. At present, however, there is a marked tendency in some states to depart from the settled rules -which have long obtained in re- spect to the probate jurisdiction, and to introduce new principles which, if carried to their legitimate conclusion, are dangerous in the extreme. The cases in which a denial of the general doctrine is found are based on long and unexplained absence and the application of common-law presumptions of death, and are supported by a line of argument somewhat as follows: Where certain facts are to be proved before a court as a ground for issuing process and there is a total defect of evidence, the process will be void, but where the proof tends to make a proper case for the jurisdiction of the court, even though it may be slight and. inconclusive, the process will be valid until set aside in a direct proceeding for that purpose.^"- In the one case, it is said, the court acts without authority; in the other it only errs in judgment upon a question properly before it for adjudication. Hence, it is contended, when in a proceeding a court is required to ascertain a particular fact, or to appoint persons to act in such proceeding, having particular quali- fications or occupying some peculiar relation to the parties or the subject-matter, such acts, when performed, are in the na- ture of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose ; if not so corrected, the subsequent proceedings which rest upon them are not af- fected, however erroneous such adjudication may be." 20 Thomas v. People, 107 111. 21 Staples v. Falrchild, 3 N. Y. 517; Duncan t. Stewart, 25 Ala. 41. 408. 22 Porter v. Purdy, 29 N. Y. 106. 5 322.] DEEDS OF OFFICIALS AND FIDUCIARIES. , 343 Pursuing this line of argument it has been held, that notwith- standing the statute gives the probate court no jurisdiction to administer upon the estate of a living person it yet imposes upon such court the duty of inquiry as to the death of any per- son upon whose estate letters of administration are applied for, and that this is a judicial inquiry. It is immaterial that the inquiry may be a difficult one ; the court must act, and de- cide the fact of death as best it can from the evidence pro- duced. When the fact has been proved to the satisfaction of the court the letters must issue, and are conclusive evidence of the authority of the administrator until revoked.^' It is fur- ther contended in support of this position that cases must fre- quently arise where death takes place under circumstances where no living witness can be produced to testify to the fact. Parties disappear suddenly, with no trace of their whereabouts. They are sometimes lost, or supposed to be lost, at sea, or are so long absent from their homes and from communication with their friends as to raise a presumption of death. If the doc- trine can be upheld that in such cases there is no.power to con- fer jurisdiction to decide the question as to the death of such persons, then there would be no method existing to dispose ab- solutely of estates, and the most inextricable confusion in the titles to lands must ensue.^* For some time this doctrine, that a living person may be de- prived of his estate by holding him concluded by the decision of a probate court that he is dead, was confined to the courts of New York. But more recently the doctrine has found sup- port in other states and one of the' most remarkable decisions upon the subject has been rendered in Washington. In this case it was held that a probate court has jurisdiction to appoint an administrator for the estate of a missing person, if the pre- ss Roderigas v. East River York. See Lange v. Benedict, 73 Savings Institution, 63 N. Y. N. Y. 30; Schluter v. Savings 460. This is the leading case on Bank, 117 N. Y. 129; O'Conner this point. But compare the v. Huggins, 113 N. Y. 517. But same case in 76 N. Y. 316. has been strongly criticised in 2* Roderlgas v. Bast River other states and by legal writ- Savings Institution, 63 N. Y. ers. See note by Redfield, 15 460. This case seems to have Am. L. Reg. 212; Am. L. Rev., been generally followed in New vol. 10, p. 787. 344 TITLE BY DEED. [§§ 323, 324. ceedings are based upon a sufficient petition and it is satisfac- torily proved that such person has not been heard of for more than seven years. In svich event the missing person, if he af- terwards returns, cannot maintain an action of ejectment against the grantee of the administrator who had purchased a portion of the estate at an administrator's sale for which an order had been duly entered.'^^ § 323. Proof of administrator's deeds. — An administra- tor's deed, standing alone, in the absence of statutory provision to the contrary, is not evidence of title. It is but one link in a chain of proceedings and the other connectives must be shown with it whenever it is offered in evidence. But, while it is essential to confer jurisdiction on a court to order a sale of a decedent's lands that there shall be Unpaid debts properly chargeable upon said lands, and that there is a deficiency of personal estate, so that it becomes necessary to have recourse to real estate,^" it does not seem that it is necessary to show these facts affirmatively when proving title under an adminis- trator's sale. As a rule, a judicial finding that there are debts and that a sale is necessary is not only sufficient but conclusive evidence of these facts,^' and to prove title under an adminis- trator's deed all that is required to raise a presumption of juris- diction and that all the requisite antecedent steps were taken is the production of the deed, the order of sale, and the order of confirmation. °* As a further rule, a sale made under a de- cree finding the jurisdictional facts is not open to collateral at- tack.2^ § 324. Guardian's deeds. — Where title is asserted under a deed from a guardian or conservator the production of such deed together with the order of confirmation is usually all that will be required to establish a prima facie case. If the deed is regular in form and correctly recites the authority by which it was issued, and if the sale and conveyance which it purports to 25 Scott V. McNeal, 5 Wash. 58; Thornton v. Baker, 15 R. I. 309, 34 Am. St. 863. 553; Bowen v. Bond, 80 111. 351. 28 Smith V. Wildman, 178 Pa. 28 Price v. Springfield Ass'n, St. 245. 101 Mo. 107; Moore v. Cottlng- 27 Cobb V. Garner, 105 Ala. ham, 113 Ala. 148. 467; Lyne v. Sanford, 82 Tex. 29 Sherwood v. Baker, 105 Mo. 472. § 325.] DEEDS OF OFMOIALS AND EIDUOIAEIES. 345 evidence has been duly confirmed by a court of competent jur- isdiction, this, as a rule, will be sufficient to show a legal devo- lution of the ward's title to the land. If the court, in its order confirming the guardian's sale of his ward's land, makes a find- ing that the proceedings have been in -all respects regular, and in conformity with law and the decree of sale, it will be pre- sumed that there was proper evidence before it to justify such finding, and the same cannot be successfully assailed in a col- lateral proceeding.^" In any event such a showing will make a prima facie case. This may be taken as a general rule in those states where a guardian's sale is regarded as a proceeding in rem, that is, as a proceeding in behalf of the ward and not adversary to him, and this is the view taken in a majority of the states. ^^ Where this doctrine prevails it is only necessary that the court should have jurisdiction of the subject-matter to make an order sus- taining a sale.^^ But where the proceeding is regarded as ad- versary in character, or where it so far partakes of the nature of a personal action as to require notice to the ward, the proof required may be more extended than that above indicated. In some of the'states, even those which have declared the proceed- ing to be in rem; a notice of the pendency of the application must be given to the ward and if this is omitted the court ac- quires no jurisdiction. In such case, the sale, being void for want of jurisdiction, may be attacked collaterally.^^ The sub- ject will be considered in detail in the succeeding paragraph. § 325. Continued — Invalid sale of ward's land. — It is fundamental, that where a court possesses only a special and limited jurisdiction the record of its proceedings must show jurisdiction in a particular case,^* while it is a further rule, of general and uniform application, that nothing will be presumed 30 Myers v. MoGavock^ 39.Nel). flioting, however. See Musgrave 843, 42 Am. St. 627. v. Conover, 85 111. 374. 31 See Molir v. Manlerre, 101 33 Consult Musgrave v. Con- U. S. 417; Scarf v. Aldrich, 97 over, 85 111. 374. And see Cal. 360; Mohr v. Porter, 51 Wis. Rankin v. Miller, 43 Iowa, 475; 487. Rule v. Broach, 58 Miss. 552. 32 Spring V. Kane, 86 111. 580. 34 Smith v. Howard, 86 Me. The Illinois decisions are con- 203, 41 Am. St. 537; Bank v. Wilcox, 15 R. I. 258. 34:6 TITLE BY DEED. [§ 326. in favor of the right to divest a ward of his title.^^ These rules are of peculiar efficacy when applied to courts exercising, the probate jurisdiction, which, as a rule, can assert only such powers as are directly conferred upon them by statute, and such as may be incidentally necessary to the execution of these powers.^" To sustain a title deriv.ed under sale by a guardian, whenever its validity is properly brought in, question, the in- itial proceedings, upon which the jurisdiction of the court is based, are most important.^^ The petition for leave to sell must allege sufficient facts to give the court power to author- ize the sale f^ the statutory requirement with respect to bonds must be strictly complied with ; ^^ it must appear that the guard- ian took the oath, when an oath is required by statute.*" All of these matters are essential,*^ and a conveyance by a guard- ian of the lands of his ward, even under a license of the pro- bate court, without complying with these requirements, has in numerous instances been declared void and held to vest no title in the grantee.*^ § 326. Continued — Failure to give bonds. — It has always been a cherished doctrine that a ward is a special favorite of the courts, which will always intervene to protect his rights, and, in pursuance of this doctrine, a person who purchases the property of the ward or who seeks to divest him of the title thereto, will not be permitted to say that the ward is estopped or concluded, by the irresponsible acts of some person who as- sumes to act as his guardian without having first complied with those requirements of law which are designed for the ward's 3«Root v. McFerrin, 37 Miss. 47; Knox v. Jenks, 7 Mass. 488; 17; Tracy v. Roberts, 88 Me. 310. Bachelor v. Korb, 58 Neb. 122; 36 Smitb V. Howard, 86 Me. Holden v. Curry, 85 Wis. 504. 203, 41 Am. St. 537; Bucltley v. « Cooper v. Sunderland, 3 Superior Court, 102 Cal. 6, 41 Iowa, 114; Williams v. Ried, 5 Am. St. 135. Pick. (Mass.) 480. 3f Congult Blackman v. Bau- 41 Tracy v. Roberts, 88 Me. mann, 22 Wis. 611; Ryder v. 310. Flanders, 30 Mich. 336; Babcock 42 See Gibson v. Roll, 27 111. V. Cobb, '11 Minn. 347; Parker v. 88; Bachelor v. Korb, 58 Neb. Nichols, 7 Pick. (Mass.) 111. 122; Weld v. Johnson Mfg. Co., 38 Tracy v. Roberts, 88 Me. 84 Wis. 537; Rucker v. Dyer, 44 310; Frazier v. Steenrod, 7 Iowa, Miss. 591; Barnet v. Bull, 81 339. Ky. 127. 39 Williams v. Morton, 38 Me. § 327.] DEEDS OF OFFICIALS AND FIDCCIAEIES. 347 protection and security.*^ It is from this principle that the importance of bonds arises. Provisions for sureties are not directory but mandatory, and failure to give bonds as the law requires will generally render void a sale of the ward's land.** It has been held, however, that although a statute requires a guardian, before making a sale of his ward's property, to give a special bond for the proper application of the proceeds, a sale made without having given such bond is not void if subse- quently confirmed by the court.*^ The failure to give the special bond, it is said, is a mere irregularity not affecting the juris- diction of the court which ordered the sale, and while the ir- regularity might be sufficient to render the sale voidable, upon application, properly made, it would not, of itself, make the transaction void nor subject it to impeachment in a collateral proceeding.*^ The decisions, in most instances, turn upon the specific terms or judicial construction of the statute, but where the statute does not in terms or by fair implication' render void a sale made without special bond the tendency is to uphold them. If the court had power to order the sale, the failure of the guardian to comply with certain directions, should not, it is said, prejudice the rights acquired by the purchaser, and if wrong is done to the ward he has an ample remedy against the guardian.** § 327. Continued — Rights of ward. — ^When a sale by a guardian under a license is invalid for want of compliance with statutory requisites, it is competent for the ward, when he be- comes of age, to ratify and affirm the sale, or, he may avoid it within a reasonable time and bring ejectment for the recovery of the lands.*' If he affirms the sale he is bound by it,^" and 43 Power v. Lenoir, 22 Mont, field, 11 Mass. 227; Arrowsmith 169. V. Harmonlng, 42 Ohio St. 254; 44 Tracy v. Roberts, 88 Me. Dequindre v. Williams, 31 Ind. 310, 51 Am. St. 394, 34 Atl. Rep. 444. 68; Vanderburg v. Williamson, 48 Palmer v. Oakley, 2 Doug. 52 Miss. 233. (Micb.) 433. 45 Hugbes V. Goodale, 26 Mont. 49 Kingsley v. Jordan, 85 Me. 93, 91 Am. St. 410, 66 Pac. Rep. 137; Requa v. Holmes, 26 N. Y. 702; Watts v. Cook, 24 Kan. 278. 338; Rowe v. Griffiths, 57 Neb. 46 Hughes V. Goodale, 26 Mont. 488; Wilkinson v. Pilby, 24 Wis. 93; Bunce v. Bunce, 59 Iowa, 441. 533. And see Dixcy v. Laning, so Williamson v. Woodman, 73 49 Pa. St. 143: Perkins v. Fair- Me. 163. 348 TITLE BY DEED. [§ 328. such affirmance may be implied from his acts.^^ Thus, where a sale is made in good faith, for the benefit of the ward's estate, and he receives and retains tlie proceeds arising therefrom af- ter becoming of age, then, if there has been no fraud or mis- talce, and if there is nothing to repel the presumption that he knew his legal rights, he cannot afterward deny the validity of the sale nor claim the land.'^^ The theory upon which this doc- trine proceeds is that of equitable estoppel, but it has repeatedly been held that such estoppel is as legally available in an action at law as in a suit in equity,'^' and that it applies to a case of this kind.^* In the practical application of the principle there is no distinction between void and voidable sales. ^' On the other hand, if the guardian makes an unauthorized sale of his ward's land no title passes by his deed,"" and the ward, on attaining his majority, may elect to reclaim the land, in whosoever hands it may be.^^ The fact that the purchaser may have bought in good faith will not avail as a defense, for the rule of caveat emptor applies to all purchasers at guardians' sales,^' and all purchasers, as well as those claiming under them, are bound to inspect the record and to take notice of all de- fects of title thereby disclosed.^" They must observe, at their peril, the authority of the guardian to make the sale.'^" § 328. Tax deeds. — It. was formerly the rule that, in an action for possession of land by the holder of a tax deed, the burden of proof, as between the owner and such holder, was upon the latter, and he was required to show that all of the provisions of law relating to the proceedings on which his 51 Deford v. Mercer, 24 Iowa, Deford v. Mercer, 24 Iowa, 118; 118. Maple v. Kussart, 53 Pa. St. 348. 52 Deford v. Mercer, 24 Iowa, oo Williams v. Morton, 38 Me. 118; Wilmore v. Stetler, 137 Ind. 47. 127; Karns V. Olney, 80 Cal. 90; 57 Smith v. Dibrell, 31 Tex. Schemck v. Sautter, 73 Mo. 46; 239. Bootli V. Wiley, 102 111. 84; Field bs Lenders v. Thomas, 35 Fla. V. Doyon, 64 Wis. 560. 518; O'Herron v. Gray, 168 Mass. 53 Kirk V. Hamilton, 102 TJ. S. 573. 68; Dickerson v. Comm'rs, 6 so Bachelor v. Korb, 58 Neb. Ind. 128. 122, 76 Am. St. 70. 64 Tracy v. Roberts, 88 Me. 310. eo Gwynn v. McCauley, 32 Ark. sspenn v. Heisey, 19 111. 295; 97; Lenders v. Thomas, 35 Fla. 518. § 328.] ■ DEEDS OF OFFICIALS AND FIDUCIARIES. 349 claim was based had been strictly complied with. The pur- chaser at tax sale was said to buy at his peril ; his title rested upon the regularity of all of the essential antecedent proceed- ings and to sustain such title he was required to produce some evidence of every fact the existence of which was necessary to establish his right. The recitals of the deed furnished no aid in this respect and were regarded as no evidence whatever of the truth of the matters recited, and if the purchaser failed to secure and preserve the extrinsic evidence of his rights he was generally without a remedy so far as concerned the possession of the lands. "^ As a consequence tax titles were always viewed with suspicion and accepted with caution. Indeed they were scarcely regarded as titles and in the hands of original pur- chasers and their assigns were usually employed more for the purpose of a club to harass owners and extort unconscionable interest than as a means for acquiring possessory rights. But the old rule, in its pristine severity, no longer exists. In all of the states legislation has greatly changed the charac- ter of a tax deed and increased its evidentiary value. As a general proposition a tax deed is now prima facie evidence of the regularity of all former proceedings, and, as a necessary corollary, the burden of proof has been shifted to the person who assails or opposes the title which such deed assumes to confer."^ At one time a legislative reaction set in and a number of states enacted laws making a tax deed conclusive evidence of title in the grantee. The declared or implied effect of such laws was to preclude the owner of the original title from show- ing any invalidity of the tax deed, a course which virtually amounted to an unconstitutional confiscation of property.^^ This bubble was soon punctured by the courts and the laws 61 See Lyon v. Hunt, 11 Ala. Conn. 313; Milikan v. Patterson, 295; Keane v. Connovan, 21 Cal. 91 Ind. 515; Hardie v. Chrisman, 291; Brown v. Wright, 17 Vt. 60 Miss. 671; Ewart v. Davis, 97; Worthing v. Webster, 45 Me. 76 Mo. 129; Johnson v. Elwood, 270; Polk v. Rose, 25 Md. 153; 53 N. Y. 531; Lee v. Coal Co., 84 Jackson v. Shepherd, 7 Cow. (N. Pa. St. 74; Hurd v. Brisner, 3 Y.) 88. Wash. 1. 62 See Washington v. Hosp, 43 ss Cooley, Taxation, 298. And Kan. 324; Watson v. Atwood, 25 see Davis v. Minge, 56 Ala. 121; 350 TITLE BY DEED, L§ 329. have ceased to have effect. At most they can apply only to matters of a non-essential character which rest in mere ex- pediency, but the owner of property cannot be precluded from showing the invalidity of the deed by proving the omission of any essential act. As to the performance of these acts, and the facts necessary to constitute them, the deed can only be made prima facie evidence."* But this the legislature may do, and a statute which so provides entirely changes the rule as to the burden of proof, throwing it upon the party who as- sumes to contest the tax deed.*^ Although the burden of proof may be shifted by a legislative act from the plaintiff to the defendant, yet this is regarded by the courts as a mere regulation of the remedy. The owner may negative the prima facie title made by the introduction of a tax deed by showing that his property was not subject to the tax, or that it had been paid; that the land was not assessed; that no taxes were due ; that it had been redeemed from the sale ; or any other jurisdictional fact.'" § 329. Continued — Defects appearing upon the deed. — A sale of land for the non-payment of taxes differs essentially from every other species of conveyance. The officer making the sale has no title to the property and the title which the pur- chaser acquires is wholly dependent upoii a compliance with statutory direction and authority. While certain of the stat- utory requirements are merely directory, yet those which are designed as a protection for rights of the land-owner are mandatory, and must be strictly followed."'' Hence, if the statute "fixes a place of sale, and it appears upon the face of the "White V. Flynn, 23 Ind. 46; Reed 557; Madland v. Benland, 24 V. Thompson, 58 Iowa, 455; Minn. 372; McPhail v. Burris, 42 Dingey v. Paxton, 60 Miss. 1038. Tex. 142; Hart v. Smith, 44 Wis. 64 Marx V. Hanthorn, 12 . Saw. 213. (C. Ct.) 374; Allen v. Arm- cs See Larson v. Dickey, 39 strong, 16 Iowa, 508; Raley v. Neh. 463; Abbott v. Linden- Guinn, 76 Mo. 263; Callanan v. bower, 42 Mo. 162; White v. Hurley, 93 U. S. 387; Maguiar v. Flynn, 23 Ind. 46; McCready v. Henry, 84 Ky. 1; Larson v. Sexton, 29 Iowa, 356; Moore v. Dickey, 39 Neb. 463. Byrd, 118 N. C. 688. 65 Keely v. Sanders, 99 U. S. c- Crisman v. Johnson, 23 Colo. 441; Stoudenmire v. Brown, 48 264. Ala. 699; Sams v. King, 18 Fla. § 330.] DEEDS OF OFFICIALS AND FIDUOtAKIES. 351 deed that the sale was held at some other place, the deed will be void, as the officer was without authority to sell at such place."' So, too, if the statute provides for a separate sale for each delinquent tract, or permits only adjoining lots owned by the same person to be offered together for a gross sum, a deed which shows a sale en masse of widely separated or non-con- tiguous tracts is wholly void.°° § 330- Continued — Matters of extrinsic proof. — As we have seen, a tax deed, according to the principles of the com- mon law, is merely one link in the chain of the grantee's title, its operative character and effect depending upon the regu- larity of the antecedent proceedings. It creates no presump- tion that the facts upon which it is based, or which are recited therein, had any existence, and whatever of dignity or value is attached to it as an evidence of title is given by special stat- utory provisions.'" The statute now provides for the substance of a tax deed and, in some states, prescribes its form. In the absence of other or additional legislation the production of the deed in evidence will be sufficient to establish a prima facie title. But, in a num- ber of states, there is a further provision to the effect that a purchaser at tax sale, or his assigns, must, before applying for a tax deed, give notice to the owner of the expiration of redemp- tion and other matters, and it is generally held in those states that, in the absence of such notice, the deed is not evidence of title.'^ It has further been held, in the construction of such provisions, that the statutes making a tax deed presumptive evidence of the regularity of prior proceedings refer only to the acts and proceedings required to be done by the public of- ficials intrusted with the various steps leading up to the ex- ecution of the deed and not to the things required to be done es Crisman v. Johnson, 23 Colo. to Miller v. Miller, 96 Cal. 376, 264, 58 Am. St. 224; Rutey v. 31 Am. St. 229; Worthing v. Huntsman, 32 Mo. 501. Webster, 45 Me. 270. 68 Emerson v. Shannon, 23 ti see Wilson v. McKenna, 52 Cal. 274, 58 Am. St. 232; Cocks 111. 43; Williams v. Underhill, V. Simmons, 55 Ark. 104; Hall 58 111. 137; Miller v. Miller, 96 V. Dodge, 18 Kan. 279; Byam Cal. 376. V. Cook, 21 Iowa, 392; Farnham V. Jones, 32 Minn. 7. 352 TITLE BY DEED. [§ 330. by the applicant for the deed, and that as to such latter matters extrinsic evidence must be furnished.^^ It has been held in some states, where this requirement is imposed, that the deed being prima facie evidence of the regu- larity of all proceedings prior to its execution, it must be pre- sumed, in the absence of a showing to the contrary, that the notice was served upon the person in whose name the land was taxed. . Hence, where there is no showing to rebut this presumption, the court will assume that the notice was prop- erly served.'^ But such a holding virtually defeats the very purpose for which the law was designed. It permits the holder of the tax deed to rely upon it as evidence of things required to be done by himself; things which are in no way connected with the exercise of the taxing power, and which were intended as a protection to the land owner. Evidently, if the mere pro- duction of the deed shall constitute proof of notice, when there was no notice in fact, the provision in question, as has been well said, "constitutes a most dangerous trap, instead of a protection to property owners."^* In states where notice is required the fact is usually evi- denced by the affidavit of the applicant for the tax deed. It is upon this affidavit that the clerk or other officer issuing the deed acts. If it shows upon its face a strict compliance with the statute the act of the clerk in executing the deed will be lawful ; if it does not, such act will be unauthorized and the deed void.'^ No intendments in aid of it can be indulged. The invalidity of the deed, by reason of non-compliance with the statutory requirements of notice, may always be shown and the proceeding will always be construed strictly. 72 Miller v. Miller, 96 Cal. 376. T4Reed v. Thompson, 56 Iowa, And see Reed v. Thompson, 56 455. lo-wa, 455; Van Matre v. Sankey, 75 Van Matre v. Sankey, 148 148 111. 536. 111. 536; Stevens v. Murphy, 91 73 Soukup V. Investment Co., Iowa, 356, 51 Am. St. 348. 84 Iowa, 448. IJut compare Reed V. Thompson, 56 Iowa, 455. §§ 331, 332.] DEEDS BY PERSONS INCOMPETENT. 353 III. Deeds by Persons Incompetent and Disqualified. 331. Generally considered. 332. Deeds of married wo- men. § 333. Deeds of minors. 334. Deeds of lunatics. § 331. Generally considered. — It is not proposed to enter into an extended discussion respecting persons incompetent or disqualified. Indeed, the limits of this work preclude sucii a course. Nor is it at all necessary for a proper presentation of the general subject. But there are a few points that have pre- sented themselves in this connection and these points will be briefly considered. It must often happen that deeds will be offered in support of a claim of title, which, while fair upon their face, are yet tainted with some inherent vice growing out of the legal capacity of the makers. A few of the salient fea- tures of such deeds will be noticed and commented upon in what follows. § 332. Deeds of married women. — From the earliest period in the history of the common law, and until very recent years, husband and wife were regarded as constituting but one person for most juristic purposes. The result of this was to place the wife under great disability with respect to her prop- erty rights. Her very existence was merged into that of the husband and without him she could do no act looking toward the disposition or alienation of her lands. At the present time the law, in most of the states, has fully emancipated the wife from the ancient thraldom to which she was so long sub- jected, but this condition came by slow degrees and the changes of the law were never retroactive in their nature. As a con- sequence the law as it existed at the time a conveyance by a married woman was made must always be resorted to in order to determine the operation and effect of the deed whereby the conveyance was effected. For many years after a freedom of alienation was conferred on the wife it was yet necessary that the husband join in the act of conveyance, and this disability has not been wholly re- moved in many of the states. The main idea involved in this procedure seems to have been that of protection for the wife 28 354: TITLE BT DEEIK [§ 333. from improvident dispositions of her lands, and in the great majority of tlie modern cases, in which questions of title have been decided, it is very uniformly held that formal joinder is not necessary and that any unequivocal act of assent will be sufficient to impart validity to the conve5rance.^'' The question arises most frequently in cases where the grant- ing act is by the wife alone, the husband's assent being indi- cated only by joining in the execution. As a general prop- osition, a grantor must be described as such in the body of the deed; the act of grant must purport to be his act; and there must be apt words showing his intention to convey. But this rule, the integrity of which is beyond dispute, does not apply to a deed by a married woman of her separate estate, and not withstanding the statute may in terms prescribe that the con- veyance must be made by the "joint deed" of the spouses yet this joinder is sufficiently shown by the husband's signature and seal. In such event the deed will be valid and effective al- though the husband is not named as a grantor or otherwise mentioned in the body of the deed, and if the deed is duly ac- knowledged by both husband and wife it may be received in evidence to prove the fact of conveyance." In a few states opposite views are held and the decisions are to the effect that the husband must express his assent by joining as a grantor. Where this doctrine prevails a deed by the wife alone in which her husband merely participates in the execution would be void, and if offered in evidence must be rejected.'^ § 333- Deeds of minors. — It has long been a rule of law that a person entering into a contract during his minority shall have the privilege of repudiating same after attaining full age, except in a few exceptional cases. This privilege has been ac- 70 Pease v. Bridge, 49 Conn. Montgomery, 35 Miss. 107; 58; Thomi>son v. Lovrein, 82 Pa. Woodward v. Seaver, 38 N. H. St. 437; Dentzel v. Waldie, 30 29; Peter v. Byrne, 175 Mo. 233, Cal. 149; Bray v. Clapp, 80 Me. 75 S. W. Rep. 433, 97 Am. St. 277. 567; Miller v. Shaw, 103 111. 292; ^^ Schley v. Pullman Car Co., Pease v. Bridge, 49 Conn. 58. 120 U. S. 575; Morgan v. Snod- ts See Davidson v. Cox, 112 grass, 49 W. Va. 387; Roberts v. Ala. 510; Dietrich v. Hutchin- xAIcIntire, 84 Me. 362; Stcme v. son, 73 Vt. 134, 50 Atl. Rep. 810, 87 Am. St. 698. § 333.]- DEEDS BY PERSONS INCOIIPE TENT. 365 corded because of the supposed indiscretion incident to the immature period of life ; and because of the extreme difficulty attending the determination of contractual incapacity, as a mat- ter of fact, an arbitrary age has been fixed upon as the time at which a person shall be held sui juris. This age, by the com- mon law, has been fi,xed at twenty-one years, but, as it is com- petent for the legislature to vary this limit and to change the time of legal maturity, by statute, in a number of states, a wo^ man is permitted to attain majority at the age of eighteen years. Within these periods the law has refused to draw any lines or make any distinctions. All infants are entitled to the same protection, and a youth who has almost reached his majority is no more bound by his contract than an infant of tender years. Notwithstanding that a minor may be as able, in fact, to protect his interests as a person who has passed the full age period the law will refuse to measure individual capacity and the right of disaffirmance is given to every one who may be able to bring himself within the rule.'''' Where the contract has been executed by the infant, and has been in whole or in part executed by the adult, and the infant, upon coming of age repudiates the transaction, the general rule is that he must return the consideration received. But the weight of authority is that the rule can apply only where the infant has the consideration at the time he attains full age. If he has wasted or squandered it during his infancy he may dis- affirm the contract and recover what he may have, given upon it without making any restitution of that which he had re- ceived.^" We will not stop to discuss the morality of the qual- ification of the rule. It is enough that it has received a gen- eral assent, and seems to be supported by the theory that if the infant were required to restore an equivalent where he has wasted or squandered the consideration received, the privilege of disaffirmance would be of no avail when most needed.^^ 79 Baker v. Lovett, 6 Mass. 78; Mass. 508; Reynolds v. McCurry, McCarty v. Carter, 49 111. 53. 100 111. 356; Price v. Funnan, 27 80 Green v. Green, 69 N. Y. Vt. 268. 553; Chandler v. Simmons, 97 si Craig v. Van Bebber, 100 Mo. 584, 18 Am. St. 569. 356 TITLE BY DEED. [§ 333. But while the deed of an infant is defeasible, and may be avoided by any proper act of disaffirmance after the attainment of majority, yet in other respects it is not distinguishable from the deed of a person sui juris. It carries title of the land with all its incidents and is effective for all purposes until defeated by some unequivocal act of the grantor.^^ If possession has been delivered under it the grantee is in as of right, and hence cannot, in any just sense, be regarded as a trespasser. This was important under the old practice, in which the action of ejectment necessarily supposed the defendant to be a trespasser. It was then held that, in a case of this kind, the action would not lie without some previous act on the part of the plaintiff which avoided the deed under which the defendant held pos- session. In other words, that the defendant could not be treated as a trespasser until the grantor, by some act of avoid- ance, had placed him in that ppsition.^' The theory upon which this doctrine was maintained seems to have been, that the action of ejectment is essentially one of trespass, and that where an individual is in possession of land with permission or acquiescence of the owner, a suit cannot be maintained against him to recover such possession without a notice to quit, or until there has been a demand of possession and refusal, or unless he shall have been guilty of some other act which will make him a wrong-doer.^* , But this theory, not- withstanding its apparent fairness, has been denied by the later cases. This has resulted, partly from the changes to which the action of ejectment has been subjected and partly from revised opinions of the effect of the act of disaffirmance. The prevailing doctrine now is, that the disaffirmance of an infant's deed not only avoids it is a muniment of present title but renders it without effect from the beginning. Therefore, as the deed becomes wholly inoperative from the time it was delivered it follows that the grantee's possession under it is tor- 82 Logan V. Gardner, 136 Pa. Ky. 572; Davis v. Dudley, 70 Me. St. 588, 20 Am. St. 939; Law v. 236; Birch v. Linton, 78 Va. 584. Long, 41 Ind. 586; Ililey v. Pad- ss See Bool v. Mix, 17 "Wend, gett, 27 S. C. 300; Keil v. Healey, (N. Y.) 119; Wallace's Lessee v. 84 111. 104; Green v. Wilding, 59 Lewis, 4 Harr. (Del.) 75. Iowa, 679; Hoffert v. Miller, 86 s4 ciawson v. Doe, 5 Blackf. (Ind.) 300. § 334.J DEEDS BY PEESONS INCOMPETENT. ?57 tious. Fqr these reasons it is generally held, that no previous act on the part of the grantor is necessary in order to enable him to bring ejectment and that the mere institution of a raiit, after attaining his majority, is sufHcient in itself to show a dis- affirmance and avoid the conveyance.^" § 334. Deeds of lunatics. — It vsrould seem that at common law the deed of a lunatic or insane person was void, and this view has been taken by a number of American courts. ^° But where this view has been permitted to prevail the circum- stances of the particular case have had much to do with the shaping of the decision of the court, and generally, under this line of decisions, to establish invalidity it must appear that the grantor at the time of execution was absolutely without capa- city to understand or comprehend the nature of the transac- tion.^^ The better rule, and that which is sustained by the volume of authority, is that the deed of an insane person whose incom- petency has not been judicially determined is not void, but void- able merely,*' and is effectual to pass title with all its incidents if unassailed.'° Indeed the only question of moment pi-esented for our consideration in connection with our present subject is with respect to the method of testing validity. If the deed is regular in form and execution it conveys the legal title and its effect can be avoided, if at all, only upon equitable grounds and by the introduction of extrinsic proof.'" From this it fol- lows that such a deed, in the absence of statutory aid, cannot be avoided in an action of ejectment but resort must be had for S5 Craig v. Van Bebber, 100 Odom v. Ruddick, 104 N. C. 515 Mo. 584, 18 Am. St. 569; Hugbes Pearson v. Cox, 71 Tex. 246 V. Watson, 11 Ohio, 127; Webb Gibbon v. Maxwell, 34 Kan. 8 V. Hall, 35 Me. 336; Bircb v. Behrens v. McKenzie, 23 Iowa, Linton, 78 Va. 584; Cole v. Pen- 333. noyer, 14 111. 158. ss Badger v. Phinney, 15 Mass. s6See Rogers v. Walker, 6 Pa. 359; Nichol v. Tbomas, 53 Ind. St. 371; Van Deusen V. Sweet, 51 42; Hovey v. Hobson, 53 Me. N. Y. 378. 451; Elston v. Jasper, 45 Tex. STAldrich v. Bailey, 132 N. 409; Eaton v. Eaton, 37 N. J. L. Y. 85. 108. 88 Castro v. Geil, 110 Cal. 292, 90 Moran y. Moran, 106 Mich. 52 Am. St. 84; Moran v. Moran, 8; Pearson v. Cox, 71 Tex. 246; 106 Mich.' S, 58 Am. St. 462; Hovey v. Chase, 52 Me. 304. 358 TITLE BY DEED. [§ 335. this purpose to a court of equity, where the interests of all par- ties can be protected.'^ Where the common-law rule which excludes equitable de- fenses in ejectment has been abrogated, as is the case in a num- ber of states, the doctrine above stated may not apply and the rights of all parties may be determined in this form of action. V. Defeasible Conveyances. 335. Deeds upon condition. 336. Construction of condi- tions. § 337. Creation of conditions. 338. Conditions subsequent. 339. Avoidance of conditions. § 335- Deeds upon condition. — It is now am.ong the best established rules governing the sale and conveyance of land, that a vendor may annex to his grant any reasonable .condition, either with respect to the uses to which the land shall be put or to matters growing out of same, and this rule acquires addi- tional force whenever the vendor has any special and substan- tial interest in the enforcement of the condition.^^ Where an estate is conveyed and accepted subject to a condition the bur- den attends and qualifies the grant, and, if not avoided, the deed must have effect according to its terms.'" About the only limitation of this right is that it shall be exercised reasonably with due regard to public policy, and without creating any un- lawful restraint of trade. The particular class of coriditions which most effect the right of property in the hands of a grantee, and which most frequenth'- figure in ejectment suits, is that technically known as conditions subsequent ; that is, con- ditions which work a forfeiture of the estate conveyed in case they shall be broken. But a mere breach of condition does not, of itself, dive<5t the estate to which the condition is annexed. At best, it confers only a right of entry or action, and until the grantor has made aft entry upon the .land, or otherwise un- equivocally asserted his intention to take advantage of the 91 Moran v. Moran, 106 Mich. 8. 92 Plumb V. Tubbs, 41 N. Y. 442; Smitb v. Barrie, 56 Midi. 314: O'Brien v. Wetlierell, 14 Kan. 516; Cowell v. Springs Co., 100 TJ. S. 55. Compare Barrie v. Smitli, 47 Mich. 130. 93 Sioux City, etc. R. R. Co. v. Singer, 49 Minn. 301. §§ 336, 337.] DEFEASIBLE CONVEYANCES. 359 forfeiture, the estate with its attendant qualities remains in the grantee.'* § 336. Construction of conditions. — It is well established that conditions, and particularly conditions subsequent, or such as will defeat an estate once vested, are not favored in law. They can be created only by express terms or clear and neces- sary implication, and courts are always inclined to construe them as covenants rather than conditions whenever this can reasonably be done.°^ In every case, if it be doubtful whether a clause imports a condition or a covenant the latter construc- tion will be adopted, and it has been held that even though apt words for the creation of a condition are employed, yet, if there is no express provision for re-entry or forfeiture, the court will look to the nature of the acts to be performed or prohibited and from the relative situation of the parties and a consideration of all the circumstances attending the execution of the deed, will determine the effect of the instrument and the real intention of the parties.'"' In all cases conditions in avoidance of an estate should be construed strictly as against the grantor."'' and with liberal in- tendments as regards the grantee,"^ and in no case should they be extended beyond the precise terms in which they are ex- pressed."" No rule perhaps, is better settled than that a party who insists upon the forfeiture of an estate under a condition of his own creation must bring himself clearly within the letter."- § 337- Creation of conditions. — There seems to be a marked distinction, with respect to what language is required 84 Lewis V. Lewis, 74 Conn. County, 15 Oreg. 172; Peden v. 630, 92 Am. St. 240, 51 Atl. Rep. Railway Co., 73 Iowa, 328. 854; Robinson v. Ingram, 12S 97 Gadberry v. Sheppard, 27 N. C. 327; Guild v. Richards, 82 Miss. 203; Moore v. Pitts, 53 N. Mass. (16 Gray) 309; Osgood v. Y. 85. Abbott, 58 Me. 73; Spect v. os Palmer v. Ford, 70 111. 369; Gregg, 51 Cal. 198. Woodworth v. Payne, 74 N. Y. 95 Board of Bduoation v. Trus- 196; Glenn v. Davis, 35 Md. 208. tees, 63 111. 204; Hoyt v. Kim- sa Emerson v. Simpson, 43 N. ball, 49 N. H. 322. H. 473; Voris v. Renshaw, 49 111. .96 Post V. Weil, 115 N. Y. 361; 425. Hoyt v. Kimball, 49 N. H. 327; i Jackson v. Silverman, 15 City Mission v. Appleton, 117 Johns. (N. Y.) 278; Page v. Pal- Mass. 326; Raley v. Umatilla mer, 48 N. H. 385; Weir v. Sim- mons, 55 Wis. 637. 360 TITLE BY DEED. [§ 33S. to create an estate on condition, between conveyances purely voluntary and those based upon a valuable consideration. In the former case such an estate may be created by any words which declare that the land is given for a certain purpose or with a particular intention ; "^ in the latter, unless these words are conjoined with others giving a right to re-enter or declar- ing a forfeiture in a specified contingency, the grant will not be deemed conditional.^ The formula "provided always," etc., is generally employed in the draughting of instruments intended to be conditional in character, and the terms "provided always," and "upon the ex- press condition," etc., have frequently been held to create estates upon condition.* But this effect of the formula may easily be negatived by other parts of the instrument, and when it is clear that the words have been employed to express ideas different from their technical signification courts will generally construe them according to such intent.^ § 338- Conditions subsequent. — Ejectment is frequently resorted to for the purpose of recovering the possession of land claimed under a forfeiture arising from the breach of a condition subsequent. In all such cases, however, the claim- ant must show a clear and indisputable right of re-entry. It is fundamental that conditions subsequent working forfeiture are not favored in law ; " that they will always be strictly con- strued ; '' and that in all cases of doubt and uncertainty, where the intefttion is not clearly manifested, they will be interpreted only as covenants or restrictive stipulations.^ The mere fact that land is conveyed with a restriction upon the uses to which 2 Bcroyd v. Coggeshall, 21 R. I. s Kilpatrick v. Baltimore, 81 1, 79 Am. St. 741, 41 Atl. Rep. Md. 179; Hoyt v. Kimball, 49 260. N. H. 322; Horner v. Railway sRawson v. School District, 7 Co., 38 Wis. 165; Scovill v. Mc- AUen (Mass.), 125; Brown v. Mahon, 62 Conn. 378. Caldwell, 23 W. Va. 187; Faith r Paith v. Bowles, 86 Md. 13; V. Bowles, 86 Md. 13; Peden v. Railway Co., 73 Iowa, * Wiggins Perry Co. v. Rail- 328; Page v. Palmer, 48 N. H. way Co., 94 111. 83. 385; Rawson v. School District, 5 Railroad Co. v. Beal, 47 Cal. 7 Allen (Mass.), 125; Sohier v. 151; Hoyt v. Kiinhall, 49 N. H. Church, 109 Mass. 1. 322; Callins v. Lavalle, 44 Vt. s Graves v. Deterling, 120 N. 230. Y. 447; Boone v. Clark, 129 111. § 338.] DEFEASIBLE CONVEYANCES. 361 it may be applied, or a limitation of the manner of its enjoy- ment, will not have the effect of creating a condition subse- quent," nor will a diversion from prescribed uses subject the title of the grantee to divesture.^" It will often happen that a grant is made for a special purpose and with a proviso annexed that the land shall not be used for any other than the one specified, but such a grant, without more, is not to be deemed conditional." At most, it would seem that such a grant would have the effect to create only a confidence or trust in connection with the land conveyed or to raise an implied agreement On the part of the grantee to use the land only for the purpose speci- fied.i^i While no technical words are necessary to create a condi- tion,^' and while' the intention of the parties is the controlling factor,^* yet this intention must be unequivocally manifested by apt and sufficient language, which, in itself, imports that the continuance of the estate is dependent upon the supposed con- dition.^^ Probably nothing more unmistakably indicates the character of the grant or discloses the intentions of the parties thereto, than the insertion of words of forfeiture or provisions for re-entry,^" and while it is not essential to a condition subse- quent that there shall be an express reservation of the right of re-entry or a proviso that the estate granted shall revert upon a breach of the condition,^^ yet there must be some words which 466; Peden v. Railway Co., 73 I. 56, 25 Atl. Rep. 692; Pack- Iowa, 328; Chicago, etc. Ry. Co. ard v. Ames, 16 Gray (Mass.), V. Titterlngton, 84 Tex. 218, 31 327. Am. St. 39, 19 S. "W. Rep. 472; is Gilbert v. Peteler, 38 N. Y. Thornton v. Trammell, 39 Ga. 165. 202. 14 Star Brewery Co. v. Primas, 9 Faith V. Bowles, 86 Md. 13, 163 111. 652; Chapin v. School 63 Am. St. 489, 37 Atl. Rep. 711; District, 35 N. H. 445; Horner Newpoint Lodge v. Newpoint, v. Railway Co., 38 Wis. 165. 138 Ind. 141, 37 N. B. Rep. 650. isLaberee v. Carleton, 53 Me. loEcroyd v. Coggeshall, 21 211; Rawson v. School District, R. I. 1, 79 Am. St. 741, 41 Atl. 7 Allen (Mass.), 125; Craig v. Rep. 260. Wells, 11 N. Y. 315. 11 Farnham v: Thompson, 34 is O'Brien v. Wagner, 94 Mo. Minn. 331, 26 N. W. Rep. 9; 93; Gilbert v. Peteler, 38 N, Y. Episcopal Mission v. Appleton, 165; Emerson v. Simpson, 43 117 Mass. 326; Curtis v. Board N. H. 475. of Education, 43 Kan. 138. it Horner v. Railway Co., 38 12 Greene v. O'Connor, 18 R. Wis. 165. 362 TITLE BY DEED. [§ 339. clearly indicate that the estate or interest is to depend upon a contingency provided for.^^ When this fact is unequivocally shown the particular form of words used is immaterial, for a forfeiture follows a condition subsequent upon its breach by operation of law.^" § 339. Avoidance of conditions. — The general rule is, that an estate which has once vested cannot be defeated by a condition subsequent which is impossible, illegal, or repugnant to the estate granted. ^^ In such event the condition is dis- charged and the title of the grantee freed therefrom.-^ The right of entry may be waived by the grantor,^- or it may be lost by his own laches and neglect,^^ and where a right of re- entry has not been exercised for many years after such right accrued the grantor and his heirs may be held to have waived the same.^* 18 Lyon T. Hersey, 103 N. Y. 21 Soovill v. McMahon, 62 264. Conn. 378, 36 Am. St. 350. 19 Jackson v. Allen, 3 Cow. 22 O'Brien v. Wa,gner, 94 Mo. (N. Y.) 220; Osgood v. Abbott, 93; Benavides v. Hunt, 79 Tex. 58 Me. 73. 383; St. Louis, etc. Co. v. 20Rioketts v. Railway Co., 91 Mathers, 71 111. 592. Ky. 221; Taylor t. Sutton, 15 23 Guild v. Richards, 16 Gray Ga. 103; Scovill v. McMahon, 62 (Mass.), 309; Andrews v. Sen- Conn. 378, 36 Am. St. 350; St. ter, 32 Me. 394. Louis, etc. Co. v. Mathers, 71 111. s-t M. & C. R. R. Co. v. Neigh- 592. bors, 51 Miss. 412; Guild v. Rich- ards, 82 Mass. 309. CHAPTER X. TITLE BY DEVISE. § 340. Generally considered. § 353. Description of devisee. 341. Methods of proof. 354. Definition of terms — 842. Effect of probate of Issue. wills. 355. Continued — Children. 343. Continued— Foreign pro- 356. Continued — Heirs. bate. 357. Illegitimates. 344. Lost wills. 358. Adoptive heirs. 345. Establishment of title. 359. Description of land de- 346. Construction of wills. vised. 347. Continued — Underlying 360. Erroneous description — principles. The rule stated. 348. Continued — As affected 361. Continued — Qualifica- by extrinsic facts. tions of the rule. 349. General and particular 362. Devise upon condition. intent. 363. Devise of power of dis- 350. The rule in Shelley's position. Case. 364. Devise by joint tenant. 351. Repugnancy. 365. Void devise. 352. Devise of same tract to different persons. § 340. Generally considered. — Title by devise, or, as it is sometimes called, testamentary succession, is that form of purchase whereby the instrument or act of transfer becomes effective only at the death of the grantor. This is the test usually employed to determine the operative character of an instrument of conveyance and which distinguishes deeds from wills, whatever may be the form of the instrument. Where the ■ claimant bases his rights on a will the methods of proof are essentially different from those employed where the grant is in presenti, and much technical difficulty is sometimes encoun- tered. § 341. Methods of proof. — In the English works upon the subject of ejectment, as well as in the writings of the earlier American commentators, much space is devoted to the methods of proof by which a devisee must establish his title. 364r TITLE BY DEVISE. [§ 341. where his entry is resisted by an heir or other adverse claimant. Under the Enghsh common law relating to ancient documents and deeds of conveyance, if the will was thirty years old it might be introduced and read without further proof,^^ other- wise its due execution was required to be shown together with such other facts as were essential to its validity. It will be remembered, however, that in England, until very recent years, there were no courts vested with general powers to take the proof of wills and to certify thereto. The ecclesiastical courts had a Hmited jurisdiction with respect to wills of personalty, or testaments, but this authority did not extend to wills dispos- ing of lands, or real property, and even though such a will was admitted to probate in an ecclesiastical court, which was often the case when it contained provisions relating both to real and personal estate, the decree entered thereon was operative only with respect to the personalty, and so far as it affected the lands, could not be given in evidence in the secular courts. There being no provision for the probate of wills of real prop- erty they were cognizable only in the courts of common law and in the ordinary forms of legal actions, and whenever a question arose concerning them in any court or legal proceed- ing it became necessary to establish them by proof of their due execution and publication. In a number of instances American writers have copied or followed the dicta of the English books, and the result has been to create considerable confusion upon this branch of the subject. The law relating to the estates of decedents as administered in the United States, is very definite in its provisions respecting the probate of wills. In all of the states statutory courts now exist with exclusive original jurisdiction of all matters relating to the proof of last wills and testaments, whether relating to real or personal property or both. The order of such a court ad- mitting a will to probate establishes its validity, while the find- ings, judgments and decrees of such courts upon all matters relating to testamentary capacity, execution and publication, are final and conclusive in all other courts where the will may 25 See Adams, Ejectment, 259. as a rule. 2 Green. Ev. § 310. Greenleaf also lays this down § 342.] TITLE BY DEVISE. 365 be incidentally drawn in question. ^^ Where a will has thus been proved it has the effect and operation of a valid convey- ance in law of the lands therein devised. In such event no other or further evidence is required, in a collateral proceeding, to show that the instrument offered is the last will and testa- ment of the deceased person whose testamentary act it pur- ports to be. On the other hand, a will that has not been so admitted to probate, though admissible, perhaps, in connection with proof of adverse possession, is not evidence of title in a court of law," and, without more, will not sustain an action of ejectment.^* § 343. Effect of probate of wills. — The probate of a will, if decreed by a coui't of competent jurisdiction, establishes the facts : (i) that the instrument in question is the last will of the testator and that it was duly executed and published with all the solemnities required by law; (2) that the testator at the time of executing the instrument was of sound and disposing mind and memory, capable of understanding the act he was doing, and the relation in which he stood to the object of his bounty, and to the persons to whom the law would have given his property if he had died intestate; (3) that the instrument was executed without fear, fraud or undue influence by which his own intentions were controlled and supplanted by those of another; (4) that he executed the instrument animo testandi, with an understanding and purpose that it should be his last will and testament ;^° and (5) it is presumptive evidence of the death of the person whose will it purports to establish.^" Such decree is generally regarded as in the nature of a judgment in 28jBe Donnely's Will, 68 Iowa, ler, 59 Tex. 460; Pettit v. Black, 126; Howbert v. Heyle, 47 Kan. 13 Neb. 142; Graves v. Ewart, 48; Bowen v. Allen, 113 111. 57; 99 Mo. 13, 11 S. W. Rep. 971. Loring v. Arnold, 14 R. I. 430; 2s Snuffer v. Howerton, 124 Dilworth v. Rice, 48 Mo. 133; Mo. 637. Caulfleld v. Sullivan, 85 N. Y. 29 Barker v. Comins, 110 Mass. 160; Matthews v. McDade, 72 477; Matthews v. McDade, 72 Ala. 377. Ala. 377; Greenwood v. Murray, 27 "Willamette, etc. Co. v. Gor- 26 Minn. 259; Re Donnely's Will, don, 6 Oreg. 175; Wood v. Math- 68 Iowa, 126. ews, 53 Ala. 1; Pitts v. Melser, so Carroll v. Carroll, 6 Thomp. 72 Ind. 469; Shumway v. Hoi- & C. (N. Y.) 294; Belden v. brook, 1 Pick. 114; Ochoa v. Mil- Meeker, 47 N. Y. 307. 3b6 TITLE BY DEVISE. [§ 313. rem,^'^ and in the absence of statutory provisions is conclusive as against all the world as to the validity of the will,^^ and af- firms the title of the beneficiary under it from the time of the testator's death,^^ relating back so as to make valid whatever had been previously done, which, under the will, after probate, the beneficiary could lawfully have done.^* But though probate establishes the sufficiency of the will, and confirms the claims of those holding under it, so far as to make it evidence of title, it does not determine the title to the property, nor establish the validity of any devise given by it, the will having no greater effect after probate than any other legal conveyance. ^^ A transcript of the record of probate of a will devising lands is always competent evidence of title in an action of eject- ment, and will, of itself, be sufficient to establish title, if not overcome by covinter proof.^" § 343- Continued — Foreign probate. — In order to entitle a devisee of lands under a will probated in a foreign jurisdic- tion to dedvice legal title to same in the courts of the state where the land is located, it is necessary, as a rule, that the will be also probated in the local courts. This matter is gov- erned by statute, which generally provides that the copy of the will presented must be accompanied by the foreign probate and due authentication thereof, these together constituting the one instrument or subject-matter to be acted upon under the stat- ute; and all are, as a rule, essential to authorize the probate court to exercise jurisdiction." Whenever this ancillary pro- bate is resorted to it is generally allowed as a matter of course 31 Hall v. Hall, 47 Ala. 290; 34 stuphen v. Ellis, 35 Micli. Crippen v. Dexter, 13 Gray 446; Allaire v. Allaire, 37 N. J. (Mass.), 330; State v. McGlynn, L. 312; Dublin v. Chadbourn, 16 20 Gal. 233; Wolcott v. Wolcott, Mass. 433; Sweet v. Chase, 2 N. 140 Mass. 194; Brock v. Frank, Y. 73. 51 Ala. 85. 35 Fallon v. Chidester, 46 32 Brock v. Frank, 51 Ala. Iowa, 588; Greenwood v. Mur- 85; Janes v. Williams, 31 Ark. ray, 26 Minn. 259; Ware v. Wis- 175; Tucker v. Whitehead, 58 ner, 4 McCrary (0. Ct.), 66. Miss. 762; In re Williams, 1 Lea 36 Allaire v. Allaire, 37 N. J. (Tenn.), 529; Orr v. O'Brien, 55 L. 312. Tex. 149. 37 Pope v. Cutler, 34 Mich. 33 Stuphen v. Ellis, 35 Mich. 150; Ward v. Gates, 43 Ala. 515. Cal. Pa. St. 294; Badger v. Badger, 427. 422 TITLE BY DESCENT. [§ 388. before the world, and intended to make that relation lawful which before was unlawful, although such evidence may not go to the direct proof of marriage, )-et it may be sufficient grounds upon which to found the presumption of marriage.'^ Hence, if it appears that after the birth of the claimant, though born a bastard, there was cohabitation of his father and mother, the latter assuming the name of the former, and that the par- ties treated each other as man and wife, and treated the claim- ant as their child, and that they were treated as and reputed to be man and wife by their friends and acquaintances, these are facts proper to be submitted to the jury and from which marriage may be inferred, notwithstanding the original illicit connection of the parties.''^ § 388. Void marriage. — If parties entering into what pur- ports to be a marriage relation were, in fact, without capacity for such purpose, as if either had a lawful husband or wife living at the time, the marriage is absolutely void.'° A void marriage is without effect for any legal purpose, and its inval- idity may be shown in any court and between any parties, either in the lifetime of the parties thereto or after their death.^° It has been held, that where it is shown that the re- lation began with a formal marriage, which was in fact invalid because one of the contracting parties had a lawful spouse living at the time, the continuance of the cohabitation will not afford any presumption of a second legal marriage contracted after the death of such spouse. ^^ Under circumstances of this kind, it is said, the law will raise no presumptions, the question to be determined being one of fact and not of law. But while this doctrine is announced in unqualified terms in some of the decisions, it would yet seem that it should be applied only in exceptional cases indicating moral turpitude on the part of those who seek to enforce rights which only accrue from legit- imate relations. The better rule would seem to be, particularly in cases involving questions of legitimacy and succession, that " Potter V. Clapp, 203 III. 592. si Randett v. Rice, 141 Mass. 78 Jones V. Jones, 45 Mel. 144. 391; Collins v. Voorhees, 47 N. 76 Potter V. Clapp, 203 111. 592. J. 'Eq. 555; Rose v. Rose, 67 80 Cartwright v. McGowan, 121 Mich. 619, 35 N. W. Rep. 802. Ill, 388. §§ 389, 390.] TITLE BY DESCENT. 423 where an attempted marriage is void by reason of the disability of one of the parties, a subsequent marriage will be presumed after the disability has been removed, where the matrimonial relationship is continued and the parties hold themselves out, and are regarded and treated by their friends and acquaint- ances, as husband and wife.*^ But while the courts are ever inclined to indulge in all rea- sonable presumptions to sustain the legality of the relation, yet, if the evidence clearly excludes such presumptions they must be rejected, and the mere fact of cohabitation and its attendant circumstances becomes immaterial.*^ § 389. Proof of birth. — The facts of birth and relation- ship may be proved directly by the testimony of a person pres- ent at the accouchment, as the midwife, nurse, attending physician, etc., or by secondary evidence of any grade recog- nized by the courts, or even by general reputation. The testi- mon of eye-witnesses of the event is the preferable mode of making proof, yet it must frequently happen that direct proof , of this character cannot be procured and from the difficulty which attends the production of such evidence the law permits secondary evidence as presumptive of the facts sought to be established.** The general rule is that children are presumed to be legitimate and the burden of establishing illegitimacy rests upon those asserting it.*° This presumption applies to every case where the question of legitimacy is at issue.*' § 390. Continued — General reputation. — As an incident of pedigree the facts of birth and parentage may, to some ex- tent, be shown by that form of hearsay known as general rep- utation, and evidence that a person has been generally recog- nized as the legitimate offspring of the alleged parents will 82Blanchard v. Lambert, 43 Jones, 45 Md. 144; Weinberg v. Iowa, 228; Barker v. Valentine, State, 25 Wis. 370. 125 Mlcli. 336, 84 N. W. Rep. 297, , 84 Hathaway v. Evans, 113 84 Am. St. 578; Johnson v. John- Mass. 267; Webb v. Richardson, son, 114 111. 611; Yates v. Hous- 42 Vt. 465; Eaton v. TJallmadge, ton, 3 Tex. 449. 24 Wis. 217; "^n Sickle v. Gib- 83 Cartwright v. McGown, 121 son, 40 Mich. 170. 111. 388, 2 Am. St. 105; Williams ss Matthews' Estate, 153 N. Y. V. State, 44 Ala. 44; Harrison v. 443. Lincoln, 48 Me. 205; Emerson v. ssjiatthews' Estate, 153 N. Y. Shaw, 56 N. H. 418; Jones v. 443. 4:24 TITLE BY DESCENT. [§ 391. be received to support the legal presumption of legitimacy.'^ But the same latitude is not permitted to overcome this gen- eral presumption, and evidence of mere rumors, doubts, and the like among neighbors as to the paternity of a child, is in- admissible upon the question of parentage.^^ § 391. Presumption of legitimacy. — As a rule, the only proof of legitimacy which a claimant is required to produce in the first instance, is satisfactory evidence of the marriage of his parents and his own subsequent birth. When this has been clone the law raises a presumption in his favor that can be overcome only by strong and convincing proof.^' It was for- merly the rule in England,"" and it would seem also in this country,"^ that A\hen a child was shown to have been born in wedlock the presumption of legitimacy was conclusive."^ In- deed this was always the case, according to the old law, pro- vided the husband was "within the four seas." But recent years have greatly modified the old rule and now, while the presumption may not be rebutted by circumstances which only create doubt and suspicion,"^ it may yet be wholly ■ destroyed by proper and sufficient evidence showing that the husband was (i) incompetent; (2) entirely absent, so that it would have been impossible to have had intercourse or carnal com- munication of any kind with the mother; (3) absent at the particular period during which the child must, in the course of nature, have been begotten ; or (4) present under such cir- cumstances as afford clear and satisfactory proof that there was no intercourse."* The question of the legitimacy or illegitimacy of the child of a married woman is now regarded as one of fact, resting on 87 Illinois, etc. Co. v. Bonner, ss Metheny v. Bohn 160 111 75 111. 315. 263. 8s Metheny v. Bolin, 160 111. 94 This rule, announced in the 263. English case of Hargrave v. Har- 80 Orthweln t. Thomas, 127 111. grave, 9 Beav. 552, has since 554; Scott v. Hillenberg, 85 Va. been substantially followed in 245. this country. See Shuman v. M Cruise, Dig., tit. 29. Shuman, 83 Wis. 254; Estate of 911 Greenl. Ev., § 28. Mills, 137 Cal. 298; Scanlon v. 82 Haddock v. Railway Co., 85 Walshe, 81 Md. 118, 48 Am. St. Mass. 298; Whitman v. State, 34 488, 31 Atl. Rep. 498; Orthweinv. Ind. 360. And see Illinois, etc. Thomas, 127 111. 554; Woodward Co. V. Bonner, 75 III. 315. v. Blue, 107 N. C. 407. § 392.] TITLE BY DESCENT. 425 proof as to the non-access of the husband, and the facts should generally be left to the jury for determination.''^ In the na- ture of the case, the paternity of a child can hardly be said to be subject to direct proof, and it is for this reason that the law presumes legitimacy from the mere circumstance that it is born in wedlock, and requires strong evidence to overcome the presumption.^" Yet, where on the issue of legitimacy the evi- dence strongly tends to prove non-access it should be left to the jury to weigh the evidence against the presumption, and decide according to the preponderance.^^ If the husband have access, then, notwithstanding others at the same time are carrying on a criminal intimacy with the wife, a child born under such circumstances is still regarded as legitimate in the eye of the law.°* But if the wife is Hving apart and separate from the husband, and particularly if she is living in open adultery, the legitimacy of a child born vmder such circumstances is not established by the mere fact of wed- lock. As a general proposition, however, a person claiming legal status will, on a proper prima facie showing, be deemed legit- imate until the contrary is conclusively shown, and the fact that one was brought up in the family of persons living to- gether as husband and wife, as their lawful offspring, and was treated and recognized as their child by them, imposes the bur- den of disproving his legitimacy and right to inheritance upon those who deny the status or affirm themselves to be the right- ful heirs'.^'' § 392. Continued — Ante-nuptial conception. — So strong is the presumption of legitimacy arising from birth in wed- lock, that it will not be overcome by mere proof of ante-nuptial conception. In numerous cases it has uniformly been held that conception during wedlock is not essential to the pre- sumption of legitimacy which arises from birth in wedlock,^ 95 2 Kent, Com. 210; Schouler, cohabiting with her husband, Dom. Rel., § 225. who is not impotent, is indisput- 88 Woodward v. Blue, 107 N. C. ably presumed to be legitimate. 407. 99Metheny v. Bohn, 160 111. 97 •Woodward v. Blue, 107 N. C. 263, 43 N. E. Rep. 280. 407; Wright v. Hicks, 15 Ga. 160. 1 Dennison v. Page, 29 Pa. St. 98 By the civil codes of some 420; Wright v. Hicks, 12 Ga. 155. of the states the issue of a wife 426 TITLE BY DESCENT. [§§ 393, 394. and this principle, in some of the cases, has been carried to great length.^ § 393- Continued — Character of evidence.^ — Where ille- gitimacy is properly made an issue it is a fact, which, like other facts, must be proved by competent evidence. The dictates of decency and morality, no less than the requirements of . sound public policy imperatively reject all testimony by either husband or wife to show that a child born in wedlock but be- gotten before is not the offspring of the parties,^ nor can the testimony of the mother be received to prove non-access of the husband during the time they lived together.* In all cases clear and conclusive evidence is required to over- come the legal presumption,^ yet, as the fact of non-access at the time of conception is negative in its character, it follows that it cannot be established directly and without proof of other circumstances. It may be established indirectly, how- ever, by proving the impossibility of a contrary fact. Thus, while it cannot be proved by direct evidence that the husband and wife did not cohabit, yet it may be shown that the hus- band was in one place and the wife in another, and that they had been living separate for some years prior to the birth." § 394. Proof of death. — In order to establish the claim of the heir it is necessary in all cases -to prove the death of the ancestor, the presumption being, in the absence of proof to the contrary, that an individual once shown to be alive is still liv- ing.'' Great lapse of time, will, of course, rebut this presump- tion and in the interval of say one hundred years, a party a In Zacliman v. Zaohman, 201 583 ; Scanlon v. "Walshe, 81 Md. 111. 380, it was held that a child 118; Boykin v. Boykin, 70 N. C. born in wedlock is presumed to 262; Tioga v. South Creek Town- be legitimate, though the hus- ship, 75 Pa. St. 436. band and wife have been married s'W'atts Owens, 62 Wis. 512; but fifteen days and the wife Wright v. Hicks, 12 Ga. 155; had been divorced from a for- Egbert v. Greenwalt, 44 Mich, mer husband but twenty days, 245. there being no evidence that he 6 Dean v. State, 29 Ind. 483. had lived with her at or within ^ Martinez v. Vives Succession, the period of conception. 32 La. Ann. 305; Whiting v. aDennison v. Page, 29 Pa. St. NicoU, 46 111. 230; Mosheimer 420; Parker V. Way, 15 N. H. 45. v. TJssleman, 36 111. 232; Pea- ^Abington v. Duxbury, 105 body v. Hewett, 52 Me. 33. Mass. 290; Mink v. State, 60 Wis. § 394.] TITLE BY DESCENT. 427 must be presumed to have died in the ordinary course of na- ture.^ The civil law, however, presumes a person living at one hundred years of age, and the corrimon law does not stop much short of this.'' It is a further generally accepted rule that death must be proved the same as any other fact, although formerly many presumptions seem to have been admitted. Whenever pos- sible direct and positive evidence should be produced, and the most satisfactory proof of the death of an individual is the testimony of those who saw him die, or who, having known him when living, saw and recognized his body after his de- cease. With respect to testimony of this character but little question can arise. For this purpose it is customary to call the attending physician who was employed during the last sick- ness, the clergyman who officiated at the funeral, or the under- taker who prepared the remains for interment. Relatives and friends of the deceased who knew him in life and afterwards viewed the corpse are all competent to testify to the, fact of death. But death, like any other fact, may be proved by circum- stantial evidence. Thus, a sudden disappearance, particu- larly if coupled with an unsound mental or physical condition,^" or proof of the wreck of a vessel in which the ancestor was known to have taken passage,^'- or any other circumstances ^- from which the death of a person may reasonably be inferred,^^ are all competent to show the fact in connection with long and 8 Montgomery v. Bevans, 1 the doctrine of the English Saw. (C. Ct.) 653; Sprigg v. cases. Moale, 28 Md. 497. 12 As where a man in feeble » Watson V. Tindall, 24 Ga. health and weak constitution 494. has heen absent for twenty 10 John Hancock, etc. Co. v. years without any news of him. Moore, 34 Mich. 41; Chapman v. his former habit of writing to Kimball, 83 Me. 389; Cox v. his friends having ceased with. Ellsworth, 18 Neb. 664. out any explanation. Chapman 11 Holmgs v. Johnson, 42 Pa. v. Kimball, 83 Me. 389. St. 159; ''Offenheim v. Wolf, 3 is Johnson v. Merithew, 80 Me Sandf. Ch.'' (N. Y.) 571; White 111; Lancaster v. Washington, V. Mann, 26 Me. 361; Davis v. etc. Co., 62 Mo. 121; Manley v. Briggs, 97 U. S. 628; Learned v. Pattison, 73 Miss. 417; Jamlsoi. Corley, 43 Miss. 687. This is also v. Smith, 35 La. Ann. 60i.. 428 TITLE BY DESCENT. [§ 395. unexplained absence.'* In such cases, however, the evidence should be of a convincing character and of such a nature as to exclude reasonable doubts.'^ The burden of proving death at any particular period is with the person to whose title that fact is essential.'" § 395- Continued — Reputation — Hearsay. — It is fre- quently asserted that death may be proved by reputation, and by hearsay, as well as by facts inconsistent with the con- tinuance of life.''' Upon this point, however, there is much conflict of authority. It is generally held that declarations of deceased members of a family, made ante litem motam, are ad- missible to prove pedigree, such declarations being received as a sort of original evidence on grounds that have long been considered sound. It is further held, in this country at least, that the term pedigree embraces not only descent and relation- ship, but also the facts of birth, marriage and death, and the times when these events occurred.'^ In England, and pos- sibly some of the states, the rule is limited strictly to cases in- volving pedigree, and does not apply to proof of the facts which go to make up pedigree, such as birth, marriage and death, when they have to be proved for other purposes. The strict application of this rule of admission confines it to the declarations of deceased persons, who were related by blood or affinity to the person proposed, and therefore inter- ested in the succession in question, and excludes mere repute in the family created wholly by the living. This, it is said, amounts to nothing more than opinion or belief, and however strong or well grounded this belief may be it cannot be ac- cepted as a proof of the fact. It is claimed, in support of this contention, that the proof of a death is no more difficult than many other facts which are required to be shown to determine the rights of litigants. Any facts or circumstances relating "Boyd V. Insurance Co., 34 is Evans v. Stewart, 81 Va. La. Ann. 848; Wentwortti v. 724. Wentworth, 71 Me. 72 ; Leach v. it Lawson, Presumptive Evi. Hall, 95 Iowa, 611; Bank v. Pub- 197. lie Schools, 83 Ky. 219. is i Greenl. Bv. § 104; Stein IB Cox v. Ellsworth, 18 Neb. v. Bowman, 38 U. S. 220, 10 L. 664; Davis v. Briggs, 97 U. S. Ed. 134. 628. § 395.] TITLE BY DESCENT. 429 to the character, habits, condition, affections, attachments, pros- perity, and objects of life, which usually control the conduct of men and are motives of their artions, are competent evi- dence from which may be inferred the death of one absent and unheard from, whatever has been the duration of such ab- sence.^' When all of these facts are within the knowledge of living witnesses, and none of such facts are derived from the declarations of deceased members of the family, then, it is con- tended, there is no necessity for resorting to family reputation. The testimony of such witnesses should be produced in court and from it the triers should find such as it might tend to prove. As a corollary to this line of reasoning it follows, that however much and long the members of a family may have reflected upon and brooded over such known facts, cir- cumstances, and incidents of the case, considered in reference to the character and habits of the person whose death is in question, the result of such cogitation is only their opinion or belief based upon such facts, circumstances and incidents.-" As before remarked, the authorities on the question now un- der consideration are conflicting. While the reasoning which sustains the foregoing is logical and in consonance with legal theories, it is yet rejected in a number of cases, and, in the absence of better evidence, it has frequently been held that re- sort may be had to what is commonly said and understood to be true among the immediate relatives and family connections of the person to whom the inquiry relates. ^^ In some cases the principle has been extended to cover a reputation of death among friends and acquaintances, and evidence of such repu- tation has been admitted where the person reputed to be dead left no relatives or kindred. ^^ In support of this wide depart- 19 Tisdale v. Insurance Co., 26 21 Clark v. Owens, 18 • N. Y. Iowa, 170; Reedy v. Millizen, 434; Norrls v. Edwards, 90 N. 155 III. 636. C. 382; Jackson v. Boneham, 15 20 Estate of Hurlburt, 68 Vt. Johns. (N. Y.) 226; Bailey v. 366, 35 L. R. A. 794. And see Bailey, 36 Mich. 181. Blaisdell v. Bickum, 139 Mass. 22Ringhouse v. Keever, 49 111. 250; Ross v. Loomis, 64 Iowa, 470. And see Insurance Co. v. 432; De Haven v. De Haven, 77 Moore, 34 Mich. 41; Woolsey v. Ind. 239; Wilson v. Brownlee, Williams, 128 Cal. 558. 24 Ark. 586; Chapman v. Chap- man, 2 Conn. 347. 430 TITLE BT DESCENT. [§§ 396, 397. ure from ancient usage it is said, that, in a population as un- stable as ours, the refusal of all evidence of reputation in re- gard to death, unless it comes from family relatives, will some- times render proof of a death impossible, though there might be no doubt of the fact, and thus the ends of justice would be defeated. § 396. Presumption of death — Grant of letters of admin- istration. — Death may also be shown by any secondary evi- dence which is sufficient to raise a legal presumption. Thus, the grant of letters of administration is prima facie evidence of the death of the person upon whose estate they are issued, and courts may presume the death of the intestate upon their production," yet the presumption thus raised is of the lowest class ; is weak and inconclusive, and may be rebutted by slight evidence to the contrary.-* But while this is undoubtedly the general rule the reason therefor is not very apparent. In all cases, upon the grant of letters testamentary there is an in- quest and judicial finding. Competent and satisfactory proof is supposed to have been offered on the hearing of the petition and the fact of death duly established before letters are gran- ted. A judicial finding of death should, therefore, raise more than a weak and inconclusive presumption. In subsequent litigation, particularly with respect to proprietary rights grow- ing out of inheritance, evidence of this character should be ac- corded full weight and should not be disturbed except by coun- ter evidence of a strong and convincing nature. § 397- Continued — Unexplained absence.— While the common law raised a presumption of the continued existence of a person shown to have been once living, in the absence of proof to the contrary, yet this presumption does not seem to have been supported by any definite rule. It was always as- sailable by 'evidence that the person had absented himself from his usual place of residence and had not been heard from by those to whom his continued existence would naturally have been known, and when the absence amounted to a period of 23 French v. Frazier, 30 Ky. 24 Tisdale v. Insurance Co., 26 425; Holmes v. Johnson, 42 Pa. Iowa, 170. And see English's St. 159; Pick v. Strong, 26 Minn. Adm'r v. Murray, 13 Tex. 366. 303; Brown v. Elwell, 17 ^\ jh. 442. § 397.] TITLE BY DESCENT. 431 seven years the presumption of life ceased and a presumption of death arose, which, in the absence of counter-proof was al- lowed to prevail. ^^ This doctrine has been reaffirmed by the American courts, and it has repeatedly been held that an ab- sence of seven years, without tidings, will create a presump- tion of death,^" leaving it incumbent on the party who claims a benefit or interest in the ancestor being alive, within that time, to prove it." The doctrine has further found expression in the statutory policy of many states, and it is held that the pre- sumption of death raised by such enactments is not a presump- tion of fact, but of law, which, in the absence of rebutting evi- dence, stands as proof of death.^* To raise the presumption, however, there must be evidence of diligent inquiry at the per- son's last place of abode and among those who would probably have heard from him if living, but when this is shown and that no intelligence concerning him has been received, the pre- sumption will be effective until the contrary has been proved.^^ On the other hand, evidence of a search made for a missing person at a place other than his known place of residence is insufficient to raise a presumption of death,^" and continuance of life will be presumed until by proper proof the contrary pre- sumption has been raised.^^ In any event mere lapse of time is not alone sufficient to create such presumption.^^ 25 Meyer v. Madreperla, 68 N. aoHltz v. Ahlgren, 170 111. 60; J. L. 258, 53 Atl. Rep. 477, 96 Wentwortli v. Wentworth, 71 Am. St. 536. And see 2 Greenl. Me. 72; Bailey v. Bailey, 36 Bv., § 278, 1 Taylor, Ev. § 220. Mich. 182; Posey v. Hanson, 10 26 Whiting V. Nicoll, 46 111. App. D. C. 496. 230; Davie v. Briggs, 97 TJ. S. so Morrison's Estate, 183 Pa. 628; Adams v. Jones, 39 Ga. 479; 155. Wentworth v. Wentworth, 71 Me. si Schaub v. Griffin, 84 Md. 72; Johnson v. Merithew, 80 Me. 557. Thus, no presumption of 111; Plynn v. CofEee, 94 Mass. the death of a person who has 133. changed his domicile arises from 27 Hoyt V. Newbold, 45 N. J. the fact that he has not been L. 219. Presumption of death heard from at his former domi- arises where a person leaves his cile for seven years; the pre- home and place of business for sumption in such case being, if a temporary purpose and is not alive at his new domicile when heard from in seven years, last heard from, that life con- Stockbridge v. Stockbridge, 145 tinues. Francis v. Francis, 180 Mass. 517. Pa. 644, 37 Atl. Rep. 120. 28 Meyer v. Madreperla, 68 N. 32 Schaub v. Griffin, 84 Md. J. L. 258. 557. 4:33 TITLE BY DESCENT. [§ 398. There is no presumption, however, that a person proved or presumed to be dead left no children or descendants,^' even though it may be shown that when last heard from, he was unmarried. ^^ This is a substantive fact, to be proved the same as any other fact of pedigree. § 398. Presumption of time of death. — It is, of course, of no importance, to one claiming a right which becomes estab- lished at death, at what precise time the ancestor may have died, yet, as it may be important to one resisting that, right, it becomes an affirmative fact which the party alleging should prove. But this, in many cases, and indeed in all cases where time and absence are alone relied on, would be impossible, and so, to render the presumption more effective, a further pre- sumption is raised that death occurred at the expiration of the seven years. '^ This, however, is but an arbitrary presump- tion rendered necessary on grounds of public policy, in order that rights depending upon the life or death of persons long absent and unheard of may be settled by some certain rule.'" It is repelled by very slight facts and circumstances,''' and courts have refused to entertain the presumption after an in- terval of twenty years, where the circumstances rendered it improbable that parties, if alive, would have communicated with their friends.'^ For all practical purposes, however, it has come to be regarded as a settled doctrine that the absence of a party for seven years, without any intelligence being re- ceived of him in that time, raises a presumption that he is dead, and the jury, on proof of such absence, have a right to presume his death. A less period will not suffice to raise this S8 Posey V. Hanson, 10 D. C. 557; Reedy v. Mlllizen, 155 111. App. 496. 634. s* Still V. Hutto, 48 S. C. 415. ss Whiting v. Nlcoll, 46 111. 35 Stevens v. McNamara, 36 230. Me. 176 ; Smith v. Knowlton, 11 s7 Smith v. Smith, 49 Ala. N. H. 191; Cowan v. Lindsay, 30 158; Brown v. Jewett, 18 N. H. Wis. 586; Flynn . v. Coffee, 12 230; WentWorth v. Wenfworth, Allen (Mass.), 133; Puckett v. 71 Me. 72; Dowd v. Watson, 105 State, 1 Sneed (Tenn.), 355; N. C. 476. Meyers v. Madreperla, 68 N. J. L. as O'Gara v. Eisenlohr, 38 N. 258; Spencer v. Roper, 35 N. C. Y. 296; Watson v. Tindall, 24 333; Schaub v. Griffin, 84 Md. Ga. 274; Sprigg v. Moale, 28 Md. 497. § 399.] TITLE BY DESCENT. 433 presumption, and a party whose interest it is to show that the party was living within that term is at liberty so to do by such facts and circumstances as will inspire that belief in the minds of the jury. But the claimant has done all that is required when he has raised the presumption; to overthrow this is a duty devolving upon the defendant.^' A presumption of death within seven years of the time of a person's disappearance may be raised upon the presentation of facts calculated to incite that belief.*" It has been held, in such event, that it must be shown that he was exposed to some specific peril,*^ but, as a general rule, all the conditions by which the presumption of life for seven years may be affected, such as health, age, habits, disposition, pecuniary circum- stances, family relations, etc., may properly be considered in determining whether the life of the absent party continued the entire seven years or terminated sooner.*^ § 399- Continued — Death of children. — The general pre- sumption of death which arises from long and unexplained absence does not, as a rule, apply to children of tender years, particularly where such children are members of a family, or when last heard of were under parental control. Nor will the statute which provides for such presumption in the case of one who shall absent himself from the state for seven years without being heard of, be sufficient without the aid of other proof.*^ Such statutes, it is said, refer only to persons having volition and the right of free movement, and not to children who, by reason of their age, are incapable of absenting themselves from the state. The mere fact that residents of a locality have heard nothing of a man and his family, who more than seven 33 Hoyt V. Newbold, 45 N. J. and some months, without heing L. 219. heard from, of a person who ■10 Waite v. Coarcy, 45 Minn, when last seen was very sick 159; Winter v. Supreme Lodge, with consumption, raises a pre- 96 Mo. App. 1. sumption of his death, where he ii Re Mutual Ben; Co., 174 Pa. was warmly attached to his St. 1; Learned V. Corley, 43 Miss, mother and sister, and was in 637. the habit of writing to them fre- 42 Reedy v. Millizen, 155 Illf quently. 636; Leach v. Hall, 95 Iowa, 611. is M anley v. Pattison, 73 Miss. In the latter case it was held 417, 55 Am. St. 543. that the absence for six years 28 4:34 TITLE BT DESCENT. [§ 400. years before, removed from the locality, is entirely consistent with the continued life and health of every member of the family, and the probability of death of any one of said family is not suggested by proof that the family has not been heard from since its removal. § 400. Survivorship. — The general rule now is that, where the question of succession turns upon the fact of sur- vivorship, direct evidence must be furnished. The civil law deduced a presumption concerning survivorship between per- sons exposed to the same cause of death, from circumstances of age, sex, or physical strength. According to this law the presumptions were never in favor of contemporaneous death, neither was there room for dispute. Where a father and son perished in the same battle or shipwreck, the son, if above the age of puberty, was presumed to have survived his father ; if under that age to have predeceased him. This was based upon the idea that in the former case the son was stronger, and in the latter weaker, than his father. So, if persons perishing in the same disaster were all under the age of fifteen, the pre- sumption of survivorship was with the elder ; if all were over sixty, with the younger. Similarly, the wife, being of the weaker sex, was presumed to have first yielded to the common peril. ^* But these presumptions never seem to have prevailed in the common law, or, if ever recognized, have long been de- nied, and the rule is that where several lives are lost in the same disaster there is no presumption that either survived the other. Neither is it presumed that all died at the same mo- ment, but the fact of survivorship, like any other fact, must be proved by the party asserting it.*' In the absence of evi- dence from which the contrary may be inferred, all may be •n The codes of Louisiana and Kacer, 169 Mo. 301. In the case California maintain this view. of a mother, aged sixty-nine And see Smith v. Croom, 7 Pla. years, her son-in-law, aged forty- 81. five years, and his two children, *5 Coye v. Lach, 8 Met. (Mass.) aged respectively ten and seven 371; Newell v. Nichols, 75 N. Y. years, who all perish In the 78; Smith v. Croom, 7 Fla. 81; same shipwreck, there is no pre- John Hancock, etc. Co. v. Moore, feumption of survivorship. New- 34 Mich. 41; Middeke v. Balder, all v. Nichols, 75 N. Y. 78. And 198 111. 590; Russell v. Hallett, see 2 Best, Ev. -187; 1 Taylor, 23 Kan. 276; Casualty Co. v. Ev. 201; 1 Greenl. Ev. 28. § 4:Ul.j TITLE BY DESCENT. 435 considered to have perished at the same time, not because the fact is presvimed, however, but because, from a failure of those asserting it to produce evidence to the contrary, property rights must necessarily be settled on that theory.*" If there are other circumstances shown, tending to prove survivorship, courts will then look at the whole case for the purpose of de- termining the question,*^ but, if only the simple fact of death by a common disaster appears, its inherent uncertainty is in itself sufficient to preclude further action and the law will not raise a presumption by balancing probabilities, either that there was a survivor or who it was. In such event the ques- tion of survivorship must be regarded as unascertainable and rights of succession must be determined as if death occurred to all at the same moment.*^ When all are thus treated as hav- ing died at the same instant it necessarily follows that no one of them took from any of the others by reason of the other's death.*^ In practice, the application of the rule is undoubtedly equiv- alent to a presumption of simultaneous death,^" but the courts, while announcing this result, are generally united in declaring that it is not a case of presumption but of inability to prove the necessary , fact, and that in this, as in all other contested questions, in the absence of evidence the party who has the burden of proof must fail.'^^ § 401. Civil death. — At common law, and under the old English systems of property, there was a condition known as ■civil death. The term has to some extent survived and found a place in the jurisprudence of this country, but the ideas which it formerly served to connote have disappeared. Notwith- standing that it may be found in the statutes of some states *8 Johnson v. Merithew, 80 Me. (Mass.) 371; Newell v. Nichols, 111; Russell v. Hallett, 23 Kan. 75 N. Y. 78. The English cases 276; Ehle's Estate, 73 Wis. 445; announce the same doctrine. Middeka v. Balder, 198 111. 590; « Middeke v. Balder, 198 111. Petition of Willbor, 20 R. I. 126. 590, 92 Am. St. 284, 64 N. E. "Ehle's Estate, 73 Wis. 445. Rep. 1002; Fuller v. Linzel 135 And see Smith v. Groom, 7 Pla. Mass. 468. 81. 50 Russell V. Hallett, 23 Kan. ■is Petition of Willbor, 20 R. I. 276. 126; Coye v. Leach, 8 Met. 51 Middeke v. Balder, 198 111. 590. 436 TITLE BY DESCENT. [§ 402. and is employed colloquially in all of the states, yet, as a mat- ter of fact, there is but one kind of death known to our laws and that is the actual ceasing of life, or natural death.^^ From time to time attempts have been made to assert rights of inheritance in the lands of living persons convicted of in- famous crimes and sentenced to imprisonment for life, upon the ground that such persons were civilly dead. But the courts, even in states where life convicts are by statute deemed civilly dead, have uniformly held that the mere fact of con- viction reaches nothing more than political status^ and that a convict is neither dead in fact nor in law.''^ Such being the case it follows that no one may recover property as his heir at law while he remains alive. § 402. Posthumous children. — An heir may claim by de- scent even though born after the death of his immediate an- cestor. Indeed, for the purposes of inheritance, a child, in contemplation of law, is in existence from the moment of its conception.^* This was always the rule of the common law, while the statute, in many states, has confirmed and extended the common-law rule by an express provision that a posthu- mous child, born alive, shall be considered as living at the de- cease of the parent. In fact, this may now be taken as the general doctrine in the United States, for where an express en- actment is wanting the rule is necessarily implied in other stat- utory provisions. The rule, however, is usually confined in its operation to children of the deceased, and posthumous rela- tives, other than children, will be denied rights of inherit- ance."' The rule is generally construed strictly in favor of the post- humous child. Its share in the inheritance vests at the mo- ment of the ancestor's death, and cannot be divested by any proceeding to which it is not a party,"^ and if lands in which the child has an interest are 'sold, or otherwise. disposed of in B2Frazier v. Fulcher, 17 OMo 111. 72; Bishop v. Hampton, 11 St. 260; Willingham v. King, 23 Ala. 254; Mutual Ben. Ass'n v. Pla. 478; Avery v. Everett, 110 Firname, 50 Mich. 82. N. Y. 317. 65 Shriver v. State, 65 Md. 278. 53 Davis v. Lanlng, 85 Tex. 39. 56 Botsford v. O'Conner, 57 111. 04 See Botsford v. O'Conner, 57 72. § 403.] TITLli BY DESCENT. 437 ignorance of the conception of such child, it seems that they may be reclaimed from the possession of the purchaser not- withstanding he may have bought in good faith and for a val- uable consideration.'*' The test of legitimacy, however, applies to posthumous chil- dren with the same force as to other children, and, in addition to the facts which decide the question in ordinary cases it is necessary that the posthumous child shall be shown to have been born within the natural period of gestation, reckoning from the death of the ancestor. The old rule was, that the birth must occur within nine months, or forty weeks, after the death of the husband,^^ but the strictness of the rule has been much relaxed in modern times with the increase of physiolog- ical knowledge and the better information we now possess con- cerning embryology. While this period is still considered as the usual time courts will, nevertheless, exercise a discretion in allowing a longer time where the circumstances of the case or the opinions of physicians seem to require it. In some states the right to inherit is made dependent on the birth of the heir within a specific period after the death of the ancestor, following in this respect the rule of the common law, but this limitation is intended only for the avoidance of fraud and the introduction of spurious heirs, and not as a denial of the in- terest of posthumous children in the estate of their ancestor. § 403. Illegitimates — The rule stated. — By the stern rule of the common law an illegitimate child is not the kindred of any one ; he can neither acquire nor transmit rights of inherit- ance, except with respect to his own lineal descendants law- fully begotten, and if he dies intestate and without issue his property escheats to. the state. To avoid the unfortunate con» sequences flowing from such a condition the law now presumes that every child is the offspring of a la\yful, rather than a meretricious, union of the parents, and, in the absence of nega- tive evidence, no supplemental proof is necessary. If the pre- sumption be false, repellant facts may generally be shown, but sTDetrick v. Migatt, 19 111. 314; Peason v. Carlton, 18 S. C. 146; Botsford v. O'Conner, 57 47. 111. 72; Massie v. Hiatt, 82 Ky. ss Cruise, Dig., tit XXIX, ch. 2. 438 TITLE BY DESCENT. [§ 403. the repelling evidence must, in all cases, be strong, satisfac- tory and conclusive. °° General reputation as to illegitimacy is not admissible,"" nor will suspicions, conjectures or rumors, however strong, serve to rebut the presumption,"^ for the char- ity of the law is in favor of the child and those who seek to bastardize him must make out the fact by clear and irrefragible proof."^ "Where the necessary facts are shown and every, reasonable possibility of a marriage has been disproved, or where though a marriage is shown, the fact of illegitimacy is yet made to un- mistakably appear, thus clearly demonstrating that the claim- ant has no inheritable capacity by reason of the circumstances of birth, the rule first stated will apply unless changed or mod- ified by legislative enactment."' In the United States the rule of the common law nowhere obtains in all its original severity. A more humane and en- lightened course has been generally adopted and while the principles which control the common-law doctrine have not been infringed the practical applications of the principles have been greatly modified. As a general rule an illegitimate will inherit from its mother, equally with her other children by a lawful marriage,"'' and when the claimant asserts- a right de- rived from or through a maternal ancestor the question of legitimacy is usually immaterial, and the same rule appHes to the mother in default of lawful issue of the bastard. In some of the states rights of inheritance have been further extended, and it has been held that when an illegitimate child is regarded as the lawful heir of his mother so is he also of the legitimate ssStrocie v. MaGowan, 2 Bush 554; State v. McDowell, 101 N. (Ky.), 621; Orthwein V. Thomas, C. 734; Scanlon v. Walshe, 81 127 111. 554; Dennison v. Page, Md. 118. 29 Pa. St. 420; State v. McDow- 83 Woodward v. Blue, 107 N. ell, 101 N. C. 754; Scanlon v. C. 407; Borroughs v. Adams, 78 Walshe, 81 Md. 118. Ind. 161. eo Phillips v. Allen, 2 Allen 64Kray v. Davis, 87 Ind. 509; (Mass.) 453; Orthwein v. Alexander v. Alexander, 31 Ala. Thomas, 127 111. 554. 241; McGuire v. Brown, 41 Iowa, eiCaujolle v. Ferrie, 23 N. Y. 650; Jenkins v. Drane, 121 111. 91; Patterson v. Gaines, 6 How. 217; Goodwin v. Colby, 64 N. H. (U. S.) 551. 401; Heath v. White, 5 Cpnh. 62 Orthwein v. Thomas, 127 111. 228. § 404.] TITLE BY DESCENT. 439 children of the mother."^ No general rules, other than those indicated, can be formulated with respect to bastards and in questions touching a succession the local statute must be con- sulted. § 404. Continued — Variances and statutory exceptions. As hereditary succession is purely statutory and as every state possesses the inherent right to regulate the descent of lands within its territorial boundaries, it follows that a state may provide that property situated therein may descend to others than the legitimate children of an ancestor, and that il- legitimates may be given the status of legal heirs. This is just what has been done in some states, where statutes have been enacted giving to an illegitimate child a right of inherit- ance from its putative father whenever the paternity is proved during the life of such father, or where it has been recognized by him as his child."" The recognition required in such a case must be "general and notorious" or it must be evidenced by a writing."^ In the latter event it would seem that the writing need not be of a formal character but that any writings, even those constituting a correspondence, will be sufScient for the purpose f^ nor is it necessary that the writing should have been made expressly for the purpose of admitting the child to heir- ship."" The statute which permits inheritance by illegitimates has further restricted the right in some states by confining it to cases where the putative father dies without heirs resident in the United States, but in such case it must be shown that the father acknowledged the child as his own during his life- time, and that there are no heirs resident in the United States.''" It will be seen, therefore, that the question of in- heritance by illegitimates is becoming complicated in this coim- 65 Messer v. Jones, 88 Me. 349, es Crane v. Crane, 31 Iowa, 34 Atl. Rep. 177. 296. 66 Scanlon v. Walshe, 81 Md. 69 Rohrer v. Muller, 22 "Wash. 118; Messer v. Jones, 88 Me. 349, 151, 50 L. R. A. 350. And see 34 Atl. Rep. 177. He Gorkow, 20 Wash. 563, 56 sTMilburn v. Milburn, 60 Iowa, Pac. Rep. 385; Blythe v. Ayres, 411. And see Borrouglis v. 96 Cal. 532, 19 L. R. A. 40. Adams, 78 Ind. 160; Rohrer v. toCox v. Rash, 82 Ind. 519. Muller, 22 Wash. 151, 50 L. R. A. 350. 440 TITLE BY DESCENT. [§ 405. try and the tendency is toward a further complexity rather than a simpHfication. Another phase of the question under consideration is pre-- sented -n-here the claimant seeks to establish rights of inherit- ance through the mother only, and upon this question there is a practical unanimity of opinion. Even, at common law a bastard might inherit from his mother, and this right has been generally declared and confirmed by statute in all of the states, while in some states where an illegitimate is declared a lawful heir of the mother he ma}' assert a right of inheritance from others through the mother. '^^ In other words, he may inherit from any person from whom the mother would have inherited if living, and his lawful issue, in case of hj= death, will represent him and have the same right.'^ § 405. Legitimation. — There remains but one other point to be considered in this connection and that is, legitimation and its effect. As a general proposition, even though it may be shown that the claim.ant was not born in lawful wedlock the effect of such proof may be avoided by showing a subse- quent marriage of the parents. ^^ This is a direct reversal of the doctrine of the comm^on law,''^ but, subject to the exception hereinafter noted, the general statutory rule now is, that a child born out of wedlock will be legitimatized by the subsequent marriage of the parents and enabled to assert all the rights of inheritance. In such event it would seem that the subsequent marriage is a substantive fact to be proved by the claimant and the burden will devolve upon him to bring himself within the protection of the law. In most of the states the statutory rule is stated with no ex- ceptions. In others it is qualified by the proviso that it ap- plies only to such offspring as are not the result of an incest- 7iMesser v. Jones, 88 Me. 349, Ann. 573; Sunderland's Estate, 34 Atl. Rep. 177; Bales v. Elder, 60 Iowa, 732; Stewart v. Stew- 118 111. 436. art, 31 N. J. Eq. 407; Houston v. 72 Jenkins v. Drane, 121 111. Davidson, 45 Ga. 574; Smith v. 217. Kelly, 23 Miss. 170. 73 Bailey v. Boyd, 59 Ind. 292 ; 74 The common-law rule was Miller v. Miller, 91 N. Y. 315; further confirmed by the so- Ross v. Ross, 129 Mass. 252; called "Statute of Merton," 20 Caballero's Succession, 24 La. Hen. Ill, chap. 9. § 405.] TITLE BT DESCENT. 441 uous or adulterous intercourse. The theory of the latter seems to rest on the old civil law assupption, that at the date of the cohabitation which produced the bastard valid promises td marry had been exchanged between persons who, at that time, were capable of performing such promises, and that the sub- sequent marriage was in fulfillment of such promises and re- lated back to the date of cohabitation. Hence, only the off- spring of such persons as might legally marry at the time such offspring was begotten became legitimated by the subsequent marriage of the parents. In the states where this doctrine obtains the child of an adulterous union acquires no rights of legitimacy by reason of a subsequent marriage of his parents and the common-law disabilities of a bastard would seerri to attach to him.'^ But the foregoing does not represent the prevailing senti- ment of this country. At a comparatively early day we find statutes in the older states which not only abrogate the com- mon law preventing all legitimation of bastards but omit all reference to the civil-law exception of adulterine bastards, and the construction placed upon these statutes has uniformly been to make no distinctions. The newer states have either re- enacted these statutes or adopted their essential features and notwithstanding the parents may have been incapable of con- tracting a valid marriage at the time a child is begotten or born, yet, if such incapacity is subsequently removed, and af- ter such removal the parents intermarry, and the former issue is recognized, such issue is thereby legitimated and cannot be distinguished from the other children of the parents born af- ter marriage.'^" Another form of legitimation is recognized in a number of states. It is based on the principles of adoption and occurs where a parent adopts his own illegitimate child, not by a pro- ceeding in a court of justice, the effect of which would be to perpetuate the record of the child's disgrace, but by publicly acknowledging it as his own and receiving it into his family. '5 See Sams v. Sams, 85 Ky. 532; Ete-wbecker v. Hawbecker, 396. 43 Md. 516; Ives v. McNicoll, 59 76 Carroll v. Carroll, 20 Tex. Ohio, St. 402, 43 L. R. A. 772; 731; Blythe v. Ayres, 96, Cal. Brock v. State, 85 Ind. 399. 442 TITLE BY DESCENT. [§ 406. The effect of such acts, where this law prevails, is to give to such child the rights of legitimacy from the time of its birth, including the right of inheritance from the parent, and the status thus created is that of a child adopted by regular pro- cedure of court. ''^ It has been held, however, that these stat- utes apply only to parents and children domiciled within the state at the time when the acts of adoption in fact occur.'* § 406. Extra-territorial effect of legitimation. — With respect to the extra-territorial effect of legitimation the courts do not seem to be altogether agreed, and it has been sug- gested that the matter occupies comparatively the same pos- ition as adoption or other rights created by statute in dero- gation of the common law, and that, if opposed to local laws or policy it will be unavailing. The better opinion, however, and that sustained by the volume of authority, is that when an illegitimate child has, by the subsequent mar- riage of the parents, becomes legitimate by virtue of the laws of the state or country where such marriage was celebrated and the parents vrere domiciled, it is thereafter legitimate every- where, and entitled to all the rights flowing from that status, including the right to inherit.'" The general rule is, that questions of legitimacy are to be de- cided by the law of the domicile of origin, and, generally, when an illegitimate child has subsequently become legitimate by the laws of the country where the parents were married and dom-. 77 Eddie V. Eddie, 8 N. Dak. subseqent act, was made to 376, 73 Am. St. 765. apply to all cases arising prior Ts Eddie v. Eddie, 8 N. Dak. to 1857. In 1862 plaintiff re- 376; Blythe v. Ayres, 96 Cal. 532. moved with his father to New 73 Plaintiff was born illegiti- York, and in 1875 his father mately at Wurtemburg, where died intestate and seized of real his parents then resided, in 1845. estate. In an action of eject- They removed with plaintiff to ment, held, that plaintiff was Pennsylvania, where his father entitled to inherit equally with became a naturalized citizen. In the children of deceased born 1853, while domiciled in the lat- in wedlock. Miller v. Miller, 91 ter state, the parents married. N. y. 315. And see Ross v. Ross, In 1857 a law was passed legiti- 129 Mass. 243; Scott v. Key, 11 matizing children born out of La. Ann. 232; Dayton v. Adkis- wedlock, of parents who should son, 45 N. J. Eq. 603, 14 Am. St. thereafter marry, which, by a 763. § 407.] TITLE BT DESCENT. 443 idled, he will be regarded as legitimate everywhere.^" On the other hand, notwithstanding the subsequent marriage, if such act did not confer legitimacy in the states where the parents were then domiciled it would have been ineffective to give legitimate status in other states. ^^ § 407. Adoptive heirs. — It is a cardinal rule of the law of inheritance that no person shall succeed to an ancestral estate who does not partake of the blood of the ancestor. Indeed it may be said that this is the vital principle of hereditary suc- cession and upon its maintenance depends the entire doctrine of descent. But, within comparatively recent years, an im- portant innovation has been made in this old rule, creating be- tween two persons of different blood a relation, purely civil, of paternity and filiation. This artificial relation, technically known as adoption^ is raised by a jvidicial act, in conformity with and in pursuance of a positive statute, and has the legal effect of conferring on the person adopted the rights of in- heritance and successi.on, together with a number of other legal consequences and incidents of the natural relation of par- ent and child, the same as if such adoptive child had been born in lawful wedlock of such adoptive parents. As adoption is purely a statutory matter all of the authori- ties unite in declaring that to give validity to proceedings therefor they must have been conducted in substantial con- formity with statutory provisions. In a few instances, while the courts affirm this general rule, yet in view of the fact i that the right is a beneficial one, both to the public and to those im- mediately concerned in its exercise, it has been held that the statute should receive a liberal construction with a view to up- hold the validity of proceedings under it,*^ but, as the statute 80 Miller v. Miller, 91 N. Y. antenuptial offspring, and where 315. the father died intestate. Held^ 81 Thus, an antenuptial child that the status of the child was was born in South Carolina, iixed by the domicile of its where the parents subsequently origin, where it was illeglti- intermarried. At the time such mate; that this status contin- marriage did not work legitlma- ued, and that it could not in- tion. Afterwards the parents herit. Smith v. Kelly, 23 Miss. and child removed to Missis- 167. sippi, where a subsequent mar- 82 Nugent v. Powell, 4 Wyo. riage was sufficient to legitimate 173, 62 Am. St. 17. And see 444 TITLE BY DESCENT. [§ 408. creating this relation is in derogation o£ the common law, and, as some contend, of natural right as well, the great weight of authority sustains the rule that such statute is always to be strictly construed as against the adoptive child and that his rights can be asserted only within its letter.^' Indeed this may be taken as the general rule for all times and places, but it acquires additional force when title is claimed in states other than that under whose laws the heirship was effected. The rights of inheritance acquired by an adoptive heir in one state can only be recognized and upheld in another state so far as they are not inconsistent with the laws of descent of such latter state, and his inheritable capacity must be measured by the laws of the state wherein the land is situate, and not by that of his late ancestor's domicile, or of the state conferring rights of inheritance.^'^ § 408. Rights of adoptive heirs. — AVherever adoption is permitted the rule is general and uniform that the adopted child becomes entitled to the same rights of inheritance in the estate of the adopting parents as if it had been born to them during marriage.^'* Be}-ond this no general rule that shall be of uniform observance can be formulated, and much diversity exists in the reported cases. It may be said, however, that the status thus impressed upon the adopted child continues to its own lineal descendants, and should such child die in the life- time, of its adopted parent its children will succeed to its rights and take the same share as it would have taken had it survived such adopted parent. In other words, for the purposes of suc- Cofer V. Scroggins, 98 Ala. 342, 84 Ross v. Ross, 129 Mass. 243; 39 Am. St. 54. Sewal v. Roberts, 115 Mass. 262; ssKeegan v. Geraghty, 101 111. Keegan v. Geraghty, 101 111. 26; 26; Watts v. Dull, 184 111. 86, Reinders v. Kapplemann, 68 Mo. 75 Am. St. 141; Shelton v. 482; Barnum v. Barnum, 42 Md. Wright, 25 Ga. 636; Schafer v. 241; Smitli v. Derr's Adm'r, 34 Eneu, 54 Pa. St. 304; Tyler v. Pa. St. 126; Singen v. Singen, Reynolds, 53 Iowa, 146; Purge- 45 Ala. 410. son V. Jones, 17 Oreg. 204, 3 L. R. ss Kg Newman, 75 Gal. 213; A. 620; Re Jessup's Estate, 81 Lathrop v. Young, 25 OMo St. Cal. 408, 6 L. R. A. 594; People 451; Isenrour v. Isenhour, 52 V. Congdon, 77 Micli. 351: State Ind. 328; Morrison v. Sessions, V. Clinton, 67 Mo. 380; Wyeth v. 70 Mich. 297; Rowan's Appeal, Stone, 144 Mass. 441; Pace v. 132 Pa. St. 299; Warren v. tres- Klink, 51 Ga. 220. cott, 84 Me. 483. § 409.] TITLE BY DESCENT. 445 cession, such children will be regarded the same as if they were the natural grandchildren of such adoptive parent.*' But while the act of adoption creates a true legal relation of parent and child it goes no further. Such act does not confer general kinship upon the child nor give to it any capacity to in- herit from any other person than the adoptive parent.*' Neither are adopted children issue of their adopting parents,** or bod- ily heir?,*" for adoption, whatever other rights it may confer, does not make the adopted child of the blood of its adopter, nor of the blood of his ancestors. Therefore, while an adopted child may inherit from its adopter it cannot inherit through him, nor take as an heir of the ancestor of its adopter."" But as intestate sticcession is purely a matter of statutory creation it is, of course, within the power of the legislature to extend the rights of inheritance as it may see fit, and while it niay not confer inheritable blood it can give inheritable status which, for all practical purposes, will amount to the same thing. Thus, it may give the adopted child the same right to inherit directly from the legal descendants of his adopted par- ent that he would have if actually born to the parent in lawful wedlock, and, when this is done, the adopted child will be a lawful heir of the other children of the adopted parent and may take from them, in case of their prior decease, in the same manner as though he were of their blood.^'- § 409. Extra-territorial effect of adoption. — The extra- territorial effect of adoption is a question upon which the courts are not in full accord and apparently conflicting de- cisions have been rendered in a number of cases. The conflict in most instances, grows out of the application of the doctrine of personal status, and in this, as in other phases of the do- se Power V. Hafley, 85 Ky. 671; so Clarkson v. Hatton, 143 Mo. Pace V. Klink, 51 Ga. 220. But 47, 65 Am. St. 635. see contra, Sunderland's Estate, so Phillips v. McConica, 59 60 Iowa, 732. ' Ohio St. 1; Wyeth v. Stone, 144 S7 Keegan v. Geraghty, 101 111. Mass. 441. But see Warren v. 26; Shelton v. "Wright, 25 Ga. Prescott, 84 Me. 483, 30 Am. St. 636; Barnhizel v. Ferrell, 47 370. Ind. 335; Clarkson t. Hatton, si Stearns v. Allen, 183 Mass. 143 Mo. 47. 404, 67 N. E. Rep. 349, 97 Am. ss Phillips V. McConcia, 59 St. 441; Sewall v. Roberts, 115 Ohio St. 1, 69 Am. St. 753. Mass. 262. 446 TITLE BY DESCENT. [§ 410. mestic relation, has been productive of much controversy and difference of opinion. Tlie general rule is, that the status of a person and the relation in which he stands to another, and by which he is qualified to receive and assert certain rights in that other's property, is fixed by the law of domicile. It is a further rule of general observance that this status and, capa- city shall be recognized, and the rights which it involves up- held, in every other state, so far as they are not inconsistent with its own laws and policy.'^ Under this rule, and subject to the limitation last mentioned, upon the death of a person, the status of those who claim succession to his estate is to be as- certained by the law under which that status was acquired. And while it is true that the real estate of an intestate descends according to the law of the place wherein it is sit- uated and to those only that are named by such law to take the same, yet where a person is shown to possess the status required for a succession the demand of the law is com- plied with.''^ The statutes of descent are intended only to itidicate the manner in which property shall descend, the persons who shall take and the shares they shall receive, and do not, as a rule, undertake to define how the status is to be created which gives the capacity to inherit."* There are cases which seem to dissent from this view, particularly where the statute of the forum respecting adoption is dififerent from that of the state where the adoption was efl^ected,"' but the general rule, so far as it is possible to formulate a rule, is as above stated. § 410. Proof of adoption. — In proving heirship of this kind the death of the ancestor must be shown, as in other cases, and the right of succession established by producing the de- cree of adoption.^* If the decree is not sufficient in itself it 92 Smith v. Kelly, 23 Miss. 19 L. R. A. 201; "Warren v. Pres- 167; Ross v. Ross, 129 Mass. 243. cott, 84 Me. 483; Re Newman's 93 Ross V. Ross, 129 Mass. 243; Estate, 75 Cal. 213; Humphries Van Matre v. Sankey, 148 111. v. Davis, 100 Ind. 274. 536, 23 L. R. A. 655; Melvin v. 95 See Smith v. Derr's Adm'r, Martin, IS R. I. 650; Johnson's 34 Pa. St. 126; Barnum v. Bar- Appeal, 88 Pa. St. 346; Pace v. num, 42 Md. 241; Singen v. Klink, 51 Ga. 220. Singen, 45 Ala. 410. 94Power V. Hafley, 85 Ky. 671; as Quinn v. Quinn, 5 S. Dak. Fasburg v. Rogers, 114 Mo. 122, 328. § 410.] TITLE BY DESCENT. 447 will further be necessary, in most cases, to show by the record the facts essential to the exercise of the special jurisdiction vin- der which the decree was entered. To give a decree of adop- tion any force or effect the court pronouncing same must, as a rule, have acquired jurisdiction (i) over the persons seeking to adopt the child; (2) over the child; and (3) over the parents of such child if living." In other words, the statute must in all cases be compUed with;"^ its terms and conditions must be fulfilled; and if the specified requisites are not performed or complied with,°° then the child cannot inherit from the adoptive parent.^ The authorities are strenuous in announc- ing the rule that, where the statute provides specifically the means whereby one sustaining no blood relation to an intestate may inherit his property the rights of inheritance must be acquired in that manner and can be acquired in no other way.^ In ordinary cases the decree of a court of general jurisdic- tion cannot be questioned collaterally. But, in the exercise of special statutory powers a court of general jurisdiction will be treated as a court of limited jurisdiction, and the jurisdic- tion must be made to appear from the record itself. Where special powers conferred are exercised in a special manner, and not according to the course of the common law ; or where the general powers of a court are exercised over a class of subjects not within its ordinary jurisdiction, upon the per- 9T Furgeson v. Jones, 17 Oreg. 1 Luppie v. Winans, 37 N. J. 204, 11 Am. St. 808. And see Eg. 245; Foster v. Waterman, Luppie V. Winans, 37 N. J. L. 124 Mass. 592; Ex parte Gham- 245. bers, 80 Gal. 216. 98 Tyle V. Reynolds, 53 Iowa, 2 Shearer v. Weaver, 56 Iowa, 146; Keegan v. Geraghty, 101 III. 578; Watts v. Dull, 184 111. 86, 26; Furgeson v. Jones, 17 Oreg. 75 Am. St. 141. In the latter 204; Re Jessup's Estate, 81 Gal. case it was held that under a 408. statute providing that a married 99 Usually the consent of the person cannot adopt a child un- parents or surviving parent oi; less the husband or wife of such the child is required, and, if the person joins in the petition, a child is over the age of consent, married woman cannot adopt' a its own consent as well. Where child unless her husband joins in these requisites are prescribed the petition, even though the they are vital. The statute re- husband is insane and the wife lating to abandoned children is his conservator. will, of course, affect this doc- trine in some cases. 4i8 TITLE BY DESCENT. [§ 411. formance of prescribed conditions, no presumption of juris- diction will attend the judgment of the court, and no intend- ments can be made in its favor.^ All of these principles are generally held to apply in their utmost rigor to proceedings for adoption and the adoptive act is not complete until all of the formal requisites are complied with. Hence, no one can be dispensed with, and if it shall appear that such has been the case, then the attempted act is futile because never consum- mated, and the adopted child acquires no rights of inheritance in the estate of the adopting parent.* § 411. Continued — Parental consent. — The concluding observations of the preceding paragraph require some further consideration before dismissing the subject. An interesting and sometimes difficult, question is raised where the consent of the natural parents cannot be obtained but a decree of adop- tion is yet entered. It is generally conceded that, as adop- tion involves an entire change of status^ this change cannot be made without the consent of the parents. It is contended however, that so far as the infant child is concerned the state, as his protector, may make this change for him, and while the rights of the parents should be considered and properly con- served, yet their rights are subject to regulation by the state and if these come into conflict with the paramount interests of the child it is within the power of the state, by legislation, to provide for a separation. And so, in most of the states, an adoption may be legally effected without the parental consent where the conditions are such that the child should be separ- ated from the parent for his own interest as well as for the welfare of the community. In such cases, if the state ac- quires jurisdiction over the partiqs it may exercise it for the s "Watts V. Dull, 184 111. 86, 75 child did not consent to the Am. St. 141; Galpin v. Page, 18 adoption, nor was any notice of Wall. (TJ. S.) 350; Morse v. the application served upon him; Presby, 25 N. H. 299; Furgeson the statutes requiring these acts V. Jones, 17 Oreg. 204. to be done. And see, also, Lup- i See Furgeson v. Jones, 17 pie v. Winans, 37 N. J. Eq. 245, Oreg. 204, 11 Am. St. 808. In where the facts were similar, this case the proceedings for But compare Parsons v. Parsons, adoption were held fatally de- 101 Wis. 76; Stearns v. Allen, fective because the father of the 183 Mass. 404. § 412.] TITLE BZ DESCENT. 449 child's benefit, and, as it is not always possible to find the par- ent, it has been held that it is enough to establish jurisdiction which is binding upon the natural parent if he is given reason- able notice of the pendency of the proceedings and an oppor- tunity to be heard. ^ § 412. Heirship through affinity. — As previously shown the fundamental idea of heirship at common law was connec- tion by blood, and unless a consanguinious relation could be shown by the claimant the right of inheritance was denied. For many years this remained a cardinal canon of intestate succesion, and while the law made provision for a surviving spouse, and gave to both husband and wife a specific interest in the lands of the other, it strenuously refused any recog- nition of either in the character of an heir. Within compara- tively recent years the old rules have been subjected to marked innovations and the statutes of many states have extended the rights of surviving spouses and placed such persons, for many purposes, upon the same footing as surviving relatives by blood. It has been doubted whether one of the spouses who takes property upon the death of the other, under a right de- pendent solely upon the pre-existing marriage, can with pro- priety be called an heir, and courts, in some instances, have endeavored to construct some highly artificial distinctions. But, as heirship is strictly a matter of statutory creation, and as an heir is simply one whom the law nominates to take the estate of a person dying intestate, there are no legal difficulties or, at all events, no insurmountable obstacles, in the way of making husband and wife heirs of each other. In some states it would seem that a surviving spouse for whom a specific provision is made out of the estate left by the deceased consort is regarded as an heir and as taking by descent,^ but usually the interest so taken is treated as a new form of succession, for which no very definite name has yet been devised, growing out of the marital relation.'' But 6 Parsons v. Parsons, 101 "Wis. e See Fletcher v. Holms, 32 76, 70 Am. St. 894, 77 N. W. Rep. Ind. 497; Wllcke v. "Wilcke, 102 147; Stearns v. Allen, 183 Mass. Iowa, 173, 71 N. W. Rep. 201. 404, 97 Am. St. 441, 67 N. B. ' See Gauch v. Insurance Co., Rep. 349. 88 111. 251; Journell v. Leighton, 39 450 TITLE BY DESCENT. [§ il3. whether the interest so acquired be regarded as a descent or a marital right, and whether the person so acquiring same shall be called an heir or a surviving consort, are questions of but little practical importance in the trial of contested land titles, for the language of the statute must, in any event, be the de- termining factor. The statutory provisions with respect to. surviving husbands and wives and the manner in which they shall take the estate of the deceased consort, are very diverse, but 1;he methods of proof _to establish title are practically the same in all of the states, and differ in no material features from those required to prove heirship generally. In the absence of statutory provision creating status a widow is never an heir at la-w of her deceased husband.^ § 413. Inheritance of contingent estates. — Questions of much perplexity are sometimes presented by rival claimants of contingent remainders or under executory devises, who base their rights on inheritance from some of the persons men- tioned by the testator. It would seem to be undisputed that contingent remainders and executory devises, at common law, are transmissible to the heirs of the party to whom they are limited, if he should chance to die before the contingency happens.^ But those only can take who are in existence when the contingency happens, and the estate falls into pos- session.^" The difficulties of the questions that may arise under the foregoing, in contests for title and possession, are well illus- trated by the following. A life estate was devised to a wo- man, A, with remainder to her children, if she should leave any, and to her brother, B, if she should die without issue. The brother, B, died first, intestate and unmarried, leaving only his sister, A, and their mother, C, his next of kin. Sub- sequently A died, without issue, having devised her property to C. Upon this state of facts the question presented was: 49 Iowa, 601; Richardson v. Mar- s Barnitz v. Casey, 7 Cranch, tin, 55 N. H. 45 Willdns v. (U. S.) 456; Reid v. Walbach, Wall^er, 115 Ala. 590, 22 So. Rep. 75 Md. 205. 476. 10 Garrison v. Hill, 79 Md. 75. s Rotch V. Loring. 169 Mass. 190, 47 N. E. Rep. 660. § Hi.] TITLE BY DESCENT. 451 Do the. heirs of B, the remainderman, take the interest which he would have taken had he survived the life tenant, A, o^ did it descend to A, who was living at the time of his death, and pass under her will to C? In an action of ejectment brought by the heirs of B the court held : that as the contin- gency, — the death of A, the life tenant without issue — did not occur until after the death of B, the remainderman, then A, not being in esse when the contingency Jiappened, of course could neither inherit nor devise, and that the land passed to the heirs of B who were living at the time the contingency happened and the estate fell into possession.^^ § 414. Declarations and admissions of ancestor. — It is a general rule, that the declarations of a deceased person in dis- paragement of his title to lands, made while in posesssion thereof or while claiming ownership, are admissible in evi- dence against those who claim in the interest or right of such decedent. ^^ So, too, the admissions of an ancestor, which could affect him were he a party, are receivable against his heirs. ^^ This always seems to have been the rule at common law, and it would further seem that such statements were re- ceivable not only as original admissions against the ancestor and all persons who claim title through him, but also as evi- dence for or against strangers. ^^ The statute, in many in- stances, has confirmed this rule. It may be said that evidence consisting of the alleged declarations of deceased persons is' so easih' fabricated that it is open to suspicion. This is un- doubtedly true, but the objection goes only to the weight that should be given to the testimony, not to its competency.^^ On the other hand, notwithstanding there is some confusion in the decided cases, the general rule seems to be that declarations of a former deceased owner are inadmissible to prove that he had title or was in possession.^" About all that can be shown in a matter of this kind are declarations explanatory of the char- 11 Garrison v. Hill, 79 Md. 75, 14 See 1 Taylor, Evidence, 47 Am. St. 363. § 6S4. 12 MoLeod V. Swain, 87 Ga. 156. is Williams' Estate, 128 Cal. 13 Terry v. Rodahan, 79 Ga. 552, 61 Pac. Rep. 670. 278; Burnett v. Harrington, 70 10 High v. Pancake, 42 W. Va. Tex. 213. 602, 26 S. E. Rep. 536. 452 TITLE BY DESCENT. [§ 414. acter of possession, and these, it seems, are admissible only upon the question as to whether such possession was ad- verse/^ In no event, however, can such declarations be per- mitted to extend to the source of the declarant's title nor the manner in which he acquired the property .^^ IT High V. Pancake, 42 W. Va. is McLeod v. Bishop, 110 Ala. 602; Ward v. Cochran, 71 Fed. 640, 20 So. Rep. 130. Rep. 127. CHAPTER XII. TITLE BY LIMITATION AND POSSESSION. X. Nature and Requisites. II. Disputed Boundaeies. III. Relation of Parties. IV. The State and Its Agencies. I. Nature and Requisites. 415. 416. 417. 418. 419. 420. 421. 422. 423. 424. 425. 426. 427. Generally considered. 1 428. Continued — Conflicting Derivation of the right. theories. Immemorial usage. 429. Adverse possession by Limitation. one of several occu- Disseizin. pants. Requisites and s u fH- 430. Nature of occupancy. ciency. 43L Occupation under license. Continued — ■ Statutory 432. Payment of taxes. modifications. 433. Declarations and admis- Claim and color of title sions. distinguished. 434. Interruption. Good and bad faith. 435. Entry by owner. Entry under void deed. 436. Effect of absence from Constructive possession. state. Mixed possession. 437. Abandonment. Tacking. 438. Presumptions. . 439. Mines and sub-strata. § 415. Generally considered. — Probably no species of title is more frequently resorted to by parties claiming pro- prietary rights in land than that which the law raises as an estoppel against those who have failed to assert their claims within the specific periods provided by the statute. The sub- ject usually receives a large share of attention from the ele- mentary writers on ejectment and its magnitude and import- ance justifies a special treatment in any work devoted to this branch of the law. While to support ejectment the plaintiff must have title at the commencement of the suit, yet it by no means follows that 454 TITLE BY LIJIITATION" AND POSSESSION. [§ 415. such title should be susceptible of demonstration by docu- mentary proof, for continuous adverse possession of land may ripen into a title as firm and unassailable as though ac- quired by valid grant. ^^ Hence, if a party holds possession of land during the full period of limitation, under such circum- stances as would make a valid defense against claims of others, he will have acquired a title which he may actively as- sert with as ' much efl^ect as if it had been derived through deed,^" and if the limits of his possession can be shown he may maintain ejectment for an invasion thereof as against all per- sons whose rights have not been saved.^^ In practice, however, it is usually the defendant and not the plaintiff who seeks to avail himself of rights derived under the statute of limitations, and in a very large proportion of the cases where the defendant offers an affirmative defense this is the form relied upon. But where a defendant seeks to do more than negative the plaintiff's proofs, and particularly where he offers an affirmative defense by asserting' title in himself, he thereby becomes a claimant and the same rules will apply to the defense as to the plaintiff's claim. In all cases where title is claimed by virtue of an adverse possession the burden of proof is thrown upon the party assert- ing such title,^^ and this is so whether the title is asserted either offensively or defensively when it is opposed by a claim under the legal title. 'I1:ie evidence must be strictly construed and all of the presumptions" are in favor of the true owner.^^ Fur- lOArbuckle v. Ward, 29 Vt. 640; Lantry v. Wolff, 49 Neb. 43; Nelson v. Brodhack, 44 Mo. 374; Sutton v. Pollard, 96 Ky. 596; Normant v. Eureka Co., 98 640; Parkersburg v. Schultz, 43 Ala. 181. W. Va. 470; Cave v. Anderson, 50 20 Jacks V. Cbaffin, 34 Ark. S. C. 293; Jones v. Brandon, 59 534; Anderson v. Melear, 56 Ala. Miss. 585; Barnes v. Light, 116 621; Joy v. Stump, 14 Oreg. 361; N. Y. 34; Hall v. Caperton, 87 Dean v. Goddard, 55 Minn. 290; Ala. 285. Parkersburg v. Scbultz, 43 W. Va. =2 McConnell v. Day- 61 Ark. 470. 464, 33 S. W. Rep. 731; Barrs v. 21 So held where the demand- Brace, 38 Fla. 265; Wells v. Aus- ant claimed under a void patent tin, 59 Vt. 157. from the United States. Logan v. 23 Fairfield v. Barrette, 73 Wis. Jelks, 34 Ark. 547. And see 463; Levy v. Cox, 22 Fla. 546. Donahue v. Railroad Co.. 165 111. § 416.] HATUEE AND REQUISITES. 455 ther, where proof of this kind is offered it must be complete,^* that is, full compliance with statutory requisites must be shown, -^ and, as a rule, evidence of an adverse possession for a period less than the prescribed time, is not a circumstance to go to the jury as tending to show title in an action of eject- ment.^" It is not necessary that the possession of a defendant in ejectment should be adverse as against third parties; it is enough if it is adverse to the plaintiff, and when this is satis- factorily made to appear the bar of the statute will be inter- posed if the necessary time has elapsed.^' In every case, however, this latter fact must be established by affirmative proof, as no presumption arises that an adverse possession shown to have once existed continues for a sufficient time to confer title. ^* § 416. Derivation of the right. — It was a favorite theory with the medieval lawyers that, by the law of nature, occu- pancy not only gave a right to the temporary use of the soil, but also a permanent property in the substance of the earth itself, and hence, possession was the first act from which the right of property was derived. It has therefore become an established rule of law, in every civilized country, that long, peaceful and continuous possession of land will give a title to the same, or, at least, will confirm such a title in the occupant as will preclude an impeachment or denial by a rival claimant. This mode of acquisition is generally known as prescription,^^ and rests upon the presumption that he who has had a quiet 2* Wells v. Austin, 59 Vt. 157, made with respect to Incorporeal 10 Atl. Rep. 405. hereditaments, such as rents, 25 Jarvis v. Grafton, 44 W. Va. commons, ways, etc., for it is 453; Nicklase v. Dickerson, 65 said that no prescription can Ark. 422; Lewon v. Heath, 53 give title to lands or other cor- Neb. 707. poreal inheritances, of which 26 Bernhardt v. Brown, 122 N.. more certain evidences may he C. 587. had. See 2 Black. Com. 264. But 27 Skipwith v. Martin, 50 Ark. by statute (2 and 3 Will. IV. 141, 6 S. W. Rep. 514. c. 71, s. 2) it was extended to 28 Woods V. Hull, 90 Tex. 228, lands In accordance with the 38 S. W. Rep. 165. text and in the sense thus used 29 By the common law of Eng- it has long been employed in the land a prescription can only be United States. 456 TITLE BY LIIIITATION AND POSSESSION. [§ 417. and uninterrupted possession of a thing for a long period of time, must have a just claim thereto, without which he v/ould not have been suffered to continue in its possession. Such possession raises the further presumption of an acquiescence on the part of all other claimants, and this, in turn, that some reason exists for which their claims were forborne.^" The ideas involved in the common-law doctrine of pre- scription have been largely subordinated in modern times to the statutor_v doctrine of limitation. This seems to have been regarded by the earlier writers as a sort of prescription, dif- fering from the prescription of immemorial usage only in that instead of giving an estate to the occupant it extinguished the remedies that others might have asserted against him, and hence, it was frequently called negative prescription.^^ In point of time it is as old as the prescription arising from im- memorial usage, finding mention in the oldest books,^^ and, in modern practice has entirely superseded the doctrines of that form of prescription except for easements, or other incor- poreal rights in special cases. § 417. Immemorial usage. — The old books carefully dis- tinguish between prescriptive rights which rest on immem- orial usage, or what is termed positive prescription, and such as arise under the statute of limitations, which is called nega- tive prescription, and in England the subject has at dif- ferent times received much earnest and careful attention from both the courts and legal writers. The refinements of the old law have little or no application, however, to the land sys- tem of the United States and the subtle distinction between those things which lie in grant and those which lie in livery, upon which much of the ancient theory was built, no longef obtains. But the spirit of the ancient practice has survived and still exerts an influence in judicial proceedings, and from immemorial usage the law now, as formerly, will presume a grant and a lawful beginning of possession. In the litigation of titles it must frequently happen that record or documentary evidence of original investiture has been lost or destroyed. In such cases, upon evidence of use and enjoyment for a time 30 Cruise, Dig. tit. XXXI, ch. 1. S2 gee Bract, lib. ii, c. 22. 31 3 Cruise, Dig., cli. II. § 418.] NATUEE AND EEQUISITES. 457 be.vond the period of legal memory,^^ a presumption is per- mitted to be raised to supply the loss of the grant and thus, by secondary evidence is established the fact of its former ex- istence and the title of the claimant under it.^* The period of legal memory or a time "whereof the memory of man runneth not to the contrary" is now little more than a term of art, and is generally made to coincide with the fixed periods of limitation. § 418. Limitation. — The theory of limitation, unlike that of prescription, does not rest on presumptions but on legal policy, and is supported by positive and rigid rules. In its essence it is a denial of the 'right to enter upon lands, in the adverse occupancy of another, after the expiration of a fixed period of time. Its object is to prevent litigation and secure the quiet and repose of titles. It is a continual and decisive notice to owners that, if they allow others to adversely oc- cupy and use their land for such time as the statute has limited they must be deemed to have acquiesced in the asser- tion of the occupant's claim, ajid to have abandoned all op- position thereto. There may be exceptional instances in which the character of the party in whom the title is vested will prevent the operation of the statute, as where one is laboring under legal disability, but unless the facts clearly bring him within the exception the rule is absolute, unbend- ing and unyielding.'^ At the present time the jurists are somewhat divided with respect to the essential character of statutes of limitation. The old theory, long maintained, is that such statutes operate only 33 It does not seem that ac- there it remained during the quisitive prescription for land rest of the middle ages. Pollock was employed in the early Bng- and Mait. Hist. Eng. Law, vol. 2, lish law but merely a limitation p. 81. of actions. Before the year 1237, 34 Smith v. Cornelius, 41 W. Va. claimants had been allowed to 59, 23 S. E. Rep. 599, 30 L. R. A. go back to a seizin on the day in 747; Hasson v. Klee, 181 Pa. 117; 1135 when Henry I. died; then Sulpher Mines Co. v. Thompson, they were restricted to the day 93 Va. 293. in 1154 when Henry II. was ss Northern Pac. Ry. Co. v, crowned; in 1275 the boundary Townsend, 84 Minn. 152, 87 Am. was moved forward to the cor- St. 342, 86 N. W. Rep. 1007. onation of Richard I. in 1189 and 458 TITLE BY LIMITATIOi^ AND POSSESSION. [§ 419. to secure the quiet and repose of titles by taking away the right of entry. The}- are not regarded as actually c6nferring title nor as vesting an estate in the adverse occupant. Neither does the statute, as at present generally framed purport to vest a title but simply denies the right to question the adverse occupant's claim. But as the legal effect of these statutes is virtually to establish a right of property in the adverse occu- pant, it is now customary to speak of title as acquired by ad- verse possession, and courts, in many instances, have held that the legal effect of such possession is not only to bar the remedy of the owner but to actually work a divestiture of his title and to vest it in the adverse* occupant.^^ The old theory is supported by sound legal reason, while the later notion, that mere occupation with the presumed acquiescence of the owner is itself an actual transfer of title, is opposed to all of the rules of conveyancing as well as the general theories of the law res- pecting the transfer of proprietary rights. However, the theory involved is a matter of minor importance, for under either theory the result is the same. If the remedy is barred the occupant is secure in his possession, and, where his pro- prietary right and claim of title is beyond dispute, it follows that he may assert it, either offensively or defensively when- ever occasion may require.^' § 419. Disseizin. — The basis of a title by adverse posses- sion and limitation is technically termed a disseizin; that is, the ouster of the rightful owner from the seizin or estate in the land, and the commencement of a new estate in the wrong- doer. Every dispossession is not a disseizin, however, and in order to make an entr^^ the foundation or commencement of a new title the possession taken by the disseizor must be hos- tile or adverse in its character, importing a denial of the orig- inal owner's title to the land claimed. Whether there is or is not actual disseizin must depend upon the character of the as See Dean v. Goddard, 55 37 Jacks v. Chaffin, 34 "Ark. Minn. 290; Baker v. Oakwood, 534; Kepley v. Scully, 185 111. 123 N. Y. 16; Kitron v. Buel, 168 52; Green v. Couse, 127 N. Y. Mo. 622; Bicknell v. Comstock, 386, 24 Am. St. 458, 28 N. E. Rep. 113 U. S. 149; Watson v. Jeffrey, 15; Miller v. Cramer, 48 S. C. 39 N. J. Eq. 62. 282, 26 S. E. Rep. 657; Jones v. Brandon, 59 Miss. 585. § 4:19.] NATUEE AND ilEQUISITES. 459 act done, and the intention ,of the doer. To make a disseizin in fact there must be an intention on the part of the person assuming possession to assert title in himself to a definite par- cel, or there must be overt acts which leave no room for in- quiry with respect to intention, and which amount to actual ouster in spite of the real owner.'* It will be seen, therefore, that while it is not difficult to say generally what, as a matter of law, consitutes an adverse possession, yet, as to what will evidence the necessary facts to enable a court in a given case to say there is an adverse possession is far from easy,'' and probably no subject connected with the law of real property has been productive of a larger volume or greater diversity of judicial decision. The question is said to be a compound of law and fact and every case in which it is involved must be determined by its own circumstances.*" The character of the possession depends much on the na- ture and situation of the property, and the uses to which it can be applied,*^ and no rule of general application can be formulated. What would constitute a disseizin and adverse user in a populous locality may not apply in a sparsely settled district and the conditions that would meet the requirements in the country may be inadequate in a city.*^ About the only statement that can with any degree of certainty be made is, that if the possession comports with the ordinary use and management of similar lands by their owners, it furnishes evi- dence of a disseizin and adverse claim.*' 38 Worcester v. Lord, 56 Me. ownership and of actual posses- 265; Tourtelotte v. Pearce, 27 sion. Gist v. Beaumont, 104 Ala. Neb. 57; Borel v. Rollins, 30 Cal. 347. 409; Raymond v. Morrison, 59 ^oDraper v. Shoat, 25 Mo. 197; Iowa, 371. Normant v. Eureka Co., 98 Ala. 39 Illinois Steel Co. v. Bilot, 181. 109 Wis. 418, 85 N. W. Rep. 402, " Clark v. Potter, 32 Ohio St. 83 Am. St. 905; Murphy v. Doyle, 64; Sauers v. Giddings, 90 Mich. 37 Minn. 113. The survey of a lot, 50, 51 N. W. Rep. 265; Clement v. the driving of stakes around it, Perry, 34 Iowa, 564; Curtis v. the pasting of a sign bearing the Campbell, 54 Mich. 340. name of one claiming the owner- 42 Draper v. Shoot, 25 Mo. 197; ship, the payment of taxes, and Hughes v. Anderson, 79 Ala. 209; an offer of sale by him and his Richards v. Smith, 67 Tex. 610. agents, are admissible in eject- 43 Downing v. Mayes, 153 111. ment as evidence of claim of 330; Holtzman v. Douglas, 168 460 TITLE BY LIMITATION AND POSSESSION. [§ 420. In every event mere possession of land is not prima facie adverse to the title of the true owner, and all of the presump- tions are that the occupanc)- is in subordination to such title.** Therefore, where a possession is claimed to be adverse the acts of the disseizor must be strictly construed and the char- acter of the possession clearly shown. *^ The claim of right must always be present,*" and its existence is a question of fact to be determined by the conduct and declarations of the party in possession.*^ § 420. Requisites and sufficienc5^ — It is a fundamental doctrine in this branch of the law that a possession of land, to be adverse, must be so open, notorious, and important as to give notice to all parties interested that a claim of right is intended thereb}'; that the right of the true owner is invaded intentionally, and with a purpose to assert a claim of title ad- versely to his ; and, to furnish the basis of a substantial title, it must extend in unbroken continuity over the entire period prescribed by the statute of limitations.*^ This element of peaceful continuity is, perhaps, more distinctly material in conferring title by adverse possession than any other,*^ unless U. S. 278; Clark v. Potter, 32 Co., 69 Wis. 292;'Alsiip v. Stew- Ohio St. 64; Brett v. Parr, 66 art, 194 111. 595; Baber v. Hen- Iowa, 684; Beecher v. Galvin, 71 derson, 156 Mo. 566; Bond v. Mi eh. 391; Webber v. Clarke, 74 O'Gara, 177 Mass. 139; Pitcli- Cal. 11; Roe v. Strong, 119 N. Y. burg R. R. Co. v. Page, 131 Mass. 316; Normant v. Eureka Co., 98 391; McDonald v. Fox, 20 Nev. Ala. 181; Sauers v. Giddings, 90 364. Mich. 50. 48 Carrol v. Gillien, 33 Ga. 539 ; ** Robinson v. Allison, 97 Ala. Beatty v. Mason, 30 Md. 409; 596; Preble v. Railroad Co., 85 Dixon v. Cook, 47 Miss. 220; Lar- Me. 260; Childs v. Nelson, 69 amore v. Minish, 43 Ga. 282; Wis. 125; Heller v. Cohen, 154 Bowman v. Lee, 48 Mo. 335; Cal- N. Y. 299. houn v. Cook, 9 Pa. St 226; Ca- *5 Creekmur v. Creekmur, 75 hill v. Palmer, 45 N. Y. 484 W. Va. 430;. Hicks v. Tedericks, Booth v. Small, 23 Iowa, 177 9 Lea (Tenn.), 491; Wilson v. Ringo v. Woodrufe, 43 Ark. 469 Blake, 53 Vt. 305; Roberts v. McDonald v. Fox, 20 Nev. 364 Baumgarten, 51 N. Y. S. C. 482; Mauldin v. Cox, 67 Cal. 387 O'Boyle V. McHugh, 66 Minn. 390. Shaw v. Schoonover, 130 111. 448 46 Parkersburg v. Schultz, 43 « Groft v. Weekland, 34 Pa, W. Va. 470. St. 308; Williams v. Wallace, 78 4T Normant v. Eureka Co., 98 N. C. 354; Shiels v. Roberts, 64 Ala. 181; Schwalback v. Railway Ga. 370; Robbins v. Moore, 129 § tt2i.J NATUEE AND EEQUISITES. i61 it be the corresponding element of notorious hostility, and there must be an actual occupancy, as distinguished from a merely constructive possession, of a part or all of the lands claimed.'^" Occasional entries upon land and the exercise of occasional acts of ownership,^^ no matter how clearly they may indicate a purpose to claim title and assert dominion over the property, will not be sufficient to satisfy the requirements of the law with respect to continued use or support a claim of title by prescription or limitation. ^^ Such entries can be regarded only as acts of trespass,^^ and, in like manner, different entries at different times, by different persons, between whom there is no privity or connected claim of rightful holding, are but a succession of trespasses and inadequate to furnish a basis of claim against the paper title. ^* A voluntary and intentional abandonment, irrespective of the length of its duration, constitutes such a breach of con- tinuity of possession as to render inoperative the defense of adverse enjoyment,^^ and, in like manner, if there has been a disseizin or ouster by another adverse occupier a discontin- uance will be effected.^^ It may be said, however, that as tq 111. 30; Normant v. Eureka Co., 527; Olewine v. Messmore, 128 98 Ala. 181. Pa. St. 470; St. Croix, etc. Co. v. 50 Cook V. Clinton, 64 Mich. Ritchie, 78 Wis. 492; Price v. 309; Wilson v. McBwan, 7 Oreg. Brown, 101 N. Y. 669; Bazille v. 87; Bracken v. Jones, 63 Tex. Murray, 40 Minn. 48; Cook v. 184. Farrah, 105 Mo. 492; Rohbins v. 51 Stewart v. Tucker, 106 Ala. Moore, 129 111. 30; Scott v. Mills, 319; Strong v. Powell, 92 Ga. 49 Ark. 266. 591; Mission v. Cronin, 143 N. Y. ss Austin v. Holt, 32 Wis. 478; 524. The occasional cutting and Bazille v. M.urray, 40 Minn. 48. carrying away of rails and fire- 5i Ross v. Goodwin, 88 Ala. wood from land chiefly valuable 390; Sherin v. Brackett, 36 for timber is not such an occu- Minn. 152; Hicks v. Tedericks, 9 pancy as will create a title by Lea (Tenn.), 491. adverse possession. Wheeler v. 56 Doyle v. Wade, 23 Pla. 90; Taylor, 32 Oreg. 421. Neither is Harms v. Kransz, 167 111. 421; the cutting of natural hay, or Malloy v. Bruden, 86 N. C. 251; the pasturing of stock in com- Parkersburg v. Schultz, 43 W. mon with others. Sage v. Lar- Va. 470; Hollingsworth v. Sher- son, 69 Minn. 122. man, 81 Va. 668. 52Ruffin V. Overby, 105 N. C. ssRoss v. Goodwin, 88 Ala. 78; Foulke v. Bond, 41 N. J. L. 390, 6 So. Rep. 682; Warren v. 4Ij2 title bt limitation and possession. [§ 420. what is or shall be considered continuous occupancy and pos- session must, in a great degree, rest upon and be determined by the special circumstances of each case,^^ and in the deter- mination of the question the situation and condition of the property, the uses to which it is adapted, the circumstances attending the occupancy, as well as the intentions of the party in regard to it, should all be considered.^* The element of notorious hostility is an equally indispen- sable ingredient of every title resting on the legal presumption raised by possession and limitation.^" There must not only be a continuity of use but such a publicity attending the same as to leave no room for doubt by the person whose rights are invaded that his title is disputed."" To accomplish this no par- ticular act or series of acts is necessary provided the land is so used as to clearly demonstrate an intention to claim owner- ship, but nothing of a stealthy or clandestine nature will serve to work a disseizin;- the occupancy must be open; the acts must be visible and of so public a character that the owner may be presumed to have notice of them and the extent of the , claim \Ahich they serve to indicate. ^^ It is no't necessary, however, to prove knowledge on the part of the owner. If he has, in fact, been ousted of possession and the ouster has continued uninterruptedly for the statutory period, such possession is presumed to have been held with his knowledge."^ In other words, it is not necessary that the Frederichs, 76 Tex. 647; Louis- 184; Ringo v. "Woodruff, 43 Ark. Tille, etc. Ry. Co. v. Philyaw, 88 469. Ala. 264. 60 Ford v. Wilson, 35 Miss. 67Costello V. Edson, 44 Minn. 490; Hutton v. Schumaker, 21 135; Whitaker v. Shooting Club, Cal. 453; O'Hara v. Richardson, 102 Mich. 454. 46 Pa. St. 285; Royal v. Lisle, sswebh V. Richardson, 42 Vt. 15 Ga. 545. 465 ; Sauers v. Giddings, 90 Mich. si Potts v. Coleman, 67 Ala. 50, 51 N. W. Rep. 265; Woods v. 221; Denham v. Holeman, 26 Ga. Montevallo, etc. Co., 84 Ala. 560. 182; Worcester v. Lord, 56 Me. 09 Hicklin V. McClear, 18 Oreg. 265; Langworthy v. Myers, 4 126; Thompson V. Pioche, 44 Cal. Iowa, 18; Cook v. Bahcock, 11 508; Denham v. Holeman, 26 Ga. Cush. (Mass.) 206; Simon v. 182; Sparrow v. Hovey, 44 Mich. Richard, 42 La. Ann. 842. 63; Grant v. Fowler, 39 N. H. 02 Carney v. Hennessey, 74 101; Bracken v. Jones, 63 Tex. Conn. 107, 92 Am. St. 199, 49 § 421. J NATDBE AND REQUISITES. 463 real owner should actually know of the hostile possession; it is sufficient, if the acts of the adverse claimant are such as to furnish such owner with the means of knowledge.^' § 421. Continued — Statutory modifications. — A statutory- distinction is made in some states between a claim of title founded upon some written instrument or judgment, and an actual, continued occupation under claim of title, exclusive of any other right, but not founded upon any written instrument, judgment or decree; and the period of occupancy in the latter case must be continued much longer than in the former. Thus, in the first instance, the title may become perfect and inde- feasible at the end of ten years, while in the latter the period of legal memory, or the full statutory limit, must have run to warrant the presumption of an original, valid entry, and the loss or destruction of the muniments that establish the occu- pant's right to the soil. The character of the possession, too, may be vastly different under the two claims ; as, in the first instance, a partial occupancy only is required, such partial occupancy drawing to it constructively the possession of all the land mentioned in the instrument under which the claim is made, while in the latter the adverse holding extends only to so much of the premises as may have been actually occu- pied."^ But in either event, to constitute a bar to the assertion of the legal title, the possession must be hostile,"^ and not a mere trespass,"" and must also be visible,"^ continuous,"^ no- Atl. Rep. 91-0; Wilson v. "Will- supply of fuel, or husbandry, or iaip, 52 Miss. 487; King v. Car- the ordinary use of the occu- miehael, 136 Ind. 20, 43 Am. St. pants. See Hicks v. Tederlcks, 9 303, 35 N. B. Rep. 509. Lea (Tenn.), 491; East Hamp- 63 Lampman v. Van Alstyne, ton Trustees v. Kirk, 84 N. Y. 94 Wis. 417, 69 N. W. Rep. 171 ; 21S. Miller v. Rosenberger, 144 Mo. es Turney v. Chamberlain, 15 292. 111. 271; Thompson v. Pelton, 54 64 What acts are sufficient to Cal. 547. constitute possession are matters 66 Humbert v. Trinity Ch., 24 of local statutory regulation, Wend. 587; Cahill v. Palmer, 45 but, as a rule, there must be N. Y. 479. either cultivation or improve- "7 Irving v. Brownell, 11 111. ment; protection by a substan- 402. tial enclosure; and a use of the 68 Jackson v. Berner, 48 III. premises, if not enclosed, for the 203. ■46i TITLE BY LIMITATION AND POSSESSION. [§ 422. torious/" definite '" and inconsistent with the claim of others/^ while the claim of right accompanjdng such possession must not have originated in fraud.^^ These are the universally recognized elements that must enter into every adverse hold- ing and unless they are present the settled principles of law require us to consider the true owner as constructively in pos- session of the land to which he holds the title.'^ A clan- destine entry or possession will never serve to set the statute in motion, for in order to bar the true owner from asserting his title, he must have actual or constructive notice of the in- strument under which the adverse claimant enters, or knowl- edge, or the means of knowledge, of such occupation and claim of right,'* and the entry must be made and the pos- session continued under such circumstances' as to enable such true owner, by the use of reasonable diligence, to ascertain the fact of entry and the right and claim of the party making it.'= § 422. Claim and color of title distinguished. — The basic element of every adverse title is a claim of right. Without this the possession of land cannot be adverse, and the elements esMcClellan v, Kellogg, 17,111. deed from Ijelng color of title. 498; Dixon v. Cook, 47 Miss. 220. See Hardin v. Gouverneur, 69 111. 'oFugate v. Pierce, 49 Mo. 140; Hall v. Mooring, 27 La. 441; Grube v. Wells, 34 Iowa, Ann. 596. 148. ' 73 Bliss V. Johnson, 94 N. Y. 71 Ambrose v. Raley, 58 111. 235; Doe v. Thompson, 5 Cow. 506; Sparrow v. Hovey, 44 Mich. (N. Y.) 371; Davis v. Howard, 63. 172 111. 340. 72 Moody V. Moody, 16 Hun t4 Pugate v. Pierce, 49 Mo. (N. Y.), 189; Laramore v. Mln- 441; Crispen v. Hannavan, 50 ish, 43 Ga. 282. The question Mo. 536; Thompson v. Pioche, 44 whether one who holds by color Cal. 508; Nowlin v. Reynolds, 25 of title holds in good faith or Gratt. (Va.) 137; Denham v. bad, depends upon the purpose Holeman, 26 Ga. 182; Lucas v. with which he acquired the title Daniels, 34 Ala. 188. relied on, and the reliance placed 75 Soule v. Barlow, 49 Vt. 329; upon it. If the holder received Brown v. Cockerell, 33 Ala. 151; it, knowing it to be worthless, or Simon v. Richard, 42 La. Ann. in fraud of the owner's rights, it 842; McDonald v. Fox, 20 Nev. cannot be said to be held in good 364; Shaw v. Schoonover, 130 111. faith. Still, many things that 448; Russell v. Davis, 38 Conn, may be sufficient to destroy the 562; McLean v. Smith, 106 N. C. presumption of good faith may 172. be insufficient to prevent the § 422.] NATTJEE AND EEQCISITES. 465 of notoriety, continuity, etc., are but incidents which go to establish this primary fact of claim. A confusion seems to exist, however, arising from the interchangeable use of the terms "color" and "claim," which, as a matter of law, are entirely dissimilar in character, and may exist separate and independent of each other as well as in conjunction. A claim of title is the primary assertion of the right by which the occupier holds : it may be evidenced by a writing or it may rest wholly in parol ;'^ it may consist of oral declarations or be presumed from acts, and while there are authorities which hold that it must be made in good faith yet this would seem to be an immaterial circumstance where the statute has run its full course. To constitute color of title there must, as a rule, be a deed or document of some kind. What amounts to a color of title, however, is still an open and unsettled question, notwithstanding numerous decisions defining its character exist in all the states as well as in the' federal courts, and although in a few instances it has been held that documentary evidence is not required to support a claim under color of title,'^ the weight of authority and opinion indicates that a written instrument is necessary, so far good in appearance as to be consistent with the idea of good faith, and purporting on its face to convey a title.''' The definitions in the books, though widely divergent in many particulars, yet agree in the main on these points. A claim of heirship has been held to come within the term, the sup- posed inheritance forming the "color,"'" while the same effect has been given to a sale or gift of land by parol,^" the reason- 's Hamilton V. Wright, 30 338; "Williams v. Scott, 122 N. C. Iowa, 486; Ford v. Wilson, 35 545; Doyle v. Wade, 23 Pla. 90. Miss. 490; Royal v. Lisle, 15 Ga. 79 McCall v. Niely, 3 Watts 545. (Pa.), 72. And see Cooper v. "Cooper V. Ord, 60 Mo. 431; Ord, 60 Mo. 420; Teabout v. Teabout v. Daniels, 38 Iowa, 158; Daniels, 38 Iowa, 158; Holbrook Lebanon Mining Co. v. Rogers, 8 v. Forsythe, 112 111. 306. But see Colo. 34. contra, Williams v. Scott, 122 78 Baker v. Swan, 32 Md. 3,55; N. C. 545. Kruse v. Wilson, 79 ,111. 240; so Sumner v. Stevens, 6 Met. Stark V. Starr, 1 Sawyer (C. Ct.) (Mass.) 337; Harvey v. Harvey, 20; Gittens v. Lowry, 15 Ga. 26 S. C. 608. 30 4:66 TITLE BY LIMITATION AND POSSESSION. [§422. ing in such cases being that where a party is in possession under and pursuant to a state of facts which, of themselves, show the cliaracter and extent of his entry, such facts prac- tically perform the office of color of title.*'- It is contended, in support of this view, that where facts are sufficient to evi- dence the character of the entry and the extent of the claim, everything that color of title could show has been presented, and that possession under such facts would furnish construc- tive notice of them to all persons interested.*^ But this rea- soning, however plausible it may appear, is not in accord with the generally received theories of the essence of this ingre- dient of adverse title. *^ A void deed may give color of title and operate to fix and define the boundaries of an actual possession,** and, gener- ally, any instrument of conveyance, however inadequate to transfer title, may yet serve as color of title to support a claim of adverse possession.*^ In order, however, to impart a color of title to lands beyond the limits of the portion actually occu- pied the instrument relied upon must contain a description of the land,*" and if there is no description or boundary by which the location of land can be ascertained or the limits of posses- sion defined, the instrument will be unavailing and cannot constitute color of title.*'' The effect of a possession under color of title is to confer adverse rights co-extensive with the boundaries described in the instrument under which the claim of title is made,** in the 81 Bell V. Longwortli, 6 Ind. 389; Randolph v. Casey, 43 W. . 273. Va. 289; McNeill v. Fuller, 121 82 See further Hamilton v. N. C. 209 ; Burgett v. Taliaferro, Wright, 30 Iowa, 480; Miller v. 118 111. 503; Packard v. Moss, 68 Davis, 106 Mich. 300; King v. Cal. 123; Swift v. Mulkey, 14 Rowan, 10 Heisk. (Tenn.) 675. Oreg. 59; Bartlett v. Ambrose, 78 S3 Williams v. Scott, 122 N. C. Fed. Rep. 839. 545. ss Wilson v. Johnson, 145 Ind. s4Doe V. Clayton, 81. Ala. 391; 40, 43 N. E. Rep. 930; Elofrson Stater v. Meadows, 68 Iowa, 507; v. Lindsay, 90 Wis. 203. Hartman v. Nettles, 64 Miss. st Blakey v. Morris, 89 Va. 495; Packard v. Moss, 68 Cal. 717; Dubuque v. Coman, 64 Conn. 123; Twohig v. Learner, 48 Neb. 475. 247; Bennett v. Land & I. Co., 23 ss Smith v. Keyser, 115 Ala. Colo. 470, 48 Pac. Rep. 812. 455; Libbey v. Young, 103 Iowa, 85Safford v. Stubbs, 117 111. 258, 72 N. W. Rep. 520; Peoria, § 423.] NATUEE AND EEQUISITES. 467 absence of any actual possession by the true owner/' whereas the possession of one entering and holding under a mere claim of title, without more, is confined to the land in his ac- tual occupation.^" Hence, the question of the manner of hold- ing often becomes of great importance, and it is to' be re- gretted that more definite and uniform ideas concerning the essential character of color of title do not prevail. § 423. Good and bad faith. — It is not proposed to extend the inquiries of this chapter from the domain of law to that of morals, nor to attempt any definitions of ethics. Yet the persistency of the antithetical terms "good" and "bad", when applied to matters of belief respecting title, which is so observ- able in both the decisions and the writings of the rudimen- tary expounders of the law, compels some allusion thereto. The terms themselves do not readily admit of definition. In- deed, exact definitions in law are practically impossible, for "good faith", like "fraud" and similar expressions, is some- thing which courts have generally refused to define. We can only resort to generalities when we attempt to express the essence of terms of this character, and generalities, however much they may serve to adorn ordinary discourse, are without much force or effect in legal argument. We may be able to perceive those things which shock the moral sense when they are presented in concrete form, and courts will act from the cognitions so received, but considered abstractly it is difficult, if not impossible, to say in just what the essence of bad faith consists. In disputes concerning the title to land the question of good faith arises most frequently where claims are made under color of title. The general doctrines have already been stated, and, as has been seen, an occupation under color of title must, as a rule, be commenced in "good faith.'' But this expression is now largely a term of art. Where there is no actual fraud; etc. R. Co. v. Tamplin, 156 111. 00 Parkersburg v. Schultz, 43 285; Johns v. McKibben, 156 111. "W. Va. 470, 27 S. E. Rep. 255; 71, 40 N. B. Rep. 449. Porter v. Miller, 76 Tex. 593; 89 Anderson v. Jackson, 69 Tex. Doyle v. Wade, 23 Pla. 90. 346; Peoria, etc. R. Co. v. Tamp- lin, 156 111. 285. 468 TITLE BY LIMITATION AND POSSESSION. [§ 424. and no proof showing that the color of title was acquired in bad faith, which virtually means in or by fraud, it roust be held to have been acquired in good faith.^^ Constructive, or even actual, notice of irregularities does not necessarily im- pute bad faith or fraud to the party chargeable with notice,"^ and, generally, unless there is affirmative proof to show that the claimant designed to defraud the person having the better title his color of title is not impeached.^^ It may be stated, therefore, as a rule, that good faith will be presumed until rebutted by proof, or, stated in other words, the legal presumption is that all conveyances are made in good faith and not fraudulently, and the burden of proof rests upon him who seeks to impeach a conveyance for fraud."* And, as a further rule, it may be said that the fraud which will prevent a possession from becoming the foundation of an ad- verse title means actual fraud — a moral fraud or wrongful act — and not technical or legal fraud."^ § 424. Entry under void deed. — While it is often asserted that an adverse occupant claiming under color of title must enter and hold the land in good faith, believing his conveyance to be valid, in order to initiate an adverse possession, particu- larly in those states where such occupant must found his claim upon a "written instrument" purporting to be a con- veyance of the property in question, yet much latitude is al- lowed with respect to the character of such "written instru- ment." Thus, notwithstanding the deed is void for irregu- larity appearing upon its face,"" yet if it contains a proper description of the land, and the grantee enters into possession under it, claiming title, and continues to hold and enjoy the land, the fact of invalidity becomes immaterial where there has. been an actual undisturbed occupation for the statutory 91 Smitli V. Furguson, 91 111. s* O'Neal v. Boone, 82 111. 589. 304. 95 Such as a sale by two only 92 Coleman v. Billings, 89 111. out of three trustees who should 183; Stu,bbleflel(3 v. Borders, 92 have joined therein. "Ware v. 111. 279; Coward v. Coward, 148 Barlow, 81 Ga. 1. 111. 268; Lee v. Ogden, 83 Ga. 90 Watson v. Mancill, 76 Ala. 325. 600; Catling v. Lane, 17 Neb. 03 Smith v. Ferguson, 91 111. 77; Randolph v. Casey, 43 "W. 304; Ware v. Barlow, 81 Ga. 1. Va. 289. § 424.J NATUEE AND KBQUISITES. 469 period of limitation."^ So, too, notwithstanding the grantee may not have purchased in good faith, yet, if his deed has not been attacked on the ground of voidability during the time allowed by law, the question of good faith cannot be inquired into.^^ And even where a party founding his claim upon an instrument which he knew or had reason to believe was void may be denied character as an occupant in good faith, yet this knowledge must be positive, and not such as would arise from the legal construction of the instrument."' On the other hand, in some states the element of good faith is wholly immaterial, and possession with claim of title for the requisite period, under an instrument absolutely void upon its face, will confer title by adverse possession.^ The generally received doctrine is as last above stated but there are also numerous decisions which either qualify or deny the rule. There should be no difference, in effect, be- tween a deed void for some defect or irregularity and one reg- ular in form but void because of incapacity in the grantor, and, generally, in those states where the doctrine of colorable title is permitted to obtain, a possession taken under an instrument of conveyance and continued for the statutory period will per- fect an adverse title, no matter how defective the title of the grantor in such instrument." Still, even where the general doctrine is recognized, it has been held that a deed by or to a person absolutely without capacity cannot be made the basis of a colorable title. ^ 97 Wilson V. Atkinson, 77 Cal. Fed. Rep. 264; Bernstein v. 485, 11 Am. St. 299; McMillan v. Humes, 75 Ala. 241; Reilly v. Wehle, 55 Wis. 685; Bennett v. Blaser, 61 Mich. 899. Land & I. Co., 23 Colo. 470; 2 gee Ryan v. Kilpatrick, 66 Bartlett v. Ambrose, 78 Fed. Ala. 332; Peck v. Lockridge, 97 Rep. 839; Twohig v. Learner, 48 Mo. 549. Neb. 247; Randolph v.' Casey, s See Pittsburg, etc. R, R. Co. 43 W. Va. 289, 27 S. E. Rep. 231; v. Reicb, 101 111. 157; Saunders McNeill V. Fuller, 121 N. C. 209. V. Silvey, 55 Tex. 46; Cbildress 98 Morrill v. Manufacturing v. Calloway, 76 Ala. 128. In Co., 60 Minn. 405. this case a tax deed was made 99 "Wilson V. Atkinson, 77 Cal. to one -who was neither the pur- 485; Sexson v. Barker, 172 111. chaser nor assignee of the certl- 361; Dubuque v. Coman, 64 ficate, to whom alone such a Conn. 475. deed could be made. But see iLa Crosse v. Cameron, 80 Dubuque v. Coman, 64 Conn. 470 TITLE BY LIMITATION AND POSSESSION. [§ 425. § 425. Constructive possession. — Where title is asserted adversely under a claim of right and with color of title, accom- panied b}' occupancy, it is a rule of general observance that the extent of the claim must be measured by the instrument under which the entry is made."* Hence, where such instru- ment purports to convey an entire tract, notwithstanding ac- tual occupation is had only of a portion of the premises, the claimant will nevertheless be considered as constructively in possession of all of the land described in his deed or other muniment of title, his occupancy of part being, in contempla- tion of law, the occupancy of every portion.^ On the other hand, if there is no color of title, that is, no instrument under which the entry purports to have been made, the occupant will be limited to that part of the tract actually broiight under his control and over which he is exercising acts of ownership. He cannot extend his possession con- structively so as to cover a larger portion. ° An interesting question is presented where two holders of hostile titles to the same tract are each in the occupation of a small portion within the exterior boundaries. In such event the doctrine of constructive possession becomes very efficient to settle the question of title. It has been held, in a case similar to that last mentioned, that constructive possession follows the true or elder title, and that the statute of limit- ations will not run in favor of the invalid title, except as to the part in actual possession.'' In both instances there would undoubtedly be a constructive possession, but, as two persons cannot be in the exclusive possession of the same thing at the 475, where a deed executed tiy a 539; Crispen v. Hannavan, 50 successor of a trustee was held Mo. 536; "Woods v. Hull, 90 Tex. to confer color of title upon the 22S. grantee, although the power of s Roots v. Beck, 109 Ind. 472; sale was personal to the original Harms v. Kransz, 167 111. 421, trustee and did not pass to such 47 N. E. Rep. 746; Anderson v. successor. Dodd, 65 Ga. 402; Porter v. Mil- ■i Washburn v. Cutter, 17 ler, 76 Tex. 593; Doyle v. Wade, Minn. 361; Ruffin v. Overby, 105 23 Pla. 90, 1 So. Rep. 516; Nlck- N. C. 78. lase v. Dickerson, 65 Ark. 422, 5 Hodges V. Eddy, 38 Vt. 327; 46 S. W. Rep. 945. Welborn v. Anderson, 37 Miss. t Semple v. Cook, 50 Cal. 26; 155; Brooks v. Bruyn, 18 111. Woods v. Hull, 90 Tex. 228." § 426.] NATURE AMD EEQUISITES. 471 same time, the solution of the question is readied by allowing the constructive possession of the true or elder owner to over- come the constructive possession of the intruder. § 426. Mixed possession. — The concluding portion of the last paragraph suggests a further discussion of mixed pos- session. An embarrassing question is presented where two persons are in the actual occupancy of land and exercising dominion over it under a claim of title. Such a case might b'e presented where two persons occupy the same house, each claiming an exclusive right ; or where two persons are each in the actual occupancy of parts of an entire tract, claiming ownership in the whole. The early cases do not experience much difficutly in deciding a matter of this kind, for where two persons are in possession of land, the one by title and the other by wrong, the possession is awarded to him who has the title.* The theory upon which the courts proceeded was, that although there might be a concurrent possession there could not be a concurrent seizin of lands, and that only one being seized the possession must be adjudged to be in him because he has the right. ° This reasoning seems sound and logical and the rule announced has been generally followed in later decisions.^" Of course, an adverse holder may originate and perfect a title to specific part of land under a claim of the whole, but in such case there must be an actual occupation of the part which amounts to a disseizin of the legal owner. There can be no constructive possession as against the legal title." The question does not seem to be of frequent occurrence, but where it has been presented the courts have usually held that a claim of adverse possession, where such possession has not been exclusive, is without merit.^^ Where there is an ac- 8 Codman v. Winslow, 10 Mass. Lowell v. Stevens, 2 McCrary 151; Mather v. Trinity Church, (C. Ct.) 311; Deputron v. Young 3 Serg. & R. (Pa.) 509; Smith 134 V. S. 241. V. Burtis, 6 Johns. (N. Y.) 218; n Deputron v. Young, 134 U. Deputron v. Young, 134 U. S. S. 241; Anderson v. Jackson, 69 241. Tex. 346. 8 Langdon v. Potter, 3 Mass. 12 Smith v. Young, 89 Iowa, 219. 338 ; Scruggs v. Land Co., 86 Ala! loSemple v. Cook, 50 Cal. 26; 173. 473 TITLE BY LIMITATION AND POSSESSION". [§ 427. tual exclusive possession of a part, under a claim of the whole, then, as to such part, there may be a sufficient showing to establish a title. But this is as far as the principle can be ex- tended, and where the respective possessions are so inter- mixed that they cannot be separated neither can be regarded as an ouster of the other.^^ § 437. Tacking. — To bar the right of entry by the true owner, by an adverse possession, it is immaterial whether the possession has been held by one or by a succession of individ- uals, provided such possession has been connected and con- tinuous.'^* Such continuity and connection, technically known as tacking, may be effected by any conveyance or understand- ing that has for its object a transfer of the rights of the pos- sessor, when accompanied by an actual transfer of posses- sion,^^ or, it may be accomplished by operation of law where the necessary privity exists between the successive adverse claimants.^" Such privity may arise between two holders where a later takes under an earlier by descent, or by a will, or deed, but a paper evidence is not necessary to show the re- lation as the authorities are all agreed that a parol bargain and sale, followed by delivery of the possession of the prop- erty, will be equally as operative for the purpose of tacking as a formal deed of conveyance from one occupant to another.^^ 13 As where two persons are in Ga. 675 ; Brown v. Brown, 106 the occupation of a building, the N. C. 451; Ramsey v. Glenny, 45 one In the lower story and the Minn. 401; Wishart v. McKnight, other in the upper story, and 17S Mass. 356, 86_Am. St. 486, 59 each claims ownership of the lot N. E. Rep. 1028.' on which the building stands. is Vandall v. St. Martin, 42 There being no exclusive posses- Minn. 163; Wishart v. McKnight, sion of the entire property, a 178 Mass. 356; Kendrick v. claim of title by adverse posses- Latham, 25 Fla. 819. sion will not be sustained. 10 Ross v. Goodwin, 88 Ala. Truth Lodge v. Barton, 119 390; Kruse v. Wilson, 79 111. 233; Iowa, 230, 93 N. W. Rep. 106. Duren v. Kee, 26 S. C. 219; Mc- 1-1 Turner v. Hart, 71 Mich. Lemore v. Durivage, 92 Tenn. 128; Louisville, etc. R. R. Co. v. 482. Philyaw, 88 Ala. 264; Haynes v. "Weber v. Anderson, 73 111. Boardman, 119 Mass. 414; Alex- 439; Day v. Wilder, 47 Vt. 584; ander v. Stewart, 50 Vt. 87; Me- Illinois Steel Co. v. Budzisz, 106 Neeley v. Langan, 22 Ohio St. Wis. 499. 37; Verdery v. Railway Co., 82 § 427.] NATUEE AND EEQDISITES. 4:73 Thus, the possession of an heir may be tacked to that of his ancestor ;^^ of a receiver to that of the debtor ;^° of an assignee to that of his assignor,-" and, generally, the last of several succesive adverse claimants may tack the possession of his predecessors to his own, so as to make a continuous holding for the statutory period.^^ The element of connected continuity must, however, af- firmatively appear and in such a manner as to show conclu- sively that the possession of the true owner has not, even con- structively, intervened,^- and several succesive but uncon- nected disseizins or adverse holdings, though amounting in the aggregate to twenty years, or such other period as the statute may limit for an entry on land, cannot be tacked to-- gether to make the necessary continuous possession.^^ Where an adverse possession has been duly originated the party so claiming adversely, or his successor in interest, may continue such possession by his tenant, and the absence of the landlord from the state will not interrupt the running of the statute of limitations, as the true owner has his right of action against the tenant to recover possession.^* Where different possessions are thus sought to be tacked to- gether it is essential that each shall have been properly com- menced and continued and the same rules will apply to the different occupants as would in the case of a single occupant for the entire period. Thus, a possession during the lifetime of a life tenant cannot be joined to a possession after his death 18 Teabout v. Daniels, 38 Iowa, 23 Marsh v. Griffin, 53 Ga. 320 158; Duren v. Kee, 26 S. C. 219; Pegues v. Warley, 14 S. C. 180 Ramsey v. Glenny, 45 Minn. 401; Turner v. Hart, 71 Mich. 128 McLemore v. Durivage, 92 Tenn. Ross v. Goodwin, 88 Ala. 390 482. Ramsey v. Glenny, 45 Minn. 401. 19 Verdery v. Railway Co., 82 But see Smith v. Chapin, 31 Ga. 675. Conn. 530; Davis v. McArthur, 20 Brown v. Brown, 106 N. C. 78 N. C. 357, where an appar- 451. ently contrary rule is asserted. 21 Kendrick v. Latham, 25 Fla. 24 Ramsey v. Glenny, 45 Minn. 819; Louisville, etc. Ry. Co. v. 401. And see Omaha, etc. Trust Philyaw, 88 Ala. 264. Co. v. Parker, 33 Neh. 775; =2 Ramsey v. Glenny, 45 Minn. Thomas v. Burnett, 128 111. 37; 401; Ross V. Goodwin, 88 Ala. McLean v. Smith, 106 N. C. 172. 390; Warren v. Frederichs, 76 Tex. 647, 13 S. W. Rep. 643. 471 TITLE BY LIMITATION AND POSSESSION. [§§ 428, 429. to complete a title against the remainderman or owner of the fee."° § 428. Continued — Conflicting theories. — ^The statements of the preceding paragraph represent not only the generally received rules with respect to tacking but also the theory upon which such rules are based. That is, a continuity of posses- sion arising from some privity between the successive occu- pants. It would seem, however, that in England, as well as in some of the American states, the exclusion of the true owner for the statutory period is the pivot upon which the question is made to turn, and the test by which it is deter- mined. It is there held that one who seeks to avail him- self of the statute of limitations by proving the possession of successive occupants is not like one who endeavors to estab- lish an easement by showing that a succession of persons had prescribed it ; that there is a distinction between prescriptive user and the limitation of the statute, and that, when the latter is relied upon, the only question is, whether the demandant has been continuously kept out of possession for the legal period, not whether the persons who kept him out of posses- sion held one under the other. ^° § 429. Adverse possession by one of several occupants. — While the possession required by the statute to originate and perfect an adverse right must be actual, visible, exclusive and hostile, there may yet be occasions where these ingredients may exist notwithstanding the occupancy of the land is shared with others. This will often be the case where an adverse title is claimed by a married woman. Ordinarily a married woman will be presumed to have entered under her husband and a recovery against him will be effective against her. But if she entered in her own right, and under a color of title emanating from some source other than her husband, and continued in possession for the statutory period of limitation, 25Gmdrat v. Railway Co., 96 Ohio St. 32; Scheetz v. Fitz- Ala. 162. ' water, 5 Pa. St. 126; Shannon 26 This seems to be the doc- v. Kinny, 1 A. K. Marsh. (Ky.) trine of the English cases and 3. And see Chapln v. Freeland, has been affirmed in the follow- 142 Mass. 383. Ing: McNeely v. Langan, 22 § 430.] NATUEE AND EEQDISITBS. 475 a title will vest in her by adverse possession, and the jury must determine as to the sufficiency of the evidence required to overcome the presumption arising from the joint occupancy of herself and husband.-^ So, too, where a husband makes a deed to his wife, with the intention of vesting title in her and of releasing his marital rights in the land, the wife's posses- sion becomes adverse to him, notwithstanding he continues to jointly occupy the land with her.^* - As a general rule, however, the elements of hostility and ex- clusive claim must exist to render a possession adverse to a joint occupant, and there must be acts which serve to impart notice of the claim as in other cases. The mere payment of taxes and the making of improvements by one of several joint occupants of land, where his possession has not been open, notorious, and hostile to the other occupants, is not evidence of an actual ouster or of an adverse holding, and in themselves will not set in operation the statute of limitations.^" § 430. Nature of occupancy. — As previously stated the circumstances of the particular case constitute the pivot on which the question of a diseizin must turn, and while both stat- utory enactments and judicial decisions place much stress on actual occupation, yet the general consensus of opinion seems to be that it is only such actual occupation as the land is adapted to and such as is reasonably sufficient to attract the attention of the true owner and put him on inquiry as to the nature and extent of the apparent invasion of his rights.^* One of the most significant forms of occupation is an inclosure and this, when of a substantial character, is generally held to be one of the best and most decisive indications of hostile claim.^^ But, an inclosure having no purpose of physical ex- =7 Collins V. Lynch, 157 Pa. St. Blanchard v. Moulton, 63 Me. 246. 434; Murphy v. Doyle, 37 Minn. 28 McQueen v. Fletcher, 77 Ga. 113; French v. Goodman, 167 111. 444. 345. 29 Pierson v. Conley, 95 Mich. 31 Taliaferro v. Butler, 77 Tex. 619. 578; Barnes v. Light, 116 N. Y. 30 Illinois Steel Co. v. Bilot, 34; Tourtelotte v. Pearce, 27 109. Wis. 418, 85 N. W. Rep. 402, Neb. 57; Miller v. Cramer, 48 S. 83 Am. St. 905; Woods .v. Monte- C. 282. vallo, etc. Co., 84 Ala. 560; 4:76 TITLE BY LIIIITATION AKD POSSBSSION. [§ 130. elusion of outside interferences, — a mere furrow turned with a plow around the land,^" or a line marked by cutting away the brush/'* has been held insufficient to indicate the boundaries of an adverse claim."* Where land is claimed under color of title, however, it is not essential that the party must have the land inclosed before he can be said to be in its actual possession. Such possession may be shown by the constant and uninter- rupted use of the land, through a series of years, for such pur- poses as it may be adapted. Thus, if it is timber land, by tak- ing wood therefrom for fuel, fences, or other purposes. In such cases the deed, or other matter constituting the "color", may be regarded as bringing under possession all the land which it includes. ^^ In like manner the statutes speak of improvements, yet it would seem that no particular kind of improvement is re- quired, so long as it satisfies what is usual under the circum- stances.'" It is not necessary that it should add anything to the value of the land, and practically means nothing more than use.'' Any actual visible use to which similar property is usually devoted may be sufficient, and it is wholly immaterial whether the result be to increase or decrease the value.'^ At common law to constitute an adverse possession there is no need for a fence, or building, or any other improvement, the 32 Sage V. Morosick, 69 Minn. the neigliborliood, and that after- 167, 71 N. W. Rep. 930; Nichol- ward he remained in possession son V. Aronson, 58 Kan. 814. of the lands so enclosed. Sage 33Worthley v. Burbanlvs, 146 v. Morosiclf, 69 Minn. 167, 71 N. Ind. 534, 45 N. E, Rep. 779. W. Rep. 930. 34 See O'Hara v. Richardson, ss Austin v. Rust, 73 111. 491; 46 Pa. St. 285; Hutton v. Schu- Porter v. Miller, 76 Tex. 593; maker, 21 Cal. 453; Sauers v. Gid- Springs v. Schenok, 106 N. C. dings, 90 Mich. 50. It has been 153; Wilson v. Atkinson, 77 Cal. held, however, that in the case 485. But see Morris v. McClary, of prairie lands, in a vicinity 43 Minn. 346. where such lands are not usually so Illinois Steel Co. v. Bilot, fenced, to constitute open, no- 109 Wis. 418, 85 N. W. Rep. 402, ■torious and exclusive possession, 83 Am. St. 905; Holtzman v. it is sufficient that the occupant Douglas, 168 U. S. 278; Hubbard entered under a claim of owner- v. Kiddo, 89 111. 578. ship, erected buildings, and de- '>^ Archibald v. Railroad Co., fined the boundaries of his claim 157 N. Y. 576, 52 N. E. Rep. 569. by plowing furrows around the ss Illinois Steel Co. v. Bilot, land, according to the custom of 109 Wis. 418. § 430.] NATUEE AND EEQUI8ITE8. 477 visible and notorious acts of the occupant being sufficient when exercised for the statutory period.^^ And where acts of ownership have been done upon the land, which from their nature indicate a notorious claim of property in it, such acts are evidence of an ouster of the former owner and an actual adverse possession.*" The nature and situation of the prop- erty and the uses to which it can be applied are the tests by which occupation and acts of ownership are to be tried, and it has been held that neither actual occupation, cultivation, nor residence are necessary where the property is so situated as not to admit of any permanent or useful improvements.*^ In such a case, if the continued claim of the adverse party has been evi- denced by public acts of ownership such as he could or would exercise over property which he claimed in his own right and would not exercise over property which he did not claim, this, it seems, will be sufficient.*^ The foregoing doctrine has been announced and approved in states where statutes are in force providing for "actual oc- cupation", "improvements", and the like, the courts, in such cases, construing these terms in their broad sense of any use for which the lands are adapted. But mere acts of trespass, as the occasional cutting of tim- ber,*' or pasturing of cattle,** or cutting of grass,*^ or other acts of a like character, while they may tend to show owner- ship, will not constitute adverse possession.*' As before S9 Cooper v. Morris, 48 N. J. v. Munch, 65 Minn. 500; Holtz- L. 607. man v. Douglas, 168 V. S. 278. ioDicev. Brown, 98 Iowa, 297; 43 Harms v. Kransz, 167 111. Goodson V. Brothers^ 111 Ala. 421. 589. 44Bergere v. United States, iiEwing V. Burnet, 11 Pet. 168 U. S. 66; Hicks v. Tederick, (U.' S.) 52; Sadtler v. Peabody 9 Lea (Tenn.), 491. Heights Co., 66 Md. 1; Ford v. « McCloskey v. Hayden, 169 Wilson, 35 Miss. 490; Cooper v. 111. 297; Roberts v. Baumgarten, Morris, 48 N. J. L. 607. 51 N. Y. S. C. 482. 42 See Clement v. Perry, 34 ^e See Carter v. HOrnback, 139 Iowa, 564; Curtis v. Campbell, Mo. 238; Nicholson v. Aronson, 54 Mich. 340; Hughes v. Ander- 58 Kan. 814; Wilson v. Blake, 53 son, 79 Ala. 209; Richards v. Vt. 305; Austin v. Rust, 73 111. Smith, 67 Tex. 610; Sheldon v. 491; Ruffin v. Overby, 105 N. C. Mull, 67 Cal. 299; Merrill v. 78; Aiken v. Ela, 62 N. H. 400. Tobin, 30 Fed. Rep. 738; Swan 478 TITLE BT LIMITATION AND POSSESSION. [§ 431. shown, however, where a claim is asserted by a written instru- ment — under color of title — these occasional acts are accorded 3. deeper significance and are always admisible in evidence to support a plea of the statute of limitations.*^ § 431. Occupation under license. — It is fundamental that a possession of land, to be adverse, must be taken and held luider a claim of right, or, as it is sometimes expressed, with an intention to appropriate and hold as owner, and, as a rule, there can be no adverse possession without an intention to claim title.** Hence, possession under a license is not ad- verse,*° and will be unavailing under the statute of limitations. This rule has been held to apply where one continues to hold land which he entered under a license, after such land has been conveyed to another, though without the knowledge of the licensee, and such occupant, as against the grantee, will not be permitted to acquire an adverse title. ^^ The decisions in such cases proceed upon the theory that if a party claims only a limited interest and not a fee the law will not, contrary to his intentions, enlarge it to a fee.^^ The general rule, to be col- lected from all of the decisions, is, that a permissive occupancy of another's land is not hostile, and, however long continued, must be deemed to be in subordination to the title of the true owner, whose entry will never be barred thereby.''^ And, gen- erally, a mere occupancy of land although exclusive and with- out payment of rent, if unaccompanied by any claim of title or dispute of the title of the owner, will not be sufficient to con- stitute an adverse possession.^' These rules apply generally to all licensees, whatever may be their special character, and «Forey v. Bigelow, 56 Iowa, so Bond v. O'Gara, 177 Mass. 381; Scott V. Delany, 87 111. 146; 139, 58 N. E. Rep. 275, 83 Am. Coleman v. Billings, 89 111. 183. St. 265. 4s Hagan v. Ellis, 39 Pla. 463, si See Ricard v. "Williams, 7 63 Am. St. 167, 22 So. Rep. 727; "Wheat. (U. S.) 107. Bond T. O'Gara, 177 Mass. 139, 62 Anderson v. McCormick, 18 58 N. E. Rep. 275, 83 Amt St. 265. Oreg. 301, 22 Pac. Rep. 1062; «Handlan v. MoManus, 100 McDonald v. Pox, 20 Nev. 364; Mo. 124, 13 S. "W. Rep. 207, 18 "Ward v. Edge, 100 Ky. 757. Am. St. 533; Bond v. O'Gara, 177 53 Maple v. Stevenson, 122 Ind. Mass. 139, 58 N. E. Rep. 275, 83 368. Am. St. 265; Anderson v. Mc- Cormick, 18 Oreg. 301. § 432.] NATURE AND EEQUISITES. 479 are often invoked in the case of tenants or prospective pur- chasers who have been let into possession. As to all such the rule is fundamental that their possession is not adverse as against the person under whom they entered, and that it can- not become so until there has been a surrender or a notice that they no longer hold in subordination to the title under which they entered.^* In every such case, where it is shown that possession at a certain time was held in subordination to the title of another it will be presumed to so continue, and it can- not afterward become adverse as against the latter without proof that it was held in hostility to such other's title ; that the possessor repudiated the permissive or subordinate character of the possession as it previously existed, and that the full period of limitation has expired since such repudiation.''^ § 432. Pasmient of taxes. — The payment of taxes on land is not an act of possession, neither is it, of itself, evidence of possession or a possessory title.^" Yet, as acts of this charac- ter are usually exercised only by persons who have some direct interest in the property, they tend to show a claim of owner- ship,^^ and, taken in connection with other circumstances evi- dencing an actual possession; may also serve to show the ex- tent of the possession claimed. ^^ Tax receipts, therefore, showing such payments, are properly admissible in evidence when offered in support of actual possession,^" and where it is shown that a person has for more than twenty years listed land for taxation, and paid the taxes thereon, being part of the time in actual possession, continually and uninterruptedly exer- cising acts of ownership, and refusing to extend like privileges B4 See Brunson v. Morgan, 84 Raymond v. Morrison, 59 Iowa, Ala. 598; Udell v. Peak, 70 Tex. 371; Malloy v. Bruden, 86 N. C. 547; Bedlow v. Dry Dock Co., 251. 112 N. Y. 263; Alderson v. Mar- 57 Paine v. HutcMns, 49 Vt. shall, 7 Mont. 288, 16 Pac. Rep. 314; Brown v. Rose, 48 Iowa, 576. 231; Sadtler v. Peabody Heights 55Trufant v. Hudson, 99 Ala. Co., 66 Md. 1; Farrar v. Fessen- 526. den, 39 N. H. 268; Wren v. 56 Scott v. Mills, 49 Ark. 266; Parker, 57 Conn. 529. Garrett v. Land Co., 94 Tenn. es Green v. Jordan,' 83 Ala. 220. 459; Tillotson v. Prichard, 60 Vt. bs Bauoum v. George, 65 Ala. 94; Draper v. Shoot, 25 Mo. .197; 259. 480 TITLE BY LIMITATION AND POSSESSION. [§ 4:32. to others, this is competent to estabhsh adverse possession."" Possession, of some kind, is essential in all cases of this char- acter, and unless this fact affirmatively appears the claim must fail.^i The, payment of taxes may, however, become an important circumstance depending on local statutory policy with respect to shortened periods of limitation. In many of the states it is now provided that where a person in the actual possession of lands, under color of title, shall for a specific period pay all taxes legally levied thereon, such person will be permitted to assert an ownership to the extent, and according to the pur- port of, his paper title. But, to maintain the bar of the stat- ute, a strict compliance with its terms is essential, and the claimant must show not only a claim and color of title but also a continuous possession thereunder during the prescribed period and the payment of all taxes imposed upon the land during that time."^ It is not essential that the taxes shall be paid within or during the year in which they accrue, but they must be paid within the prescriptive period,"^ and by the per- son asserting the claim.^'' Hence, it is essential that a party relying upon the limitation of the statute and payment of taxes should aiSrmatively show that he paid the taxes for the requis- ite number of years, as the law will raise no presumptions in his favor nor can he claim the benefit of the official records which simply show the fact of payment but not the person by whom the payment was made."^ Ordinarily the production of a properly authenticated tax receipt is the best evidence of the payment of a tax. The stat- ute, however, does not, as a rule, provide any specific mode of 80 Rogers V. Miller, 13 "Wash. Dak. 254; Reynolds v. Willard, 82. 80 Cal. 605. «i Adverse possession of town ea Irwin v. Miller, 23 111. 401; lots susceptible of enclosure can- Cofield v. Furry, 19 111. 183; not be based upon mere payment Beaver v. Taylor, 68 U. S. 6-37; of taxes upon land, including Snowden v. Rush, 76 Tex. 197, the lots, where they have not 13 S. W. Rep. 189. been enclosed. Garrett v. Land s* Hardin v. Gouveneur, 69 111. Co., 94 Tenn. 459. 140. 62 Wettig V. Bowman, 47 111. 66 Irwin v. Miller, 23 111. 348. 17; Power v. Kitching, 10 N. § 433.] NA.TUEE AND BEQUISITES. 481 proving such payment, and as the payment of money or dis- charge of a debt may usually be shown by oral testimony, not- withstanding that a receipt was taken, so, it is believed, the fact of payment of taxes may be established by any method of legitimate proof.^^ Where this shortened period of limitation is permitted the fact of possession is usually a material circumstance, and the mere payment of taxes and assertion of exclusive right to lands do not, of themselves, constitute possession or disseize the holder of the true title. Nor will fitful acts of ownership, not of such notoriety as to put the real owner on guard or fur- nish notice, be sufficient to evidence a continuous disseizin or establish title by adverse possession.'^ But where the full statutory period has run, and the adverse claimant has com- plied with all of the statutory requirements, his title will be- come complete, and the owner of the record title cannot de- feat the same by paying the taxes for the last year of such period, after they have been paid by the adverse claimant, al- though within the time allowed by law for the payment of taxes. "^ § 433. Declarations and admissions. — The adverse char- acter of a possession is ordinarily, if not always, shown by the facts of the case, and is not derived from the statements and declarations of the party in possession. Except when con- stituting a part of the res gesta the declarations of a party cannot be admitted in his own favor, and it follows that the mere absence of such declarations cannot be shown against him. The absence of such declarations has no tendency to prove that the possession is not adverse, for a party is not bound to make public proclamations that he holds adversely.*" 66 Hinchman v. "Whetstone, 23 ness, as well as the payment of 111. 108. In this case it was said: money in any other case. "The requirement of the statute e? Brown v. Bocquin, 57 Ark. would be as fully answered with- 97; Wright v. Stice, 173 111. 571. out as with a receipt. It forms esOsbum v. Searles, 156 111. no part of the payment, but is 88. only evidence of the fact. No ss Florence v. White, 50 Neb. reason is perceived why the pay- 516, 70 N. W. Rep. 50; Barnes v. ment of taxes may not be proved Light, 116 N. Y. 34. by the verbal evidence of a wit- 31 482 TITLE BT LIIIITATION AND POSSESSION. [§ 433. Therefore, whatever he says or omits to say is a matter of no importance, unless he speaks against his own interest, or fails to speak when it is his duty so to do.'"' Claim of title by word of mouth is never necessary to adverse possession where land is entered upon, actually occupied, and improved.'^ But should the occupant speak against his own interest, as if he admits a superior title in his opponent,^^ or having entered without knowledge as to who owned the land he afterward made inquiries for the purpose of buying it,^^ these circum- stances might be shown against him to defeat his claim. But where a person has held under all the conditions necessary to confer title by adverse possession, the mere fact that before the expiration of the statutory limitation he had expressed doubts as to his title,'^* will not be sufficient to prevent his holding the land.'^ So, too, after title has been thus acquired an offer by the adverse posesssor to the holder of the paper title to buy whatever rights the latter has, particularly if such offer is made to avoid a lawsuit, is not an admission of superior title that will invalidate the title acquired by adverse possession.'^ The rule which permits declaratioas against interest to be shown against the party making them applies as well to state- ments in disparagement of title by those under whom a party claims. Thus, statements by the grantor while in possession under a claim of right are admissible in evidence in favor of one claiming adversel}^ to his grantee.''^ In like manner the admissions of an ancestor, which could affect him were he a party, are receivable in evidence against his heirs,'^ and, gen- erally, declarations of a deceased person are admissible against TO Seymour v. School District, 322; Oldig v. Fisk, 53 Neb. 156; 53 Conn. 502. Cliapin v. Hunt, 40 Mich. 595; 71 Barnes v. Light, 116 N. Y. Illinois, etc. Ry. Co. v. Wake- 34, 22 N. E. Rep. 441. field, 173 111. 564; Bruce v. Wash- 72 New Orleans v. Shakspear, ington, 80 Tex. 368. 39 La. Ann. 1033, 3 So. Rep. 346. tt Royal v. Chandler, 79 Me. . 73Mhoon V. Cain, 77 Tex. 316, 265. 14 S. W. Rep. 24. 78 Terry v. Rodahan, 79 Ga. 74 Oldig V. Fisk, 53 Neb. 156. 278; Burnett v. Harrington, 70 76 Hoffman v. White, 90 Ala. entered under a claim of owner- 354. Tex. 213. 76 Furlong v. Cooney, 72 Cal. § 434.] NATURE AND EEQUISITES. 483 those who claim in the interest or right of such' decedent/'' The rule is equally well settled, however, that acts and declar- ations of a grantor subsequent to his deed cannot be received in evidence to invalidate it,^" or to defeat the title of his gran- tee.^i § 434. Interruption. — As previously shown, the element of peaceful continuity is an essential ingredient of every ad- verse posesssion, and any substantial interruption thereof, be- fore the statutory limit has expired, restores the seizin of the rightful owner of the land.^^ In such event a new entry and disseizin will be necessary in order to set the statute again in motion and to create the statutory bar.^^ An adverse posses- sion is not interrupted, however, by the unknown intrusion of strangers,^* unless continued for such length of time as to be- come an assertion of right,^^ and if such intrusions are known and not submitted to, or acquiesced in, but are forthwith rem- edied, by legal process or otherwise, they will not amount to an interruption of the continuity of posesssion. ^° Neither will a temporary destruction of a part of the premises, whether by flood or fire, if followed by repairs within a ^reasonable time, interrupt the running of the statute. ^^ Nor is it essential that occupation should be constant to make it sufficiently contin- uous to be adverse when the property is used from time to time as needed. ^^ Whether an actual possession has been contin- uous, is, in general, a question of fact for the jury.'' 79 Bank v. Albee, 64 Vt. 571; si Baeder v. Jennings, 40 Fed. MoLeod V. Swain, 87 Ga. 156. Rep. 199. 80 Dudley v. Hurst, 67 Md. 44; 85 Bell v. Denson, 56 Ala. 449. Galland v. Jackman, 26 Cal. 79. And see Cervena v. Thurston, 59 81 Williams v. Eikenberry, 25 Neb. 343; Sherman v. Kane, 86 Neb. 721; Baker v. Haskell, 47 N. Y. 57. N. H. 479; Beville v. Jones, 74 seNormant v. Eureka Com- Tex. 148. pany, 98 Ala. 181; Noyes v. Hef- 82 Stewart v. Stewart, 83 Wis. feman, 153 111. 339. 364; Brown v. Hanauer, 48 Ark. st Baldwin v. Durfee, 116 Cal. 277; Harms v. Kransz, 167 111. 625, 48 Pac. Rep. 724. 421; Johnston v. Fitz George, 50 ss Swan v. Munch, 65 Minn N. J. L. 470. 500. 83 Parkersburg v. Schultz, 43 89 Thompson v. Kauffelt, 110 Va. 470; Malloy v. Bruden, 86 Pa. St. 209. N. C. 251. ttSdt TITLE BY LIMITATION AND POSSESSION. [§ 435. It is not necessary in order to constitute an interruption, that there should be an actual ouster of the adverse holder. The running of the statute may be arrested if from any reason the possession ceases to be adverse, notwithstanding possession in fact continues. Thus, after a valid sale under execution and a conveyance by the sheriff, the continued possession of the land by the defendant in execution is not adverse, but in sub- ordination to the rights of the purchaser at the sale."" So, too, when after the rendition of a judgment against a party in pos- session of land declaring the deed under which he holds to be void, such party continues in possession, but without claiming to hold adversely except by virtue of such deed, his possession is not adverse." And, generally, any recognition by the oc- cupant of the owner's title will break the continuity of adverse possession.^^ § 435. Entry by owner. — If at any time, before the full period of limitation has elapsed, the owner shall enter and re- gain possession the continuity of the adverse possession will be broken,"^ and even though it may be retaken thereafter this will be regarded as a new possession, and the time previous to the interruption cannot be counted as part of the twenty years, or such other term as the statute may prescribe to fix the rights of the adverse holder. But to have this effect the entry must not be merely casual.'* There must be an intent to enter and take possession under a claim of right,^^ and this intent would seem to be the important question in all cases of re-entry.°^ 90 Haaa v. Delorme, 30 Wis. Mass. 121. Tearing down a di- 594. vision fence lias tieen lield not 91 Stewart v. Stewart, 83 Wis. to break the continuity of tlie 364. adverse possession of the adja- 92 St. Paul V. Railway Co., 63 cent owner. Donovan v. Bissell, Minn. 330. 53 Mich. 462. 93 Johnston v. Fitz George, 50 95 Johnston v. Fitz George, 50 N. J. L. 470. ' N. J. L. 470. 9* Thus, an entry on land by a 96 Brickett v. Spofford, 14 person disseized, merely for the Gray (Mass.), 514. An adverse purpose of seeing if there is any possession is not interrupted by evidence of an adverse occupa- ejectment brought by the owner tion, is not, as a matter of law, against the occupant, and after- conclusive evidence of an Inter- wards dismissed. Langford v. ruption of the disseizor's adverse Poppe, 56 Gal. 73. Nor by an possession. Bowen v. Guild, 130 offer to buy peace, litigation § 436.] NATURE AND EEQUISITES. 485 It is not necessary, however, that the assertion of right, or the intent to claim and hold, should be evidenced by words or declarations. It is sufficient if the required purpose may be inferred from acts and circumstances, and what acts will in- dicate such an intent must be determined largely by the char- acter of the land and the uses to which it may be put. That the intent is shown only by trivial acts, or that the possession acquired was retained only a short time, will not necessarily deprive an entry of the effect of interrupting adverse posses- sion,'" for it is not the length of the interruption but its quality which is to be considered in passing upon a question of thfs kind, and notwithstanding the evidence of the acts done may not conclusively show the required intent, yet, if it may justify an inference of the existence of such intent, it should be sub- mitted to the jury.'* As a general proposition, if the acts proved, considering the nature and situation of the land, in- dicate an assertion of right and an exercise of dominion and possession, then an interruption would take place and be ef- fective, although possession was retained but for a brief period. § 436. Effect of absence from state. — A question arises where a title is claimed by adverse possession of one who dur- ing all or a portion of the limitation period has been absent from the state. This question is intensified where the statute requires an actual as distinguished from a constructive pos- session. But, as has been said, actual posesssion means noth- ing more than the property shall have been in the immediate control or under the power and dominion of the party who asserts adverse possessory rights therein,^' and where an oc- cupation has been taken of the land in controversy by an actual entry thereon, with an appropriate use thereof, according to its quality and condition, this will be sufficient to originate an adverse possession and set the statute in motion. When such occupation has thus been commenced it is immaterial that the occupant should himself, in his own person, continuously ex- being threatened. Tobey t. Se- ssBowen v. Guild, 130 Mass. cor, 60 Wis. 310. 121. 97 Consult Stephenson v. Wil- 0^ Omaha, etc. Trust Co. v. son, 37 Wis. 482. Parker, 33 Neb. 775, 29 Am. St. 506. 486 TITX.E BY LIMITATION AND POSSESSION. [§ 437. ercise possessory acts, and the occupation may be as effectively continued through his servants, agents or tenants.^ The pos- session of the tenants or agents in such a case, is the possession of the person under whom they hold,^ and, for all practical purposes, is the same as if by such person himself.' Hence, it follows that the absence from the state of the adverse occu- pant in no way affects the right of the true owner to bring an action to recover possession of the land, and if he fails so to do within the time allowed by statute his action will be barred.^ § 437. Abandonment. — A voluntary abandonment, with no intention of resuming possession, no matter how short, destroys the adverse possession and restores the seizin to the true owner.^ In such event the statute ceases to run and not- withstanding the adverse possessor may return and again oc- cupy the land the subsequent entry is but a new disseizin, and the statute will begin to run only from the new entry." But while the general verity of the foregoing doctrine is un- questionable yet its practical application is frequently involved in much doubt, since intention, which forms its principal ingre- dient, must in most cases be deduced from circumstances. In- asmuch as adverse possession depends, to a great extent upon the nature of the land and the use to which it may be put and is only required to be of such a character as will inform those specially interested that the land is in the exclusive use and en- joyment of another than the true owner,'' it follows that much must be left to construction and, from the necessities of the case, that presumptions must often be permitted to exert the same force as actual and ascertained facts. Actual residence is not essential to continuous occupancy,^ provided there is a iGartrell v. Stafford, 12 Neb. b Doyle v. Wade, 23 Fla. 90; 545; Lindenmayer v. Gunst, 70 Crispen v. Hannavan, 50 Mo. Miss. 693. 536; Louisville, etc. Ry. Co. v. 2 McLean v. Smith, 106 N. C. Philyaw, 88 Ala. 264. 172; Lindenmayer v. Gunst, 70 s Downing v. Mayes, 153 111. Miss. 693. 330. 3 Thomas v. Burnett, 128 111. ' Kerr v. Hitt, 75 111. 51. 37. 8 Coleman v. BiUings, 89 111. ■1 Ramsey v. Glenny, 45 Minn. 183; Clements v. Lampkin, 34 401; Omaha, etc. Trust Co. v. Ark. 598; Swan v. Munch, 65 Parker, 33 Neb. 775; Linden- Minn. 500. mayer v. Gunst, 70 Miss. 693. § 438.] NATQEE AND EEQUISITES. 487 continuous dominion, manifested by continuous acts of owner- ship,' and in many cases it has been held that mere occasional vacancies, such as occur in every case where a party who is unable to obtain a tenant shuts up his property for a short time,'-" or even for a long time,^^ or where he leaves purely agricultural land unoccupied during the winter months,^^ or where he refrains from cultivating land for a season, or even .for several years,'^ wiU not be held to constitute aa abandon- ment if sufKcient reason therefor appears.'* § 438. Presumptions. — It has been held, that possession of land, once established, by material acts of visible, notorious ownership, will be presumed to continue until open, notorious, adverse possession has been proved to have been taken by an- other.'^ This doctrine while possibly effective for some pur- poses, is opposed in principle to the general rules governing the production of evidence in actions of ejectment and partic- ularly with respect to adverse claims resting on possession and limitation. As a rule, no presumptions are raised to support a title of this character and the burden of proof is thrown upon him who asserts such title. Where, however, the defense of a prescriptive title is interposed by a defendant and the evidence shows that he was at one time in possession, holding adversely to the plaintiff, under a claim or color of title asserted in good faith, and that such possession continued down to the com- mencement of the action, such possession may, it seems, be pre- sumed to have continued to be adverse in the absence of any evidence showing a change in its character."* It has been held, that where it is once shown that land has been improved by being fenced, or by other lasting improve- sRayer v. Lee, 20 Mich. 536; 536; Downing v. Mayes, 153 111. Crispen v. Hannavan, 50 Mo. 536. 330. But see Scott v. Mills, 49 10 Thompson v. Kauffelt, 110 Ark. 266. Pa. 209; Costello v. Edson, 44 1* See Swan v. Munch, 65 Minn. 135. Minn. 500; WOrthley v. Bur- 11 Hughs V. Pickering, 14 Pa. hanks, 146 Ind. 534. 297; Noyes v. Heffernan, 153 111. is Clements v. Lamkin, 34 Ark. 339; Stettnische v. Lamb, 18 598. Neb. 619. 18 Barrett v. Stradl, 73 Wis. 12 Gary v. "Woodham, 103 Ala. 385. And see Falcon v. Sims- 421. hauser, 130 111. 649. 13 Crispen v. Hannavan, 50 Mo. 488 TITLE BY LIIIITATION AND POSSESSION. " [§ 439. ments, such improved condition of the property will be pre- sumed to continue, unless the contrary is shown.^' § 439. Mines and sub-strata. — It is a fundamental rule that whoever owns the surface of land is presumed to own whatever lies beneath it. It is a further rule that mineral de- posits in place are a part of the freehold, and pass with it by any form of alienation. But it has long been settled that estates may be held in the sub-strata of land as well as in the surface and that when the o\\'ner of land, by a proper conveyance, has assigned his rights in any of the sub-strata a severance of estate is immediately effected. Thenceforward the owner of the soil may cultivate, enclose, and reside upon, his estate for any length of time but his possession will not affect in the slightest degree the estate below him which has been severed by his deed.'-* In like manner, the owner of the mineral estate may enter upon and occupy it in any manner that its nature may permit, but his possession will never extend upwards and attach to the surface. As between the parties the conveyance fixes their mutual rights and if the deed has been recorded it furnishes constructive notice of such rights to all persons thereafter dealing with the land.'^ In such event, if a third person enters either estate and main- tains possession for the entire statutory period of limitation, he will acquire title only to so much as he has actually held, but his title will not extend above or below the estate on which he enters.^" It would seem that these points are now well settled and the doctrines they involve have received a general accept- ance. We may therefore defer further consideration of them and direct our attention to the more difficult and perplexing questions that our subject presents. It will frequently happen that lands are of value to the owners only because of the subterranean deposits. The sur- 17 Douglass v. Ruffin, 38 Kan. "Witt, 130 Pa. St. 235; Murray 530. V. AUred, 100 Teun. 100. 13 Catlin Coal Co. v. Lloyd, 20 Caldwell v. Copeland, 37 180 111. 398; Murray v. Allred, Pa. St. 527; Kingsley v. Hillside 100 Tenn. 100. Coal Co., 144 Pa. St. 613; Mar- is Delaware & Hudson Canal ray v. Allred, 100 Tenn. 100; Co. V. Hughes, 183 Pa. St. 66; Catlin Coal Co. v. Lloyd, 180 111. Westmoreland, etc. Co. v. De 393. § 439.] NATUEE AND EEQUISITES. 489 face is permitted to remain unenclosed and uncultivated and while in this condition persons may enter upon it, occupying, enclosing, and cultivating the same, or parts thereof, and such possession may be continued for the full period of limitation. Ordinarily such a possession must give to the occupant a valid adverse title, not only to surface but to the sub-strata as well. But it may be that while the owner has neglected the surface he has been in the actual occupation of the mines underneath same, operating them in the usual manner during all of the time that the adverse possession has been ripening. If we shall concede that the adverse claimant has acquired a valid title to the surface, or to so much thereof as he shall have ac- tually enclosed and occupied, must we also concede that his ownership extends to the underlying minerals ? It would seem that we must, unless it can be shown that the owner of a freehold may, for his own uses, effect a severance of the min- erals from the surface by his own acts, and if this shall be per- mitted that the fact of working the mines shall operate as notice of such severance to other persons in the same manner as the constructive notice arising ftom the recording of a deed. In a late case where this question was presented it was held that the owner, in the exercise of his legal rights, might elect to develop and operate the sub-strata and leave the surface un- tilled and unenclosed. That in the event of his election so to do a virtual severance of the surface and underlying minerals was effected, and that the necessary erections, shafts, gang- ways, etc., for the operation of the mines was a sufficient notice of his possession of his subterranean estate. Hence, that an adverse possession of the surface by one who had notice did not extend to the coal under the surface. ^'■ 21 Delaware & Hudson Canal 38 L. R. A. 826. This seems to Co. V. Hughes, 183 Pa. St. 66, be a case of first Impression. 4:90 TITLE BY LIMITATION AND POSSESSION. [§440. II. Disputed Boundaries. § 440. Land enclosed by mis- take. 441. Continued — Opposing views. 442. Agreed boundary. 443. Boundary by parol agree- ment. § 444. Acquiescence In bound- ary. 445. Existence of dispute. 446. Adverse entry by ten- ant — Tacking. § 440. Land enclosed by mistake. — No small portion of the litigation concerning land titles grows out of the disputes of co-terminous proprietors with respect to boundaries, and particularly where one, under a mistake of fact, has enclosed or occupied a tract in reality the property of the other. In de- termining the rights of the parties in such a case the authori- ties are not agreed and the question seems to be one of much doubt. It will often happen that a person, through ignorance or mistake, but with no intention of claiming beyond the true Hne, will enclose the land of another and thereafter use and occupy it as his own. It has been maintained, in cases of this character, that such a possession, having been taken by mis- take and not under a claim of right, will not he adverse to the true owner or operate to work a disseizin.^^ ' But, while this position is supported by a formidable line of authorities it can- not be taken as expressive of the true rule and in those cases where the doctrine has been applied it seems to have been fre- quently subjected to much exception and qualification, and, in many instances, peculiar circumstances have intervened to shape the decisions of the courts. It is contended, in the cases that support this position, that the real test is the intention of the patry holding beyond the true line, and that, if his intention is to claim only to the true 22 See Wallbrum v. Ballem, 68 Mo. 164; Keen v. Schnedler, 92 Mo. 516; Hutchings v. Morrison, 72 Me. 334; Worcester v. Lord, 56 Me. 265; Mills v. Penny, 74 Iowa, 172; Howard v. Reedy, 29 Ga. 152; Wood v. Willard, 37 Vt. 377; Jones v. Pasbby, 67 Mich. 459; Watrous v. Morrison, 33 Fla. 261; Taylor v. Fomby, 116 Ala. 621; McDonald v. Fox, 20 Nev. 364; Sartain v. Hamilton, 12 Tex. 719. § 441.] DISPUTED BODNDAEIES. 491 line, wherever it may be, his possession beyond such line cannot be adverse. ^^ The doctrine proceeds upon the theory that pos- session, to be adverse, must be held under a claim of right, and hence, that there can be no adverse possession without an in- tention to claim title ;^'' therefore, although a party claims to the limit of his enclosure, because he believes it to be the line of his land, yet, if he does not intend so to claim if it should be beyond such line, then, the intent to claim title not existing coincidently with his possession the holding is not adverse.^'' While we may admit the abstract justice of the theory, viewed simply as an ethical proposition, yet from a practical standpoint and in the Hght of established legal rules, the dis- tinction seems subtle, and, to some extent, dangerous. In every case, not originating in fraud, the claim of ownership is only for the lot or parcel to which the party is of right entitled ; the adverse enclosure or occupancy is made primarily with special reference to this claim only; no encroachment is in- tended at the time and hence no claim in derogation of the rights of the adjoining proprietor exists, yet the legal effect of the occupancy is that of an adverse holding and the occupant's continuous enjoyment of what he believes to be his own land satisfies all the requirements of the law of limitation. The con- fusion which exists among the decided cases grows out of the fact that an attempt has been made to introduce a new prin- ciple into the law of adverse possession, whereby the stable evidence of visible possession under a claim of right has been complicated with an inquiry into the "invisible motives and in- tentions of the occupant.^^ § 441. Continued — Opposing vi.ews. — An equally formi- dable line of decisions supports the rule that, in all cases, if a 23 Krider V. Milner, 99 Mo. 145, Me. 260; Hess v. Rudder, 117 17 Am. St. 549; Alexander v. Ala. 525; Grube v. Wells, 34 Wheeler, 69 Ala. 340; Wilson v. Iowa, 148; Lincoln v. Edgecomb, Hunter, 59 Ark. 626; McDonald 31 Me. 345. V. Fox, 20 Nev. 364, 22 Pac. Rep. 25 See Williamson v. Hunter, 234. 59 Ark. 626; Finch v. Ullman, 24 Watrous v. Morrison, 33 Fla. 105 Mo. 255; McDonald v. Fox, 261; Battner v. Baxter, 108 Mo. 20 Nev. 364. 311; Preble v. Railroad Co., 85 20 prench v. Pearce, 8 Conn. 439. 492 TITLE BY LIMITATION AND POSSESSION. [§ 441. person enters and occupies land not embraced in his title, claim- ing it as his own, and so continues for the requisite statutory period of limitation, he thereby becomes invested with the legal title to same,-' notwithstanding his entry and possession may have been founded upon a mistake. ^^ The cases which sustain this position rest on possession alone, prhis, with its attendant qualities, is regarded as the essential and important fact. According to these cases it is the visible occupation with an intention to possess that constitutes the ad- verse character of the holding, the remote views or beliefs of the possessor being but immaterial circumstances.^^ The hold- ing being adverse, the true owner and all others interested, are charged with notice of the extent of the occupancy, and the visible physical fact, it is contended, should not be over- come by mere refinements based upon mental stahis.^" There is a line of cases that, to some extent, seems to occupy a neutral ground. According to these cases if there is an .ag- gressive claim to the ownership of land within visible bound- aries a foundation may be laid for an adverse possession, not- withstanding there may be a mistake as to the line.^^ Thus, if one in ignorance of his actual boundaries takes and holds possession by mistake up to a certain line, but under a claim and in the belief that it is the true line, with the intention to sTMcNamara v. Seaton, 82 111. 251; Tex v.' Pflug, 24 Neb. 666; 898; Brown v. Anderson, 90 Ind. Cole v. Parker, 70 Mo. 372; 94; Hoffman v. White, 90 Ala. Bimce v. Bidwell, 43 Mioh. 542. 354; Holloran v. Holloran, 149 29 Yetzer v. Thoman, 17 Ohio Mass. 298; Battner v. Baker, 108 St. 130; French v. Pearce, 8 Mo. 311; Tucker v. Smith, 68 Conn. 439; Metcalf v. McCut- Tex. 473; Brown v. Bridges, 31 chen, 60 Miss. 145; Meyer v. Iowa, 138; Seymour v. Carll, 31 Wigman, 45 Iowa, 579; Ober- Minn. 81; Metcalf v. McCutchan, nalte v. Edgar, 28 Neb. 70. 60 Miss. 145. 30 Erck v. Church, 87 Tenn. 2sYetzer v. Thoman, 17 Ohio 575, 4 L. R. A. 641 Hutchings St. 130; Caufield v. Clark, 17 v. Morrison, 72 Me. 331; Greene Oreg. 473; Russell v. Maloney, v. Anglemire, 77 Mich. 168. 39 Vt. 579; George v. Thomas, si See Handlan v. McManus, 16 Tex. 74; Levy v. Yerga, 25 100 Mo. 124; Erck v. Church, 87 Neb. 764; Ramsey v. Glenny, 45 Tenn. 575; Caufield v. Clark, 17 Minn. 401; Mode v. Long, 64 N. Oreg. 473; Wilson v. Hunter, 59 C. 433; French v. Pearoe, 8 Conn. Ark. 626. 439; Grimm v. Curley, 43 Cal. § 443.] DISPUTED BODNDAEIES. 493 hold to the line, then, it is conceded, if such possession has the requisite duration and continuity it will ripen into title.^^ In this line of cases it is a cardinal principle that no right or title can be gained against the owner by mere possession. To bar an action for the recovery of the land the possession must be accompanied by an intent to hold adversely to the right of the true owner, and the possession must not originate in an admitted possibility of mistake. ^^ § 442. Agreed boundary. — While there is -much uncer- tainty and conflict of authority with respect to the legal status and rights of parties in the possession of lands enclosed by mis- take, it would seem that the law is well settled where such en- closure is made as a result of the mutual agreement of the co- terminous proprietors. A review of the cases indicates the al- most universal rule as, that where parties agree upon a bound- ary, and such agreement is followed by possession of the par- cels, in accordance with the line agreed upon, for the limitation period, then notwithstanding such boundary may not coincide with the true line neither party will be permitted to- dispute the correctness of such location or disturb the possession of the other.''* Thus, where the parties have erected a fence, in ac- cordance with a line fixed by mutual agreement, and each has held and occupied up to his side of the fence for twenty years, notwithstanding such fence may vary from the true line neither can maintain ejectment against the other.^' In like manner, if parties are uncertain as to their boundaries and cause a line to be run by a surveyor, if the line so found by the surveyor is 32Hutchings t. Morrison, 72 St. 376; White v. Spreokels, 75 Me. 331. Cal. 610; Sheldon v. Atkinson; 33 See Watrous v. Morrison, 33 38 Kan. 14; Walker v. Simpson, Fla. 261; Alexander v. Wheeler, 80 Me. 143; Atchison v. Pease, 69 Ala. 340; Abbott v. Abbott, 96 Mo. 566; Jones v. Smith, 64 51 Me. 584; Ayers v. Reidel, 84 N. Y. 180; Bloomington v. Wis. 276. Bloomington, etc. Ass'n, 126 111. aiHarn v. Smith, 79 Tex. 310; 221. Brown v. Leete; 6 Sawyer (C. 35 Burrell v. Burrell, 11 Mass. Ct.) 332; Darst v. Bnlow, 116 294; Gilchrist v. MoGee, 9 Yerg. 111. 475; Hoffman v. White, 90 (Tenn.) 455; Eaton v. Rice, "s Ala. 354; Wingler v. Simpson, 93 N. H. 381; Lecompte v. Tou- Ala. 201; Tracy v. Newton, 57 douze, 82 Tex. 208, 17 S. W. Rep. Iowa, 210; 'Tobey v. Secor, 60 1047. Wis. 310; Rider v. Maul, 46 Pa. 494 TITLE BY LIMITATION AND POSSESSION. [§ 442. accepted and agreed upon as the true line, such recognition will preclude them from questioning its accuracy or denying that it is the true line after the lapse of the statutory period of limitation.^" And, generally, where there is a dispute as to the true division line, and both parties are ignorant of its proper location, and they fix and agree upon a permanent boundary, and take possession accordingly, the agreement is binding upon them and those claiming under them.^^ There would seem to be a few cases which apparently mili- tate against the rule, but the exceptions are few and not well settled. It would seem that these cases proceed on the equit- able doctrines of mistake and involve the fine-spun meta- physical distinctions heretofore noticed. That is, that the par- ties in fixing the boundary do so with no intention of claiming title to other than their own land ; that the line so agreed upon is intended to conform to the calls of their respective deeds or other muniments of title ; that the intent to claim title is de- pendent on an implied condition that the line agreed upon is the true line. Hence, if it shall so happen that the location is erroneous and the mistake in running the line is mutual, and possession has been taken and held under such mistake, then such possession will not be adverse on the part of either party,^^ because, it is said, the intention is not absolute but provisional.'^ Thus in a case where a fence had been maintained on a wrong divisional line by mistake and it was found by the court as a matter of fact that "none of the parties had any idea of main- taining any line but the true divisional line, and that they oc- cupied according to the fence only because they supposed it was on the true divisional line between them," it was held, as a matter of law, that such possession was not adverse, the unconditional intent to claim title to the extent of the occu- 36 Boyd V. Graves, 17 TJ. S. 513, Thomas, 16 Tex. 74; Hooten v. 4 L, Ed. 628; Faught v. Hoi way, Comerford, 152 Mass. 591. 50 Me. 24; Bauer v. Gottman- , ssKnowlton v. Smith, 36 Mo. hausen, 65 111. 499; Foulke v. '507; Houx v. Batteen, 68 Mo. 84; Stockdale, 40 Iowa, 99. Howard v. Reedy, 29 Ga. 154. 37 Krider v. Milner, 99 Mo. But compare Watt v. Ganahl, 34 145, 17 Am. St. 549; Pickett v. 290. Nelson, 71 Wis. 542; George v. so Worcester v. Lord, 56 Me. 266. § 443.] DISPUTED BOUNDARIES. 495 pancy being wanting.*" But the rule, as first stated, seems to be too well settled to be shaken. It is fully in consonance with the spirit of our land laws, which are ever inclined to the stability and repose of titles, and where lines have been located and monuments established by the joint action of the parties it is dangerous in the extreme to permit them to be overturned in after years by the application of subtle principles depending for their effect on undisclosed mental conditions. § 443. Boundary by parol agreement. — Nor is it neces- sary for full legal effect that a boundary line agreement, as discussed in the preceding section, shall have been reduced to writing. It is sufficient even though it rests in parol, vi^here it has been followed either by silent acquiescence or such un- equivocal acts as will raise an implication that an agreement has been entered into. In such event both parties will be con- clusively bound thereby and both will be estopped from dis- puting the correctness of the line.*^ It is immaterial, in such a case, whether the parties are right or wrong in their belief that the line so established is precisely where it should be f"^ it is enough that they have agreed upon it, and the enforcement of the agreement will not be prevented by the statute of frauds.*^ Neither is such an agreement within the meaning of the provisions of the law that regulates the manner of con- veying lands or other real property."** The reason for this seems to be that the parties do not undertake to either acquire or transmit title to land, but simply, by agreement, fix and determine the situation and relative location of the thing they already own, their only purpose being to identify their several holdings and make certain that which they previously regarded as uncertain.*" r 40 Dow V. McKenney, 64 Me. 42 Harn v. Smith, 79 Tex. 310. 138. *3 Jones v. PasMy, 67 Mich. 41 Edwards v. Smith, 71 Tex. 459; Jacobs v. Moseley, 91 Mo. 156; Bloomlngton v. Blooming- 457; Bobo v. Richmond, 25 Ohio ton, etc. Ass'n, 126 111. 221; St. 115. Krider v. Milner, 99 Mo. 145; ^lAyoock v. Kimbrough, 71 Archer v. Helm, 69 Miss. 730; Tex. 333; Hogey v. DetwUer, 35 Tate V. Foshee, 117 Ind. 322, 20 Pa. St. 409. N. B. Rep. 241. 45 Lecomte v. Toudouze, 82 Tex. 208. 4:96 TITLE BY LIMITATION AND POSSESSION. [§ 444. A different case would be presented if the parties actually knew where the divisional line was and in such case the agree- ment might be held invalid because, in effect it would amount to a parol conve3ance of land contrary to the statute,*^ but the authorities generally unite in declaring that where the line is in dispute and both are ignorant of its true location, an agree- ment entered into to end the dispute, followed by possession in accordance therewith, binds the parties and those claiming under them notwithstanding the agreement was riot in writ- ing.'" § 444. Acquiescence in boundary. — As we have seen, an express agreement respecting boundaries, followed by posses- sion for the statutory period of limitation, is conclusive of the rights of the parties with respect to the land. But, to pro- duce this result, it is by no means necessary that an actual agreement should be shown, for the authorities are practically unanimous in declaring that simple acquiescence in the location of a boundary line, with occupation in accordance therewith, is conclusive evidence of such an agreement, and will preclude the parties from denying its correctness.^^ In some of the cases the courts have reached their conclusions by applying the principles of estoppel, that is, that the conduct and actions of the parties, if not evidence of a prior agreement may yet be sufficient to prevent the setting up of any claim inconsistent with such conduct or tending to question the truth of the facts such conduct necessarily imports.^" But, however the conclu- sions may have been arrived at, the general result is the same in all of the cases, and as it is this result and not the motives which produced it that most concern us the methods employed are immaterial. 46 George v. Thomas, 16 Tex. Cal. 395; Case v. Trapp, 49 Mich. 89; Turner V. Baker, 76 Mo. 343; 59 Hubbard v. Steams, 86 111. May V. Basldn, 20 Miss. 428. 35; Sherman v. Kane, 86 N. Y. "Krider v. Milner, 99 Mo. 57; Davis v. Judge, 46 Vt. 655; 145; Watrous v. Morrison, 33 Edwards v. Smith, 71 Tex. 156; Fla. 261, 14 So. Rep. 805; Jami- Bloomington v. Bloomington, etc. son V. Pettit, 69 Ky. 669. Ass'n, 126 111. 221. 4s Glover v. Wright, 82 Ga. 49 Wilmarth v. Woodcock, 66 115; Koenigs v. Jung, 73 Wis. Mich. 331; Cleveland v. Oben- 178; Cleveland v. Obenchain, chain, 107 Ind. 591; Galbraith v. 107 Ind. 591; Burris v. Fitch, 76 Lunsford, 87 Tenn. 89; Eiden v. § 445.] DISPUTED BOUNDARIES. J:97 Where there has been an actual agreement it does not seem that in ascertaining its effect, or in order to give it validity, it is necessary that it should be supported by acquiescence or acts from which an estoppel may spring. It is enough that it is made under circumstances free from such facts as would authorize a court of equity to set it aside, and, when this is the case, although the parties may have been mistaken in their be- lief the agreement will be allowed to stand.''" A dissenting case or two may be found in which the question of intent- is permitted to control; as where adjoining proprie- tors have acquiesced in the location of a line dividing their holdings under mistake or ignorance of the true line but with- out intent to claim beyond such line when discovered. In such' cases is has been held that such acquiescence will not work a disseizin in favor of either.''^ But this only opens the danger- ous and uncertain field of psychical speculation which permits questions of fact, demonstrable by outward and visible acts, to be determined by mental conditions that may be varied and changed by mere caprice. § 445. Existence of dispute. — In most of the cases where- in the questions discussed in the paragraphs immediately pre- ceding have been presented for determination, the principle has been repeatedly announced that, to give validity to a parol agreement of boundary, there must have existed a doubt, un- certainty or dispute with respect to the actual line.^^ In a few instances it has been held that where adjoining owners agree upon a division line and continue to occupy up to the line so agreed upon for the statutory period of limitation, the agree- ment becomes binding and conclusive without respect to any dispute concerning the location of the line or the extent of the respective holdings."' But we can hardly imagine a case of this kind ; that is, a case in which there was not some element of controversy, and agreements respecting boundaries are gen- Eiden, 76 Wis. 435; Lagon v. S2 See Miller v. McGlann, 63 Glover, 77 Tex. 448. Ga. 435; Hartung v. Witte, 59 soLecomte v. Toudouze, 82 Wis. 285; Lewallen v. Overton, Tex. 208. 28 Tenn. 76; Cutler v. Callison, 51 See Crawford v. Ahrnes, 103 72 111. 113. Mo. 88. 63 H«lm v. Wilson, 76 Cal. 476. 33 498 TITLE BY LIMITATION AND POSSESSION. [§ 446. erally made because of the existence of some doubt or uncer- tainty as to where the division line should be run. § 446. Adverse entry by tenant — Tacking. — Notwith- standing the lack of unanimity in the decided cases we may yet regard tile rule as fairly well established by a preponderance of authority, that an entry upon and more than twenty years' subsequent possession of land beyond the line of his own lot by an adjoining owner under a claim of title, and under a mis- take as to the location of the boundary line, must be deemed adverse to the true owner, so as to extinguish his title and vest it in the party in possession. This being true, it would seem that it is immaterial whether such possession was taken and subsequently held by the adverse occupant in person or by others acting under and in privity with him, and that the doc- trine of tacking may be applied in this as in other cases of ad- verse holding. Therefore where an original adverse entry is made by the tenant of an adjoining owner, under a mistake by both as to the actual location of the boundary line, and this occupation is recognized and approved by the landlord, under the mistaken belief that the land so held is within the limits of his title, and where such occupation is followed by successive leasings of the entire land to the same or to other tenants, an adverse possession vests in the landlord, which, if continued for the statutory period will ripen into an indefeasible title. In such event the connected, successive and continuous pos- session of the landlord by his tenants, his heirs and assigns, may be tacked together so as to form the uninterrupted pos- session required by law to sustain an adverse title.°* 64 Ramsey v. Glenny, 45 Minn. 401. ^§ 447, 448.] EELATION OF PAETIBS 499 III. Relation of Parties. 447. Introduction. 448. Cotenants. 449. Continued — Ouster and liostile possession. 450. Continued — Grantee of cotenant. 451. Remaindermen and life tenants. 452. Remainderman and strangers. 453. Mortgagee in possession. 454. Possession under parol gift. 455. 456. 457. 458. 459. 460. 461. 462. Husband and wife. Parent and child. Continued — Child vs. parent. Dower rights. Adverse claim by tenant. Continued — Adverse claim before expira- tion of term. Tenant holding over. Adverse entry under deed from tenant. § 447. Introduction. — Questions growing out of asser- tions of title by adverse possession and limitation must fre- quently turn on the relation sustained to each other by the con- tending parties. These relations will often exert a marked in- fluence on the rights of the parties and in many cases will con- stitute the determining factor of the controversy. In this article some of the more salient features of the subject will be briefly considered. § 448. Co-tenants. — The rule is well established that the possession of one tenant in common is, in law, the possession of all his cotenants, the claim, in such case, originating in one common right. Nor can such common tenant ordinarily make his possession adverse to his cotenants by any of the acts which if performed by a stranger, would be competent evidence to prove an adverse holding,^^ for his possession must be pre- sumed, in the absence of evidence to the contrary to have or- iginated with the consent of the common owners.^" In such case there can be no disseizin or adverse possession until there has been a disclaimer by the assertion of an adverse title," 55 Prescott V. Nevers, 4 Mason (C. Ct.>, 326; Hignite v. Hignite, 65 Miss. 447; Hudson v. Coe, 79 Me. 83; Busch v. Huston, 75 111. 343. esMcCray v. Humes, 116 Ind. 103; Page v. Branch, 96 N. C. 97; Northrop v. Marquam, 16 Oreg. 173. S7 Rodney v. McLaughlin, 97 Mo. 426; Lindley v. Groff, 37 Minn. 338; Pry v. Payne, 82 Va. 500 TITLE BY LIMITATION AND POSSESSION. [§ 418. and notice thereof to the other owners,^^ either direct or infer- ential!}' by notorious acts. Upon this point all of the author- ities are practically agreed.^" The reason for this, as above shown, lies in the fact that, in law, the entry of one is the entry of all. Either has the right to actually possess the land and such possession, when taken, will be presumed to be in accordance with his title — rightful, rather than wrongful — until some notorious and unequivocal act of exclusion shall have occurred."" Therefore acts which might properly be held to constitute a disseizin if done b}'' a stranger will usually have no such effect if done by a co- tenant, and notwithstanding the tenant in possession may cul- tivate the land, or remove the timber, or take the rents, without any accounting with or payments to his cotenants of any share, yet these acts and circumstances will not ordinarily be con- sidered as adverse in their character or as working an ouster, but will usually be held to have been done in support of the common title. "^ In every case the acts of ownership by one tenant, which if done by a stranger would operate as a dis- seizin of the other tenant, must be done in the assertion of an independent title inconsistent with that of the cotenants, and be of such a character that it is known, by those in derogation of whose title they are done, that this is so.'- Unless this shall be made affirmatively to appear the legal presumption must control that he is keeping possession, not only for himself but for his cotenants according to their respective ifiterests."^ 759; McDowell v. Sutlive, 78 Ga. 585; Odom v. "Weathersbee, 26 142; Killmer v. Wuchner, 74 S. C. 244. Iowa, 359. ei Thornton v. York Bank, 45 58 Boyd v. Boyd, 176 111. 40; Me. 158; Buscli v. Huston, 75 Wteeler v. Taylor, 32 Oreg. 421; 111. 343; McGee v. Hall, 26 S. C. Smith V. Water Co., 16 Utah, 179; Riddle v. Whitehill, 135 U. 194; Benoist v. Rothschild, 145 S. 621; Rodney v. McLaughlin, Mo. 399. 97 Mo. 426; Lagoria v. Dozier, 69 Roberts v. Morgan, 30 Vt. 91 Va. 492. 325; Mansfield v. MoGinness, 86 62 ingalls v. Newhall, 139 Me. 118; Burns v. Byrne, 45 Mass. 273; Greenhill v. Biggs, Iowa, 285; Hill v. Gray, 45 S. C. 85 Ky. 155; Oglesby v. Hollister, 91; Ball v. Palmer, 81 111. 370; 76 Gal. 136. Day v. Davis, 64 Miss. 253. 63 Roberts v. Morgan, 30 Vt. soColburn v. Mason, 25 Me. 325; Burns v. Byrne, 45 Iowa, 434; Winters v. Haines, 84 111. 285; Mansfield v. McGinnis, 86 §449.] EELATIONOF PAKTIES. 501 § 449. Continued — Ouster and hostile possession. — But the rule is equally well settled that a cotenant may so enter and hold as to render his entry and possession adverse and an ous- ter of the other owners,"* although the questions which the ap- plication of the rule may raise are frequently of much diffi- culty. Usually, to inaugurate an adverse possession there must be an actual ouster and a positive exclusion of the other cotenants, and while this fact has, in some instances, been al- lowed to rest in inference, particularly where there has been a long and undisturbed possession by the claimant accompanied by open and notorious acts of exclusive ownership,"^ yet, as a general proposition, it is something that must be strictly proved, and the evidence offered must be of a clear, satisfactory and convincing character."" Where, however, it is satisfactorily made to appear that there has been a long-continued possession by one cotenant, uninter- rupted and with the knowledge of the other cotenants, and without claim or demand for possession or participation in the profits by them, and that such possession has been accom- Me. 118. A showing that one Pollett, 100 111. 581; Fellz v. tenant In common has been in Feliz, 105 Cal. 1. actual, exclusive, and undis- ee Ball v. Palmer, 81 111. 370. turbed possession of all the land, A finding of ouster of a tenant taking the entire profits and pay- in common hy his cotenant, es- ing taxes thereon for more than sential to make the sole posses- twenty years, and that he has sion of the latter adverse, may erected a valuable residence and rest upon evidence tending to other buildings and made im- show that for thirty years or provements without protest or more the land had been known objection, is such evidence of by his name; that such acts of adverse ppssession and ouster ownership as the character of of the cotenants as will prevent the land was susceptible of were the latter from maintaining an exercised by him; that he pro- action for the land. Hutson v. cured a tax deed which he Hutson, 130 Mo. 229, 40 S. W. caused to be placed of record, Rep. 886. and that upon his death the 6-1 Greenhill v. Biggs, 85 Ky. property was divided among his 155; English v. Powell, 119 Ind. heirs, and that neither the for- 93; Oglesby v. Hollister, 76 Cal. mer tenant nor any of his sup- 136; Wheeler v. Taylor, 32 Oreg. pessors made any claim to the 421. premises during such time. La 65 Alexander v. Kennedy, 19 Fountain v. Dee, 110 Mich. 347, Tex. 488. And see English v. 68 N. W. Rep. 220. Powell, 119 Ind. 93; Dugan v. 602 TITLE BY LIMITATION AND POSSESSION. [§ 450. panied by outward acts of exclusive ownership of an unequiv- ocal character, this will ordinarily furnish sufficient evidence of ouster upon which to base a title by adverse possession. In such event the statute of limitations will commence to run against the evicted cotenants from the time that notice can be shown to have been brought home to them."' § 450. Continued — Grantee of cotenant. — Under the gen- eral rule that one tenant in common cannot make his possession adverse to his cotenant, it has frequently been held that a deed by a cotenant to a stranger even though it purports to convey the entire estate has no other effect than to invest the vendee with the rights of the vendor, and does not change the relation which subsisted between such vendor and his cotenant. Un- der this line of decisions a deed of this character will not con- stitute an actual ouster of the cotenant nor lay the foundation for an adverse holding.''^ The same rule has been held to ap- ply to the purchaser of the interest of a cotenant at execution sale, as well as to the vendee of such purchaser!*^' It cannot be denied but that the foregoing positions are sup- ported by much legal reason. They are based upon the an- cient formula that the possession of one tenant is the possession of all and that mere lapse of time under such occupancy, either by the tenant in possession or his grantee, will not ripen a title by adverse possession. In such event the question of intent becomes immaterial, the presumption being that acts of owner- ship are referred to the actual condition of the title and the relation of the parties thereunder. On the other hand, numerous cases affirm the doctrine that if one tenant conveys the whole estate in fee, and his grantee enters under such conveyance claiming title and holding ex- clusive possession of the land, the conveyance, entry and pos- session will be deemed adverse to the title and possession of the other cotenants, and amount to an actvial disseizin.'" The 67 Wheeler v. Taylor, 32 Oreg. 69 Ward v. Farmer, 92 N. C. 93. 421; Boyd v. Boyd, 176 111. 40. to Fuller v. Swensberg, 106 68 Page V. Branch, 97 N. C. Mich 305; McDowell v. Sutlive, 97, 2 Am. St. 2S1; Holly v. Haw- 78 Ga. 142; Rutter v. Small, 68 ley, 39 Vt. 525; Benedict v. Tor- Md. 133, 6 Am. St. 434; Alex- rent, 83 Mich. 181, 21 Am. St. ander v. Kennedy, 19 Tex. 496; 589. Unger v. Mooney, 63 Cal. 586; § 450.] EELATION OF PAETIES. 503 principle by which this doctrine is supported seems to be that a conveyance in fee and entry under it, with exclusive posses- sion, are notorious and unequivocal acts of ownership of such a nature as to give notice to the cotenant that the entry and possession are hostile to his titleJ^ This is further strength- ened by the doctrine that where a person enters upon land under a claim of title evidenced by a deed, his entry and pos- session are referred to such deed, and he is deemed to have a seizin of the land co-extensive with the boundaries stated in such deed, where there is no actual adverse occupancy of any part of the land so described by any other person. The volume of authority seems to be in consonance with the views last above presented and the general rule may be stated as follows: A conveyance by one cotenant, purporting to include the entire land and estate, and a subsequent occupancy by the grantee for the period of limitation prescribed by the statute, with a claim of title and exclusive ownership, will con- stitute an ouster of the other tenants and create a bar to re- covery by them.''^ In most of the cases which announce the rule the question of intent is strongly emphasized and the absence of any recognition of the claims of the other tenants becomes a material circumstance.'^^ Where there are no facts or circumstances from which a contrary intention may reason- ably be inferred, the occupancy and exclusive enjoyment under a deed of all of the land and the entire estate, with the knowl- King v. Carmichael, 136 Ind. 20; prescriptive title. Cain v. Fur- Long V. Stapp, 49 Mo. 506,; Gov- low, 74 Ga. 674. ington V. Stewart, 77 N. C. 148; fi See Highstone v. Burdette, Hinkley v. Greene, 52 111. 223; 61 Mich. 54; Ellington v. Elling- Kinney v. Slatery, 51 Iowa, 353. ton, 103 N. C. 54; Burns v. Head- A tenant in common took possps- erick, 85 Tenn. 102; Brown v. sion of the entire property and Bocquin, 57 Ark. 97. divided it into town lots, which '2 Price v. Hall, 140 Ind. 314; he sold from time to time to Sands v. Davis, 40 Mich. 14; various persons. Held, that the Hodges v. Eddy, 38 Vt. 327; statute of limitations ran in Foulke v. Bond, 41 N. J. L. 527; favor of said vendees as against Higbee v. Rice, 5 Mass, 344. the cotenants of the vendor, and 73 See Maple y. Stevenson, 122 at the expiration of seven years Ind. 368; Evans v. Templeton, peaceable and uninterrupted pos- 69 Tex. 375; Culver v. Rhodes, session, they would have a valid 87 N. Y. 354; Cummings v. Wyman, 10 Mass. 464. 504 TITLE BY LIMITATION AND POSSESSION. [§ 451. edge, actual or constructive, of the tenants out of possession, will be given effect as an ouster, and, if continued for the statutory period, will constitute a prima facie title by adverse possession. But if the occupant does anything that amounts to a recognition of the claim of the tenants out of possession, or in any way acknowledges their interests in the land, this will be sufficient to overcome the apparent intention arising from occupancy under a deed as above stated^* § 451. Remaindermen and life tenants. — It is a general and well established rule that as between the owner of a life estate and the remainderman or reversioner there can be no adverse possession and that no act of the life tenant will oper- ate to defeat the estate of the expectant owner. "^ So long as the life estate continues the possession of the tenant is con- sidered for all practical purposes the possession of the remain- derman,'" or, in any event, it is a possession consistent with the title of the remainderman. ''' It follows, therefore, that if the life tenant is precluded from asserting any rights in derogation of the expectant interests, so also will be those who claim hy, through or under such life tenant.'^ Hence, a sale by the owner of the particular estate will not affect the rights of those entitled in remainder or re- version,'"' the conve)rance, in such case, passing no greater estate than the grantor could lawfully claim.^° From this it necessarily follows that the possession of a purchaser from the "Price v. Hall, 140 Ind. 314, 189; Buras v. Headerick, 85 49 Am. St. 196. Tenn. 102. T5 Meacham v. Bunting, 156 79 McClaskey v. Barr, 42 Fed. 111. 586; Sutton v. Casseleggi, 77 Rep. 609; Barrett v. Stradl, 73 Mo. 397; Pinckney v. Burrage, Wis. 385; Rohn v. Harris, 130 31 N. J. L. 21; Hanson v. John- 111. 525; Gernett v. Lynn, 31 Pa. son, 62 Md. 25; Moore v. Luce, St. 94; Henley v. Wilson, 77 N. 29 Pa. St. 260. C. 216; Bagley v. Kennedy, 81 76 Brown v. Moore, 74 Mo. 633; Ga. 721; Pickett v. Doe, 74 Ala. Gernet v. Lynn, 31 Pa. St. 94; 122. 77 Bedell V. Shaw, 59 N. Y. 46; so Thompson v. Simpson, 128 Schroeder v. Tomlinson, 70 N. Y. 270; Cook v. Caswell, 81 Conn. 348. Tex. 678; Mettler v. Miller, 129 Lindley v. Groff, 37 Minn. 338; 111. 630; Menger v. Carruthers, Keith V. Keith, 80 Mo. 125. 57 Kan. 425. 78 Christie v. Gage, 71 N. Y. § 452.] EELATION OF PARTIES. 505 life tenant cannot, during the latter's life, become adverse to the reversioner or remainderman.^^ But a deed executed to evidence a conveyance of the char- acter just mentioned would still be color of title, and a posses- sion thereunder after the right of entry by the remainderman had accrued would be adverse to his interest.^^ And if a pos- session so commenced shall be continued for such period as the statute may prescribe for making an entry upon land, then, the deed, and the possession held under it, wiU constitute a bar to any action by the remainderman or those claiming imder him.^^ It is possible, however, under some circumstances, to inaugu- rate an effective possession during the lifetime of one to whom a particular estate may have been given ; as where a widow, to whom a life estate has been given by a will, renounces the estate granted to her and asserts a title and possession in her own right. In such event her open adverse possession will put the statute of limitations in motion against the remainder- man.^* § 452. Remaindermen and strangers. — As a general rule of uniform observance no possession of lands can be deemed adverse to a party who has not, at the time, a right of entry and possession.*'* For this reason a disseizin of a life tenant, or the owner of any particular estate, has no effect upon rights held in remainder or reversion. *° Such disseizin imposes no obligation upon the remainderman or reversioner to enter nor will the statute commence to run against them until the ter- siRohn V. Harris, 130 111. 525; ss Mole v. Polk, 45 S. C. 265; Lamar v. Pearre, 82 Ga. 354; Brown v. Baraboo, 98 Wis. 273. Templeton v. Twitty, 88 Tenn. 84 Miller v. Foster, 76 Tex. 479. 595; Clute v. Railroad Co., 130 ss Devyr v. Schaefer, 55 N. Y. N. Y. 267; Lindley v. Groft, 37 446; Ortliwein v. Th-omas, 127 Minn. 338; Kellar v. Stanley, 86 111. 554; Allen v. De Groodt, 98 Ky. 240. Mo. 159. 82 Bums V. Headerick, 85 Tenn. se Wallingford v. Hearl, 15 102; Forrest -v. Jackson, 56 N. Mass. 471; Moore v. Luce, 29 Pa. H. 357; Hunt v. Wall, 75 Pa. St. St. 260; Orthwein v. Thomas, 413; Jones v. .Johnson, 81 Ga. 127 111. 554; Salmons v. Davis, 293; Barrett v. Stradl, 73,, Wis. 29 Mo. 176; Pierre v. Fernald, 385; Pendley v. Madison, 83 Ala. 26 Me. 440; Borders v. Hodges, 484. 154 111. 498. 506 TITLE BY LIMITATION" AND POSSESSION. [§ 452. mination of the particular estate, no matter how long the tenant therof may have been disseized. ^^ The statute, in some states, has disturbed the general rule above stated by introducing a new element on which to found an adverse title. In these states payment of taxes and posses- sion under color of title for a determinate period, usually seven years, is sufficient to create a prima facie title that will prevail against the title of prior owners who rest under no disability. Under such a statute it has been held that where a person not in privity with the life tenant, or other owner of the particular estate, enters upon land under a deed purporting to convey the entire estate and continues such possession for seven years, paying all taxes legally assessed thereon, he thereby acquires a title that not only bars the life tenant but the remainderman as well.^' It is urged, in support of this view, that the statute which confers title for payment of taxes and possession un- der color of title is imperative ; and that, to prevent the ac- quirement of a bar under the same it is only necessary to pay taxes.^ It is further said, that the outstanding' estate forms no impediment to the performance of this duty by the remainder- man or reversioner ; the taxes should be kept paid, not on any- one's particular interest in the land, but on the whole land, and notwithstanding it may be the duty of the owner of the par- ticular precedent estate to pay such taxes, yet, as the statute requires payment on the entire interest in the land, no matter how it may be divided and owned, the whole estate may be- come barred against all of the owners if the duty is neglected by any of them.^^ 87 Miller V. Ewing, 6 Cush. and his grantees laid out and (Mass.) 34; Allen v. De Groodt, platted a town on such land, and 98 Mo. 159; Sand v. Church, 152 were in the possession thereof; N. Y. 174; Jackson v. Johnson, for such possession was lawful 5 Cow. (N. Y.) 96. Thus, chil- and consistent with the father's dren inheriting land from their estate, and neither the children mother, subject to their father's nor their grantees had any right rights as tenant by the curtesy, to disturb it. Orthwein v. are not guilty of laches in re- Thomas, 127 111. 554. maining silent for more than ss Nelson v. Davidson, 160 111. thirty years, during which time 254. And se« Enos v. Buckley, their father was alive, and he 94 111. 458. 89 Enos v. Buckley, 94 111. 458. §§ 453, 454.J RELATION OF PARTIES. 507 § 453. Mortgagee in possession. — As we have seen, it is a general rule that neither a mortgagor nor his assignee of the equity of redemption can maintain ejectment against a mor- gagee in possesssion of the mortgaged land,°° his remedy to re- cover such possession being a bill in equity to redeem."^ It is a further rule that this right must be exercised within twenty years after it shall have accrued, and, in the absence of any statute to the contrary, an uninterrupted possession of the mortgaged premises by the mortgagee for the full period of limitation, under such circumstances as indicate a claim of right, will bar the mortgagor of all remedy either at law or in equity,"^ except as his rights may have been saved by reason of disability."^ In some states this is denied, and a special statute saves the right of redemption until actually barred by foreclo- sure. Where this statute obtains it wotild seem that a mort- gagor may recover possession from his mortgagee at any time before foreclosure."'' § 454. Possession under parol gift. — A parol gift of land, of itself, is inoperative in law. This is universally conceded. It has been held to exert no greater force than a mere tenancy at will, which the donor may terminate at any time by an asser- tion of his legal rights,"^ and being in contravention of the stat- ute of frauds is incapable of enforcement in a legal action. But such a gift is not altogether void, as some of the authori- ties would seem to affirm,"" and, when coupled with other cir- cumstances, may become the foundation of an unassailable 90 Johnson v. Eliott, 26 N. H. os. Clark v. Potter, 32 Ohio St. 67; Wells v. Rice, 34 Ark. 346; 49; Hanford v. Fitch, 41 Conn. Connor V. Whitmore, 52 Me. 185; 486; Anding v. Davis, 38 Miss. Johnson v. Sandhoff, 30 Minn. 574; Hall v. Denckla, 28 Ark. 201; Hubhell v. Moulson, 53 N. 506. Y. 225. M See Humphrey v. Kurd, 29 01 Chapin v. Wright, 41 N. .1. Mich. 44; Morrow v. Morgan, 48 Bq. 438; Rowell v. Jewett, 69 Tex. 304; Mills v. Heaton, 52 Me. 293; Posten v. Miller, 60 Iowa, 215. Wis. 494. • 95 Rannels v. Rannels, 52 Mo. 92Chapin v. Wright, 41 N. J. 108; Nashville, etc. R. Co. v. Eq. 438; Locke v. Caldwell, 91 Hammond, 104 Ala. 191. 111. 417; Crook v. Glenn, 30 Md. as See Boykin v. Smith, 65 Ala. 55; Marks v. Robinson, 82 Ala. 294; Watson v. Tindal, 24 Ga. 77. 494; Clarke v. McClure, 10 Gratt. (Va.) 305. 508 TITLE BY LIMITATION AND POSSESSION. [§ 454. title.''' If followed b}' possession it is competent evidence to show the character of the occupancy, and that such possession is held under a claim of right,"^ and if the donee continues to remain in the enjoyment of the land for the statutory period of limitation the inefficacious gift will ripen into a title as strong as that acquired by any other form of grant,"" The actual entry and possession of a donee under a parol gift manifests his intention to take as owner, and not as a ten- ant, and equally proves an admission on the part of the donor that the possession is so taken.^ And even though it be con- ceded that the donor may recall his gift and reclaim the land, because he has not conveyed his estate in the form provided by law, yet this does not indicate that his donee holds in sub- ordination to his title, and until he does attempt to resume pos- session the donee may be regarded as the owner as to all the world, except the donor,^ and even as to him the holding will be hostile and adverse.^ It is essential that the proof of a parol gift as the basis of an adverse possession must be clear and explicit, while the hold- ing must plainly and unmistakably indicate its adverse charac- ter in order to work a transfer of title.* It does not appear, however that the possession as against the donor, should be at- tended with any notoriety, neither is the donee bound to make a claim of right, nor is he required to proclaim the character of his possession until it shall have been denied by the donor. ° 9TStudstill V. "Wilcox, 94 Ga. nels, 52 Mo. 108; Clark v. Gll- 690. bert, 39 Conn. 98; Thompson v. 98 Sumner v. Stevens, 6 Met. Thompson, 93 Ky. 435. (Mass.) 337; Stewart v. Duffy, 2 Rannels v. Rannels, 52 Mo. 116 111. 47; Clark v. Gilbert, 39 108; Baldwin v. Temple, 101 Cal. Conn. 94; Schafer v. Hauser, 396. Ill Mich. 622. 3 Clark v. Gilbert, 39 Conn. 99 Campbell v. Braden, 96 Pa. 98; Davis v. Bowmar, 55 Miss. St. 388; Bartlett v. Secor, 56 671; Thompson v. Thompson, 93 Wis. 520; Pope v. Henry, 24 Vt. Ky. 435; Pope v. Henry, 24 Vt. 560; Baldwin V. Temple, 101 Cal. 560; Schafer v. Hauser, 111 396; Wilson v. Campbell, 119 Mich. 622. Ind. 286; Wheeler v. Laird, 147 * Jordan v. Maney, 10 Lea Mass. 421; Lee v. Thompson, 99 (Tenn.) 135; Gifford v. Gifford, Ala. 95. 100 Mich. 258; Duff v. Leary, 146 1 Sumner v. Stevens, 6 Met. Mass. 533. (Mass.) 337; Rannels v. Ran- 5 Clark v. Gilbert, 39 Conn. 98. § 455.] EELATION OF PAETIKS. 509 The donor, in case of an absolute gift, must be presumed to have notice of the adverse claim of his donee ; he knows that the possession is adverse and so intends, and hence, there is no occasion for notoriety.'' Admissions by the donor that he had given the land to the donee may always be shown, and, where equities may be shown in legal actions, all of the facts and cir- cumstances which tend to establish the donee's right to retain and transmit possession are admissible in evidence in an action brought by the legal representatives of the donor against one in possession under title derived from the donee.'' § 455. Husband and wife. — With respect to the legal ability of either husband or wife to originate and perfect an ad- verse holding of land of which they are in the joint occupancy, that shall be effectual against the other, the authorities are in substantial accord. It must be conceded that a possession, to be adverse, must not only be open, notorious, and continuous, but also exclusive. It must be such as to operate as an ouster or disseizin of any other person who may claim title or pos- sessory rights, and be of such a character as to put the dispos- sessed person to his action or entry. This can never be the case where the legal owner is in possession, even though it may be joint, while two contemporaneous possessions of the same property, each adverse to the other, is a legal absurdity not conceivable.^ For these reasons when two persons are in possession of the same land, claiming by hostile rights, the law refers the possession to the party having the legal title. Hence, a husband cannot hold adversely to his wife, nor the wife adversely to the husband, lands of which they are in the joint occupancy." In the cases where this has been attempted the adverse claim has usually been based upon alleged parol gifts or verbal purchases, and while an interrupted possession by a donee under a parol gift, or by a vendee under a parol 6 Thompson v. Thompson, 93 384; Hendricks v. Rasson, 53 Ky. 435. Mich. 575; Bell v. Bell, 37 Ala. 1 Studstill V. Wilcox, 94 Ga. 536; Maudlin v. Cox, 67 Cal. 690. 387; Vandervoort v. Gould, 36 sGafford v. Strauss, 89 Ala. N. Y. 639; Bader v. Dyer, 106 283, 18 Am. St. 111. Iowa, 715. But see contra, Clark sReagle v. Reagle, 179 Pa. 89; v. Gilbert, 39 Conn. 94. Claughton v. Claughton, 70 Miss. 510 TITLE BY LIMITATION AND POSSESSION. [§ 456. agreement to purchase, may, if accompanied by a claim of right, ripen into an indefeasible title, yet to have such effect, the essential facts of an adverse holding must enter into and characterize the possession. The mere assertion of a hostile claim, and a possession which lacks the legal incidents of actual adverse occupancy, are insufficient.^" Where the spouses con- tinue in the joint occupancy of lands there is no ouster or dis- seizin, either actual or constructive ; the possession of either does not exclude or even encroach upon the possession of the other, nor is it antagonistic to their respective rights.^^ Not only is the rule well settled, that possession to be ad- verse must be exclusive, and hence, that two persons cannot hold the same land adversely to each other at the same time, but in the case of husband and wife we find an additional rea- son growing out of the common-law unity of the spouses. Yet, notwithstanding all this, it does not necessarily follow that either spouse may not originate and perfect an adverse holding.^^ In the event that either was invested with the legal title then the law will refer the joint occupancy to the right of such owner, and the rule above stated will apply. But, if neither had title then an adverse possession may be taken and held by either, and where the evidence is conflicting the ques- tion is for the jury to determine.^^ Where the relation has ceased either may perfect a title against the other, as, if a wife claims title through a parol gift from the husband her open, notorious, hostile and continuous possession for the statutory period after the parties have been separated by divorce, will be sufficient to vest in her a title by adverse possession.^* § 456. Parent and child. — There can be no doubt but what an adverse holding may, under some circumstances, be instituted by a parent against his child and that such holding 10 Gafford v. Strauss, 89 Ala. is As where land is claimed 283. by a widow and the heirs of her 11 Bell V. Bell, 37 Ala. 536; deceased husband. See Stiff v. Hendricks v. Rasson, 53 Mich. Cobb, 126 Ala. 381, 28 So. Rep. 575; Boynton v. Miller, 144 Mo. 402, 85 Am. St. 38. 681. li Ross V. McCain, 145 Mo. 271. 12 See Ward v. Nestell, 113 Mich. 185. § 456.] EELATION OF PARTIES. 511 may develop into an unassailable title, notwithstanding the nearness and intimacy of the relation. Thus, where land is conveyed by deed from a parent to a child, but the parent con- tinues in possession of the land, exercising acts of ownership over it and claiming it as his own, and such possession re- mains undisturbed for many years, the fact of open, notorious, hostile and uninterrupted occupation may be sufficient to show a holding adverse to the grantee, and, when continued beyond the period of disability, may effect a divesture of the title con- veyed by the deed.^^ At all events, it would seem that the character of the possession is a proper question for the jury and should be submitted to them.^" On the other hand, it has been held that the possession of land acquired by a father under a conveyance to his infant child can never be made the foundation of an adverse right, nor can such possession ever ripen into a prescriptive title in his favor."^^ Even where a possession so taken is held for twenty years after the child has attained its majority, this cir- cumstance, in itself, would be immaterial, for the father hav- ing entered, not in his own right, but in the right of another, his holding must be referred to his original entry. It is said, that where the doctrine of prescription is invoked in an action of ejectment, good faith is a primary element, and if one is in possession of land, which in good conscience he holds only as trustee for another, and he conceals the right of the true owner, inducing him to believe things which are not true in fact, and thereby causes the true owner to acquiesce in such possession, this is a fraud, and the law will never permit rights to be sacrificed in such a manner.^^ The cases are not numerous with respect to this branch of the subject, but it may be stated, as a general proposition, that where parties sustain relations of paternity and filiation, the possession of land of the one by the other is presumed to be permissive, and not adverse ; and to overcome such presump- 15 Scarboro v. Scarboro, 122 it Parker v. Salmons, 101 Ga. N. C. 234. 160, 65 Am. St. 291; Dodd v. Mc- 16 Roberts v. Roberts, 2 Mc- Craw, 8 Ark. 83. Cord (S. C), 268. is See Parker v. Salmons, 101 Ga. 160. 512 TITLE BY LIMITATION AND POSSESSION. [§ 458. tion there must be an open assertion of hostile title, other than mere possession, and knowledge thereof must be brought home to the owner. ^^ § 457. Continued — Child vs. Parent. — Questions arising out of adverse holdings by children against parents will prob- ably be of rare occurrence as between the parties to the rela- tion, but may often arise where adverse rights are asserted by a child against a third person who claims the land in virtue of some privity with the parent. The question will be more fre- quently presented where the child claims under a parol gift or an unrecorded deed. Where the child is of age he is not partic- ularly distinguishable from other adverse claimants, but it seems that a presumption of gift may arise in favor of a child whose possession began during his minority, if before goiiig into possession he had been emancipated by the parent. In the absence of manumission, however, the possession of a child is presumed to be that of the parent, and this presumption can be overcome only by clear proof of an actual surrender by the parent of all control over the land and a renunciation of claims thereto.^" § 458. Dower rights. — An interesting question is raised in a title asserted by adverse possession, with respect to the dower rights of the wife of the person prescribed against, he having been a married man at the time possession was taken and the full statutory period of limitation having elapsed prior to his decease. It is generally conceded that when a wife's right of dower has once attached to land the husband cannot defeat it by any act or omission on his part, and that neither his laches, default, covin or crime will be permitted to preju- dice her rights.-^ Such being the case, will an adverse pos- session by a disseizor, which ripens into a title against the hus- band in his lifetime, bar a claim for dower asserted by the wife upon his decease ? There are cases which seem to answer this question in the affirmative,^^ and such cases are not without "O'Boyle v. McHugh, 66 Mo. 588; Tibbetts v. Langley, 12 Minn. 390, 69 N. W. Rep. 37. S. C. 465. 20 Holt V. Anderson, 98 Ga. 22 See Winters v. De Turk, 220. 133 Pa. St. 359; Keys v. Keys, 21 Williams v. Courtney, 77 58 Tenn. 425. § 459.] RELATION OF PARTIES. 513 support in legal reason, but the weight of authority is in the negative. The stattite, as generally enacted, provides, in effect, that the limitation upon a right of action begins to run from the time when the cause thereof accrues, and the solution of our question must be sought in the construction that shall be given to these provisions. The decisions generally seem to hold that as the wife's right in her husband's land during his lifetime is contingent upon her survivorship, and gives her no right of disposition, entry, or possession independent of her husband, the statute of limitations does not begin to run against her until her interest has become mature by his death, and this has frequently been held to be the case even though a title by adverse possession has fully ripened as against him before his decease. ^^ It has been intimated that where the wife's inchoate interest has been apparently extinguished or released, if she permits the record to remain in that condition without some action to cure it, the statute of limitations will run against her even in the husband's lifetime, but it is an altogether different proposition to say that when by the misfortune, neglect, or thriftlessness of the husband, a third party succeeds in ac- quiring title by adverse possession against him, the loss of the husband's ownership works an extinguishment of the wife'r contingent interest.^* An adverse possession cannot exist unless there is some one •who can dispute the right claimed. A wife has neither title nor possession during her husband's lifetime, and the posses- sion of a disseizor of the husband, not being inconsistent with her inchoate right, cannot be said to be in hostility to it, and therefore cannot be adverse. § 459- Adverse claim by tenant. — The .general subject of landlord and tenant, and the respective relations which the par- ties sustain toward each other as well as to the subject matter 23 Steele v. Gellatly, 41 111. 39; 28 Ga. 478. And see Beall v. Mc- Williams v. Williams, 89 Ky. Menemy, 63 Neb. 70. 381; Wright v. Tichenor, 104 24 Lucas v. White, 120 Iowa, Ind. 185; Durham v. Angler, 20 735, 95 N. W. Rep. 209, 98 Am. Me. 242; Smith v. Welirle, 41 St. 380. W. Va. 270; Hart v. McCallum, 33 61-± TITLE Br LIMITATION AND POSSESSION !_§ 459. of the tenanc)^ has ah-eady been incidentally considered in other parts of this work, and, for this reason, it is not deemed wise or expedient to further discuss the general phases of the subject in this place or to recapitulate what has been said. It will be sufficient merely to restate the general rule, that a ten- ant cannot be heard to deny the title of his landlord when sued in ejectment, nor can he divest himself of the duties of the re- lation he has assumed without a complete surrender of the pos- session of the land.-'' It is a further general rule, that the mere possession of a tenant, however long continued, will not become adverse to his landlord nor operate to confer title upon himself.^'' But, while the potency of these general rules is be- yond question, it does not follow that a tenant may not initiate and perfect an adverse holding, although in so doing he must cease to be a tenant in the proper meaning of that term. The essence of a tenancy is a holding in subordination to the title of another. So long as this condition of subserviency exists the tenant is estopped from denying the title under which he entered. The possession having been acquired under this condition the estoppel continues until there has been a severance of the relation and a surrender of the possession. With respect to these general statements the courts are fairly agreed, whatever of divergency there may be ■ arising through efforts of construction. It does not seem, however, that a literal surrender is what is meant, but rather a disclaimer of the landlord's title, for numerous authorities sustain the prop- osition that after the expiration of his term a tenant may, with- out any actual surrender, remain in possession and by assert- ing ownership in himself lay the foundation for an adverse title. When this repudiation of the former relation is properly brought to the knowledge of the landlord the statute of lim- itations at once begins to run, and if the possession is con- 25 Springs v. Sohenck, 99 N. C. Miss. 131; Schields v. Horbach, 551, 6 S. E. Rep. 405; Dasher v. 49 Net). 262; Speidel v. Henrici, Ellis, 102 Ga. 830, 30 S. E. Rep. 120 U. S. 377, 30 L. Ed. 718. 544 ; Butler v. Bertrand, 97 Mich. se Johnson v. Butt, 46 Neb. 59, 56 N. W. Rep. 342; Pettigrew 220, 64 N. W. Rep. 691; Hoffman V. Mills, 36 Kan. 745, 14 Pac. v. Port Huron, 102 Mich. 417. Rep. 170; Holman v. Bonner, 63 § 460.] EELATION OF PAETIES. 515 tinued for the statutory period it ripens into a title." But, to produce this effect, the disclaimer must be unequivocal and ex- plicit, while the assertion of adverse right must be open and no- torious, with express notice thereof to the landlord.^^ § 460. Continued — Adverse claim before expiration of term. — As to whether a tenant may initiate an adverse pos- session before the expiration of his term, the authorities are not so clear, although legal reason no less than ancient pre- cedent would seem to indicate that he cannot. Where the tenancy is not for a specific or definite period, as where the tenant holds at will, a mere disavowal of the landlord's title or any distinct notice given to the landlord that the tenant no longer holds under him, will determine the tenancy and work a practical disseizin.^" The tenant then occupies much the same position as any other disseizor. But where the tenant holds for a definite term, or even from year to year, it has fre- quently been held that he cannot, during the term, rightfully disclaim the landlord's title or at his mere pleasure put an end to the contract.^" Should he assume so to do it has been held in some instances that he may be proceeded against as a tres- passer,^^ but this is at the election of the landlord, who may still treat him as a tenant if he prefers,^^ while some of the cases maintain that no action can be brought for the recovery of the land until the expiration of the term.^' In many of the cases the doctrine is positively asserted that a tenant's posses- sion while the term continues is never adverse to the title of sTWillson V. Watkins, 3 Pet. 2i> Ripley v. Yale, 19 Vt. 156; (U. S.) 43, 7 L. Ed. 596, is gen- Jones v. Pelham, 84 Ala. 208, 4 erally cited as a leading case on So. Rep. 22; Smith v. Hitchcock, this point. And see Wells v. 38 Neb. 104, 56 N. W. Rep. 791. Sheerer, 78 Ala. 142; Wilkins v. so Chambers v. Pleak, 6 Dana Pensacola, 36 Fla. 36, 18 So. (Ky.), 426; Wilkins v. Pensa- Rep. 20; Greino v. Munson, 9 cola, 36 Pla. 36, 18 So. Rep. 20; Vt. 37. . De Lancey v. Ganong, 9 N. Y. 9. 2s Ponder v. Cheeves, 104 Ala. si Fusselman v. Worthington, 307, 16 So. Rep. 145; Wilkins v. 14 111. 135. Pensacola, 36 Fla. 36. 18 So. S2 Duke v. Harper, 6 Yerg. Rep. 20; Smith v. Hitchcock, 38 (Tenn.) 280. Neb. 104, 56 N. W. Rep. 791; sa De Lancey v. Ganong, 9 N. Nessley v. Ladd, 29 Oreg. 345, 45 Y. 9; Sutton v. CasselleggI, 5 Pac. Rep. 904; Udell v. Peak, 70 Mo. App. 111. Tex. 547, 7 S. W. Rep. 786. 516 TITLE BY LIMITATION AND POSSESSION. [§g 461, 462. the lessor, unless made so by some act of disseizin to which the lessor assents,'''' and that a tenant cannot, during the term, originate a hostile or adverse possession,"^ nor continue an ad- verse possession commenced prior to the lease. ^^ § 461. Tenant holding over. — As a general rule the mere holding over by a tenant after the expiration of his term is not evidence of an adverse possession, and he will be deemed a ten- ant at will of the landlord, and this, notwithstanding he refuses to take a new lease, to pay rent, or to surrender possession." But if such holding over shall be accompanied by open and notorious acts of renunciation of the landlord's title, or if the tenant by some unequivocal act notifies the landlord that he no longer holds possession by virtue of his entry under the lease but claims adversely, and it appears that the landlord is ap- prised of such acts of disclaimer, an adverse possession may be inaugurated and if possession, under such circumstances, is continued for the statutory period it will be deemed adverse. ^^ § 462. Adverse entry under deed from tenant. — Not only is a tenant estopped to deny his landlord's title so long as he holds under same, but all who enter under his possession are bound by the same estoppel. When, therefore, a person enters upon land either b}^ the suffrance, permission, or deed of the tenant of another, he will be charged with all the duties which the tenant himself owes to his lessor, and will be allowed to assume no relation in hostility to the title under which his pos- session was acquired.^" If he obtains possession by collusive concert with the tenant, he at once becomes identified with him, stands for all practical purposes in his place, and is sub- ject to the same disabilities.*" 34 Sutton V. Casselleggi, 5 Mo. Meridan Land Co. v. Ball, 68 App. 111. Miss. 1?.5, 8 So. Rep. 316. 36 Whiting V. Edmunds, 94 N. ss Sohields v. Horbach, 49 Neti. Y. 309; Hoffman v. Port Huron, 262, 68 N. W. Rep. 524; Morton 102 Mich. 417. v. Lawson, 1 B. Mon. (Ky.) 45; 30 Corning v. I^'roy Iron Fac- Ponder v. Cheaves, 104 Ala. 307. tory, 34 Barb. (N. Y.) 485. 39 Melvin v. Waddell, 75 N. C. 37 Vance v. Johnson, 10 361; Jackson v. Houser, 7 Cow. Humph. (Tenn.) 214; Campbell (N. Y.) 323; Bikeman v. Par- V. Shipley, 41 Md. 81; Leport v. ish, 6 Pa. St. 210; Bannon v. Todd, 32 N. J. L. 124; Emerick Brandon, 34 Pa. St. 263. V. Travener, 9 Gratt. (Va.) 220. ^ Springs v. Schenck, 99 N. C. And see Sohields v. Horbach, 49 551. Neb. 262, 68 N. W. Rep. 524; § 463.] THE STATE AND ITS AGENCIES. 617 IV. The State and its Agencies. § 463. Adverse rights against the sovereign — The United States. 464. Continued — Grantees of the United States. 465. The state. Municipalities. Continued — Theory of municipal ownership. 466 467, § 468. Continued— Effect of es- toppel. 469. Continued — Conflicting views. 470. Adverse claims by the municipality. 471. Quasi-public corpora- tlons. § 463. Adverse rights against the sovereign — The United States. — It is a general rule of universal obsei^ance, except as hereinafter indicated, that statutes of limitation do not run against the sovereign. That no laches can be imputed to the king, and that no time can bar his rights, is the maxim of the common law, founded upon the principle of public policy, that, as he is occupied with the cares of government he should not be permitted t6 suffer from the negligence of his officers and servants. The principle is applicable to all governments, which must necessarily act through numerous agents, and is essential to a preservation of the interests and property of the public. In the jurisprudence of the Federal government this principle has always been maintained, and, as against the United States, title to land can never be acquired by adverse possession." There is no way for title to land to be divested out of the United States except in strict pursuance of some law enacted for such purpose, and mere occupancy and possession, how- ever long continued, will never work a disseizin or ripen into a title.*^ So long as the title to land remains in the United States, adverse possession' cannot exist either in favor of or against anyone.*' 41 Gibson v. Chouteau, 13 Wall. (U. S.) 92; Lindsey v. Miller, 6 Pet. (U. S.) 666; Oak- smith V. Johnston, 92 U. S. 343; Sparks v. Pierce, 115 U. S. 408; Redfield v. Parks, 132 U. S. 239; Knight v. Leary, 54 Wis. 459; Stringfellow v. Railroad Co., 117 Ala. 250. *2 Drew V. Valentine, 18 Fed. Rep. 712; Shepley v. Cowan, 52 Mo. 559; Doran v. Railroad Co., 24 Cal. 246; Knight v. Leary, 54 Wis. 459; Twining v; Burlington, 68 Iowa, 284; Cook v. Foster, 7 111. 652. 43 Stephens v. Moore, 116 Ala. 397; Smith v. McCorkle, 105 Mo. 518 TITLE BT LIMITATION AND POSSESSION. [§ 464. § 464. Continued — Grantees of the United States. — As adverse possession cannot run against the United States, it logicall}' follows that a claim of title founded upon a posses- sion instituted prior to the issuance of a patent cannot be as- serted against a grantee of the United States, and mere pos- session of government lands, though open, exclusive and unin- terrupted for tvifenty years, creates no impediment to its re- covery by the government, or by one who within that period receives a conveyance from the government.** But while it is true that mere lapse of time and continuance of possession without pretense of title, or under pretense of- a void title, cannot be set up against the government, yet long and undisturbed possession is nevertheless a strong weapon of defense in the hands of one who can show reasonable proof that the title of the government has been parted with and has devolved on the possessor,*^ while in some states the doctrine of relation has been so extended as to permit the statute of limitations to operate against a grantee of the government from the time he becomes entitled to a patent and irrespective of the time of its actual issue.*" It would seem, however, that the last mentioned rule, what- ever may be its effect in states where it is recognized, does not state the true principle of law and that it is in direct conflict with the decisions of the Federal courts.*^ It has always been the policy of the government that until a patent has issued no adverse rights can run either in favor of or against anyone, 135; "Whitney v. Gunderson, 31 claimed same by virtue of a se- Wis. 359; Anzar v. Miller, 90 lection by the state in lieu of Cal. 342. section 16, but to prove which *4 Redfield v. Parks, 132 U. S. no primary evidence could be 239; Gardiner y. Miller, 47 Cal. adduced. See Hedrick v. Hughes, 570; Treadway y. Wilder, 12 15 Wall. (U. S.) 123. Nev. 108; Smith v. McCorkle, *s gee Dolen v. Black, 48 Neb. 105 Mo. 135; Stephens v. Moore, 688; Cady v. Bighmey, 54 Iowa, 116 Ala. 397; Oaksmith v. John- 615; Gay v. Ellis, 33 La. Ann. son, 92 U. S. 343; Steele V. Boley, 249; Doe v. Hearick, 14 Ind. 7 Utah, 64; Stephens v. Moore, 242. And consult Wirth v. Bran- 116 Ala. 397. son, 98 U. S. 118; Defferback v. 45 So held where a patent had Hawke, 115 U. S. 405. been issued to one, of lands then « See Redfield v. Parks, 132 in the possession of another, who TJ. S. 239. § 465.] THE STATE AND ITS AGENCIES. 519 and this is also the rule observed in most of the states.*^ In the Federal courts it has repeatedly been affirmed that the patent is the instrument whereby the title of the government passes. In other words, it is the conveyance of the United States. If other parties possess equities superior to those of the patentee, a court of equity may, upon proper proceedings, enforce such equities by compelling a transfer of the legal title, or may cancel the patent, but in an action of ejectment in the Federal courts the legal title must always prevail, and the pat- ent, when regular on its face, is conclusive evidence of that title.*'' § 465. The state. — The common-law principle of protec- tion to the crown, under which no adverse rights are permitted to be asserted against the Federal government, applies with equal force to the states. It is upon this principle that the statutes of a state prescribing periods within which rights must be prosecuted are held not to embrace the state itself,"*" unless it is expressly included,^^ or the mischiefs to be reme- died are of such a nature that it must necessarily be included. As legislation of a state can only apply to persons and things over which the state has jurisdiction, it logically follows that the United States are also excluded from the operation of such statutes. ^^ But a state may submit itself to the operation of the statute, in which event the same rule as to ouster and possession will obtain where the state is the owner as would in the case of pri- vate individuals,^^ and an adverse holding for the statutory *s Stephens v. Moore, 116 Ala. 67 Ga. 761; Swann v. Gaston, 87 397; Gardiner v. Miller, 47 Cal. Ala. 569; Des Moines v. Harker, 570; Treadway v. Wilder, 12 34 Ind. 84. Nev. 108 ; Smith v. McCorkle, si See Schneider v. Hutchin- 105 Mo. 135; Steele v. Boley, 7 son, 35 Oreg. 253, 76 Am. St. Utah, 64. 474; St. Paul v. Chicago, etc. 40 Redfield v. Parks, 132 U. S. Ry. Co., 45 Minn. 396. 239; Gibson v. Chouteau, 13 53 United States v. Hoar, 2 Wall. (U. S.) 102. Mason (C. Ct.), 312; People v. 50 Gardiner v. Miller, 47 Cal. Gilbert, 18 Johns, (N. Y.) 228. 570; Carey v. Whitney, 48 Me. 63 it has been held that under 516; Frontman v. May, 33 Pa. the law of Vermont a title St. 455; Hurst v. Dulany, 84 against the state may be ac- Va. 701; Glaze v. Railroad Co., quired by long continued ad- 520 TITLE BY LIMITATION AND POSSESSION. [§ 465. period will bar an action by the state in the same manner as though the land had been in the seizin of a citizen.'* In a number of states this has been done, and in such states it would seem that so far as their rights in land are concerned the "sov- ereign" and the "subject" stand upon an equal footing. Yet, even in states where the statute has been extended to include actions brought in the name of the people, a distinction has been preserved between lands held by an original title in virtue of sovereignty, and lands held by a derivative title and in a propri- etary capacity the same as an individual. With respect to the latter it is a.lways held that an adverse possession may be inau- gurated that time may ripen into title,^° the theory being that the state acquires, holds, and conveys such lands the same as a ■ citizen and that, with respect to purely proprietary rights, it is not to be distinguished from him. With respect to the former the common-law idea is, to some extent, retained. The sov- ereign rights of the people, it is contended, being incapable of alienation or surrender, except as indicated by themselves in the constitution, it follows that property held in such right cannot be appropriated by the citizen, and while it is competent for the legislature to provide for its regulation it is beyond the power of that body to provide for its loss by the state and its acquisition by the indixidual through prescriptive user.'^ As the lands owned by the state in virtue of its sovereignty are very limited, consisting mainly of submerged tracts, this dis- tinction becomes of small importance except in states bordering on the sea or the great lakes, and in several jurisdictions courts have refused to recognize it.^'' verse possession, notwithstand- bb People v. Trinity Cliurch, 22 ing a provision of tlie statute ex- N. Y. 44; Nichols v. Boston, 98 cepting from its operation lands Mass. 39; Burch v. Winston, 57 belonging to the state. See Hoi- Mo. 62; Price v. Jackson, 91 N. brook V. Bowman, 62 N. H. 313. C. 14; Wyatt v. Tisdale, 97 Ala. s* See Schneider v. Hutchin- 594. son, 35 Oreg. 253, 76 Am. St. es Sims v. Frankfort, 79 Ind. 474; Nichols v. Boston, 98 Mass. 446; Ralston v. Weston, 46 W. 39; St. Paul v. Chicago, etc. Ry. Va. 554; Sellers v. Sollers, 77 Co., 45 Minn. 396; Green v. Irv- Md. 148, 39 Am. St. 404. ing, 54 Miss. 450; Wyatt v. Tis- 57 See Schneider v. Hutchin- dale, 97 Ala. 594; Price v. Jack- son, 35 Oreg. 253, 76 Am. St. 474; son, 91 N. C. 14. § 466.] THE STATE AND ITS AGENCIES. 521 But while it is not competent, as a general rule, to prescribe against the state it does not follow that the state may not pre- scribe against the "citizen. In this latter respect it seems the .state is entitled to every right accorded to a citizen, and long and uninterrupted possession of land by the state, with a claim of ownership for public use, will raise a presumption of grant or dedication by the former owner. '^^ So, too, where an agent is treated as a principal he may rely upon the protection of the statute of limitations. This rule may be applied where officers or agents of the state or of the United States, are sued in eject- ment by a citizen to recover lands of which they are in osten- sible possession but which, in fact, belong to the government. In such event, the defense of adverse possession may be inter- posed and if defendants can show requisite title in themselves through an adverse holding, although in fact for the govern- ment, a valid defense will be made out.^" § 466. Municipalities.- — It would seem, upon principle and analogy, that the same rule which exempts the sovereign power from the operation of the statute of limitations should also apply to all or any of its municipal agencies. It is clear that the statute never was intended as a bar to the assertion of public rights and all of the reasons which sustain the right of the state against the encroachments or invasions of the in- dividual are equally as cogent in the case of counties, cities, towns, or other municipal sub-divisions, which are, in fact as well as in law, the organs by which the state performs the larger portion of its functions. A well considered line of authorities sustain these views, and numerous decisions have reaffirmed the doctrine that the title of a municipal corporation to land, employed for uses that are conducive to the enjoy- ment and convenience of the public, is paramount and exclu- sive, and that no private occupancy, for whatever time con- tinued, .whether adverse or permissive, can vest a title incon- sistent with it."" Thus, the mere adverse possession, for the St. Paul V. Chicago, etc. Ry. Co., bo Stanley v. Schwalby, 147 45 Minn. 396. U. S. 508. 58 Smith V. Cornelius, 41 W. so Brown v. Carthage, 128 Mo. Va. 59; Oak Dale Dist. v. Fagen, 10; Burhank v. Fay, 65 N. Y. 94 Iowa, 676. 57; Philadelphia v. Railroad Co., 522 TITLE BY LIMITATION AND POSSESSION. [§ -^-67. statutor}- period, of a street or alley which is a public highway, cannot operate to confer title,^^ nor will the rights of the pub- lic in such a street be lost by acquiescence in its obstruction or private use by a citizen, or by laches in resorting to legal reme- dies. "" There can be no question but that such rule is both salutary and just and that its maintenance is essential to the preserva- tion of public interests and.propertjr rights held in trust for the people. The distinction between the sovereign and the citizen, whatever it may have been at common law, is lost in the United States, or, if preserved at all, is more fanciful ■ than real. Cities, villages, counties, towns and taxing districts are only municipal agencies of the state, and have no existence apart from it. If we admit that immunity applies to the sovereign power it is difficult to perceive why municipal corporations, or other local authorities established to manage the affairs of the political sub-divisions of the state, should not also enjoy such immunity. Where property is dedicated to public uses or con- demned for such uses in pursuance of the power of eminent domain, the state is the beneficiary ; the use of public places is a sovereign right, and, if this be so, such right cannot be im- paired by individual encroachment.^' § 467. Continued — Theory of municipal ownership. — There is another reason for the assertion and maintenance of 58 Pa. St. 253; Commonwealtli v. 331; Depriest v. Jones (Va., no Moorhead, 118 Pa. St. 344; Tay- off. rep.), 21 S. E. Rep. 478. lor V. Commonwealth, 29 Gratt. 62 Webb v. Deroiopolis, 95 Ala. (Va.) 780; Yates v. Warrenton, 116; St. Louis v. Railroad Co., 84 Va. 377; Crass v. Morristown, 114 Mo. 13. 18 N. J. Bq. 305; State v. Tren- es See "Webb v. Demopolis, 95 ton, 36 N. J. L. 198; Hoadly v. Ala. 116; Sullivan v. Tichenor, San Francisco, 50 Cal. 265; Cohn 197 111. 97; Cbilds v. Nelson, 69 V. Parcels, 72 Cal. 367; Sims v. Wis. 125; Driggs v. Phillips, 'in3 Chattanooga, 2 Lea (Tenn.) 694; N. Y. 77; Schmidt v. Draper', 137 Henshaw v. Hunting, 1 Gray Ind. ;24q: Moorse v. Carson,' 104 (Mass.) 203; Simmons v. Cor- N. C. 431; Williams v. St. Louis, nell, 1 R. I. 519; Ralston v. Wes- 120 Mo. 403; Yates v. Warrenton, ton, 46 W. Va. 544, 76 Am. St. 84 Va. 337; Price v. Plainfieldi 834, 33 S. E. Rep. 326; Lee v. 40 N. J. L. 608; Heddleston v'. Harris, 206 111. 428. Hendricks, 52 Ohio St. 460; 61 Crocker v. Collins, 37 S. C. Almy v. Church, IS R. I. 182; 327; Wolfe v. Sullivan, 133 Ind. Nicolai v. Davis, 91 Wis. 370. § 468.] THE STATE AND ITS AGENCIES. 623 this rule, growing out of the fundamental theory of adverse possession. It is an underlj-ing doctrine of prescriptive titles that the adverse occupancy originated lawfully, but, by rea- son of the loss of the muniments during the long flow of time, the fact has become incapable of proof. Now, in the case of public streets, parks, commons, or grounds of a similar char- acter, the municipal government acquires and retains a right of entry only as agent of the general public and clothed with the trust and duty of protecting and conserving same for the public use. As the municipality can neither convey the title nor relieve itself of the trust, it necessarily follows that indiv- iduals are virtually precluded from acquiring it, and since the land is thus incapable of alienation no prescriptive right can be predicated upon a possession of same, for the prescription, to be effective, much presuppose a title fairly acquired in the first instance. If we shall concede this reasoning to be correct, then, as to all such lands, private encroachments or invasions can never rise beyond the dignity of a trespass and, however long continued, can never ripen into a prescriptive title. This doctrine is sustained by a large and well considered line of de- cisions."* § 468. Continued — Effect of estoppel. — In some in- stances the doctrine, as just stated, has been modified to meet the exigencies of particular cases, and the courts, while main- taining the integrity of the general rule, have permitted the operation of an equitable estoppel against the public when the ends of justice seemed to require its assertion. ''^ It has been 61 See cases last cited, and the faith of his claim by adjust- Visalia v. Jacobs, 65 Cal. 434; ing his property to the highway Cheek v. Aurora, 92 Ind. 107; as he supposes or claims It to Thlbodeau v. Maggioll, 4 La. be, it has been held that the pub- Ann. 73; Slpimons v. Cornell, 1 lie will be estopped. Hamilton R. I. 519; Webb v. Butler v. State, 106 Ind. 361. And see County, 52 Kan. 375; De Kalb v. Brooks v. Riding, 46 Ind. 15 Luney, 193 111. 185. Logan Co. v. Lincoln, 81 111. 156 OS As, if such appearances are Jordan v. Chenoa, 166 III. 530 created by non-user that acts Davles v. Huebner, 45 Iowa, 547 done by an adjoining proprietor TJptagraft v. Smith, 106 Iowa, would indicate that he is in good 385; Yioksburg v. Marshall, 59 faith claiming as his own that Miss. 563; Sims v. Chattanooga, which in fact is a part of a high- 2 Lea (Tenn.), 694. way, and is expending money on 524 TI'ILE BY LIMITATION AND F0S3KSSI0N. [§ i69. urged as an objection to this course that it is a confounding of the rights of the people with the rights of the municipality, and that an equitable estoppel can no more deprive the sov- ereign of his rights than can the legal estoppel of limitation.'^'' While this argument certainly seems sound, and is in conson- ance with all of the received ideas concerning sovereignty, yet the tendency seems to be to permit the principle of estoppel in pais to apply in those cases where individuals have for years been in the open and undisputed possession of municipal land and when to deprive them of such possession would work ap- parent injustice.''^ Thus, where the possession of a street has been allowed to remain in a private person, and the latter, act- ing under the belief that the street had been permanently aban- doned by the city, has erected buildings or made such valuable improvements that to permit the city to regain possession Vv'ould cause him great pecuniary loss, the city may be held estopped to assert its rights."^ But mere nonuser of a public way, however long continued, does not, by virtue of the statute of limitations, bar the right of the public to be restored to pos- session. § 469. Continued — Conflicting views. — The rule an- nounced in the preceding paragraphs is by no means uniform, however, and is opposed by a formidable array of decisions holding to the exact contrary. Under these authorities the doctrine of the inviolability of municipal titles is expressly de- nied and the rights and duties of the municipality placed upon the same plane as those of the individual."' It is asserted by this line of decisions that a municipal corporation, or other ar- tificial body endowed with corporate rights and exercising pub- lic functions, is entitled to no higher consideration than a nat- ural person ; that where possession is taken of public ground and continuously held for the statutory period, it will be suf- 00 Ralston v. Weston, 46 W. esLee v. Harris, 206 111. 428, Va. 544. 69 N. E. Rep. 230, 99 Am. St. oTOrr v. O'Brien, 77 Iowa, 253, 176; De Kalb v. Luney, 193 111. 14 Am. St. 277; Lee v. Mound 185, 61 N. E. Rep. 1036. Station, 118 111. 304; Sullivan v. S9 piynn v. Detroit, 93 Mich. Tiohenor, 179 111. 97; Simplot v. 590; Teass v. St. Albans, 38 W. Railway Co., 16 Fed. Rep. 350. Va. 1. And see Dillon, Mun. Corp. 675. § 469.] THE STATE AND ITS AGENCIES. 525 ficient to vest in the occupant the same title that a similar pre- scription would have raised in the case of private persons.'"'- In support of this doctrine it is contended, that a municipal corporation is held to the same degree of diligence in guard- ing its streets and public places from encroachments as nat- ural persons are rec[uired to exercise in protecting their prop- erty from the adverse possession of others; that the reasons which apply to the sovereign, and which preserve the sov- ereign's rights intact and prevent them from being impaired or lost by the neglect of the officers of state, do not apply to a city or town ; that the latter, being compact communities, have special officers whose duty it is to see that the public places are kept free from encroachments, and that if the authorities per- mit an individual to encroach upon the public ownership and to hold and occupy public places, under a claim of right, for the statutory period of limitation, without interruption or dis- turbance, the occupant will thereby become clothed with a complete title. Further, that the title thus perfected by time will be just as available against the municipality as it would be against any other person whose elder title and right of en- try may be barred by a continued adverse possession.''^ A distinction is made in some of the cases between property held for public uses or upon public trusts, and property held in what is substantially a private capacity. With respect to the former the statute is held not to appl}','- but where the land IS held in the same manner as the lands of a private proprietor and is subject to sale or other disposition, then the statute will run against the municipality in favor of an adverse holder for the prescribed limitation period.'''' Much of the confusion ToVier v. Detroit, 111 Mich. 42 N. H. 326; Peoria v. Jolinston, 646; Darrow v. Homer, 122 56 III. 45. . Mich. 229; Port Smith v. Mc- 7i wheeling v. Campbell, 12 Kebbin, 41 Ark. 45; Dudley v. W. Va. 36; Dudley v. Frankfort, Frankfort, 51 Ky. 610; St. Paul 12 B. Mon. (Ky.) 610; Flynn v. Ry. Co. V. Minneapolis, 45 Minn. Detroit, 93 Mich. 590; Vincent 400; Ostrom v. San Antonio, 77 v. Kalamazoo, 111 Mich. 230. Tex. 345; Meyer v. Lincoln, 33 72 Ralston v. "Weston, 46 W. Neb. 566. But compare Krueger Va. 544; Bedford v. Willard, 133 V. Jenkins, 59 Neb. 641. And Ind. 562. see, also, Pella v. Schotte, 24 73 Bedford v. "Willard, 133 Ind. Iowa, 283; "Webber v. Chapman, 562; Hammond v. Shepard, 1S6 526 TITLE BY LIMITATION AND POSSESSION. [§§ 470, 471. which seems to attend the subject grows out of this distinct- tion. It will thus be seen that there are two strongly defined rules leading to diametrically opposed results, with a middle ground in the nature of a compromise, and, for this reason, the text writer can do no more than point out the inconsistency which exists in this, as in many other departments of the common law of our country, and refer the practitioner to the decisions of his own state, if happily such there are, whenever the ques- tion shall confront him for solution. About all that can be said is, that the rule first stated seems to be founded in legal reason and is sustained by the volume of authority. The dis- tinction above noted seems to have obtained a general adher- ence and where the question has been presented the authorities sQem to be in substantial accord. § 470. Adverse claims by the municipality. — However conflicting the views may be with respect to the acquisition and assertion of adverse rights against the municipality, there would yet seem to be a substantial accord in the opinions re- specting the right of the municipality to acquire title by adverse possession and to prescribe against the citizen. The open, public and notorious use by a town or city of land used for a public purpose, and the actual, continuous and exclusive pos- session of such land for the limitation period, will generally be sufficient to vest title in the municipality.^* § 471. Quasi-public corporations. — It has been held that lands owned or controlled by corporations engaged in works of public utility should be regarded much in the same light as lands owned by a municipal corporation which are devoted to public uses. This, it is said, is particularly true of the rights of way of railroads, or other avenues of public travel, and that as to such lands no title can be acquired by adverse possession.'^ In support of this it is urged that a railway cor- 111. 235; Evans v. Erie Co., 66 75 Southern Pac. Ry. Co. v. Pa. St. 222; Powers v. Council Hyatt, 132 Cal. 240, 64 Pac. Rep. Bluffs, 45 Iowa, 652; Chicago v. 272; Collett v. Vanderburgh, 119 Middlebrooke, 143 111. 265. Ind. 27, 21 N. E. Rep. 329; 74 Quindaro Tp. v. Squier, 51 Northern Pac. Ry. Co. v. Smith, Fed. Rep. 152. 171 U. S. 260. § 4V1.] THE STATE AND ITS AGENCIES. 527 poration owing duties to the public in the exercise of its cor- porate functions, cannot, by voluntary conveyance, part with any of its property necessary for a proper discharge of those duties, and that, being without power to convey, it logically follows that no prescription can be had against it for land im- pressed with this character. The content-ion rests on the claim that a right of way is land devoted to a public use, and there- fore is not distinguishable from any other highway. The volume of authority, however, is directly opposed to the views just stated, and numerous decisions , affirm the doctrine that a railway company may be deprived of its right of way, or parts thereof, by an adverse occupation for the statutory period.^'' It is further held, that in such event it is immaterial whether the title of the company is in fee, either qualified or absolute, or whether it holds but a mere easement, for, which- ever it may be, the right conferred is a possessory one and suf- ficient to sustain an action of ejectment.'^ Nor is it material, under this line of decisions, whether the statute under which the adverse occupant claims is regarded as one indulging in the presumption of a grant from the true owner or is simply a statute of repose.'^ These decisions also distinguish between a highway and a railway, and while conceding that a railway company owes certain duties to the public, and is entitled to a certain pro- tection for the better performance of such duties, yet main- tain that a railroad is not a public highway in the sense that it belongs to the people. Although the company is engaged in a work of public utility it nevertheless holds its property in a private capacity for the profit of its stockholders. In order to efKciently perform its duties to the public as a com- mon carrier it is permitted to take land by compulsory process 70 Pittsburgh, etc. Ry. Co. v. Townsend, 84 Minn. 152, 87 Am. Stickler, 155 Ind. 312; Matthews St. 342, 86 N. W. Rep. 1007. V. Railway Co., 110 Mich. 170; 77 Northern Pac. Ry. Co. v. Littlefield v. Railroad Co., 146 Townsend, 84 Minn. 152. Mass. 268 ; Illinois, etc. R. R. Co. 78 Northern Pac. Ry. Co. v. V. Wakefield, 173 111. 564; Pol- Townsend, 84 Minn. 152; North- lock V. Railroad Co., 103 Ky. 84; ern Pac. Ry. Co. v. Ely, 25 Wash. Wilmot V. Railroad Co., 76 Miss. 384. 374; Northern Pac. Ry. Co. v. 523 TITLE BT LIMITATION AND POSSESSION. [§ 471. and the public are forbidden to interfere with the company's exclusive use thereof. But, it is said, the right to such exclu- sive use must be actively asserted, and if, through the laches , and neglect of the company, a party has entered upon and con- tinuously occupied a portion of the right of way in a manner inconsistent with its use as such, the statute of limitations may be invoked to protect such occupancy with the same effect as in any other case of adverse possession.^" In a few decisions a middle ground is taken and an attempt is made to differentiate between a hostile possession and a pos- session consistent with, or in subordination to, the rights of the railway company. Thus, it is held that inasmuch as the right of way of a carrier is but a mere easement for a special purpose, therefore one who takes and holds possession of lands subject to the easement cannot acc[uire prescriptive title as against the railroad, so long as the purposes for which he uses them are not inconsistent with the right of way, and that such possession cannot become adverse until the railroad needs the land so possessed for railroad purposes.^" It is further con- tended, that one who enters upon and improves 'the right of way of a railroad does so at his peril, no matter what paper title he may have from a third person, and that all persons are affected with notice of the extent of the right of way when it depends upon charter provisions. The volume of authority, however, is opposed to the views last presented and the more generally accepted doctrine would seem to be, that where a person enters and occupies a railroad right of way, as where he encloses it with his adjoining lands, and thereafter continu- ously uses it without the consent of the company, asserting a claim of ownership inconsistent with the company's rights, he thereby has such an occupancy as will ripen into title by ad- verse possession upon the expiration of the statutory period, and this too, notwithstanding he has a right during such period to use the right of way for any purpose not required by the railroad.*^ 79 Pittsburgh, etc. Ry. Co. v. so Railroad v. French, 100 Stickley, 155 Ind. 312; Northern Tenn. 209. Pac. Ry. Co. v. Ely, 25 Wash. si Matthews v. Railroad Co., 384. 110 Mich. 170, 64 Am. St. 336; CHAPTER XIII. VERDICT AND JUDGMENT. I. Veedict oe Findings. II. Judgment. I. Verdict or Findings. 472. Generally considered. 473. Form of verdict 474. Sufficiency. § 475. Defects and invalidities. 476. Directing verdict. 477. Finding by the court. § 472. Generally considered. — The issues in ejectment are determined, as in other common-law actions, by the verdict of the jury to whom they are submitted, and, as the stability of the judgment rendered in the suit is dependent upon the? suf- ficiency and correctness of the verdict, this becomes a matter of prime importance. The general rule with respect to ver- dicts is, that they shall be reasonably construed in the light of the proceedings, and not be regarded as mere abstractions. Every reasonable presumption should be made in their favor, and they should never be rejected or set aside, except in cases of absolute necessity.^^ If the verdict responds to the issue, and is sufficiently certain to serve as the basis of a judgment to which the party in whose favor it is rendered is clearly entitled, or can be made certain by reference to the pleadings or some other received standard, it will generally be permitted to stand."^ It is essential, however, that the verdict should be direct and unequivocal. It must be either for the plaintiff or the defendant, and it cannot impose conditions,** but it will not Illinois, etc. R. R. Co. v. Hough- ton, 126 111. 233. 82 "Wilson V. McCrillies, 50 Mich. 347; Chambers v. Butcher, 82 Ind. 508; Lourance v. Good- win, 170 111. 393. 34 83 Hutchinson V. County Court, 61 Cal. 119;; Minkhart v. Hank- ler, 19 111. 47. 84 Broach v. Kelly, 71 Ga. 698; Eberts v. Thompson, 113 Pa. 19. 530 VEEDICT AND JUDGMENT. [§ 4:73. be vitiated merel}' by matter intended to be explanatory,''^ nor by immaterial findings,^" nor by slight variance from the plead- ings,'^ nor for mere informality,'* provided it is still respon- sive to the issue,'" and no substantial rights of either party are affected."" It is further essential, that the verdict should possess the elements of certainty as prescribed by statute. Thus, if the statute requires the jury to find the estate proved by the plaint- iff and the verdict fails to specify any estate, no judgment can be rendered on it."^ This is true even where the court is au- thorized to reduce a verdict to proper form, as the defect, in the case mentioned, is matter of substance and should the court at- tempt to supply the want of a substantial finding it would en- croach upon the province of the jury. § 473. Form of verdict. — At a comparatively early period in the development of the action in this country the form of the verdict became fixed by statute, and all of the modern codes seem to have adopted, either in letter or substance, the phras- ing of these early statutes. In this respect, therefore, there is a remarkable uniformity in all of the states. The general pro- vision of the statute is, that in the following cases the verdict shall be rendered as hereinafter stated. First — If it be shown on the trial that all the plaintiffs have a right to recover the possession of the premises, the verdict in that respect shall be for the plaintiffs generally. Second — If it appear that one or more of the plaintiffs have a right to the possession of the premises, and that one or more have not such right, the verdict shall specify for which plaint- iff the jury finds, and as to which plaintiff they find for the de- fendant. Third — If the verdict be for any plaintiff, and there be sev- eral defendants, the verdict shall be rendered against such of 85 Lemmon v. Hartsook, 80 Mo. ss Thompson v. Brannan, 76 ^Z. Cal. 618; Hawley v. Twyman, 24 ssBaiim Iron Co. v. Bank, 50 Gratt. (Va.) 516. Neb. 387; Bartley v. Bingham, ss Knight v. Roche, 56 Cal. 15; 34 Fla, 19. ■ Goodhue v. Baker, 22 111. 262. 87 Bartley v. Bingham, 34 Pla. so Allard v. Lamirande, 29 19. "Wis. 502. 81 Long V. Linn, 71 111. 152. '§ i7tt.] VEEDICT OE FINDINaS. 531 them as were in possession of the premises or as claimed title thereto at the commencement of the action. Fourth — If the verdict be for all the premises claimed, as specified in the declaration, it shall, in that respect, be for such premises generally. Fifth — If the verdict be for a part of the premises described in such declaration, the verdict shall particularly specify such part, as the same shall have been proved, with the same cer- tainty hereinbefore required in the description of the premises claimed. Sixth — If the verdict be for an undivided share or interest in the premises claimed, it shall specify such share or interest ; and if for an undivided share in a part of the premises claimed it shall specify such share, and shall describe such part of the premises as hereinbefore required. Seventh — The verdict shall also specify the estate which shall have been established on the trial, by the plaintiff in whose favor it shall be rendered, whether such estate be in fee or for his own life or for the life of another, stating such lives, or whether it be for a term of years and specifying the duration of such term. § 474. Sufficiency. — While it is true that verdicts should always receive a liberal construction and should never be avoided except from necessity, yet it is also true that they should be certain, unambiguous, and decisive of the question at issue. If the issue is not guilty, it would seem, on principle, that the verdict should be responsive to that issue and, in terms, find the defendant "guilty of unlawfully withholding" the lands in controversy, or that he is "not guilty" of the matters laid to his charge "in manner and form as plaintiff has com- plained against him." This, at least, was the ancient for- mula,^^ and it had the merit of being definite, certain, and re- 82 During the early part of the amended practice, to wliich were last century the state of New appended a number of prece- York revised its statutes and dents approved by the court, gave a new form to the action Among others, we find prece- of ejectment by the abolition of dents for verdicts, and in these the fictions. In 1829 the su- precedents the fact of the guilt preme court adopted a new set or non-guilt of the defendant is of rules, conforming to the always established. The prac- 532 VEKDICT AND JUDGMENT. [§ 474:. sponsive to the issue.'' Modern practice has to some extent modified and relaxed the stringency of the old rules and it has been held that a verdict for the plaintiff need not expressly de- clare the defendant guilty; it is enough if such verdict finds in express terms that the plaintiff is entitled to the possession of the land sued for, describing or designating it with con- venient certainty and finding the quantity of the plaintiff's estate therein."^ But this much is essential, and a verdict lack- ing any of these requisites is insufficient.^^ So, too, where the statute permits a claim for damages to be united in the same action with a claim for the recovery of the land, and such claim is made, the verdict should be responsive to the issues thus presented. Where it merely establishes the title of the plaintiff to the land in dispute but does not find any wrongful act done by the defendant, the plaintiff, it would seem, cannot recover damages.'" In a case of this kind where the plaintiff's title expires pending the litigation the verdict should find all the essential facts, as, that at the time of com- mencement of suit the plaintiff was entitled to the possession ; that the defendant was guilty of unlawfully withholding such possession ; an assessment of the damages sustained, and the fact of expiration of plaintiff's title as well as the time when it ceased. If the verdict awards the plaintiff only a part of the land sued for it must be certain in itself, or must refer to some tice thus inaugurated by the Re- 111. 262; Knight v. Roche, 56 Cal. vised Statutes was subsequently 15; Abbott v. Roach, 113 Ga. 511. adopted by many other states, s>i Russell v. Marks, 32 Pic. particularly by those of the 456, 14 So. Rep. 40; Goodhue v. west, and the precedents set by Baker, 22 111. 262; Hagey v. Det- the supreme court of New York weiler, 35 Pa. 409; Cowdrey v. were generally followed. Not- Johnson, 113 Ga. 981; Shaw v. withstanding that some years Hill, 79 Mich. 86. later the practice in New York ss Johnson v. Vance, 86 Cal. wag again changed, the funda- 128; Meir v. Meir, 105 Mo. 411; mental ideas respecting eject- Leprell v. Kleinschmidt, 112 N. ment were not materially af- Y. 364; Alexander v. "Wheeler, fected, and the old New York 69 Ala. 332; Kyser v. Cannon, 29 statute of ejectment is still the Ohio St. 359. basis of modern statutes upon so Clarke v. "Wagner, 78 N. C. this subject. 367. 83 See Goodhue v. Baker, 22 § 475.] YEEDICT OE FINDINGS. 533 standard by which the part so awarded can be definitely ascer- tained, otherwise it will be insufficient to support a judgment.'" So, too, if the jury fail to find the estate proved by plaintiff, when this is required by law, no judgment can be, rendered on their verdict."' In the early precedents, after the action had been remodeled, provision is always made for nominal damages in the event that the plaintiff should recover. These damages are usually fixed at six cents, the manifest object being to afford a peg on which to hang the costs. But at present the statute generally provides that the prevailing party shall recover his costs to be taxed, and where the actual damages are recovered in a sub- sequent action for mesne profits it does not seem necessary that any finding of nominal damages should be returned in the ejectment suit. § 475. Defects and invalidities. — It is a familiar pro- vision of the statute, that if upon the trial the plaintiff shows his right to possession the verdict shall be for the plaintiff gen- erally. But a verdict for the plaintiff should consist of some- thing more than a mere general finding. In order to give sta- bility to the judgment it should describe the land, or such definite portion thereof as the plaintiff's proofs showed that he was entitled to, and should further state the quantity and qual- ity of his estate therein."" This latter is usually enjoined by 97 Thus, a verdict awarding to St. 77. So, too, where the issue plaintiff all of the land in con- related to an entire tract, a ver- troversy, "except the land de- diet, "we, the jury, find for the fendant has fenced up and the defendant H. W. Moore, one-half land conveyed to defendant by of the one thousand and twenty A," was held to uncertain to acres claimed by him," was held support a judgment. Slocum v. void, because it left undispo-sed Compton, 93 Va. 374, 25 S. E. of the remainder of the tract. Rep. 3. The ejectment was for Moore v. Moore, 67 Tex. 293, 3 a tract of land, describing the S. W. Rep. 284. And see Wilson adjoiners on the north, east, Braden, 48 W. Va. 196, 36 S. B. south and west, containing one Rep. 367. hundred acres, more or less; the 98 Long v. Linn, 71 111. 153. verdict was for "plaintiff for s>9 Shaw v. Hill, 79 Mich. 86; twenty -acres on the lower or Wickersham Banking Co. v. south end of tract." Held, that Rice, 137 Cal. 506, 70 Pac. Rep. the verdict was void for uncer- 546. tainty. Nolan v. Sweeny, 80 Pa. 534 TEEDIOT AND JUDGIIEXT. [§ ilo. Statute, and a verdict which simply finds a right of possession in the plaintiff to the land described in the declaration, and which fails to find or specify the estate of the plaintiff, has re- peatedly been held defective,^ notwithstanding the declaration may aver that the plaintiff was seized of the lands in fee.^ A general verdict for the plaintiff is not defective because it fails to describe the land, where such land is fully and prop- erly described in the declaration,^ and special reference is made thereto,^ but where only a part of the land sued for is awarded to the plaintiff the verdict must be certain in itself, or must refer to some standard by which the land so awarded can be definitely ascertained or it will be insufficient to support a judgment.^ In every event, the verdict must conform to the evidence. Thus, a verdict for more land than the plaintiff has proved him- self entitled to, is void." Such a verdict cannot be reformed, nor can the court render judgrnent for the part to which title was shown. In such a case nothing can be done except to set aside the verdict.' Where the statute requires the verdict to specify the estate established on the trial and found for the plaintiff, a failure to so specify renders the verdict fatally defective and no judg- ment can be rendered thereon.^ The findings of title and estate are of the essence of a verdict, particularly when required by statute. If omitted by the jury they may be sent back with directions to find these essential facts, but if a defective ver- dict is received and the jury discharged, the court is without power to supply the want of such findings or to render a judg- ment on the verdict received.^ iLong V. Linn, 71 111. 152; * Messick v. Thomas, 84 Va. Shaw V. Hill, 79 Mich. 86, 44 N. 891, 6 S. B. Rep. 482. W. Rep. 422; Lungren v. Brown- 5 Slocum v. Compton, 93 Va. lie, 22 Fla. 491; Low v. Settle, 374, 25 S. B. Rep. 3; Wilson v. 22 W. Va. 387. But see Mink- Braden, 48 W. Va. 196, 36 S. E. hart V. Hankler, 19 111. 47. Rep. 367. = Oney v. Clendenin, 28 W. Va. e Crummey v. Bently, 114 Ga. 34; Betz v. Mullin, 62 Ala. 365. 746. 3 Grace v. Martin, 83 Ga. 245; 7 Bast St. Louis v. Hackett, 85 Betz V. Mullin, 62 Ala. 365; 111. 382. .Tones v. Railroad Co., 14 W. Va. sLow v. Settle, 22 W. Va. 387; 514. Long V. Linn, 71 111. 152. " As where a jury returned a § 476.] VEEDIOT OE FINDINGS. 535 § 476. Directing verdict. — A verdict may be directed in actions of ejectment as in other forms of jury trials, and if the plaintiff has made out a prima facie case by his proofs, and there is no rebutting evidence, it is proper for the court to instruct the jury, as a matter of law, to find for the plaintiff.^" This would follow almost as a matter of course where the de- fendant has offered no testimony, but the court may always direct the jury to find in a given way where there is no con- flict in the evidence,'-^ and where the plaintiff shows a com- plete title and the evidence offered by the defendant is incom- petent and leaves no substantial question for the jury, a verdict for the plaintiff is properly directed.^^ On the other hand, in pursuance of the familiar principle that the plaintiff must recover, if at all, upon the strength of his own title, where the plaintiff's own evidence shows that he is not entitled to a recovery, the court may direct a verdict for the defendant.^^ In the latter event, however, the irules with respect to directed verdicts will apply, and, as a general prop- osition, a peremptory instruction to find for the defendant will be given only where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insuf- ficient to sustain a verdict for the plaintiff.^* But where a question of fact is involved, then, even though the defendant's evidence is contradicted, yet if he has offered any evidence in support of his own claim it should be left to the jury and it would be error, in such a case, to direct a ver- verdiot reciting "we find a ver- C. 231; Perry v. Saylor, 118 Ga. diet for plaintiff," and the clerk 219. in the journal put the verdict u Sexton v. Hollis, 26 S. C. into proper form and the court 231; Casey v. Kimmel, 181 111. rendered judgment thereon. In 154. this case it was held that the 12 Padgett v. Hawkins, 100 Ga. verdict as signed hy the jurors 93; Williams v. Milligan, 183 Pa. must he taken rather than the 386, 38 Atl. 1015; Casey v. Kim- recitals of the clerk, and that, as mel, 181 111. 154; Hallam v. the verdict actually returned Doyle, 35 Minn. 337. lacked essential substance, no is Auburn v. Goodwin, 128 111. judgment could be rendered 57; Scott v. Nickum, 193 Pa. 371. upon it. Long v. Linn, 71 111. i* See Sutherland v. Cleveland, 152. 148 Ind. 308; Foster v. Wads- 10 Anderson v. McCormick, 129 worth, 168 111. 514; Dougherty v. 111. 308; Sexton v. Hollis, 26 S. Powe, 127 Ala. 577, 30 So. Rep 524. 536 YEEDICT AND JUDGMENT. [§§ iT7, 478. dict.^" So, also, if there is any evidence tending to support the plaintiff's allegations the issues should be submitted to the jury with proper instructions.^^ § 477. Finding by the court. — In ejectment as in other actions at law, the parties may waive a jury and submit the issues to the court, but in such case the finding by the court should in all essential matters conform to the requirements of the statute relating . to verdicts. That is, there should be special findings of title and estate,^^ and where these facts ap- pear the judgment will not be disturbed unless clearly against the weight of the evidence.^* II. Judgment, 478. At common law. § 493. 479. Under the statute. 480. By confession. 494. 481. Conformity to verdict. 482. Conditional judgment. 495. 483. Description of the land. 484. Description of the estate. 496. 485. Description of interest recovered. 486. Operation and effect. 497. 487. Conclusiveness of judg- ment. 498. 488. Judgment as an estop- pel. 499. 489. Effect of vocation — Sec- ond trials. 500. 490. Effect of former adjudi- cation in a different proceeding. 501. 491. Parties and privies dis- tinguished. 502. 502a 492. Effect on after-acquired title. Effect on adverse posses- sion. Effect on persons enter- ing pendente lite. Where plaintiff's right expires pendente lite. Where defendant ac- quires plaintiff's title pending suit. Amendment of judg- ment. Annulment of judgment. Against officers of the United States. Against persons de- ceased. Effect on landlord of judgment for or against tenant. Revivor. Reversal. § 478. At common law. — By the judgment in ejectment, at common law, the plaintiff's lessor was let into possession of the lands recovered in the action, but this was about its full ex- ■15 Bennett v. Morrison, 120 Pa. St. 390; Terry v. Rodahan, 79 Ga. 278; Dougherty v. Powe, 127 Ala. 577. IS Bradley v. Drayton, 48 S. C. 234; Showers v. Emery, 16 Ohio, 294. 17 Koon V. Nichols, 63 111. 163. IS Ogilvie V. Copeland, 145 111. 98. § 479.] JUDGMENT. 537 tent. The verdict was not evidence in a subsequent action, even between the same parties, and the judgment entered thereon decided nothing more than that the plaintiff had shown a better right to the possession than the defendant." The title was not directly involved. It was customary to speak of the successful claimant as being seized of the land according to his title, but, in point of fact, only a mere possession was given to him by the judgment and his seizin was effected by a fur- ther fiction. Thus, it is an old rule of law that when a man, having title to lands, comes into possession of them by lawful means, he is held to be in possession according to his title ; and hence, when possession was given by the sheriff, in execution of the judgment, the possession and title were said to unite and the plaintiff's lessor held the lands according to the nature of his interest in them. This was practically the scope of the remedy introduced into the American colonies and adminis- tered during the earlier years of the Republic. § 479. Under the statute. — As we have seen, by the rules of the common law, a judgment in ejectment was not conclusive upon the title of either of the parties to the record but simply determined the present right of possession. By the statute, a marked innovation upon this rule has been made in all of the states, the form and effect of the judgment being now gener- ally regulated and prescribed by positive legislative enactment. In cases where no other provision is made the judgment in the action, if the plaintiff prevails, is, that he recover possession of the premises according to the verdict of the jury, if there was a verdict, or the finding of the court, if the case has been tried without a jury; or, if the judgment is by default, then accord- ing to the description furnished by the declaration, with costs to be taxed. ^^ But, while this may be the form of the judgment its declared effect extends much further, and, as a rule, every judgment entered upon a verdict or finding is conclusive as to the title established at the trial upon the party against whom the same is rendered, and those claiming under him, from the 19 Chapman T. Armistead, 4 412 ; Smith v. Sherwood, 4 Conn. Munf. (Va.) 382; Avery v. Fitz- 276. .gerald, 94 Mo. 207. And see' soMinkhart v. Hankler, 19 111. Mitchell v. Robertson, 15 Ala. 47. 538 VEKDICT AND JUDGMENT. [§§ 480, 481. time of such entry. If the judgment is rendered on default it becomes conclusive, in like manner, after the expiration of a specific period, usually two years. § 480. By confession. — Under the ancient practice, not- withstanding the casual ejector was a real person, it seems the court would not allow him to confess judgment, but when the system of fictions was introduced and the consent rule was adopted, it became customary, when the time for appearance had expired, to enter a rule to plead and in default thereof judgment might be entered for want of plea. When the sys- tem of fictions was abolished and the, action was placed upon the same footing as other actions at law, the usual rules govern- ing defaults and confessions were made to apply and at present ejectment is not distinguishable from other actions in this res- pect. As a rule, a judgment entered as confessed is treated in the same manner and given the same force as one entered upon the verdict of a jury,^^ and although the title of the plaintiff does not appear he will be presumed to have had a superior title.=2 § 481. Conformity to verdict. — Where the verdict is for the plaintiff generally, that is, where it finds a right of property and possession in the plaintiff of the whole of the lands des- cribed in the declaration, and that the defendant is guilty of withholfMng them, a general judgment should be entered. But, where the verdict is special, as where the finding is that plaint- iff is entitled only to a part of the premises, which is described, judgment should be rendered awarding possession of the part specifically found for him by the verdict, and as to the other part that the defendant go thereof without day.^^ So, too, if the verdict finds for a less interest than the whole estate, desig- nating the interest to be recovered in such a way as to show, its nature and extent, the judgment should follow the verdict in this respect.-* In every such event a general judgment that the plaintiff recover possession of the entire tract described in 21 Bradford v. Bradford, 5 23 Cole v. McLaughlin, 170 111. Conn. 127. ■ 278. 2'- Lyon V. McDonald, 78 Tex. 2* Meraman's Heirs v. Cald- 71. -well, 8 B. Mon. (Ky.) 32. g 482.] JUDGMENT. 539 the declaration, or of the whole estate therein, is erroneous, and will be set aside. ^^ It is manifest, in cases like the foregoing, that judgments awarding the whole when the verdicts find only for a part, are in direct violation of the fundamental rule that the plaintiff shall recover possession of the premises according to the ver- dict of the jury, and they have repeatedly been held to be un- authdrized and erroneous.^" So, too, if the verdict be for all of the land sued for and the judgment is only for a part." Where damages are permitted to be recovered with the land the verdict should find the extent of such damages in order to authorize a judgment therefor. Thus, where a jury returns a general verdict for the plaintiff without assessing damages, a judgment by the court for possession and damages would be unauthorized.^^ Nor can a verdict of recovery be extended by the judgment, as that plaintiff be adjudged to be the owner of the land and that defendant be enjoined from claiming title to the land re- covered. In every case the judgment must follow the verdict and the successful party must rely upon his judgment as a bar.2« § 482. Conditional judgment. — It has been held that where a plaintiff in ejectment recovers he is entitled to a writ of possession, notwithstanding there may be unsettled matters between himself and the defendant growing out of the latter's occupation, and that a court has no right to enter a conditional judgment.^" Where the action is regarded as strictly legal this will undoubtedly be the rule, but in a number of states the court is permitted to adjust equities and administer equitable relief and in such states a different rule may apply. ^'■ 25 Cole V. McLaughlin, 170 111. 20 Doyle v. Franklin, 40 Cal. 278; Reilly v. Blaser, 61 Mich. 106. 399; Gamble v. Daugherty, 71 so Riverside Co. v. Townshend, Mo. 599. 120 111. 9. As where the judg- 28 Marmaduke v. Tenant's ment required the payment of Heirs, 4 B. Mon. (Ky.) 210. a certain sum expended by de- 27 Obert V. Hammel, 18 N. J. fendant, as a condition precedent L. 73. to the issuance of the writ. 2s Cannon v. Davies, 33 Ark. ai See Stevenson v. Scott, 188 56. 540 VERDICT AND Ji;DGMKNT. [§ 483. § 483. Description of the land. — A judgment in eject- ment should specifically describe the land recovered in the ac- tion as well as the particular estate therein to which the plaint- iff is entitled,^- though in some instances where this is required a miscarriage in the entry of judgment may be obviated by the statute of amendments. ^^ Such description should be certain in itself, but this requirement is met if it is sufficient to enable the sheriff to execute the judgment without examining rec- ords.''* It has been ^held that it is sufficient if the judgment refers to the description in the pleadings/^ but if this descrip- tion is vague or indefinite,^" or if the land is incorrectly des- cribed in the declaration,''^ such reference will be insufficient. In every event the judgment must be of such a character as to permit of its execution by a writ of possession.'^ Indeed, this latter statement seems to be the test of sufficiency.'^ As at present administered the statutory action of ejectment partakes of the nature of a real action and a judgment on the merits is conclusive of the title between the parties. For this reason, it is said, greater certainty of description is neces- sary than would be required in ejectment at common law, which is a mere possessory action in which the judgment is not Pa. 234, 41 Atl. Rep. 533; Land is made certain by the reference Co. V. Chrisman, 172 Mo. 610. to the declaration, and the error 32BaIliett V. Veal, 140 Mo. 187; may be cured by amendment. Beraneli; v. Beranek, 113 "Wis. Morse v. Hewett, 28 Mich. 481. 272, 89 N. W. Rep. 146. In the foregoing case the cause S3 Thus, a, judgment entry that was tried before the court with- plaintiff "do recover against the out a jury. And see Mapes v. said defendant the possession of Scott, 94 111. 379; Franklin v. the premises aforesaid accord- Haynes, 119 Mo. 566. ing to the description thereof 34 Boyer v. Robertson, 149 Ind. contained in the said declara- 74, 48 N. B. Rep. 7; Franklin v. tion," etc., though formally in- Haynes, 119 Mo. 566, 25 S. W. accurate in omitting to describe Rep. 223. the premises except by refer- 35 Morse v. Hewett, 28 Mich, ence to the declaration, is not 481. so defective as to render the 36 Williams v. Kelso, 7 La. judgment invalid when attacked Ann. 406. collaterally; this imperfection is 37 Balliett v. Veal, 140 Mo. 187. a mere technical irregularity, ss Franklin v. Haynes, 119 Mo. and the lands being specifically 566. described in the declaration and 39 Davis v. Judge, 44 Vt. 500. title in fee claimed, the recovery §§ i84, 485.] JUDGMENT. _ 541 conclusive of the title. Hence, the premises should be so des- cribed that the record will furnish evidence of limits to which title is established by the judgment, as well as to point out to the sheriff who serves the writ of possession the extent and location of the land recovered.^" § 484. Description of estate. — ^As the verdict of the jury should specifically find the quantity of interest to which the plaintiff is entitled, so also should the judgment confirm this interest by special mention, yet in practice this is often omitted, and, when the entry of judgment contains references which tend to indicate such interest with certainty, the omission has been held not fatal to validity. Thus, where plaintiff claims to own the land siied for in fee, and the verdict finds the de- fendant guilty, and that plaintiff is the owner in fee of the lands described in the declaration, a judgment that plaintiff is en- titled to and shall have and recover of and from the defendant the possession of the land described in the declaration, to wit, etc., though technically defective, yet, when considered, in con- nection with the verdict it will be sufficient to show the estate recovered and will be allowed to stand.^^ As a rule, however, the judgment, following the verdict, should specifically designate the estate recovered.*^ § 485. Description of interest recovered. — In many cases it is essential that the judgment should describe the specific in- terest in the land to which the plaintiff has shown himself en- titled.*^ While it is permissible in many states for the owner of an undivided interest to sue for and recover the whole as against a stranger to the title, yet it is never proper to allow such owner to recover the whole where it is shown that the de- fendant owns another undivided interest. In such case the judgment should be to the effect that plaintiff is the owner of such undivided interest, and that he be let into possession with the defendant according to their respective interests.** *o Davis T. Judge, 44 Vt. 500. 43 Malioney v. Middleton, 41 4iMapes V. Scott, 94 111. 379; Cal. 41. Hawley v. Twyman, 24 Gratt. 4* Foster v. Haekett, 112 N. C. (Va.) 516. 546; Mahoney v. Middleton, 41 42Koon v. Nichols, 63 111. 163; Ca]. 41. Beranek v. Beranek, 113 Wis. 272. 542 VEEDICT AND JUDGMENT. [§§ 486, 487. § 486. Operation and effect. — A judgment in ejectment does not transfer to the successful party the title of the adverse party, but, if presented in proper form whenever such adverse title is drawn in issue, it shuts out all proof of same, and, in effect, bears a closer resemblance to an extinguishment than to a transfer of such adverse or opposing title. The judgment awards the possession of the lands to the prevailing party, be- cause he had title at the commencement of the action, and be- cause the losing party had no title, or not such a title as would authorize him to withhold the possession ; but it neither directly nor indirectly transfers the title. *^ Neither does the successful party, by virtue of a judgment in ejectment, acquire any title to the lands in controversy other than that which he previously had. The only advantage gained in this respect is the decision settling the rights of the parties and the merits of their conflicting claims. There is some con- fusion in the decided cases with respect to these views but they are sustained by the general theory of the action and by the further fact that the only effective force of the judgment is to award possession.^" § 487. Conclusiveness of judgment. — It is a familiar doc- trine with respect to legal adjudications that a judgment of a court of competent jurisdiction is not only final as to the sub- ject-matter, but also as to every other matter which the parties might have litigated in the case, and which might have been decided." Hence, a general finding of title in the plaintiff has been held a conclusive and binding decision against the defend- ant on all matters relating to title, from whatever source de-- rived,^' and, in furtherance of the principle that the estoppel of a judgment extends not only to every material matter within the issues which was expressly litigated but also to those mat- ters which might or should have been litigated and determined, 45Malioney v. Middleton, 41 102; Hobby v. Bunch, 83 Ga. 1; Cal. 41; Smith v. Shakleford, 9 Tadlock v. Eccles, 20 Tex. 782; Dana (Ky.), 452. Mahoney v. Middleton, 41 Cal. fio Consult Bell v. Peterson, 41; Sanders v. Peck, 131 111. 105 Wis. 607; Barber v. James;, 408. 31 R. I. 279; Goldsmith v. Smitli, ^a Hentig v. Redden, 46 Kan. 21 Fed. Rep. 611. 231; Reed v. Douglas, 74 Iowa, IT Huntly V. Holt, 59 Conn. 244; Edwards v. Roys, 18 Vt. 473. § 488.] JUDGMENT. 543 effectually concludes the defendant from asserting a claim of title of any kind which existed at the time of the rendition of the judgment or decree.*' The reason assigned for the rule is based primarily on the old maxim that the law discourages a multiplicity of suits, but it is a further policy of the law that parties should not be per- mitted to try the title to real property by piece-meal, in separ- ate and independent actions upon separate claims, when the evidences of such separate claims are in their control at the time the general issue is presented ; therefore, as conducing to the quiet and repose of titles, where all matters in controversy as to the title or right of possession may be finally ended in one action, the law requires that this be done.^" An apparent exception to this rule exists in some states where the old practice of allowing successive suits until two concur- ring judgments are obtained still prevails. But the exception is more apparent than real, for even where a new trial is per- mitted as of right the rule still holds good that, until set aside by the bringing of a new action, the judgment is conclusive as to the parties thereto and the matter adjudicated upon.'^^ § 488. Judgment as an estoppel. — As stated in the pre- ceding paragraph the judgment of a court of competent juris- diction is always conclusive on the parties thereto, and per- sons in privity with them, as to all points directly involved therein and necesarily determined, while under the provisions of the civil codes such judgment is not only final as to the sub- ject-matter, but also as to every other matter which the parties might have litigated in the case and which they might have had decided. The apparent exception where successive suits may be prosecuted, as is still the rule in a number of states, does not change the principle of res judicata but only extends it. 49 Hentig v. Redden, 46 Kan. Roys, 18 Vt. 473 ; Reed v. Doug- 231; Foster v. Hinson, 76 Iowa, las, 74 Iowa, 244; Huntley v. 714; Freeman v. McAnincli, 87 Holt, 59 Conn. 102; McCullough Tex. 132; Bradley v. LigMoap, v. Dashiell, 85 Va. 37; Tadlock 201 111. 514. v. Eccles. 20 Tex. 782. 50 Hentig v. Redden, 46 Kan. si Sanford v. Herron, 161 Mo. 231. And see Malioney v. Mid- 176, 61 S. W. Rep. 839, 84 Am. dleton, 41 Cal. 41; Edwards v. St. 703. 544 VEEDIOT AND JUDGMENT. [§ 489. A judgment in ejectment, or its statutory substitutes, is con- clusive of tlie title between the parties in favor of the one re- covering such judgment, '^ and operates as an estoppel not only to the assertion of the particular title in issue but also as to any other that might have been presented and passed upon.^^ This follows from the reason that when a fact has been once determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it can- not be again litigated between the same parties without vir- tually impeaching the correctness of the former decision, which, from motives of public policy the law does not permit to be done. A general finding of title in the plaintiff neces- sarily involves the finding of no title in the defendant, and this becomes a part of the essential groundwork upon which the judgment is founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that where a conclusion is indisputable, and could have been drawn onl)^ from certain premises, the premises are equally indisputable v/ith the conclusion.^'' Hence, where the record shows an action to recover the possession of land, and a verdict and judgment in favor of the plaintiff for the whole, parol evidence is not admissible to show that the only question litigated was one of boundary, and that the question as to the title to a part of the tract recovered was not, in fact, sub- mitted for decision nor decided.'^^ But the estoppel of a judgment in ejectment, as a geneial rule, extends only to titles actually existing at time suit was instituted and which were or might have been litigated in the action. § 489. Effect of vacation — Second trials. — The statute has made provision in many states for a retrial of the issues 62 Sanford v. Herron, 161 Mo. Iowa, 433; Morrill v. Morrill, 20 176, 84 Am. St. 703, 61 S. W. Oreg. 96; Sturtevant v. Randall, Rep. 839; Hurd V. Harvey Co., 40 53 Me. 153; Bradley v. Light- Kan. 92; Reed v. Douglas, 74 cap, 201 111. 514. Iowa, 244; Freeman v. McAn- 64 Burlen v. Shannon, 99 Mass. inch, 87 Tex. 132; Long v. Webb, 200; Redden v. Metzger, 46 Kan. 24 Minn. 380. 285. «i! Hentig v. Redden, 46 Kan. 55 Freeman v. McAninch, 87 231; Hackworth v. Zollars, 30 Tex. 132. § 490.J JUDGMENT, 545 in ejectment proceedings. Where application is made in apt time, and tlie requirements of the statute are otherwise com- plied with, the defeated party may have the former judgment vacated and a new trial of the cause. The effect of such an order is to render the prior judgment wholly inoperative and leave the parties in the same position they occupied before the trial.^' It necessarily follows, in such a case, that the usual doctrine of res judicata can have no application. Indeed, for the purposes of the second trial there is no former judgment; it has been vacated, set aside, and is held for naught. The re- trial proceeds as though there had never been a former judg- ment, and therefore no questions of estoppel can arise, even though the evidence offered in the second trial is identical with that offered in the first trial. ^' § 490. Effect of former adjudication in a different pro- ceeding. — Closely allied to the matters discussed in the pre- ceding paragraphs is the effect to be accorded to a prior ad- judication of the same subject-matter between the same par- ties, although in a different mode of proceeding. The general rule is that such adjudication operates as an estoppel upon the parties against subsequent litigation, at least as to all matters that were actually in controversy and decided by the judgment rendered therein.^* Hence, where a party has established his title to land by a decree in chancery, he will be estopped from prosecuting to judgment an action of ejectment to recover possession of the same land.^" This would certainly be the case if the plaintiff had been put into possession under the decree, and the fact that such decree was appealed from would furnish no grounds on which to prosecute the concurrent ac- tion at law. This follows for the reason, that the appeal does not vacate or set aside the decree, but merely suspends its ex- ecution, leaving it in full force as a merger of the cause of ac- tion and a bar to its further prosecutiop.^" 56 Sheldon v. Van Vleck, 106 102; Foster v. Hinson, 76 Iowa, 111.45. 714. 6T Hammond v. Carter, 161 111. 59 Moore v. Williams, 132 111. 621. 589; Peters v. Banta,- 120 Ind. 58 Garrick v. Chamberlain, 97 416. 111. 620; Hanna v. Read, 102 111. eo Oakes v. Williams, 107 111. 596; Huntley v. Holt, 59 Conn. 154;' Burton v. Burton, 28 Ind. 35 546 VERDICT AND JUDGMENT. [§ 491. § 491. Parties and privies distinguished. — The general rule is that judgments are conclusive en both parties and priv- ies. Parties are all who are directly interested in the subject- matter of the litigation or who have a right to prosecute, de- fend, or control the proceeding;"^ and, it is said, courts will even have a right to look beyond the nominal parties and treat as the real parties those whose interests are involved in the issue and hold them concluded by any judgment that may be rendered."^ Privies, are those whose relationship to the same right of property is mutual or successive. A privy to a judg- ment is one whose succession to the rights of property thereby affected accrued after the institution of the particular suit, and from a party thereto."' The privity may be in blood, in law, or in estate, but however existing the bar of a judgment is equally as effective between privies as between parties."* But while courts, in some instances, have been disposed to give a very liberal construction to the acts regulating the prac- tice in ejectment, and to include within the effect of judgments rendered in the action all persons in interest, the weight of au- thority, as well as legal reason, confines such effect to the par- ties of record and their privies, or, to be more exact, to persons claiming by, through or under such record parties by title ac- cruing after the commencement of the action."^ The old New York statute, which forms the basis of the larger portions of the present legislative enactments in most o? the states, dis- tinctly provides that the conclusive effect of the judgment ap- plies only to parties and those claiming under them. Where- ever this statute has been construed the general rule, that stat- utes are not presumed to alter the common law farther than they expressly declare, ■ has been Very uniformly applied and the word "party" has been held to mean only the person or persons named in the record, and the record itself is held to be the test as respects the person or persons against whom the 342; Peters v. Banta, 120 Ind. es Ortliwein v. Thomas, 127 416. 111. 554. 61 Giltinan v. Strong, 64 Pa. 64 Drexel v. Man, 2 Pa. St. St. 242. 267. ea Peterson v. Lothrop, 34 Pa. es Lipscomb v. Postell, 38 St. 223. Miss. 476; Blue v. Blue, 38 111. 9. § 492.] JUDGMENT. 547 verdict is rendered."" It will be seen, then, that under the pro- visions of these statutes there is a marked difference between parties of record and their privies and parties in interest, and that, while the former are concluded by the judgment the lat- ter may not be."' § 492. Effect on after-acquired title. — There can be no dispute with respect to the fundamental rule that a judgment at law, in any form of action, is conclusive upon parties and privies upon all questions, rights, and titles, involved in the litigation and passed upon by the court ; nor with respect to the further rule, that whenever the same questions, or the same rights and titles are again drawn in issue, either at law or in equity, between the same parties or those in privity with them, the previous adjudication will estop them from again opening the controversy or relitigating the questions. But to these well known and universally received rules there must be appended an important qualification, viz. : that the matter must have been one which the court had power and jurisdiction to hear and determine. A judgment in ejectment is not distinguishable in its general features from other judgments in legal actions and the rules just stated apply to it with the same force as to other judg- ments and subject to the same qualification. It will frequently happen, however, that a party to an ejectment suit acquires a subsequent and different title from that presented on the trial and the question then arises as to how far the prior judgment is conclusive and to what extent, if any, the new title may be em- ployed in a subsequent action. 66 Byerss v. Rippey, 25 WencJ. and the judgment cannot be in- (N. Y.) 431; Cadwallader v. terposed as a bar to an action of Harris, 76 111. 370; Whitney v. ejectment subsequently brought Higgins, 10 Cal. 547; Short v. by him for the same land. Cad- Galway, 83 Ky. 501. wallader v. Harris, 76 111. 370. 67 Thus, a recovery In eject- So, too, a judgment against a ment against the vendee of tenant is not evidence against land who is in possession under the landlord unless he was ad- a contract for purchase, is not mitted to defend or join with conclusive upon the rights of the the defendant in making the de- vendor, who was not a party of fense, notwithstanding he may record, even though he had no- be dispossessed by the writ of tice of the pendency of the suit, possession against the tenant if 548 TEEDICT AND JUDGMENT. [§ 493. The title involved is usually the one asserted by plaintiff. He is required to sustain his allegations by proofs and the question actually presented and decided is, whether those proofs are sufficient. If they are, he is entitled to recover ; if they are not, judgment is passed against him and all questions arising out of the title asserted are considered closed. As a rule, such trial and determination do not affect the defendants title in any way; nor does the judgment even admit that he had any title; it simply decides that the plaintiff had none."' In such event v/hat would be the rights of the unsuccessful plaintiff who subsequently acquires a new title? Would the proceeding in the ejectment suit be within the doctrine of res judicata and could the defendant in that suit, if still in posses- sion, urge such suit as a bar to second action ? The answer of the authorities would seem to be that an unsuccessful plaintiff may, by the acquisition of new title, rehabilitate himself, and that upon such new title he may again bring ejectment against the former defendant or whoever may happen to be in posses- sion of the premises, and the former adjudication will insti- tute no impediment to a recovery."^ This rule proceeds upon the theory that the new title thus put in issue was not involved or passed upon in the former trial and, hence, cannot be af- fected by that adjudication. § 493. Effect on adverse possession. — As to the legal ef- fect of a judgment in ejectment with respect to the adverse possession of those against whom it is rendered the authorities are not in accord. It has been held, in some cases, that the re- covery of the judgment ipso facto destroys the continuity of possession under an adverse holding and stops the running of the statute, notwithstanding the actual possession of the occu- pant has not been disturbed.'" It is further held, by this line he receives possession from the 70 See Brolaskey v. McClain, latter pendente lite. Wilson v. 61 Pa. St. 146. In this case a State, 115 Ala. 129, 22 So. Rep. party had been in possession for 567. eight years when action was 88 Hawley v. Simons, 102 111. commenced; seven years there- 115. after judgment was recovered 89 Hawley v. Simons, 102 111. against his heirs, who, it seems, 115; Barrows v. Kindred, 71 V. then continued in actual posses- S. 399. sion for ten years more. Held, § 4:94:.] JUDGMENT, 549 of decisions, that in order to suspend the statute of Hmitations, as against the plaintiff in ejectment, it is- not necessary that a writ of possession should issue or that the plaintiff should take possession under his judgment.'"- The decisions supporting this view rest upon the principle that a judgment in ejectment is res judicata as to the parties thereto and the matter adjudi- cated until set aside or reversed, or its legal eft'ect destroj'ed by the result of another action by the same parties. While such judgment does not prevent a defendant from bringing another action to try the title, yet until he does so both he and his privies are bound thereby during the life of the judgment.'- The better rule, however, would seem to be that a judgment in ejectment against a party who holds adversely does not, of itself, suspend the operation of the statute. To have that ef- fect there should be something done under it to subordinate the defendant's possession to the plaintift"'s title ; a writ must be sued out, or an entry made, or, in some way, there must be an actual or constructive change of possession. The judg- ment establishes a right to possession, but does not establish a new title so as to interrupt the running of the statute.^' § 494. Effect on persons entering pendente lite. — It is a familiar rule of law that one who purchases any interest in land then the subject of litigation, from any of the parties to such controversy, must be held to abide the ultimate decision that may be rendered in the case. And, in ejectment, one who enters under the defendant, after the commencement of the action, must yield up possession to the prevailing plaintiff or suffer himself to be ousted by the writ of restitution."* Indeed, that the recovery of the judg- ts Doe v. Reynolds, 27 Ala. ment suspended the running of 364; Jackson v. Haviland, 13 the statute of limitations. In Johns. (N. Y.) 229; Smith v. Go-wer v. Quinlan, 40 Mich. 572, Trabue, 1 McLean, (C. Ct.) 87; it -was held that continuity of Elder v. McClaskey, 70 Fed. Rep. possession -was broken by a ds- 554; Carpenter v. Natoma, etc. cree requiring the occupant to Co., 63 Cal. 616. And see Barrell convey the land. To the same ef- v. Title Guarantee Co., 27 Oreg. feet, Sanford v. Herron, 161 Mo. 91. 176. T4 Ritchie v. Johnson, 50 Ark. TiEstes V. Nell, 140 Mo. 639, 551; Hanson v. Armstrong, 22 il S. W. Rep. 940. 111. 442; Ho-ward v. Kennedy, 4 " See Estes v. Nell, 140 Mo. Ala. 592. 639. 650 VEEDICT AND JUDGMENT. [§ i^J. the law will presume that all who enter after action brought come in under the defendant, and, if the plaintiff recovers, must, for that reason, go out under the writ/^ The presump- tion is rebutable, however, and if, in fact, such subsequent en- try is made not through the parties to the action but in pur- suance of an independent and hostile claim, then this fact will protect the occupant and the final determination will not affect his rights/" But to render the defense of independent title available as a shield against the effect of the judgment there must be no privity of znj kind between the defendant in the action and the subsequent occupier, and, notwithstanding that such occupant may claim under an independent title, if he also claims under the defendant, he will not be permitted to tack the possession acquired from the defendant to the subsequently acquired independent title, and thus bid defiance to the writJ^ § 495. Where plaintiff's right expires pendente lite. — Un- der the ancient form of the action, when the term was con- sidered substance, and hence not amendable, the plaintiff was non-suited if the term expired before the trial, but is seems he was still permitted to proceed for his damages and costs, al- though denied a recovery of the land. The reason for this was, that the right to damages for the ouster remained, not- withstanding the right to possession under the lease was deter- mined. The modern statutory remedy has preserved the spirit of the ancient law, and, while the general rule is that the plaintiff shall recover according to his right at the time suit was brought, yet, if his right or title shall expire after the commencement of the suit, but before trial, the verdict must be returned ac- cording to the fact, and judgment should be that he recover his damages, to be assessed, by reason of the withholding of the premises by the defendant, and that as to the premises claimed the defendant go thereof without day. 75 Sampson v. Ohleyer, 22 Cal. Cal. 346; Powell v. Lawson, 49 200; Wetherbee v. Dunn, 36 Cal. Ga. 290; Garrison v. Savignac, 147; Oetgen v. Ross, 47 111. 142. 25 Mo. 47. 76 Clark V. Parkinson, 10 Allen ■'^ Ritchie v. Johnson, 50 Ark. (Mass.), 133; Ford v. Doyle, 37 551; Montgomery v. "Whiting, 40 Cal. 294. § 496.] JUDGMENT. 551 It would seem that the object of the statute is to save the rights of a plaintiff who at the institution of a suit has a valid right of recovery which subsequently, for any reason, ceases before trial. This was certainly the idea of the old law and is practically the letter of the modern statute. We may illustrate the principle by taking the case of a tenant for years whose term expires by limitation, or a tenant for life per autre vie, where the person whose life was the limit of the estate dies. In each of these cases there is an actual "expiration" of the plaintiff's right, but, having a valid and enforcible claim' at the time suit was commenced, he should, in common fairness, be permitted to recover his damages even though his right to recover the land be denied. In this view the authorities are substantially agreed. A somewhat different question is pre- sented where the right or title of the plaintiff does not "expire," in the strict construction of the term, but is simply transferred to another ; as where the owner in fee conveys the land in con- troversy pending the suit. In such event it has been held that the conveyance will not defeat the. right of recovery and that the statute above referred to does not apply. '^ § 496. Where defendant acquires plaintiff's title pending suit. — A somewhat peculiar question is presented where the right of possession passes from the plaintiff and becomes vested in the defendant during the pendency of the suit. It is clear that upon principles of abstract justice the plaintiff, in such event, should not be permitted to have a judgment for posses- sion, although, technically, he would be entitled to same under the ordinary forms of pleading. It may be said that where such a transfer has resulted from the voluntary act of the'par- ties the question is without practical interest, as the convention which produced the change of possession must, as a rule, pro- vide for the termination of the suit by a dismissal of the dec- laration. In the ordinary case this would undoubtedly be true, yet cases may occur where the plaintiff will insist upon a judg- ment, as well for the taxatioii of costs as for an ultimate right -to recover the mesne profits. Thus, say a corporation con- ducting a public utility, or a town desirous of acquiring a site 78 Mills v. Graves, 44 111. 50. 552 VEKDICT AND JUDGMENT. [§ i97. for some public use, enters upon land without right and ousts the owner therefrom. He may at once resort to an ejectment, and, as he possessed title at the time suit was brought, should have no difficulty in securing a judgment for the possession. But suppose further, that the defendant, without the con- currence of the plaintiff, but under the regular forms of law, shall, during the pendency of the suit, become invested with the plaiijtiff's title; as where the land is properly condemned and full compensation paid or tendered. Such title should be accorded the same respect and given the same protection as one obtained in any other mode, and in a case of this kind we can readily see where the question involved in this paragraph would become very important. It does not seem that this question has been much considered by the courts, but where it has been presented the holding has been that where a plaintiff's right of possession has been ex- tinguished it would be an idle act to award a possession he could not hold after it had been given to him, and that where a defendant, in a lawful manner, has become the owner of land he should not be deprived of its possession. When, there- fore, a case of this kind occurs it seems the proper practice is to plead the facts as a bar to the further maintenance of the suit, and upon such plea the court may enter a judgment of discontinuance and award costs according as the rights of the parties may appear.'^ § 497. Amendment of judgment.^It is said that judg- ments may be amended in the furtherance of justice and stat- utes to this end, in many of the states, permit corrections of errors which have intervened through mistake, .inadvertence, surprise, or excusable neglect. But even where this doctrine is recognized and such statutes prevail, the general rule stiU seems to be that a court is without power to alter, vary or amend a final judgment after the close of the term at which it was rendered, except for the correction of mere clerical errors or omissions.'" The theory of the entry of judgments and the 79 Leavitt v. School District, 294 ; Bank v. Blye, 119 N. Y. 414 ; 78 Me. 574. Cook County v. Calumet Canal 80 Carlisle v. Killebrew, 91 Ala. Co., 131 111. 505. 351; Cook v. Moore, 100 N. C. § ^97.] JUDGMENT. 553 power of correction seems to be, that the court has authority at all times in tern^, to amend and correct its records so as to make them speak the truth and be consistent, and to make proper entries nunc pro tunc that were certainly intended but omitted by mistake, accident, or inadvertence of the ofificers of the court. Such authority is essential to the proper adminis- tration of justice, and is universally recognized as one of the inherent powers of a lawfully constituted tribunal. Ordinarily the entries made in the course of the business of the court are presumed to be correct, and import absolute verity while they are allowed to remain. But, it is contended, the mere entry in writing on the minutes from which the record is made up does not itself constitute the judgment of the court ; it is only evidence of it. The judgment is the conclusion of law as de- termined and applied by the court to the case before it, and, it is said, remains in the mind of the court until it shall be truly entered of record. When the conclusion of the law in a case is thus reached, the court cannot, after the term at which it was entered, interfere with it. The entry of record, however, must embody and be what the court actually determined, — what it decided, and what it intended should be so entered ; otherwise the judgment that was pronounced will not have been entered of record. Hence, the court may, at a subsequent term, enter it correctly nunc pro tunc. But this is the full extent of its power. It cannot amend or modify a judgment regularly en- tered of record at a preceding term, but may correct, amend or modify such a one improperly entered, or enter one which, through accident, mistake of fact, or inadvertence of the court, was not properly entered.^^ As between the original parties it does not seem that there is any limitation of time in which such amendments may be al- lowed, so long as anything definite and certain remains to amend by,*~ but all amendments must be made with a saving of the intervening rights of third persons, if any.^' This fol- lows from the fact that until the amendments are actually 81 Per Merrimon, X, in Cook v. sa McCormick v. "Wheeler, 36 Moore, 100 N. C. 294. 111. 114; Ryon v. Thomas, 104 82 Church v. English, 81 111. Ind. 59. 442. 554 VEEDICT AND JUDGMENT. [§ 498. made, third persons can act upon nothing but the official rec- ord, which imports absolute verity, and therefore all rights previously acquired upon the faith of the record are in no man- ner affected by subsequent amendments.^* § 498. Annulment of judgment. — Many of the observa- tions of the preceding paragraph relating to amendments ap- ply to motions or proceedings for annulment, and the same principles which prevent a court from amending a judgment at a subsequent term prevent it from annuling or vacating it except where the judgment is void on its face, either for want of jurisdiction of the subject-matter or of the parties.*'' Ap- plications of this kind are frequently based upon a want of suf- ficiency in the description of the land sought to be recovered, resulting in uncertainty, and most of the cases turn on this point. It has been said that every judgment of a court of justice must be perfect in itself, or capable of being made perfect by reference to the pleadings or to the papers on file in the cause, or to other pertinent entries on the docket,*" and this is partic- ularly true where the judgment is of a special character and not only confirms rights, but rights in or to a specific thing. In ejectment a general verdict is sufficient,*^ and, in such case, recourse may be had to the declaration for a description of the lands to be recovered. If the judgment follows the declaration this will generally be sufficient, nor is it essential that from a mere inspection of the desctiption the court may be enabled to know just what lands were intended. The tract may be designated by some name not understood by the court, but familiar to persons acquainted with the neighborhood in which the land is situated, and if by evidence aliiDide it can be shown that the descriptive words though apparently meaningless do in fact designate a particular tract, in such a manner that its identity can be readily be ascertained by persons who are fam- iliar with it, the judgment is sufficiently certain.*^ As a rule, 84 McCormick v. Wheeler, 36 ss Alexander v. Wheeler, 69 111. 114; Church v. English, 81 Ala. 342. 111. 442; Indiana, etc. Ry. Co. v. s? Chapman v. Holding, 60 Bird, 116 Ind. 217. Ala. 522. R= Carlisle v. Killehrew, 91 Ala. ss De Sepulveda v. Baugh, 74 351. Cal. 468; Carlisle v. Killehrew, § 4:98.] JUDGMENT. 555 a judgment will not be pronounced a nullity for uncertainty of description unless it is fully apparent on its face that nothing is described.*' It will often happen that a description of itself is insufficient to definitely locate land and yet it may be suf- ficient as a designation, which, aided by extrinsic matters, is capable of being reduced to certainty. Thus, a judgment for the recovery of "fraction No. 12, a part of the southeast quar- ter and northeast quarter of section 16, township 4, range 4, containing 34.75 acres," which description follows that in the declaration, is not void upon its face, notwithstanding that it fails to definitely locate the land. There may be diagrams, plats, or surveys from which the exact limits and boundary hnes of the fraction can be ascertained and these may be re- sorted to in all proper cases for the purpose of definite loca- tion. °° On the other hand, we find courts holding strictly to the rules of conveyancing and refusing to make intendments for uncertain descriptions, and where the description in the declaration is incorrect, or where it is impossible therefrom to locate the land, a judgment founded thereon cannot stand. "^ But where the verdict is special, as where it embraces only a part of the lands sued for, it is necessary in all cases to des- cribe either the part to be recovered or the part which is de- nied, and this in such a manner that an effective judgment can be entered upon it. Where the verdict is ambiguous, or fails to designate the precise tract to be recovered, and there is nothing in the pleadings or papers on file, or entries made, to define such tract, a judgment entered thereon will be void for uncertainty."^ Again, the judgment must not depart from the verdict, and a material variance will generally vitiate it."^ This is particularly true in the case of special verdicts."* 89 Ala. 334; McPike v. Allman, Ala. 342. In this case the jury 53 Mo. 551. And see Freeman on found for the plaintiff for "the Executions, § 281. land running to the Ferguson 89 De Sepulveda v. Baugh, 74 and Allen line," but there was Cal. 468, 5 Am. St. 455. nothing to show where such line 90 Carlisle v. Killebrew, 91 Ala. was. 351, 24 Am. St. 915. See Boyer os Obert v. Hammel, 18 N. J. L. v. Robertson, 149 Ind. 74. 73. 91 Balliett v. Veal, 140 Me. 187, 9* See Cole v. McLaughlin, 170 41 S. W. Rep. 736. 111. 278; McCraven v. Doe, 23 92 Alexander v. Wheeler, 69 Miss. 100. 556 VEEDIOT AND JUDGMENT. [§§ 499, 500. § 499. Against officers of United States. — Notwithstand- ing some earlier cases to the contrary it would now seem to be an established rule that an action of ejectment will lie against the agents or officers of the United States for the recovery of lands in the possession of such officers. The mere fact that the demanded premises are held for and on behalf of the govern- ment will not oust the jurisdiction of the court, and a plea of title in the United States is not distinguished from a plea of title in any other third person. Should such an issue be raised the court is bound to try it, the same as any other issue in the case, and render judgment in accordance with the ver- dict."^ But while such procedure is no longer open to doubt, it would yet seem that the effect of a judgment rendered against the defendant is not governed by the same rules that obtain generally in the action. Ordinarily the judgment in ejectment works an estoppel, binding alike on parties and privies. But where the judgment is recovered against a mere officer of gov- ernment, holding possession of the demanded premises solely by virtue of his office, such judgment, while it decides the ques- tion of title and finds the rights of the plaintiff, does not con- clude the government, nor estop it from relitigating the title. Notwithstanding such judgment it may still avail itself of all the remedies which the law affords to every person, nat- ural or juristic, for the assertion and vindication of rights. It may bring an action in equity to quiet its title, and, in a proper case, a writ of injunction may be obtained; or it may bring an action of ejectment in which, on a direct issue, its title may be judicially determined; or, if satisfied that its title has been shown to be invalid, and it still desires to use the property, it may condemn it by a judicial proceeding in which a just compensation shall be ascertained and paid.^" § 500. Against persons deceased. — It is a maxim of the common law that a judgment can be rendered only against a living person and from this is derived the rule that an action abates by the death of the defendant. Hence, a judgment 95 See § 171, supra. Otto, (tJ.' S.) 196; King v. La- 98 United States v. Lee, 16 grange, 61 Cal. 221. § 501.J JUDGMENT. 'JoT against a person dead at the time of its rendition is void, ani may be assailed collaterally. This doctrine has been retained in a number of states,^' and where it prevails such a judgment has no force or effect. It does not bind the parties, creates no estoppel, divests no rights, and may be set aside either directly or in a collateral proceeding. But while the foregoing views are entertained in a few states, the volume of authority sustains the proposition that a judgment against a deceased person is not void, but irregular and erroneous only. In other words, that it is voidable upon a proper application made but until set aside by some appro- priate proceeding is valid and conclusive of the question adju- dicated.^^ It is contended that where a court acquires juris- diction of the parties and of the subject-matter of the litigation, it possesses the power to proceed to the final disposition of the action, and while it should cease to exercise its jurisdiction over a party at his death, yet the neglect so to do would amount to no more than an error, to be corrected by some proceeding in the action, and the judgment, although irregular, is not, on that account, subject to collateral assault.^^ It is further con- tended, in support of this proposition, that an action of eject- ment is, in one sense, a proceeding in rem, and therefore a judgment of recovery where one or more of the defendants is dead, the death not having been suggested upon the record, is, at most, merely irregular. § 501. Effect on landlord of judgment for or against ten- ant. — An action of ejectment is properly brought against the party in the actual occupancy of the premises. When such occupant is a tenant it is his duty at common law, as well as under the statute as generally enacted, to notify his landlord 87 See Weis v. Aaron, 75 Miss. Neb. 486; Carr v. Townsend, 63 65 Am. St. 594; McCloskey v. Pa. St. 202; Reid v. Holmes, 127 Wlngfield, 29 La. Ann. 141; Mass. 326; Knott v. Taylor, 99 Bragg V. Thompson, 19 S. C. N. C. 511; Harrison v. McMur- 572; West v. Jordan, 62 Me. 484; ray, 71 Tex. 122. Meyer v. Hearst, 75 Ala. 390; do See Hays v. Shaw, 20 Minn. Life Ass'n v. Fassett, 102 111. 405; Gilman v. Donovan, 53 315. But compare Claflin v. Iowa, 362; Mitchell v. Shoonover, Dunne, 129 111. 241. 16 Oreg. 211; McClelland v. BSMcCormick v. Paddock, 20 Moore, 48 Tex. 355. 558 VEEDICT AND JUDGMENT. [§ 502. of the pendency of the suit, and thereupon a corresponding duty devolves upon the landlord to protect the possession of his tenant. If the tenant fails to discharge this duty and judg- ment of recovery is rendered against him, the landlord is no more bound thereby than he would be by a judgment in any other legal proceeding to which he was not a party .^ But where a landlord has been notified by his tenant that action has been commenced, and has timely knowledge of the suit and an opportunity of asserting his rights, whether he avails himself of such opportunity or not, he will be concluded by a judgment for the plaintiff, though the judgment may have been only against the tenant, in name.^ And it would seem that this result will follow if the landlord has actual knowledge of- the suit, no matter how such knowledge was de- rived.^ It has been held that a judgment in ejectment in favor of a tenant does not inure to the benefit of the landlord nor work an estoppel in his favor, unless he has openly appeared in the case and undertaken the defense, and, in such event, whether he defends in the name of the tenant or is substituted in his place, such appearance or substitution should be entered of record.* This doctrine proceeds upon the principle that the parties to be estopped must be indicated by the record, and "it would be dangerous," observes the court in one case, "to ex- tend the rule to cases where there is nothing in the record of the action tending to show that the landlord took the defense upon himself."^ § 502. Revivor. — By the old rule of the commori law a judgment became dormant unless execution was issued within a year and a day after it had been entered, and the early prac- tice in this country was the same as under the old English law. This practice, however, has been very mXich altered by legis- 1 Oetgen v. Ross, 47 111. 142; s Thomsen v. McCormick, 136 Lowe T. Emerson, 48 111. 160; 111. 135. Rogers v. Rippey, 25 "Wend. (N. ^Loftls v. Marshall, 134 Cal. Y.) 432; Valentine v. Mahoney, 394, 86 Am. St. 286, 66 Pac. Rep. 37 Cal. 393. 571. 2 Oetgen v. Ross, 47 111. 142; = Valentine v. Mahoney, 37 Cal. Thomsen v. McCormick, 136 111. 393. 133. § 502.] JUDGMENT. 559 lation in all of the states, but the old idea which imputed laches after a certain interval of time had elapsed has been re- tained and it is still the rule that unless execution shall be issued within a fixed period, varying from five to seven years, a judgment becomes ineffective unless revived. When the action of ejectment was introduced the practice al- ready established in other cases, with respect to writs of execu- tion, seems to have been followed, both in England and Am- erica." But when the action was remodeled, as described in other parts of this work, no provision was made respecting the time within which a writ of possession should issue, while sub- sequent legislation made the judgment in the action, while re- maining unreversed, conclusive of the title of the successful party, and of his right to possession of the premises recovered, without regard to the mode of execution. It is true, that the general rules of practice in other actions at law are now made to apply to actions of ejectment, but only in so far as they may be adapted to that remedy, and much of the confusion that has arisen has grown out of the failure to properly distinguish between executions of money judgments and writs of posses- sion. The lien of a judgment for a specific sum of money has no analogy ^to the property right which is established by a judgment in ejectment, and the rules provided for the preser- vation of such lien by execution are not applicable to writs of possession. The lien is a mere right to have the land upon which it rests sold for the purpose of making the money re- covered by the judgment, and this right expires unless en- forced in the manner and within the period provided by stat- ute. Having once expired it is incapable of revival, although upon revival of the judgment a new lien may be acquired. But in ejectment it is the rigfa of possession of the land that is recovered by the judgment, and the right thus established is no more extinguished by the lapse of the limitation period for the issuance of execution than is the plaintiff's right to the debt or damages recovered in a money judgment. In either case .the right of the prevailing party to the subject-matter re- covered continues and is capable of enforcement, in a proper 6 See 2 Tidd's Pr. 1102; 2 Sellen's Pr. 204. 560 VERDICT AND JUDGMENT. [§ 502a. mode, so long as the judgment itself is not barred by the stat- ute of limitations.' Where, however, the general law limits the time during which an execution may be issued, and prohibits the enforce- ment of judgments after the expiration of such period unless the same shall have first been revived, it would seeni that a judgment in ejectment would fall within the inhibition and be- come dormant after the period had passed. Hence, if the plaintiff has neglected to sue out a writ of possession within the time limited for the issuance of executions, it would fur- ther seem that in order to avail himself of the benefit of the judgment he must revive it in the manner prescribed by law. When this has been done process may issue as in other cases. ^ The statute, generally, provides that a judgment of a court of record may be revived at any time within twenty years from the time such judgment was entered. The proceeding to revive a judgment is not an original suit, but merely a continuation of the suit in which the judgment was rendered," and the only defense that can be interposed is a denial of the existence of the judgment or proof of a sub- sequent release.^" It is usually instituted by a writ of scire facias, or its statutory substitute, which should set forth the facts upon which the right to have the judgment revived de- pends. Where a party, by 'delaying execution, has suffered his judgment to become dormant a legal presumption is raised against its continued validity, and this presumption must be met and rebutted by showing that there has been no execution of the judgment and that the right thereof still exists.'-^ § 503a. Reversal. — Where a judgment in ejectment has been reversed on appeal the effect of such reversal is to remit the parties to the same condition which they were in prior to the rendition, and their respective rights remain the same as though the cause had never been heard or decided. If the ac- 7 Smith v. Stevens, 133 111. 183. lo Dowling v. McGregor, 91 Pa. sBowar v. Railway Co., 136 St. 410. 111. 108. 11 Wolf V. Poundsford, 4 Ohio, estate V. Foster, 7 Vt 52; 397. Eldred v. Hazlett's Adm'r, 38 Pa. St. 16. . § 502a. J JUDGMENT. 561 tion is not prosecuted, or if the plaintiff dismisses his suit, nothing can be predicated on the reversed judgment and the matters involved will not be res judicata. These are the prin- ciples which apply to reversed judgments generally and there is no distinction in this respect between judgments in eject- ment and those rendered in other actions. Where a judgment is thus nullified by the order of a superior court it follows that the successful litigant below can take nothing under it and that he must restore whatever he may have received. If the judgment be for the plaintiff, and he has been let into possession, he must restore such possession,^-' and, it seems, the defendant would also be entitled to the value of the rents and profits which he may have lost while out of possession.^' 12 Colburn v. Tantis, 176 Mo. is Crispen. v. Hannovan, 86 Mo. 670. 417. 36 CHAPTER XIV. WRIT OP POSSESSION. 503. Generally considered. § 516. Continued — Adverse '504. Requisites of writ. views. 505. Time of issuance. 517. Fixtures. 506. Execution of writ. 518. Continued — Special in- 507. Continued — Execution stances. witliout eviction. 519. Return of the writ. 508. Delivery of possession. 520. Recalling writ — Order of 509. Who may be evicted. restitution. 510. Continued — Husband 521. Restraining execution of and wife. writ. 511. Who may not be evicted. 522. Restitution of possession 512. Persons entering pend- under reversed judg- ing suit. ment. 513. What may be taken 523. Continued— Where stran- under the writ. gers are concerned. 514. Crops. 524. Alias writ. 515. Continued Harvested crops. 525. Entry without writ. § 503. Generally considered. — Where the plaintiff has successfully maintained the issue presented by the pleadings, and a judgment has been rendered in his favor, he is entitled to be placed in the actual possession of the lands sued for by the arm of the court. The effective means for the accomplish- ment of this purpose is generally known as a zvrit of posses- sion. Under the old practice the restitution of the premises, upon a judgment in ejectment, was accomplished by what was known as a writ of habere facias possessionem, which was a judicial writ issuing out of the court in which the action was brought and directed to the sheriff of the county wherein the venue was laid; it recited the judgment and commanded him, without de- lay, to cause the plaintiff to have possession of his term then still to come off and in the tenements recovered. It lay upon all judgments for the plaintiff, whether against the casual § 504.J WEIT OF POSSESSION. 563 ejector, tenant, or landlord, and might issue at any time within a year and a day after judgment had been signed. Upon being sued out the writ was delivered to the sheriff who made out a warrant thereon directed to his officer and the sheriff or his officer thereupon delivered possession of the lands recovered, all'power necessary for this end having been given him. In the modern remedy the procedure has not been materially changed and a plaintiff recovering judgment is entitled to ex- ecution thereof by a writ of possession, the form of which is usually prescribed by statute. The writ is directed to the sheriff and after reciting the recovery of the judgment com- mands him, without delay, to deliver to the plaintiff the pos- session of the premises so recovered, and in addition to collect the costs that may have been taxed in the case. A separate execution may, however, issue for the costs. The writ of possession is not altogether analogous to a writ of execution, nor do the rights of the plaintiff to the possession depend thereon. The judgment, in itself, binds the land of which the writ directs possession to be delivered and the office of the writ is simply to carry the judgment into effect with ref- erence to such land. Its operation is practically a writ of as- sistance. The plaintiff has a right to take possession, by vir- tue of the judgment, without any writ, if he can peaceably do so. In such event the judgment will be sufficient evidence of his right of entry, as between the parties and their privies, and will protect him as long as it continues in effect.^* Nor is a writ necessary where the defendant quits possession, or has only a technical possession.'-' § 504. Requisites of writ. — The form of a writ of posses- sion is generally prescribed bA^ statute, and, like all statutory writs, a substantial compliance with statutory directions is necessary. If the writ is defective a motion to quash is in order, and it seems that unless such motion is made no error can be assigned for the defect.^" The land to be recovered 1* Jackson v. Haviland, 13 is Craft v. Yeaney, 66 Pa. St Johns. (N. Y.) 229; Witbeok v. 210. . Van Rensselaer, 64 N. Y. 27; leParr v. Van Horn, 38 111. Bowar v. Railway Co., 136 111. 226. 101. 664 WEIT OF POSSESSION. [§ 505. should be fully and properly described/^ but technical ac- curacy is not always required and the writ will not be void for uncertainty of description if the land is described so that its boundaries are possible of identification by the sheriff in the field. ^* Like other executory writs it should conform to the judgment/^ as respects both parties and subject-matter. § 505. Time of issuance. — By the rules of the common- law action it became necessary, where a judgment for recovery had been entered, for the writ of possesion to issue within a year and a day from the time of such entry, and where the plaintiff failed to take same out, within the time thus limited, a revival of the judgment by si. fa. was required. This rule seems to have been adopted by analogy to the existing practice in personal actions when the action of ejectment was intro- duced, and as a reason therefor it was said, that where a plaint- iff had lain by so long after judgment it should be presumed that he had released the execution,"" and therefore, the defend- ant should not be disturbed without being called upon, and hav- ing an opportunity in court of pleading a release, or showing cause, if he could, why the execution should not be enforced. ^^ This rule, however, has been generally abolished in the changes to which the action has been subjected and the general rules which regulate the practice in respect to judgments and ex- ecutions apply to the statutory action of ejectment, in the ab- sence of specific provisions to the contrary. It is, of course, still necessary that the writ should issue in apt time, but what shall be considered apt time must be deter- mined from the general laws in respect to practice, where the statute is silent, and not from the old rules where they appear to be inconsistent. It has been intimated that where a plaint- iff fails to take out his writ of possession for a year after judg- ment, it is doubtful if he is entitled to it without a special or- der,^^ but this dicta seems to have been but an undefined reflex 17 Williams v. Kelso, 7 La. 21 Bac. Abr., tit. Ejectment; Ann. 406. Adams, Eject., sec. 246; 2 Sel- ls Lawrence v. Davidson, 44 Ion's Pr. 204. Cal. 177. =2 0etgen v. Ross, 47 111. 142. 19 Skinner v. Hannan, 81 Hun, And see Hess v. Sims, 1 Yerg. (N. Y.) 376. (Tenn.) 143. 202 Tidd, Prac. 1103. § 506.] WEIT OF POSSESSION. 565 of the ancient rule respecting laches, and has since been de- nied.^^ The statute generally provides that the rules of prac- tice in other actions shall have the same force in actions of eject- ment, so far as they are applicable, and where the act concern- ing ejectment makes no provision as to the time within which a writ of possession may issue the general provision for the issuance of executions must prevail. Thus, if the statute with respect to the manner of enforcing judgments provides that execution may issue at any time within a given number of years, this would control and operate as a repeal by implica- tion of the old rule.-* Where the time within which a writ may issue is fixed by law it would seem that the computation should be from the rendition of judgment rather than the day on which the term of court ends.^^ § 506. Execution of the writ. — All of the authorities are strenuous in their announcement of the doctrine, that to sat- isfy the judgment in ejectment there must be a thorough and complete execution of the writ of' possession. It is the duty of the sheriff to remove from the lands therein described, and of which possession is to given, all persons found thereon to- gether with their property and effects, and to put and leave the plaintiff in the full, complete and quiet possession thereof.^" Nor will a mere formal delivery of possession sat- isfy the requirem.ents of the judgment. Such possession must be effectual, and the delivery thereof of such a character as will insure to the plaintiff a peaceable occupation of the land, for, as has been said, to turn out the defendant, and put in the plaint- iff, under circumstances which indicate beyond a reasonable doubt that the latter cannot remain in possession, even, for a day, without imminent peril of personal injury, but must, to avoid such hazard, immediately abandon the possession and 23 Bowar v. Railway Co., 136 se Lankford v. Green, 62 Ala. 111. 101. 314; Newell v. Whlgham, 102 N. 24 Bowar v. Railway Co., 136 Y. 20; Gresham v. Thum, 3 Met. 111. 101; Riddle v. Ratliff, 8 La. (Ky.) 287. And see Crocker on Ann. 106; Shultes v. Sickles, 147 Sheriffs, § 571; 2 Freeman on N. Y. 704. Executions, § 474. But see Wen- 25 Bowar v. Raif fvay Co., 136 gert v. Zimmerman, 33 Pa. St. 111. 101. 508. 566 WEIT OF POSSESSION". [§ 507. give way to the defendant who stands ready to re-enter, is not a complete and effectual execution of a writ.^^ Upon this latter point, however, there is some confusion in the authorities. It is generally conceded that the only office of a writ of possession is to reinstate the prevailing party, and this is accomplished when such party has been let into posses- sion by the sheriff. The functions of the writ then cease, and, notwithstanding that an interference with or disturbance of such possession may immediately follow, it does not seem, from some of the decisions, that the reinstated party may call upon the sheriff for assistance under the writ. It is contended that in such cases courts cannot, by the mere issuance of pro- cess, maintain successful litigants in the rights accorded to them nor prevent the commission of a trespass,^' nor have they any power, by directions inserted in the writ, to order the sheriff to maintain the party in the possession delivered under it.^» But while we are compelled to admit the general correctness of this doctrine, yet, as has been shown, to satisfy the judg- ment there must be a thorough and complete execution of the writ, and a merely formal delivery of possession is not such a satisfaction as the law contemplates.^" In other words, the ex- ecution of the writ must be effectual and to accomplish this the possession delivered under it must be full and actual, and the plaintiff must be left in the quiet and peaceable possession of the land.^^ Hence, where the plaintiff is put into possession under circumstances plainly intimating that such possession is but formal and momentary, and he is, in fact, ousted there- from immediately afterward, this cannot be regarded as an ef- fectual execution of the writ. § 507. Continued — Execution without eviction. — It is not necessary, however, that in all cases there should be an evic- tion of the occupant of the recovered lands, for it will often 2T Gresham v. Tlium, 3 Met. so Gresham v. Thum, 3 Met. (Ky.) 287; Pamsworth v. Fow- 287; State v. Staed, 143 Mo. 248; ler, 1 Swan (Tenn.), 1; Newell Huerstal v. Muir, 64 Cal. 450; V. Whlgham, 102 N. Y. 20. Hessell v. Johnson, 124 Pa. St. 28Atwood V. State, 59 Kan. 233. 728. 31 Newell v. Whigham, 102 29 Atwood V. State, 59 Kan. 728. Mass. 20. § 508.] WEIT OF POSSESSION. 567 happen that the writ may be completely and effectually ex- ecuted without an actual expulsion. The object, and the only object, of the process is to obtain possession. A defendant may yield obedience to the order of the court without a for- cible ejection. If he shall quietly surrender possession, or if he expressly acknowledges the right of possession to be in the plaintiff, and this is accepted by the plaintiff, the writ may be returned fully executed notwithstanding there has been no ex- pulsion in fact, for the law requires nothing that is useless or oppressive when the ends of justice can be attained without it.^^ § 508. Delivery of possession. — The manner of executing a writ of possession has been discussed in the foregoing para- graphs, and, as there shown, it is the duty of the sheriff to re- move from the premises not only the persons against whom the recovery has been had, but also such of their property as may be found thereon which may not be taken under the writ.^^ When this has been done and the possession become vacant, the plaintiff or his agent may enter, and, having so entered, is then in possession as of right. No formal words or acts seem to be necessary to effect a delivery 'and it is sufficient that the sheriff by any unequivocal words signifies to the plaintiff that the possession is then at his disposal. If the land, or any part of it, is unoccupied, it is enough that the sheriff shall go upon same and assume to deliver possession, nor does it appear to be essential in all cases that an entry shall actually be made. This is particularly true where the physical characteristics of the premises recovered do not ad- mit of actual entry.'* In all cases, however, there must be an effective delivery of possession.'" 82 Smith v. "White, 5 Dana sued rode around the land with (Ky.), 376; Witbeck v. Van the sheriff, who said to him: Rensselaer, 64 N. Y. 27; Wen- "Here Is your land; I put you in gert V. Zimmerman, 33 Pa. St. possession;" but the tenants who 508. were in possession were not dis- ss Witbeck v. Van Rensselaer, possessed, nor was any notice 64 N. Y. 27. given them to yield possession. 3*Perrine v. Bergen, 14 N. J. Held, not an execution of the L. 355. writ. Lankford v. Green, 62 Ala. «5 A plaintiff in whose favor a 314. writ of possession had been is- 568 WKiT OF POSSESSION. [§§ 509, 510. § 509. Who may be evicted. — As a general rule, in exe- cuting a writ of possession, the defendant and all members of his family, together with his servants, may be removed from the land.^" £0, too, all persons entering upon the premises after suit brought for the recovery of same, and who are in possession in subordination to the defendant, may be removed under the writ against him," and, generally, any one who has entered under the defendant or in collusion with him will be bound by the judgment and may be dispossessed.^^ § 510. Continued — Husband and wife. — As shown in a previous chapter the action of ejectment will lie in many states at the suit of the wife against the husband, and, as just shown, it is the duty of the sheriff, in executing a writ of possession, to remove the defendant from the premises and deliver the possession thereof to the successful plaintiff. Ordinarily, this would present no difficulties, but where the successful plaintiff happens to be the wife of the defendant the solution of the question is not so clear. It has been held, where husband and wife occupied the same house, the property of the wife, that in ejectment by the wife against the husband, who had assumed possession of the premises and was using it as his own, ap- propriating the rents and profits and refusing to apply any part of same to the wife's comfort and support, that the wife was entitled to an order for the possession of the property but that the husband could not be ejected from the premises.'^ The reason assigned for this ruling is, that to permit the evic- tion of the husband would establish a precedent dangerous to society, in that it would virtually institute a new form of di- vorce if the wife, under the forms and with the' sanction of law, could, of her own will and without cause, eject her hus- band from her dwelling and society because the house is her separate property. In the case under consideration the court seHuerstal v. Muir, 64 Cal. Dexter, 3 Sawyer, (C. Ct.) 434; 450; Fiske v. Chamberlin, 103 Rowell v. Klein, 44 Ind. 290. Mass. 495; Johnson v. Fullerton, ss Satterlee v. Bliss, 36 Cal. 44 Pa. St. 466. 489; Hanson v. Armstrong, 22 37 Ritchie V. Johnston, 50 Ark. 111. 442; Ritchie v. Johnson, 50 551, 7 Am. St. 118; McCreery v. Ark. 551. Everding, 54 Cal. 166; Hall v. 39 Manning v. Manning, 79 N. C. 293. § 511.J WEIT OF POSSESSION. 569 solved the question by giving to the husband a right of in- gress to the Vfcfife's presence but denied to him any dominion over the land or right of occupancy of the house except in conjunction with her. § 511. Who may not be evicted.— It is fundamental that the judgment in ejectment binds only the parties to the action and those persons who stand in some relation of privity with them. From this it follows that the writ of possession affects those only who are named as defendants or persons who enter under them during the pendency of the suit.*" Therefore, not- withstanding a person may have been in possession of the premises, under a claim of title, at the time the suit was insti- tuted, he cannot be dispossessed unless made a party thereto," nor can a person whose possession is distinct from and inde- pendent of the parties be evicted under the writ, even though such possession may have been inaugurated after the suit had been commenced.*^ This rule, which on its face is eminently just and reasonable, is usually involved in no difficulty in its practical application, but perplexing questions are sometimes presented in the case of persons holding near and intimate relations with the parties. This is well illustrated in a case where a wife sets up a claim of title after judgment has been recovered against the husband. Ordinarily the family of a defendant may be removed under a writ of possession, and this will include not only his wife and children,*' but his servants, and any others who may have been residing with him at the time suit was commenced or' af- terwards, notwithstanding they may not have been named as parties,** the privity which existed between them and the de- fendant being sufficient to render the judgment binding upon them.*° io See cases cited in foregoing 728 ; Wilson v. State, 115 Ala. section. 129; Irving v. Cunningham, 77 ii Howard V. Kennedy, 4 Ala. Cal. 52 ; Howe v. Butterfield, 4 592; Busliong v. Rector, 32 "W. Gush. (Mass.) 305. Va. 311; Irving v. Cunningham, ^s Huerstal v. Muir, 64 Cal. 77 Cal. 626; Georges v. Huf- 450. Schmidt, 44 Mo. 179; Powell v. 4* Saunders v. Webber, 39 Cal. Lawson, 49 Ga. 290; Hessel v. 287; Johnson v. PuUerton, 44 Fritz, 124 Pa. St. 229. Pa. St. 466. *2Atwood V. State, 59 Kan. « Sampson v. Ohleyer, 22 Cal. 570 WEIT OF POSSKSSION. [§ 512. But, where a wife, living with her husband upon the prem- ises, claims the title under a right derived from a person other than her husband, it is difficult to perceive wherein her pos- session differs from that of a stranger. It has been neld, in such a case, that it would be the duty of the husband to defend his own possession upon her title, and that, failing so to do, the wife could not, by setting up a title in herself, prevent the exe- cution of the writ.*" This view, however, is manifestly op- posed to the general theory of the law with respect to the con- duct of suits and execution of judgments, and while a husband may resort to his wife's title as a defense, in exactly the same manner as he may show title in a stranger, yet his failure so to do should not preclude the wife's rights any more than it would those of a stranger. The better rule would seem to be that a wife who claims the land as her separate estate, under a title which accrued prior to the commencement of the ejectment suit, may not be dispossessed under a judgment against the husband rendered in an action to which she was not a party." § 512. Persons entering pending suit. — As we have seen, where a person enters upon land after suit in ejectment has been brought for its recovery, if his possession is in subordin- ation to the defendant he is equally liable to be removed by the writ issued upon the judgment subsequently rendered in the action. But a person thus entering after suit brought, claim- ing under title previously existing and which is adverse to that of the parties to the suit, is not affected in his rights by the judgment recovered.*^ When such an entry has been made on embarrassing ques- tion is sometimes presented to the officer executing the writ. The determination of the question, whether parties thus enter- ing have such ante-dating title is not left, however, to the judg- ment of the officer. He has no judicial power to pass upon the rights of strangers whom he may find in the actual occupation of the land, and his duty under the writ requires him to restore 200; Hanson v. Armstrong, 22 47 Bushong v. Rector, 32 "W. 111. 442; Fiske v. Chamberlin, Va. 311. 103 Mass. 495. ^s Mayo v. Sprout, 45 Cal. 99. *6 .Johnson v. Pullerton, 44 Pa. St. 466. § 513.] WEIT OF POSSESSION. 571 possession to the plaintiff. In a case of this kind it has been held, that when a person is found in possession, claiming under a title anterior to the suit and adverse to the parties thereto, the officer may require from the plaintiff an indemnifying bond before proceeding to remove the occupant, or, he may give a reasonable time to the occupant to apply to the court for a modification of the writ so as to exclude him from its oper- ation. Upon such application the court may stay the enforce- ment of the writ or except the applicant from its operation, until the rights of the parties can be properly determined. But when a sufficient bond of indemnity is tendered, and no different order is made in the manner indicated, the duty of the officer is discharged only by placing the plaintiff in pos- session as directed, and this implies a removal of all occu- pants.*' This seems the only rational way out of a dilema of this kind, yet, as the writ only authorizes the sheriff to dispossess the defendant and those claiming under him, it follows that if one not a party to the suit and claiming by an independent title is removed under a writ of possession, he will be restored to such possession upon application to the court.^" A different question is presented where a person enters into possession under the defendant after the commencement of the suit, and, while so in possession, acquires another title from an independent source. In such event, notwithstanding the occu- pant claims under an independent title which has never been adjudicated, yet as he entered under the defendant he must abide the result of' the action and will not be permitted to tack the title subsequently acquired to the defective title acquired from the defendant, and thus bid defiance to the writ.^^ § 513. What may be taken under the writ. — Primarily the writ of possession 'is ior the purpose of restoring to the successful party the actual possession of the land in contro- ls) Hall V. Dexter, 3 Sawyer, go out under the writ of posses- (C. Ct.) 434. The legal theory is sion. Wetherbee v. Dunn, 36 that all who come into posses- Cal. 147. sion of land after suit brought so Mayo v. Sprout, 45 Cal. 99. are presumed to have come in si Ritchie v. Johnson, 50 Ark. under the defendant, and hence, 551. if the plaintiff recovers, all must 572 WEIT OF POSSESSION. [§ 514:. versy. Indeed this is practically all that the writ calls for, and when the party entitled thereto has actually been invested with such possession the functions of the writ cease. But land is a word of very wide signification and means not only the soil of the earth but the increment to and annexations upon it as well. Hence, the prevailing party will be entitled to the land in the condition it presents at the time the writ is issued and may claim whatever is found upon the land, and actually or constructively annexed to it, as well as the land itself. § 514. Crops. — In pursuance of the doctrine of the pre- ceding paragraph it has frequently been held that as between the successful plaintiff and the evicted defendant, growing crops are a part of the realty, and belong to such plaintiff.^- Indeed this is but a specialization of the fundamental rule that growing crops 'are a part of the land to which they are attached and unless properly reserved pass with it upon the devolution of title.^^ It has further been held that the rule applies to ma- tured crops,"* and even to the produce of land which has been severed from the soil, provided the same is still resting on the land.'^" The reason assigned for this rule would seem to be, that in law the defendant is treated as a trespasser,'^" and hence without right to plant and harvest a crop. Should he do so, and then be evicted by lawful process, the fruits of his labor pass to the rightful owner of the land. Nor will the fact that plaintiff may have his action for mesne profits in any way affect his ownership of crops grown upon land wrongfully withheld from him, for, as has been well remarked, that rem- 5=AUes V. Hincker, 36 111. si McGlnnis v. Fernandes, 135 275; Huerstal v. Muir, 64 Cal. 111. 69. 450; McLean v. Bovee, 24 Wis. 55 As where a crop of corn had 295; Gardner v. Kersey, 39 Ga. been cut and placed In shocks on 664; Carlisle v. Killebrew, 89 the ground. McGinnis v. Fer- Ala. 329; McCaslin v. State, 99 nandes, 135 111. 69. And see Mc- tnd. 428. Caslin v. State, 99 Ind. 428. 53 Batterman v. Albright, 122 so McLean v. Bovee, 24 Wis. N. Y. 484; Heavilon v. Farmers' 295; Howell v. Klein, 44 Ind. Bank, 81 Ind. 249; Wooton v. 290; Craig v. Watson, 68 Ga. 114; White, 90 Md. 64; Reily v. Car- Kimball v. Lohmas, 31 Cal. 154; ter, 75 Miss. 798; Anderson v. McGinnis v. Fernandes, 135 111. Strauss, 98 111. 485; Beckman v. 69. Sikes, 35 Kan. 120. §§ 515, 516.] WEIT OF POSSESSION. o73 edy may be wholly unavailing by reason of the insolvency of the defendant.^^ Nor is it material, in a case of this kind, whether the crops have 'been planted by the defendant or some person in posses- sion as his tenant. In the latter case the tenant is regarded as a wrongdoer in holding possession and cultivating the land, and notwithstanding he may have acted in good faith his legal standing is no better than that of his lessor.^* § 515. Continued — Harvested crops. — On the other hand, while the authorities generally concede the right of a successful plaintiff to have his land with its increment, yet where crops have been harvested before the rendition of judg- ment it has been held that plaintiff is not entitled to them under a writ of possession.^'' This line of decisions proceeds upon the well established doctrine that where there has been an ac- tual severance of a crop it is no longer a part of the land ; that by the act of severance it becomes personalty, and as, such is governed by the rules which apply to chattel property. The rule is always observed in judicial and execution sales,"" and by analogy it would seem to apply to recoveries in ejectment. But in reply to this it may be said, that the act of severance is act of trespass, and if the growing crop was the property of the successful litigant the wrongful act of severing it from the soil could not destroy that ownership, and therefore, if the crop is still resting on the grotmd, notwithstanding it has been severed from the soil, it may be taken under the writ."^ § 516. Continued — Adverse views. — The statements of the preceding paragraphs are not, however, of universal ac- ceptance. In a number of cases it has been held that crops raised on land by the labor of one in adverse possession under a claim of right, or by his agents, belong to him and are nof the property of the rightful owner of the soil."^ This rule «7 McGinnis v. Fernandes, 135 si McGinnis v. Fernandes, 136 111. 69. 111. 69; McCaslin v. State, 99 Ind. BsOetgen v. Ross, 47 111. 142; 428. And see McLean v. Bovee, Wetherbee v. Dunn, 36 Cal. 147. 24 Wis. 295. 69 Page V. Fowler, 39 Cal. 412. 62 Fanlcon v. Johnston, 102 N eoReily v. Carter, 75 Miss. 798; C. 264. Anderson v. Strauss, 98 111. 485; Jones V. Adams, 37 Greg. 473. 57i WEIT OF POSSESSION. [§ 517. however, is usually applied only to the severed, not the grow- ing crop,*^ though it would seem that some of the cases main- tain that there is no difference, in principle, between the one or the other."* In these cases it is held that the owner of land, who is not in possession, is not entitled to the fruits thereof, and that they cannot be recovered from the disseizee notwith- standing that subsequently, in an action of ejectment, a judg- ment is rendered in favor of the landowner for the possession of the property. It is contended in support of this position, that the law gives to the plaintiff in ejectment the right to re- cover from the defendant, either in the same action or in an- other, the value of the use and occupation of the land, or, in other words, damages for the withholding thereof, and that the owner's remed}^ is restricted to such recovery."^ It cannot be denied that there is much of justice in this view, and if the owner is permitted to recover for the use of his land it seems but right that the defendant should be given the fruits of the land during the period for which a payment is exacted."" § 517. Fixtures. — It is a fundamental principle of the law of real property, that the term land includes not only the soil but everything growing upon it or annexed to it. It is a fur- ther general rule that whatever is once annexed to land by the possessor thereof, to be used and enjoyed in connection there- with, becomes a part of the realty and passes with the land on the devolution of title. To these annexations has been given the name fixtures. As between vendor and vendee, the rule for determining what are and what are not fixtures has become fairly well set- tled, and generally the same tests may be applied to other re- lations when the title to the land is involved. It would seem, on principle, that the same rules should govern in the case of a successful plaintiff in ejectment as are effective in jtidicial and execution sales, and that whatever has been annexed to 83 See Stookwell v. Phelps, 34 es See Johnston v. Fish, 105 N. Y. 363; Hartman v. Wieland, Cal. 420; Stookwell v. Phelps, 34 36 Minn. 223; Hay v. Gardner, N. Y. 363; Brothers v. Hurdle, S2 N. C. 454. 32 N. C. 490. G4 Johnston v. Fish, 105 Cal. eo See Craig v. "Watson, 68 Ga. 420. 114. § 518.] WRIT or POSSESSION. 575 the land, either actually or constructively, should pass with it on restitution. As between the owner of land and a trespasser the rule has always been that a permanent annexation becomes a part of the land."^ There is no general rule nor are there any certain tests for determining whether an article personal in its nature has ac- quired the character of a fixture, and the courts now generally hold that the question must be answered in each particular case by the circumstances attending the annexation."^ The old doctrine of physical annexation has been abandoned,"'' and while this is always a circumstance to be considered, it is no longer a criterion. Regard must be had to the chattel itself, its adaptation to the use of that part of the realty with which it is connected, the injury that would result from its removal, and the intention with which it was annexed to the freehold.'"' Indeed, the intention that it should be a permanent accession is the controlling consideration in questions of this kind,^^ but such intention may always be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexing, the pur- pose for which the annexation was made, and other circum- stances of the case.'^^ § 518. Continued — Special instances. — ^The questions growing out of the subject may further be complicated by the character of the parties. Thus, in the case of a common tres- pass the owner of the land may take and keep the structures which have been erected thereon during the tortious holding. But, an entry may be made by one without right who yet has BTDooley v. Christ, 25 111. 551; Md. 145; Aldine Mfg. Co. v. Bar- "tfathes V. Dobschuetz, 72 111. 438. nard, 84 Mich. 632. 68 Cobum V. Litchfield, 132 71 Edwards, etc. Co. v. Rank, Mass. 449; Strickland v. Parker, 57 Neb. 323^ Binkley v. Forkner, 54 Me. 263; Thomas v. Davis, 76 117 Ind. 176; Tillman v. De Mo. 72. Lacy, 80 Ala. 103; Hendy v. Din- 69Meig's Appeal, 62 Pa. St. 28; kerhoff, 57 Cal. 3; Puller-Warren Railroad Co. v. Morgan, 42 Kan. Co. v. Harter, 110 "Wis. 80, 84 23. Am. St. 867, 85 N. W. Rep. 698. 70 Potter V. Cromwell, 40 N. Y. 72 Baker v. McClurg, 96 111. 287; Thompson v. Smith, 111 App. 165: Roseville Mining Co. Iowa, 718; Schaper v. Bibb, 71 v. Iowa Mining Co., 15 Colo. 29; Home V. Smith, 105 N. C. 322. 576 wEiT or POSSESSION. [§ 519. the power to make his continued possession rightful. This is seen in tlie case of a railway company which enters upon land without first acquiring a right thereto by any of the means provided by law. In such event the landowner may recover in ejectment and may also have his damages for use and occu- pation, but, it seems, may not retain the rails or other structures that may have been annexed to the land.'^ One reason for this is that a mere tort feasor necessarily attaches his struc- tures to the freehold, for he has no less estate in himself, and hence a recovery of the freehold carries with it whatever is upon the land. A railway company takes only an easement, and the structures attached are subservient to the purposes of the easement ; therefore as the company does not assume to have the freehold there can be no intention in fact to annex its structures to the freehold.^* Another reason is found in the fact, that, notwithstanding the original entry may have been a trespass, yet the company may proceed in due course of law to appropriate the land, and consequently' to reclaim and avail itself of the structures placed thereon, and therefore, while the landowner is entitled to redress for his injury, his redress cannot extend beyond his injury, or include the taking of the personal chattels of the company.'^ This conclusion seems to rest on the theory that the occupation in such a case is for a public use ; that the materials are essential for such use, and being intended for the public they cannot, as in a com- mon trespass, be treated as dedicated to the owner of the land." § 519. Return of the writ. — It is usual for writs of pos- session to be made returnable as in the case of other final or executory process, and the period allowed for such return usually corresponds with the time prescribed for the return of executions. In view of this provision it has sometimes been contended that the writ could not lawfully be executed after 73 111. Cent. R. R. Co. v: Hos- Pa. St. 28; 111. Cent. R. R. Co. kins, 80 Miss. 730, 92 Am. St. T. Hoskins, 80 Miss. 730. 612, 32 So. Rep. 150. 76 In this connection consult 71 Justice V. Railroad Co., 87 Toledo, etc. Ry. Co. v. Dunlip, Pa. St. 28. 47 Mich. 456; Jones v. Railroa 1 75 Justice V. Railroad Co., 87 Co., 70 Ala. 227; 111. Cent. R. R. Co. V. Le Blanc, 74 Miss. 650. § 520.] WEIT OF POSSESSION. 677 the return day. It would seem, however, that formerly such writs had no return day,'^ and that where, in conformity to the general rules governing executions, a command of return in sixty or ninety days is inserted, such command is directory merely, and the writ may be lawfully executed after the re- turn day.'^ In any event, it would seem that if the sheriff has begun to execute the writ at any time before it is returnable, he may retain same and complete the service after the return ■ day.''* On the other hand, it is held in some states that the direction for return marks the limit of the effective life of the writ and if the sheriff has not commenced its execution prior to the re- turn day he cannot execute it thereafter.^" § 520. Recalling writ — Order of restitution. — It will sel- dom happen that courts will interfere to prevent the execution of their writs, issued after a hearing and determination of the cause, yet it would seem to be the established rule that in the action of ejectment the court which renders the judgment ex- ercises a species of equitable jurisdiction over the writ of pos- session, recalling it if justice requires,*^ and sometimes, after it has been executed, awarding a writ of restitution.'^ Thus, if possession has been taken of more land than was specifically recovered, or if a party has been turned out of possession by mistake, or there has been an improper use of the process of the court, or the judgment itself has been attacked, or, gen- erally, if the party applying for the writ of restitution shows meritorious reasons for granting same, the court may exercise the power of recall of the writ of possession and award res- titution of the premises, and many cases may be found where this has been done.*^ The right to thus recall a writ of posses- 77 See Crocker on Sheriffs, Johns. (N. Y.) 366; Oetgen v. § 575. Ross, 47 111. 142. 78 Witbeok v. Van Rensselaer, ss See Dawley v. Brown, 43 64 N. Y. 27. How. Pr. (N. Y.) 22; Coleman v. 79 Prescott V. Wright, 6 Mass. Henderson, 2 Scam. (111.) 251; 20. Coughanour v. Bloodgood, 27 Pa. 80 Prescott v. Wright, 6 Mass. St. 285; Hyde v. Boyle, 93 Cal. 20. 1: Smith v. Pretty, 22 Wis. 655; 81 Oetgen v. Ross, 47 111. 142; McAndrews v. O'Hanlin, 18 N. Miller v. Vaughan, 73 Ala. 312. J. L. 127. 82 Jackson v. Hajsbrouck, 5 37 578 WRIT OF POSSESSION. [§ 521. sion as well as to award a writ of restitution in such cases, un- less specifically authorized by statute, seems to arise by equit- table construction by the courts, to prevent injury to a party who has been wrongfully dispossessed of the premises; it is not demandable as matter of right, but is awarded as an act of grace and in furtherance of justice where the circumstances seem to warrant it.^* A writ of restitution will also be allowed where the judg- ment on which the writ of possession issued has been reversed on appeal, and while it has been held that this allowance may be made by the appellate court,^^ the better practice would seem to be that it should proceed from the lower court in which the original judgment was rendered.^" It is also proper for a court of equity to order a restoration of possession of the premises where a judgment at law has been set aside for fraud, accident or mistake in its procurement, and to enforce this order a writ of restitution may issue. ^^ But when a court of equity directs a judgment at law in ejectment to be set aside and the possession restored, its jurisdiction is ended. It has no right to retain the case for the purpose of trying the title, where the title is legal and not equitable, and when it has granted ' a new trial its functions cease and the parties should be left to a court of law for an adjudication of their rights.^^ § 521. Restraining execution of writ. — It follows from the statements and conclusions of the preceding paragraphs that a person in possession of the lands, who was neither a party nor a privy to the action, may generally protect his pos- session by a restraining order issued by a court of equity.^" Nor does it seem that the fact, that such person has a remedy at law for damages against the sheriff, in any way impairs his 8* Watson v. Trustees, 37 N. C. ss How v. Mortell, 28 111. 478. 211; Bowar v. Railway Co., 13S so Charter Oak Ins. Co. v. Cum- 111. 101. mings, 90 Mo. 267; Banks v. Par- es Hall v. Wells, 54 Miss. 289. ker, 80 N. C. 157; Moulton v. Me- sa Vroman V. Dewey, 23 Wis. Dermott, 93 Cal. 660; Stewart v. 626. Pace, 30 Ark. 594; Bushong v. 87 How V. Mortell, 28 111. 478 ; Rector, 32 W. Va. 311. Skinner v. Hannan, 8 Hun (N. Y.), 376. §§ 522-, 523.] WEiT OF possession. 579 right to an injunction. ^^ It has been held in some cases that an injunction will not lie at the suit of persons possessing su- perior rights who have not been made parties to the action. The reason for this is, that not being parties to the judgment the writ cannot affect them.";^ But generally, if such persons are also in possession of lands in controversy an injunction will be granted to prevent a dispossession under the writ."^ If such persons are not in possession there is no occasion to re- strain the writ and an application for injunction should be de- nied.^^ § 532. Restitution of possession under reversed judg- ment. — The general rule is, that whenever a party has been dispossessed by virtue of a judgment, which, for any reason, is subsequently reversed or set aside, the court will at once re- store such party to the possession from which he has been evicted and place him, as nearly as may be, in the same con- dition he was before the process issued.^* In such event a writ of restitution will issue as a matter of course, and, usually, un- less some new matter has intervened, the court will refuse to entertain any motion or pass upon the further rights of the parties until the possession is restored.^^ Where only the parties to the action or their privies are con- cerned the rule seems to be well settled and proceeds upon the theory, that the plaintiff has recovered possession only through the judgment; that the judgment no longer being of any force the property which had been delivered under it can no longer be held by it, and that, the defendant having been put out by process of law, the law must be just to itself, as well as to him, by restoring him to that of which he was wrongfully deprived. § 523. Continued — Where strangers are concerned. — But while the rule just stated is well settled as of imperative au- thority it is equally well settled that where persons are peace- ably in possession of the premises under title derived from an so Williamson v. Russell, 18 93 Tevis v. Ellis, 25 Cal. 515. W. Va. 612. siLytle v. Lytle, 94 N. C. 522; 31 Jones V. Chiles, 3 T. B. Mon. Hall v. Wells, 54 Miss. 289; Pish (Ky.) 341. V. Toner, 40 Minn. 211; Runyon 9:; Bushong V. Rector, 32 W. v. Hall, 10 Ark. 476. Va. 311. 95 Perry v. Tupper, 71 N. C. 385. 580 WEIT 0¥ POSSESSION. [§ 524. independent source, they cannot be ejected except as a conse- quence of a proceeding to which they have duly been made parties, and in which they might have had their day in court and an opportunity to Htigate their rights. Hence, the pre- vaiHng party in an action of ejectment or other suit to recover possession of real property cannot, by his writ of assistance or restitution, dispossess a stranger to the proceedings holding the land under an independent claim of title and not in collusion with the defeated party."" But to this general rule there are some marked exceptions. Thus, it has no application where the party seeking to be re- stored to the possession has been wrongfully dispossessed by the agency of the court ; as where a party has been ousted by a judgment, which, upon appeal, is reversed and a restitution of possession directed. In such event it is immaterial that the occupant of the land may have gained a peaceful possession under a title which is adverse to both parties to the suit and who is not in collusion with either. The theory in such case is, that the ejected party does not stand in the position of one who seeks the aid of a court to regain a possession lost by his own negligence or misfortune, but, on the contrary, is out of possession only because the court has wrongfully put him out, and whoever is in is there only because the court has wrong- fully made room for him. Inasmuch as all that the one has gained and all that the other has lost is due to the agency of the court, therefore, it is said, no injustice is done by re- storing the party wrongfully dispossessed without stopping to inquire into or investigate the rights of the party who has thereby gained possession. If he has a superior right to the possession, he can, after going out, assert it with the same ef- fect as if he had never been in, and loses nothing but the ad- vantage of holding the lands pending the litigation, — an ad- vantage to which he was never entitled."' ■ § 524. Alias v(n:it. — Where the judgment of the court has been duly executed by a writ of possession, under which the ssMayo v. Sprout, 45 Cal. 99; 07 Quan Wo Ctiung Co. v. Lau- Georges v. Hufschmidt, 44 Mo. meister, 83 Cal. 384, 17 Am. St. 179; Krepps v. Mitchell, 156 Pa. 261. And see Perry v. Tupper, St. 320. 71 N. C. 385. § 524.] WRIT OF POSSESSION. 581 plaintiff has acquired a full restitution of the premises, can he have recourse to the same judgment for another writ in case of a subsequent invasion of his possessory rights? The ques- tion is not without difficulty. It is laid down in the old author- ities that if the lessor, after having had possession given to him by the sheriff and before the writ of possession has been returned, is again ousted by the defendant he shall have a new writ, but if he is ousted by a stranger, he must resort to an- other ejectment. The reason assigned for this distinction is, that in the one case the defendant shall never, by his own act, keep the possession which the plaintiff has recovered from him by due course of law, and in the other, that, as the title was never tried between the plaintiff and the stranger, he may claim the land under a title paramount to that of the plaintiff, ajid therefore the recovery and execution in the former action ought not to hinder the stranger rfrom keeping that possession to which he may have a right.^' But when this doctrine was announced the return of the execution was very much within the discretion of the plaintiff, who was permitted to do what- ever seemed most for his own advantage in order to obtain a full benefit of his judgment, and to this end, he was allowed to renew the execution at his pleasure until full satisfaction was obtained. At a later time this doctrine was overruled, and it was held that where the lessor had been put in possession by virtue of a writ, then, notwithstanding the writ had not been returned, if the plaintiff was subsequently ousted and deprived of possession, an alias writ would be denied.^'' It was con- tended that as possession had been given under the first writ it should have been returned satisfied and that an alias cannot is- sue after a writ is executed. A survey of the American cases on this subject discloses an adherence to the doctrine last stated. As the writ of posses- sion is now returnable the same as other writs, and no longer rests in the caprice of the plaintiff, it follows that if a writ of execution has been once returned executed, no alias writ can issue,^ for then the due execution is of record and the writ is 08 See Adams, Eject. *309. i See Gresham v. Thum, 3 Met. 99 Doe V. Roe, 1 Taunt. (Eng. (Ky.) 287. Com. Pleas) 55. 582 "WEIT OF POSSESSION. [§ 525. functus officio.'^ There may be exceptional cases where an alias writ will be allowed,^ but, generally, the rule is as stated. § 525. Entry without writ. — As before remarked a suc- cessful plaintiff has a right of entry by virtue of the judgment and without the writ.* If he finds the lands unoccupied he may peaceably assume possession, and such possession will not be disturbed by legal process while the judgment remains in force. I - See Hinton v. McNeil, 5 Ohio, States v. Slaymaker, 4 Wash. 509; Fowler v. Currie, 2 Dana 169; Butra v. Pereira, 135 Cal. (Ky.), 52; Gresham v. Thum, 3 320. Met. (Ky.) 287. * Bowar v. Railroad Co., 136 ' 3 See Jackson v. Hawley, 11 111. 101. Wend. (N. Y.) 182; United CHAPTER XV. DAMAGES AND MESNE PROFITS. 526. 527. 528. 529. 530. 531. 532. 533. 534. 535. 536. 537. 538. 539. 540. 541. 542. 543. 544. 545. 546. Generally considered. Costs. Nominal damages. Exemplary damages. Action for mesne profits. When mesne profits may he recovered. From whom recovery may be had. Lilnit of recovery. Continued — ■ Good faith as an element of lim- itation. Suggestion for damages. Damages in original ac- tion. , "Where plaintiff acquires possession pending suit. Damages on default. Defenses. Measure of damages. Assessment of damages — Writ of inquiry. Death of parties. Offsets hy defendant. Continued — Payment of taxes. Continued — Payment of incumbrances. Compensation for Im- provements. § 547. 'Continued — Statutory rules. 548. Continued — By tenants. '549. Continued — • By stran- gers. 550. Continued — By pur- chaser pendente lite. 551. Improvements made un- ,der a defeasible title. 552. Improvements must be made in good faith. 553. Improvements made after notice of plaint- iff's claim. 554. Continued — Statutory notice. 555. Improvements made after action com- menced. 556. Continued — Opposite views and conflicting rules. 557. Character of improve- ments. 558. Measure of compensa- tion. 559. Continued — Assessment by commissioners. 560. Crops. 561. Effect of supersedeas bond. § 526. Generally considered. — The primary object of an action of ejectment is the recovery of land. But it would seem that in its original form substantial damages could also be recovered and the measure of such damages, when the plaintiff recovered his term, was the profits of the land accru- 584 DAMAGES AND MESNE PROFITS. [§ 526. ing during the tortious holding of the defendant. Upon the introduction of the system of fictions this was aboHshed and merely nominal damages were assessed, no allowance being made for the real injury sustained by the claimant by reason of his loss of possession. When this change was made it be- came necessary to provide a further remedy for the actual damages involved, and this was effected by a new application of the common-law action of trespass. This new remedy was called an action for mesne profits. In it the plaintiff com- plained of his ejection and loss of possession, stated the time during which the defendant held the lands and took the profits thereof, and prayed judgment for the damages which he had thereby sustained. This was the form of procedure which for many years preTailed in all of the older parts of the United States, and which, to a limited extent, has been retained in modern practice. While for many years the successful plaintiff in ejectment was compelled to seek his remedy for damages in a separate action of trespass for mesne profits, this method, after a time, was modified by permitting a recover}^ of such profits upon a suggestion entered on the foot of the record of the judgment in ejectment, the judgment, in such cases, forming the foun- dation for subsequent proceedings. This is the method now employed in many of the states. Finally, however, with a view to avoid a multiplicity of suits, this too was abolished in a number of states, and instead of compelling the plaintiff to pursue two actions he is permitted to unite, in the same suit, a claim to recover the land with damages for its detention, and it would seem, where this practice prevails, he has an option to unite the claims in one action or have a separate action, af- ter the recovery in ejectment, for the damages.^ The right to damages for withholding possession, which is given by the codes of many of the states, is the statutory equivalent of the old action of trespass for mesne profits given by the common law,* and includes all damages to which the owner is entitled See Livingston v. Tanner, 12 "Walker v. Mitchell, 18 B. Mon. Barb. (N. Y.) 481; Holmes v. (Ky.) 541. Davis, 19 N. Y. 488; Vander- « See Jacks v. Dyer, 31 Ark. voort V. Gould, 36 N. Y. 639; 334. § 527.] BAMAGES AND MESNE PEOFITS. 585 on account of the wrongful occupation of the premises, as well as for waste committed or suffered by the occupant, as the value of the use and occupation.^ In some states, however, a distinction is made with respect to the elements of damage. Thus, while mesne profits may be recovered as damages in the action, on the ground that they are incident to the recovery of the possession, yet damages for waste and injury to the freehold, not being incident to the re- covery, are not permitted to be united therewith.' Where this doctrine prevails a count for waste and injury is regarded as a misjoinder of causes of action.'' In every instance such right is a distinct cause of action and even though it may be joined with a claim for possession it should be separately stated.^" Where the plaintiff is permitted to unite claims for the re- covery of the land and damages for its detention, it seems that a claim for rents, issues and profits set up in the action for the recovery of the land is a bar to a separate suit for the rents. ^^ The action for damages has been further complicated in re- cent years by the very liberal allowances made to occupying claimants for improvements placed upon the lani While the statutes conferring this right bear considerable similarity to each other their interpretation has been far from uniform and the questions that may now be raised are many and perplex- ing. In the succeeding paragraphs an attempt will be made to state the general doctrines of damages, mesne profits, and al- lowances for betterments, but, of necessity, the many vari- ations arising from local statutes and their interpretations can be discussed only incidentally. § 527. Costs. — At common law no damages, except in a few instances, were recoverable in real actions, and hence no costs were allowed to the prevailing party. This was so of the writ of right, and of a number of other actions for which eject- ment subsequently became a substitute, and, to a large extent, of the action of ejectment itself. This was largely overcome 7 Wythe v. Meyers, 3 Sawyer lowytbe v. Meyers, 3 Sawyer (C. Ct), 595. (C. Ct.), 595. 8 Wisdom V. Reeves, 110 Ala. "Walker v. Mitchell, 18 B. 418. Mon. (Ky.) 541. And see Bot- 9 BottorfE V. Wise, 53 Ind. 32. torff v. Wise, 53 Ind. 32. 586 DAMAGES AND MESNE PROFITS. [§ 527. at various times by special statutory enactments, but the pecu- liar character of ejectment and its fictitious parties prevented the taxation of costs in many of its phases. Thus, where the action was undefended, and judgment was entered against the casual ejector, the onlj' remedy which the lessor of the plaint- iff had for costs was an action for mesne profits, in which, at the discretion of the jury, they were recoverable as a sort of consequential damages. But where the real party in interest appeared, and entered into the consent rule, costs could be re- covered against him in the case- of an adverse judgment, or, should he be successful upon the trial he might tax his costs against the plaintiff as in other actions. In the modern form of the action, even where damages must be sought in the auxiliary proceeding for mesne profits, the judgment providing for the recovery of possession also gives the plaintiff his costs to be taxed. Indeed, the general rule, that the prevailing party shall have his costs applies as well to ejectment as to any other action, and courts award same as of course.^^ Occasionally a difficult question may be presented, as where the action is discontinued for some matter arising pendente lite. Thus, where the defendant, in some lawful manner, has acquired plaintiff's title, and this fact is pleaded as a bar to the further maintenance of the action, it has been held that plaint- iff should recover his costs up to the time of the filing of the plea, and that, should such plea be sustained, the defendant should recover his costs subsequently incurred. In such event both parties, for the purpose of taxation of costs, may be re- garded as the prevailing party, the practical effect of the plea being to divide the suit into two actions in the first of which the plaintiff is the prevailing party, and entitled to costs, and in the second of which the defendant is the prevailing party, and hence entitled to costs. This, it is claimed, avoids all supposed hardships, and deals out even-handed justice to both parties.^* Another difficulty is presented where a defendant disclaims as 12 Bachman v. Gross, 150 Pa. is Leavitt v. Scliool District, 312; Lawton v. Gordon, 37 Cal. 78 Me. 574. 202. But see Clarke v. "Wagner, 78 N. C. 3fi7. §§ 52S, 529.] DAMAGES AND MESNE PEOFITS. 5t^7 to part of the lands sued for- and pleads not guilty as to the residue. In such event notwithstanding a judgment is ren- dered in favor of the plaintiff for the lands embraced in the disclaimer, yet if the issues are found for the defendant as to the balance of the property, and judgment therefor is ren- dered in his favor, it is proper to give judgment against the plaintiff for the costs of the suit.^* This is upon the theory that as the defendant disclaimed title to the land which plaint- iff recovered no litigation was had in reference thereto, and as the defendant was successful in the actual issue tried he should have judgment for costs as being the real prevailing party .^^ § 528. Nominal damages. — When the system of fictions was introduced, and actual damages were no longer recoverable in the ejectment suit, it became the custom for the jury to re- turn a verdict for nominal damages in all cases where the plaintiff was found to be the owner of the lands and entitled to possession. This was in obedience to the ancient doctrine that damages were essential to carry costs, and so, when the action was remodeled and the fictions abolished this ancient practice was continued and verdicts for nominal damages were given in all cases of a recovery. This may still be the practice in some states where the action for mesne profits is retained, but, as a general rule, modern statutes make no provision for nominal damages and costs are awarded as of course to the preprevailing party. In some states a successful plaintiff is al- ways entitled to nominal damages where the land was wrong- fully withheld,^'' but, generally, an actual damage must be proved, while in some cases, where there has been no actual occupation, damages have been denied. ^^ § 529. Exemplary damages. — For waste or other injury to the freehold a separate action is usually required. In some states, however, the statute now permits a recovery of substan- tial damages for injuries of this character, and in cases of " Quincy v. Railroad Co., 94 is Hahn v. Cotton, 136 Mo. 216. 111. 537; Tripner v. Abrahams, it Dobbins v. Baker, 80 Ind. 47 Pa. 220. And see Kansas, etc. 52; Clarke v. Wagner, 78 N. C. Ry. Co. V. McBratney, 10 Kan. 367; Griffey v. Kennard, 24 Neb. 415. 174, 38 N. W. Rep. 791. 15 Hays V. Tilson, 18 Tex. App. 610. 588 DAMAaES AND MESNE PEOHTS. [§530. wanton aggression exemplary damages may also be awarded.^' Where this is permitted, proof of actual pecuniary damage is not necessary to entitle the plaintiff to recover.'^^ While this looks like a modern innovation, it would yet seem that it was practiced in England from a comparatively early day, for we find in an old case °° a statement that a plaintiff is not confined to mesne profits only but may recover for his trouble. Says the court, "I have known four times the value of the mesne profits given by a jury in this sort of action for trespass. If it were not so, sometimes complete justice could not be done to the party injured." The American cases on this point do not seem to be either numerous or clear. § 530. Action for mesne profits. — -Where damages are al- lowed in an action for mesne profits according to the old law, the form of the remedy is trespass and the damages are re- covered as for a tort. But it would seem that under this prac- tice the lessor in ejectment might, if he saw fit, waive the tres- pass and recover his damages in an action for use and occu- pation, limiting his election, however, to the profits which ac- crued antecedently to the time of the demise in the ejectment. The reason for this was, that the action for use and occu- tion being founded on contract and the action of ejectment on tort, they were, therefore, wholly inconsistent with each other when applied to the same period of time, as in one action the plaintiff treated the defendant as a tenant and in the other as a trespasser. But the subtle distinctions of the common-law action, even where the damages are recovered in a separate suit after the issue in ejectment has been determined, are now of compara- tively little moment, and the possessor of land, which the true owner eventually recovers, is, in general, chargeable, under the claim of mesne profits, with whatever the same are reason- ably worth annually, with interest thereon from the time of ouster to the time of trial. The rule for the measure of dam- ages in such case is generally taken to.be the fair rental value 18 Herreshoff v. Tripp, 15 R. I. 20 Goodtitle v. Tombs, 3 Wils. 92. (Eng.) 118. 19 See Hill v. Forkner, 76 Ind. 118. § 530.] DAMAGES AND MESNE PEOFITS. 589 of the property, or, if this cannot be ascertained, the fair actual value of the land while in the possession of the defendant, if prudently and judiciously managed.^^ Where, however, the action is regarded as being for use and occupation, and this is the view now more generally taken, the rule is to limit the recovery to periods corresponding to the statute of limitations. This rule, if applied, would preclude a recovery for more than five or six years prior to the suit.^^ In this connection a question is sometimes raised as to the period at which the statute of limitations becomes a bar, that is, whether it is five years before the commencement of the ac- tion or five years before the rendition of final judgment therein, and this question is frequently of much importance where long delays have intervened after suit brought. The question has been variously answered and these answers will be considered in detail further on. In some of the modern codes the ancient term "mesne profits," has been excluded, in obedience to the aggressive spirit of "reform" which now and then manifests itself in dif- ferent parts of the country. In these codes the rule of dam- ages is stated as the rents and profits, or the value of the use and occupation of the land recovered and this may be regarded as the legislative definition of the old technical term "mesne profits. "^^ But even in the states where the term has been dis- carded by the statute it is still actively employed by both bench and bar, and because it concisely represents a well defined idea in the law of ejectment it will doubtless long remain in popu- lar use. In assessing the value of mesne profits it has been held, that plaintiff is not restricted to the mere use of the land but is en- titled to the rent of the property as improved by the defend- ant,^* or for the increased adaptation of the land to the occu- pant's uses, even though brought about by the occupant's own 21 Campbell v. Brown, 2 327; Fletcher v. Brown, 35 Neb. "Woods (C. Ct.), 349; Woodhull 660; Knox v. Dunn, 22 Kan. 683. V. Rosenthal, 61 N. Y. 394; 23 Wallace v. Berdell, 101 N. Hodgkins v. Price, 141 Mass. 162. Y. 13. 22 Ringbouse v. Keener, 63 111. 24 Miller v. Ingram. 5o Miss. 230; Love v. Shartzer, 31 Cal. 510. But compare Hi ifkins v. 487; Taylor v. James, 109 Ga. Price, 141 Mass. 162. 590 DAMAGES AND MESNE PEOFITS. [§ 531. labor.^^ Further, that mesne profits never should be denied the plaintiff because the defendant, by improving the premises, has made them more valuable than they were when he entered.^" Where the defendant is entitled to the value of his improve- ments the rule seems eminently just and reasonable, but there are a number of states where it is denied and an assessment of the value of use and occupation must not include the in- crease in value due to improvements.^^ The volume of author- ity would seem to favor this latter view, but the question is complicated in most states by the provisions of the occupying claimant acts and apparently contradictory rulings will be found growing out of this circumstance. Where the defendant is allowed compensation for his im- provements or the true owner is compelled to pay interest on their value, the rule as first stated would seem to apply.^^ § 531. When mesne profits may be recovered. — As the right to mesne profits depends upon the establishment of the right of possession, it follows that an action therefor cannot be maintained until there has been a judicial finding of title, or, in other words, before there has been a recovery in ejectment.^" But where such recovery has been had the right to mesne profits is a necessary consequence,^" and the recovery of nom- inal damages in the ejectment suit, where this is permitted, in no way aflrects or impairs the right.^^ The foregoing remarks must be taken as expressive of the rule in ejectment cases only. It is not contended that rents and profits which may have accrued dtiring an unlawful occupa- tion, and after there has been a re-entry by the rightful owner, 25Wolcott v. Townsend, 49 Ark. 363; Cliilds v. Shower, 18 Iowa, 456. Iowa, 261. 26 Gardner v. Grannis, 57 Ga. 20 Holmes v. Davis, 19 N. Y. 539. 488; Bennet v. Bulloct, 35 Pa. ' 2T See Wisdom v. Reeves, 110 St. 367; Smith v. Benson, 9 Vt. Ala. 418; Hodgklns v. Price, 141 138; Asia v. Hiser, 22 Fla. 378; Mass. 162; McCarver v. Doe, 135 Harding v. Larkin, 41 111. 423. Ala. 542; Walcott v. Townsend, soLamson v. Ross, 65 N. Y. 49 Iowa, 456; Curry v. Pish Co., 411. 88 Minn. 485; Davis v. Louk, 30 si Jackson v. Wood, 24 Wend. Wis. 308. (N. Y.) 443; Fletcher v. Brown, 28 See State v. Passmore, 61 35 Neb. 660; Limberg v. Hig- ginbotham, 11 Colo. 156. §§ 532, 533.] DAMAGES AND MESNE PEOFITS. 51)1 may not be recovered unless there has been a judgment in ejectment.^^ Both the common law and the statute permits a recovery, in some form of action, for an intermediate injury to the freehold by a disseizor and in such cases the plaintiff who has regained possession may have his mesne profits as well as damages for the ouster.^'' But the fundamental idea that is in- volved in the recovery of mesne profits is the same in every form of action that may be resorted to, and whether the dis- seizor be treated as a trespasser or a tenant; that is, whether the action be in form a tort, as where trespass is brought, or whether it be in form on contract, as where assumpsit is the remedy selected. In either case a rightful possession or re- entry of the plaintiff must first be established before he can call upon the defendant for reimbursement for the tortious holding. § 532. From whom recovery may be had. — It woulc seem, at first blush, that the only persons liable for mesne profits are the defeated parties to the action. But while the disseizor is primarily liable,^* so also are those in privity with him whether as tenants or assigns,^^ and this although they may have entered in good faith and without actual knowledge of the claimant's rights.^^ § 533- Limit of recovery. — At common law the plaintiff was not permitted to take the mesne profits for a longer period than six years before action brought, and should he attempt to extend this time the defendant might plead the statute of lim- itations.^' The idea involved in this limitation of the time of recovery has been very generally retained in the modern stat- utory action,^^ except that the recovery will usually be allowed for the use and occupation pending suit and up to the time of the entry of judgment.^" The reason for this is obvious, for 32 Book Co. V. Jevene, 179 111. 347; Bradley v. McDanlel, 48 N. 71. C. 128. But see contra. Fletcher S3 Smith V. Wunderlich, 70 111. v. McParlane, 12 Mass. 43. 426. 37 See Buller's Nisi Pri. 88; 1 34 Snell V. Harrison, 131 Mo. Chitty, Plead. 225. 495, 32 S. W. Rep. 37; Storch v. ss Lindenmayer v. Gunst, 70 Carr, 28 Pa. St. 135. Miss. 693; Ringhouse v. Keener, 35Lamson v. Sutherland, 13 63 111. 230; Tongue v. Nutwell, Vt. 309. 31 Md. 302; Lopez v. Downing; 36 Tnibee v. Miller, 48 Conn. 46 Ga. 120. 39 Hope V. Blair, 105 Mo. 85; 692 DAMAGES AND MESNE PEOFITS. [§ 534. were the plaintiff restricted to such damages as had accrued up the time suit was commenced, great hardship, if not positive wrong, would result in many cases. Thus, the suit might be brought within a short time after the wrongful entry, but, from various reasons, it might linger for years before final judgment, and if a recovery could be had only for the rents accruing before the action was commenced it would mpan that the plaintiff could recover only nominal damages while the de- fendant held the land and enjoyed the profits during years of litigation.*" The time has also been extended in certain special cases. Thus, where a defendant is allowed a set-off for the value of his improvements it has been held that the plaintiff should be allowed a counter set-off for use and occupation before the commencement of the six years for which there may be a direct recovery.*^ As the proof in ejectment is governed by the same rules that apply in other actions, it follows, in the absence of specific statutory provisions, that if the statute of limitations is not pleaded a recovery may be had for such time as the proof may show that the defendant occupied the premises.*^ But in most states the statute provides that there can be no recovery for more than six years, and where this is the case the recovery is limited to the statutory period and no necessity exists for pleading the statute of limitations. § 534- Continued — Good faith as an element of limita- tion. — In many states the time during which mesne profits may be recovered is further limited by the real or fancied state of the occupant's mind, as influenced, or supposed to be in- fluenced, by his knowledge of the rights or claims of others. In these states a plaintiff in ejectment is permitted to recover rents and profits for a period previous to the commencement of the action, only when it is shown upon the trial that the de- fendant had knowledge of the plaintiff's claim.*' This rule "Wisdom V. Reeves, 110 Ala. 418; *2 See Hill v. Meyers, 46 Pa. Love V. Shartzer, 31 Cal. 487. 15; Gardner v. Granniss, 57 Ga. ioRinghouse v. Keener, 63 III. 539. 230. 43 Clarkson v. Hatton, 143 Mo. "Hyatt V. Cocliran, 85 Ind. 233. 47. § 534.] DAMAGES AND MESNE PEOFITS. 593 rests upon the idea of good faith on the part of the occupant. If it is shown that he entered and held in bad faith, then the computation of rents should begin from the time of his entry if within the period prescribed b}^ the statute of limitations ; on the other hand, if his entry and occupation was in good faith, then rent should be charged against him only from the time suit was commenced,** or f''om the time that he received notice of the plaintiff's claim.*^ The doctrine above ptusented has been affirmatively declared by statute in a number of states under what are generally known as "occupying claimant's laws." These statutes are usually very favorable to the defendant in ejectment and have done much to unsettle the general rules as formulated by the courts. Under these statutes, where the occupant obtained peaceable possession of land, and claims under a connected title deducible of record, if it is shown that he was without actual notice of an adverse title in like manner derived from records, then no action will lie for rents and profits which ac- crued prior to the receipt of actual notice of the adverse claim. This notice is given either by bringing suit or by delivering an attested copy of\the instruments under which the adverse claim is made.*^ \ It will be perceived that there is some confusion with respect to the limit of recovery, and where a recovery of mesne profits can be had only in a supplemental action the question is fur- ther complicated. The supplemental action, whatever may be the special procedure, is, in effect, an action of assumpsit for use and occupation. It has all of the essential characteristics of a new suit, which must be commenced within a definite time after the recovery in ejectment, and, being substantially a new suit, all pleas in bar of its maintenance should be framed with that view. It follows then, that a defense of the bar of limit- ation should relate to and be governed by the new proceeding, and that all rents which accrued more than five years, or such other time as the statute may limit, before the commencement «See Pugh v. Bell, 2 T. B. 47; Montag v. Linn, 27 111. 328. Mon. (Ky.) 125; Robidoux v. ^e This is statutory, but the Casseleggi, 81 Mo. 459. text states the general statutory 46 Clarkson v. Hatton, 143 Mo. doctrine. 38 59i DAMAGES AND MESNE PJEOFITS. [§ 535. of the supplemental proceeding will be barred,*^ while the ele- ments of notice and good faith may still further tend to limit the period of computation. § 535' Suggestion for damages.— Instead of the action of trespass for mesne profits a statutory remedy is provided in some states whereby the plaintif¥ seeking to recover such dam- ages is required, within a specified time after the entry of judgment in ejectment, to make and file a suggestion of his claim, which is entered, together with the proceedings had thereon, upon the record of such judgment as a sort of con- tinuation thereof. The practical effect of such suggestion is the institution of a new suit, and the only substantial difference between such suit and the old action for mesne profits is that the latter, being in form an action of trespass, is brought as for a tort, while the statutory remedy is an action of assumpsit brought for use and occupation.*^ The suggestion is re- quired to be substantially in the same form as a declaration in assumpsit, and the same rules of pleading are observed as upon declarations in personal actions. The defendant is brought in by summons as in other actions and the cauSe proceeds in the same manner. This is the form of procedure which, at one time, seems to have been very generally followed in this coun- try, and under which many of the decisions still quoted as au- thority were made. The modern codes of civil procedure have to some extent modified the doctrine as just stated, although not affecting its essential character. The general effect and scope of the code syetem is to reduce the various remedies at common law into one, which is called a civil action, with a uniform method of pleading. The various classes of actions being abolished, to- gether with all peculiarities in the forms of pleading, the rem- edy for mesne profits naturally falls into the arrangement and becomes the subject of a civil action to which the method of commencing by suggestion is no longer applicable. It would seem, therefore, that in the states where the code system pre- vails, or where statutes embodying its essential features have 47 Ringhoiise v. Keener, 63 111. ^s See Rlnghouse v. Keener, 63 230. 111. 230. § 536.] DAMAGES AND MESNE PEOFITS. 595 been enacted, while a right of action for the recovery of mesne profits is preserved, such action is prosecuted by summons and complaint as in other cases, the complaint, in such event, con- taining the substance that would have been stated in a sugges- tion under the former practice.^" It would further seem, that, under statutes permitting a joinder of actions, a claim for mesne profits may be prosecuted in an action of ejectment where proper averments for this purpose are inserted in the complaint. ''° Where this practice prevails the plaintiff may join claims for mesne profits and for damages for withholding the property, and, it seems, may recover mesne profits accruing prior to the conveyance to himself, where the grantor has also assigned to him his right thereto and cause of action therefor. ^^ Upon the trial of the issue the burden of proof is upon the plaintiff who must establish the value of the rents and profits by affirmative evidence,^^ and it seems that in the absence of evidence of the amount of damages sustained a verdict for mesne profits will be set aside.^' , § 536. Damages in original action. — In states having a code of procedure similar to or based upon that of the State of New York, where the joinder of several distinct causes of ac- tion, is permitted, the plaintiff may not only recover the lands sued for, but also damages for the profits of same during the time they have been unlawfully withheld, not exceeding the prescribed period of limitation, and also any special damages claimed in the complaint for injuries to the freehold by waste or otherwise.^* Such damages may be found and assessed in the same action in which the right of possession is determined and without resorting to any auxiliary proceeding.^'' The sep- arate action for the mesne profits, as described in the preceding 49 Holmes v. Davis, 19 N. Y. 216; Eaton v. Freeman, 58 Ga. 488. 129. 50 Cagger v. Lansing, 64 N. Y. «* Lord v. Bearing, 24 Minn. 517; Martin v. Durand, 63 Gal. 110. 39; Hope v. Blair, 105 Mo. 85. ^s See Vandervoort v. Gould, 51 See Lord v. Bearing, 24 36 N. Y. 639; Livingston v. Tan- Minn. 110. ner, 12 Barb. (N. Y.) 481; Tomp- 62 Beckman v. Richardson, 28 kins v. White, 8 How. Pr. (N. Kan. 648. Y.) 520; Miller v. Ingram, 56 53Hahn v. Cotton, 136 Mo. Miss. 510. 596 DAMAGES AND MESNE" PKOFITS. [§ 537. section, may, it seems, still be resorted to as a supplementary remedy, thus giving to. the plaintiff an option to unite his claim for the recovery of the land with his claim for damages for its unlawful detention, or, to have a separate action for his damages after his recovery in ejectment. ^^ The object of this would seem to be to avoid a multiplicity of suits and to afford an opportunity for the settlement and de- termination of the rights of the parties as to the entire subject- matter of the litigation by one judgment. But while this is permissible in practice the identity of the causes of action is not destroyed and unless they are properly pleaded, recovery, as a rule, will be denied. "'' A claim for the rents and profits re- mains much as it was at common law and must not be con- founded with a claim for damages for withholding the land. The former is in the nature of an assumpsit for use and occu- pation, the latter is quite distinctly an action for a tort, and both forms of action must be specifically pleaded to permit evi- dence of same upon the trial and to sustain a verdict.^* A review of the legislation upon this subject discloses an un- mistakable tendency to make one suit suffice for the double purpose of the recovery of the land and recovery of damages. In almost every instance where a statutory action is provided there is a prescription of this character, and usually the dam- ages are to be computed to the time of verdict. ^^ In some in- stances the recovery of damages must be had in the ejectment suit but, generally, notwithstanding such procedure is per- mitted, a neglect to take advantage of such provision will not preclude a recovery of the mesne profits in a supplementary suit. ' § 537- Where plaintiff acquires possession pending suit. As the primary object of ejectment is the recovery of possession 50 Vandervoort v. Gould, 36 N. so This would seem to be the Y. 639 ; People v. Mayor, 17 How. case in Alabama, Arkansas, Call- Pr. 57; Livingston v. Tanner, 12 fornia, Dakota, Florida, Georgia, Barb. (N. Y.) 481. Iowa, Kansas, Minnesota, Ne- 57 Armstrong v. St. Louis, 69 braska, Kentucky, Mississippi, Mo. 309; Martin v. Durand, 63 New Jersey, New York, Ohio, Gal. 39. Oregon, Pennsylvania, Soijth Car- 58 Larned v. Hudson, 57 N. Y. olina, Texas, Virginia, West Vir- 151. ginia and Wisconsin. §§ 53S, 539.] DAMAGES AND MESNE PEOFITS. 597 it logically follows that its object is practically accomplished if the defendant surrenders possession pendente lite and the plaintiff enters upon the land. But, notwithstanding the plaintiff may acquire the actual possession of the premises be- fore trial he yet has a right to recover the mesne profits for the previous unlawful possession,"" and the suit may be continued for this purpose. To justify such recovery, however, it is nec- essary for him to establish his right to possession at the time suit was instituted, and this as fully as if he were prosecuting his action for the sole purpose of obtaining possesion."'- When this is done damages may be assessed covering the rents and profits to the time possession was surrendered."^ § 538. Damages on default. — As a default, in an action of ejectment, admits all the material averments of the plaintiff's declaration, and as there then exists no necessity for- having evidence as to title, a judgment for possession may be entered and a writ of restitution awarded. If, however, damages are also sought to be recovered it would seem that the usual sug- gestion should be filed, upon which a writ of inquiry to assess the value of the mesne profits should be issued. In such event notice of same should be given to the defendant as in other cases. "^ Upon the execution of such writ the plaintiff must establish his claim in the same manner as in the ordinary case on issue joined, and the damages are assessed and judgment therefor entered as in other actions."* § 539. Defenses. — Where the suggestion of damages takes the form of an action of assumpsit for use and occupa- tion the defendant may plead the general issue of non-assump- sit, and under such plea may give notice of such matters as he may rely upon in bar of the claim, except such as were or might have been controverted in the ejectment suit, or he may plead such matters specially. The issues thus made are tried as in other causes. On the trial the plaintiff will be required to establish, and the defendant may controvert, the time when so Gilman v. Gilman, 111 N. Ys es Tucker v. Hamilton, 108 111. 265. 464. 61 Carman v. Beam, 88 Pa. St. «* Carman v. Beam, 88 Pa. St. 319. 319. 02 Gilman v. Gilman, 111 N. Y. 265. 598 DAMAGES AND MESNE PROFITS. [§ 540. such defendant entered into possession of the premises, the time during wliich he enjoyed the mesne profits thereof, and the value of such profits ; and the record of the recovery in the action of ejectment shall not be evidence of such time.^^ Where damages are limited to the rents accruing after the commencement of the suit, in the case of an occupancy in good faith, this latter may constitute an element of defense although the onus of showing bad faith is generally cast upon the plaintiff. § 540. Measure of damages. — The general rule for the measure of damages, either in actions of trespass for mesne profits, or by a suggestion filed in the case, or where same are claimed in the original action, would seem to be the fair rental value of the property during the period of the tortious hold- ing.''*' But, if the possession has been held in bad faith, the account should include not only the rents, revenues and profits actually received but also those which the evidence shows might have been received with ordinary good management. To ac- complish this evidence may be offered of rents paid for other lands, adjacent or similarly situated and no better capacitated, and other extrinsic proof may be received of the actual value of the property while in the hands of the defendant.'''' In taking an account for rents and profits the owner is en- titled not only to what the lands were reasonably worth annu- ally, but also to interest thereon to the time of trial.'* In ar- riving at this result the rent or income for each year should be ascertained separately and upon the amount so found for each year the interest should be computed down to the time when the account closes,, so that there may be interest upon each yearly sum but no interest upon interest.'^" In fixing the 65 This is statutory, and tlie ington v. Hiss, 70 Md. 172, 16 rule may vary some in different Atl. Rep. 534; Cutter v. Wad- states. Tlie text states the rule dingham, 33 Mo. 296. promulgated by the Revised Stat- 67 Gaines v. New Orleans, 17 utes of New York, and which Fed. Rep. 16; Wallace v. Ber- was subsequently adopted by a dell, 101 N. Y. 13; Credle v. majority of the states when the Ayers, 126 N. C. 11, 35 S. E. Rep. action was remodeled and the 128. fictions abolished. es Hodgkins v. Price, 141 Mass. 66 Bradley v. Brown, 86 Iowa, 162. 359; Nash v. Sullivan, 32 Minn. 69 New Orleans v. Gaines, 15 189, 20 N. W. Rep. 144; Worth- Wall. (U. S.) 634. § 540.] DAMAGES AND MESNE PEOFITS. 599 amount of the rental value the basis should be the condition of the land as improved by the defendant/" if it has been so im- proved, where the defendant is entitled to the value of his im- provements.'^ While the statute frequently alludes to the "rents and profits" as the damages to which a successful plaintiff is entitled, yet this does not mean the rents actually received by the adverse holder during the period the land was in his possession. In- deed, it requires no demonstration to show that it would be un- just to confine the owner of the property withheld from him to the rents actually received by the party required to make res- titution. It is the value of the use and occupation which forms the true criterion in assessing damages. It is this that the claimant has been deprived of, and for this that he should be made whole.'^ There may, perhaps, be exceptional cases where the damages will be restricted to the amounts actually received.'^ This may occurr where the occupation was had in good faith, or where the bad faith of the possessor was merely technical,'* while the character and situation of the land may still further tend to reduce the amount of the recovery. Us- ually, however, the rule as first stated will apply and the fair rental value will constitute the criterion of recovery irrespec- tive of the question of good faith.'^ But where there has been no adverse possession in fact, that is, where the defendant was not in actual possession and re- ceived no profits from the land, as where the premises in con- troversy are vacant and unproductive, or where they consist of unenclosed and unimproved prairie land, no damages should be awarded for use and occupation.'' At all events, in such a case, no more than nominal damages should be allowed." ToWolcott T. Townsend, 49 S. C. 528; Lawrence v. Rector, Iowa, 456. 137 U. S. 139. 71 Miller v. Ingram, 56 Miss. ^i New Orleans v. Christmas, 510; State v. Passmore, 61 Ark. 131 XJ. S. 191. 363. 76 Bradley v. Brown, 86 Iowa, 72 Wallace v. Berdell, 101 N. 359, 53 N. W. Rep. 268. Y. 13; Credle v. Ayers, 126 N. C. 76 GrifEey v. Kennard, 24 Neb. 11; Bradley v. Brown, 86 Iowa, 174. 359, 53 N. W. Rep. 268. ^^ See Dbbbins v. Baker, 80 73 See Rabb v. Patterson, 42 Ind. 52. 600 DAMAGES AND MESNE PEOEITS. [§§ 54i-5i3. § 541. Assessment of damages — Writ of inquiry. — Where issue is joined on a suggestion of damages tlie trial proceeds as in other cases and if tlie issue is found for the plaintiff the same jury should assess his damages to the amount of the mesne profits received by the defendant since he entered into possession of the premises. On the other hand, if no issue of fact be joined on the suggestion, or if judgment thereon be rendered against the defendant by default, on demurrer or otherwise, a' writ of inquiry to assess the value of the mesne profits is issued, and notice thereof must be given to the de- fendant or his attorney, as in other cases. Upon the execution of the writ the plaintiff is required to establish the same mat- ters as in the case of an issue joined, and, as a general propo- sition, the defendant may still controvert them and interpose any set-off to which he may be entitled, while the jury must assess the damages in the same manner as in the ordinary case. Upon such inquisition, or upon the verdict of the jury in the case of issue being joined, the court renders judgment as in ac- tions of assumpsit for use and occupation, and which have the like effect in all respects.''^ § 542. Death of parties. — The statute now makes pro- vision, in most cases, for the death of parties pending the liti- gation, and if the plaintiff in ejectment shall die after issue joined or after judgment has been rendered, his personal rep- resentatives may enter a suggestion of such death and of the grant to them of letters testamentary or of administration, and may suggest their claim to the mesne profits of the premises re- covered, in the same manner and with the like effect as the de- ceased. Where this is done the same proceedings may be had thereon as though the death had not occurred. § 543. Offsets by defendant. — As a general rule, in an action for mesne profits, \\hatever may be the form under which it is prosecuted, the amounts expended by the defendant while in the occupation of the lands for necessary repairs and taxes should be deducted from the gross rental value thereof, and the balance then remaining will constitute the damages '8 This is statutory, and while the text states the general stat- loeal variations will be found, utory procedure. § .543.] DAMAGES AND MESNE PfJOFITS. 601 sustained hy the plaintiff and which he is entitled to recover. '''' So, too, if the premises have been actually rented during the period of the adverse occupation it has been held that in deter- mining the plaintiff's damage the defendant should be allowed a fair compensation for the necessary time and labor involved in the care and management of the premises, and in the collection of the rents. ^'' This ruling is based on the theory that if the plaintiff had been in possession he would have been obliged to pay such sum for management, or to furnish its equivalent in his own labor and services. It is a further rule of the common law that everything an- nexed to a freehold becomes a part thereof and passes with a recovery of it. But, independent of statutes, this rule has been so far modified as to permit the value of defendant's improve- ments, made in good faith, to be set off against a claim for rents and .profits,^^ while in a majority of the states this privilege has further been confirmed by statute. Where this rule obtains a judgment for rents and profits can be reduced or even satisfied out of an award to the defendant for the value of improve- ments.^^ The presumption also is, that a person in possession of lands under color of title, who makes improvements thereon, is acting in good faith, therefore, until bad faith is shown, he should be deemed entitled to set-off the value of his improve- ments against the mesne profits. Such improvements, how- ever, must not only be permanent but must also be of such a character as to add to the future value of the property,^^ and when this is the case, their value should be assessed on a basis co-extensive in time with the estimate of rents and profits, which they contributed to produce.** It is held in some cases, how- ever, that the right to set off the value of improvements placed 79 Semple v. Bank, 5 Sawyer 82 Tice v. Fleming, 173 Mo. 49. (C. Ct.), 394; Wallace v. Ber- ss stark v. Starr, 1 Sawyer dell, 101 N. Y. 13; Flint V. Doug- (C. Ct), 15; Lunquest v. Ten lass, 28 Kan. 414; Blodgett v. Eyck, 40 Iowa, 213; Roe v. Mal- Hitt, 29, "Wis. 169; Ringliouse v. com, 39 Ga. 328; Ringhouse v. Keener, 63 111. 230. But see Keener, 63 111. 230; Whitney v. contra, Napton v. Leaton, 71 Mo. Richardson, 31 Vt. 300; Learned 358. V. Corley, 43 Miss. 687. 80 Hodgkins v. Price, 141 Mass. si Jolinson v. Futch, 57 Miss. 162, 5 N. E. Rep. 502. 73. siElBnger v. Hall, 81 Va. 94. 602 DAMAGES AND MESNE PROFITS. [§ 54;4. upon land more than five years before the commencement of the proceeding is barred by the statute of limitations. It is con- tended that when the statute is relied upon by the parties it must operate alike with respect to both.^^ § 544. Continued — Payment of taxes. — While the au- thorities are not in accord with respect to allowances for taxes, the better rule would yet seem to be that the taxes paid by the defendant while in possession should be set off against a claim for rents and profits,**^ and in some states this rule has been con- firmed by statute.*^ The action for mesne profits is given to enable the owner of the soil to have a fair and just compensa- tion for the use of the land, but it was never intended to give him anything beyond this. If the defendant has paid sums of money with which the land stood charged, and for which it would have been sold had such sums not been paid, it is fair to say that such payments were made for the use of the plaintiff and for the preservation of his title. If this be true, then to compel the defendant to pay the value of the use of the land and to refuse to allow him to deduct the taxes he may have paid, is to permit the plaintiff to recover more than the rents and profits. It is for this feason that courts have permitted the taxes to be deducted from the profits, the balance being re- garded as the true rental value. In a number of instances, however, this view has been re- jected and the rule denied. ^^ The reasons assigned for such action are various but proceed mainly on the old common-law theory that a person cannot be charged with the repayment of disbursements which he has neither requested nor ratified,*" and, to some extent, on the theory that as such payments do not constitute improvements the defendant is not entitled to compensation therefor.^" 85 Rmghouse v. Keener, 63 111. 88 Garrigan v. Knight, 47 Iowa, 230. 525; Ellsworth v. Freeman, 43 soRlnghouse v. Keener, 63 111. Mich. 488. 230; Mclnemey v. Beck, 10 soNapton v. Leaton, 71 Mo. Wash. 515; Vaughn v. Vaughn, 358. 100 Tenn. 282. ooCurtiss v. Gay, 15 Gray 8T Lothrop V. Michaelson, 44 (Mass.) 36. Neb. 633. §§ 545, 546.] DAMAGES AND MESNE PROFITS. 6U3 § 545. Continued — Payment of incumbrances. — It is held in some states that where a possessor of lands in good faith pays money in discharge of an existing incumbrance, without notice of any infirmity in his title, he should be reimbursed the money so paid by the true owner seeking to recover the land from him."^ § 546. Compensation for improvements. — It is an ele- mentary principle of the law of real property that land com- prises not only the soil, of whatever material composed, but also all increments in or upon it and all annexations affixed to it. Under this general definition it follows that where one ac- quires land he also acquires its increment, as crops, trees, herb- age, etc., as well as its annexations, as houses, fences, or other erections. Pursuant to this general doctrine it was uniformly held in the earlier stages of the remedy by ejectment that where the owner recovered possession of his land he took it with all that appertained to it, and this rule seems to have been applied without qualification or exception in the determination of the rights of the successful litigant. The fundamental idea upon which the common-law rule was based seems to have been, that the rightful owner of land is under no duty or obligation to pay for improvements that were never authorized by him. Notwithstanding such improve- ments were made in good faith the occupant was presumed to have made them at his own risk, and having been annexed to the freehold they passed with its recovery. The rule of the civil law was more liberal, and permitted one who had made improvements upon land of which he was in possession under the belief that he was the owner, to exact compensation for the value of such improvements, less the value of the use of the land, before he could be compelled to surrender possession. Courts of equity adopted the rule of the civil law and applied it in all cases where the owner of land resorted to equity for the recovery of rents and profits. In time, and through the adop- tion of some of the principles of equity, the rigidity of the com- mon-law rule was modified, and, as the action for mesne profits was equitable in its nature, the common-law courts came to 01 Walker v. Lawler, 45 Tex. 532. 604: DAMAGES AND MESNE PROFITS. § 517.] permit an unsuccessful defendant to set off or recoup the value of his improvements, made in good faith, as against the rents and profits. ^^ But this seems to have been the limit of com- mon-law clemency, and if the owner on recovery in ejectment made no claim for rents and profits the adverse claimant could obtain no compensation for improvements made while he was in possession,^^ or if the value of the improvements exceeded the value of the rents and profits, or damages for the detention of the land, then, for such excess there could be no recovery."* Except as changed by the statute this is still the rule of the law courts, and the doctrine has been frequently applied in recent years. The courts of equity, however, went much further than this, and, from quite an early day, it seems to have been a settled principle that when a bona fide possessor of property has made meliorations upon it in good faith and under an honest belief of ownership, and the real owner has been compelled to apply to equity for relief, the court, in furtherance of the maxim that he who seeks equity must do equity, will compel him to pay for such improvements to the extent that they may have en- hanced the value of the land.'*^ § 547. Continued — Statutory rules. — 'The doctrine last stated has not only affected the action of the common-law courts, as above indicated, but has exerted a powerful in- fluence upon the legislature as well, and, as a consequence, for many years statutory provisions in most of the states have saved to occupying claimants, in good faith, the value of their improvements upon eviction. These laws are all similar in principle, though differing some in practical methods, and the ideas involved are borrowed largely from the well known doc- 92 See Putnam v. Ritchie, 6 264; Carter v. Brown, 35 Neb. Paige (N. Y.), 404; Parsons v. 670; Crawford v. Shaft, 46 Kan. Moses, 16 Iowa, 444; Gregg v. 704. Patterson, 9 Watts & S. (Pa.) 95 See Story, Eq. Jur. 779; 209 ; Bffinger v. Hall, 81 Va. 94. Pom. Bq. Jur. 1241. Also Bright 93 Graeme v. Cullen, 23 Gratt. v. Boyd, 2 Story, 605; Cole v. (Va.) 296. And see Putnam v. Johnson, 53 Miss. 94; Tongue Tyler, 117 Pa. 570. v. Nutwell, 17 Md. 212; Mc- 94 Parsons v. Moses, 16 Iowa, Laughlin v. Barnum, 31 Md. 425; 440; McCoy v. Arnett, 47 Ark. Thomas v. Thomas' Ex'r, 16 B. 445; Shroyer v. Nickell, 55 Mo. Mon. (Ky.) 421. § 547.] DAMAGES AND MESNE PROFITS. 605 trines of equity relating to notice and estoppel. Indeed, these statutes are strictly equitable in their character.'^'' They pro- vide generally, that where one has entered peaceably upon land, under an apparently clear and connected title, and without no- tice of any adverse title or claim, and has made lasting and val- uable improvements before receiving any notice of a claim or right in conflict with his own, then, in the event of his subse- quent eviction the value of such improvements shall be al- lowed to him.'^ The underlying principle of these laws, as . before remarked, would seem to rest, to some extent, on the equitable doctrine of estoppel, in that they will not permit the true owner of land, who has remained silent when it was his duty to speak, to reap the benefits of the labor and expendi- tures of others, who, by reason of his silence, have done things which otherwise they might not. Therefore, the law provides that if the owner of land shall stand silent until improvements have been made upon it, under an apparent title, he shall not recover the land, together with the improvements that have made it valuable, without paying for such improvements their just price. This, as we have seen, has always been the rule in equity and the effect of the introduction of the "occupying claimant's law" into the action of ejectment has simply been to reduce a moral duty to a legal obligation.^* It is further con- tended, in support of the rule, that a statutory provision which compels a plaintiff in ejectment to pay for improvements made by the defendant in good faith does not invade the constitu- tional rights of the individual by making the owner of land pay for improvements he never authorized and to the making of which he never consented. While it may be that he did not expressly consent to the making of the improvements, yet he is presumed to know of his ownership of the property and is fur- ther charged with a knowledge of what is being done with res- pect to it. If he fails to give proper notice of his claim to the person in actual occupancy, and permits him to make valuable 8<5Ross v. Irving, 14 111. 171. Walker v. BeaucMer, 27 Gratt. 87 See Lamore v. Winter, 13 (Va.) 511. Ala. 31; Jones V. Carter, 12 Mass. os Griswold v. Bragg, 6 Fed. 314; Davis v. Powell, 13 Ohio, Rep. 343; Dawson v. Grow, 29 308; Ross v. Irving, 14 111. 171; W. Va. 333. 606 DAMAGES AND MESNE PEOFITS. [§§ 548-550. improvements upon the land under a belief of ownership in himself, this must be regarded as a tacit consent and in the event of a recovery a just compensation should be made for the benefits which the real owner subsequently enjoys.'' But where the common law, as previously stated, has not been changed or enlarged by statute the compensation of the occuJDant is limited by the demand of the claimant,^ and even where such statutes have been enacted they are generally ac- ■corded a strict construction, while the occupant, in order to avail himself of their benefits must be brought fully within their terms. ^ Good faith is generally an essential ingredient,^ and want of notice is further necessary to establish the fact of good faith. § 548. Continued — By tenants. — The rule is fundamental that a tenant can claim no allowance for the value of improve- ments placed by him upon the demised premises without the landlord's direction or consent, and that such 'improvements, becoming a part of the freehold, inure to the benefit of the owner of the fee.* § 549. Continued — By strangers. — The law authorizing an allowance for the value of improvements made by an un- successful defendant, beirig in derogation of the common law, is generally construed strictly. Its object is the protection of the defeated litigant. Hence, he may not recover for improve- ments not made by himself or the person under whom he claims.'* § 550. Continued — By purchaser pendente lite. — The general rule is that an occupant cannot recover for improve- ments made after the institution of suit for the recovery of the 99Tice V. Fleming, 173 Mo. 49, ^Wolf v. Holton, 92 Micli. 136, 72 S. W. Rep. 689, 96 Am. St. 52 N. "W. Rep. 459; Jones v. 479. Hoard, 59 Ark. 42, 43 Am. St. iKerrv. Nicholas, 88 Ala. 346; 17, 26 S. W. Rep. 193; Dulaney Woodtmll V. Rosenthal, 61 N. T. v. Nolan Co., 85 Tex. 225, 20 S. 382. W. Rep. 70. 2 King V. Harrington, 18 Mich. ® Jenkins v. Means, 59 Ga. 55 ; 213; Wheeler v. Merriman, 30 McLellan v. Omodt, 37 Minn. Minn. 372; Lunquest v. Ten 157; Schetter v. Southern, etc. EJyck, 40 Iowa, 213. Co., 19 Oreg. 192. 3 Holt V. Adams, 121 Ala. 664; Wise v. Burton, 73 Cal. 174. §§ 551, 552.] DAMAGES AND MENSE PROFITS. 607 land.* From this it logically follows that one who enters under the defendant is estopped to recover, as his position is no bet- ter than that of his assignor. § 551. Improvements made under a defeasible title. — The primary object of the betterment laws is to secure to an occupy- ing claimant the benefits of improvements he may place upon ■ lands under the supposition that he is the unconditional owner. The title contemplated by the statute is one which the occu- pant believes, and has good reason to believe, is free from doubt, and of whose defects, if there are defects, he has no knowledge and has received no reasonable notice or warning. Such, at least, is the generally received doctrine, although in some cases it seems to have been subject to considerable modi- fication. This being true, it follows that a claim for improve- ments made by an occupant having full knowledge of the con- ditions attached to his estate, which are to be performed by himself, and of which there has been a breach by his own vol- untary act, cannot be entertained.'' In such event, knowing that his title was conditional and his estate defeasible, the evicted claimant should not be regarded as holding under a supposed legal title, within the meaning of the statute relating to betterments, and should be deemed to have made the im- provements for which compensation is sought for his own con- venience and benefit, and at his own risk.^ This is an impor- tant modification of the doctrine heretofore stated yet its in- herent justness must be apparent even though at times it may . seem to work a hardship. § 552. Improvements must be made in good faith. — The essence of the right to recover the value of improvements on eviction is, that such improvements shall have been made in good faith." A man is under no moral obligation to pay for eHaslett v. Grain, 85 111. 129; s Tripe v. Marcy, 39 N. H. 439; Wells V. Newsom, 76 Iowa, 81; Hughes v. Edwards, 9 Wheat. Gaines v. Kennedy, 53 Miss. 103. (IT. S.) 489. And see Buell v. But see Dorer v. Hood, 113 Wis. Irwin, 24 Mich. 145; Hannan v. 607, 88 N. W. Rep. 1009. McNickle, 82 Cal. 123. 7 Walker v. Walker, 63 N. H. » Carpentier v. Small, 35 Cal. 321; Walker v. Arnold, 71 Vt 346; Ijee v. Bouman, 55 Mo. 400; 263. Whitney v. Richardson, 31 Vt. 200; Holmes v. McCree, 64 Miss. 608 , DAMAGES AND MESNE PEOFITS. [§ 553. unauthorized improvements put upon his own land by a tor- tious occupant, nor will the law raise a legal obligation/" and where a defendant' has knowledge of all the facts which invalid- ate his claim, notwithstanding he may entertain an erroneous belief that his title is unimpeachable, he is not such a bona fide holder as will entitle him to compensation for the improvements he has made.^^ What is good faith, in matters of the kind now under dis- cussion, cannot be reduced to fixed terms. It is not to be determined by what the party may have believed or disbe- lieved, but what the jury, or the court acting in lieu of a jury, ought to believe and find from the evidence.^- If the triers are satisfied that the party had good reason to believe, or had ready means for discovering, that his title was void, this is suf- ficient to work a denial of any compensation for impr.ovements. In such a case it is immaterial that he had no actual knowledge of the plaintifll's claim provided he had full means for acquir- ing such knowledge. ^^ § 553. Improvements made after notice of plaintiff's claim. — As previously shown, to enable one who has been evicted from the possession of land to recover compensation for permanent improvements made during the continuance of such possession, the occupation must have been in good faith. In- deed, this seems to be the indispensable requisite to recovery. The occupant must have an honest belief in the validity of his title, and, it would seem, must have reasonable grounds for that belief,^* He should not only believe that he is the true owner, 129; Bryan v. Uland, 101 Ind. 1= Dawson v. Grow, 29 "W. Va. 481. 333. loWoodhull V. Rosenthal, 61 is Woodhull v. Rosenthal, 61 N. Y. 382; White v. Moses, 21 N. Y. 382; Barlow v. Bell, A. K. Cal. 34. Marsh. (Ky.) 246; Wood v. n Holmes v. McGee, 64 Miss. Krebs, 33 Gratt. (Va.) 685. 129; Harrison v. Fleming, 7 Mon. 1* Richwine v. Church, 135 Ind. (Ky.) 537; Dawson v. Grow, 29 80, 34 N. E. Rep. 737; Dohan v. W. Va. 333, 1 S. E. Rep. 564; Murdook, 41 La. Ann. 494, 6 Hunt V. Pond, 67 Ga. 578; Gor- South. Rep. 131; Holmes v. Mc- don V. Tweedy, 74 Ala. 232; Gee, 64 Miss. 129, 8 South. Rep. Bryan v. Uland, 101 Ind. 477; 169; White v. Stokes, 67 Ark. Brown y. Baldwin, 121 Mo. 106. 184, 53 S. W. Rep. 1060; Horton V. Sledge, 29 Ala. 478; Sartain § 553.] DAMAGES AND MESNE PROFITS. 609 but, in addition, should be ignorant that his title is denied or liable to be contested by one having or claiming a better right,^'^ or, if so informed, should have strong grounds for believing that such adverse claim is destitute of legal foundation.^" But mere belief, however strong, is not in itself sufficient, for the real question is not what a party may have believed but what he should have believed. Were the rule otherwise then the statute could be rendered nugatory in every case where the oc- cupant purposely shuts his eyes to all the means of information or refuses to believe all evidence that tends to impeach his title.^^ Hence, if he improves the land with notice of an ad- verse title or with knowledge of the rights of the plaintiff, it would clearly be unjust to award him compensation for such improvements so made.^' In some states the rule is strongly asserted that the occupa- tion must be under color of title,^" and, save in exceptional cases, mere equities will be insufficient to warrant an allow- ance for improvements,^" but, in any event, there must be a claim of title under an honest belief of its validity.^^ It has been held that if a person buys land without an examination of the records, which, if duly made would have revealed an infirm- ity of the title he is purchasing, such person is not, as against the true owner, a purchaser in good faith.^^ But this doctrine, Y. Hamilton, 12 Tex. 219; Par- i9 Snell v. Mechan, 80 Iowa, rish V. Jackson, 69 Tex. 614, 7 53, 45 N. W. Rep. 398; Thomas S. "W. Rep. 486. v. Thomas, 69 Miss. 564, 13 15 Hall V. Hall, 30 W. Va. 779 ; South. Rep. 666; Hall v. Tor- Bank V. Hudson, 111 U. S. 66; rens, 32 Minn. 527, 21 N. W. Rep. Linthicum v. Thomas, 59 Ind. 717; Beard v. Dansby, 48 Ark. 574. 183, 2 S. W. Rep. 701. 18 Parish v. Jackson, 69 Tex. 20 Wheeler v. Merriman, 30 614, 7 S. W. Rep. 486. Minn. 372, 15 N. W. Rep. 665; 17 Dawson v. Grow, 29 W. Va. Anderson v. "Williams, 59 Ark. 333. 144, 26 S. W. Rep. 818. 18 Holmes v. McGee, 64 Miss. 21 Kendall v. Tracy, 64 Vt. 522, 129; Brown v. Baldwin, 121 Mo. 24 Atl. Rep. 1118; Carter v! 106; Green v. Biddle, 8 Wheat. Brown, 35 Neb. 670, 53 N. W. (TJ. S.) 1; White v. Moses, 21 Rep. 580; Cain v. Cox, 29 W. Va. Cal. 34; Porter v. Doe, 10 Ark. 258, 1 S. E. Rep. 298; Wood v. 186; Southerland v. Merrltt, 120 Conrad, 2 S. Dak. 334, 50 N. W. N. C. 318; Gordon v. Tweedy, 74 Rep. 95. Ala. 232; Bryan v. Uland, 101 22Parrish v. Jackson, 69 Tex. Ind. 477. 614, 7 S. W. Rep. 486; Dohan r. 39 610 DAMAGES AND MESNE PEOFITS. [§§ 554, 555. while strictly in accord with the spirit of the recording acts, seems to have been greatly modified in some states so far as it may afifect the right of recovery for betterments, and it would seem that notwithstanding a diligent search might have shown the purchaser that he was without title, yet this does not neces- sarily negative good faith in his occupancy.-^ As a general rule, no compensation should be awarded to an occupant for improvements made after knowledge of the fact that he is not the owner of the land, as such improvements can- not be said to have been made in good faith,-"' and a still stronger case for such denial is presented where information is brought home to him that his title is disputed.^'^ § 554. Continued — Statutory notice. — In the absence of legislation upon the subject the usual common-law tests must serve to fix the fact of notice and its attendant incidents. In some states, however, the legislature has assumed the duty of defining the character of the notice that will affect the party in possession. Where the statutory notice has been given, a further procedure is also generally provided for the assessment of damages and the sum to be allowed for improvements. This assessment is made by commissioners appointed for the purpose and the methods are too various to be profitably reviewed in a work of this kind. Where this method of assessment is per- mitted the procedure does not seem to be altogether well settled. The method is distinctl}^ an innovation, in that it removes the computation of damages and assessment of improvements from the domain of the jury and vests the power in a new tribunal. It seems to have been borrowed from the procedure of courts of equity and does not seem to be much resorted to in actions of a purely legal character. § 555. Improvements made after action commenced. — If compensation for improvements should be denied to one who has notice of a claim superior to his own, it follows with Murdock, 41 La. Ann. 494, 6 Baxter, 93 N. C. 405; Cole v. South. 131; Dawson v. Grow, 29 Johnson, 53 Miss. 95. W. Va. '333, 1 S. E. Rep. 564. 24 White v. Stolies, 67 Ark. 23 Petit V. Railroad Co., 119 184, 53 S. W. Rep. 1060; Dawson Mich. 492, 78 N. W. Rep. 554, 75 v. Grow, 29 W. Va. 333. Am. St. 417; Whitney v. Rich- =5 Horton v. Sledge, 29 Ala. ardson, 31 Vt. 300; Justice v. 478. § 556.] , DAMAGES AMD MESNE PROFITS. Cil stronger reason that no allowance therefor should be made to a defeated defendant where the improvements in question were placed upon the land after the commencemnt of an action for its recovery. The justness of this rule has many times been recognized by courts and has further found expression, in some states, by statutory enactment. The reason of the rule would seem to be, that no man has a right to choose the mode of improvement of another man's property against his known will, and, therefore, the law will not compensate him in such a case at the hazard of doing wrong to the owner. ^'' It would seem, however, that this principle does not extend to the pay- ment of taxes and that moneys expended for this purpose may be recovered.^^ In some states this right is confirmed by stat- ute,-' and in others it has been denied.^' § 556. Continued — Opposite views and conflicting rules. While the rule which denies compensation for improvements made, after notice of plaintiff's claim, or after action has been brought, would seem to be well founded in legal reason, it has yet been refused operation in some states, and a bona fide occu- pant of land, under color of title, is permitted to recover for improvements made after, as well as before, the commence- ment of an action by which he is evicted. The reasoning of the cases which sustain this latter rule proceeds on the general doctrines of adverse possession. The contention is, that it is the entry upon possession under color of title, asserted in good faith, which creates the right to recover for improvements on subsequent eviction ; that it is not necessary that the person making the entry should believe his title superior to every other title or claim to the property at 'the time of such entry, in order to make his possession adverse, and that a subsequently ac- quired knowledge that there is a better title in some other per- son does not necessarily change the nature of his occupancy from an adverse possession to a possession subordinate to some 28 Gordon v. Tweedy, 74 Ala. 232; Mclnerny v. Beck, 10 Wash. 232; "Wells v. Newsome, 76 Iowa, 515. 81; Morrison V. Robinson, 31 Pa. 28 Lothrop v. Mlchaelson, 44 St. 456; Haslett v. Grain, 85 111. Neb. 633. 129; Gaines v. Kennedy, 53 Miss. 29 Garrigan v. Knight, 47 Iowa, 103. 525; Napton v. Leaton, 71 Mo, 2T Gordon v. Tweedy, 74 Ala. 358. 612 DAMAGES AND MESNE PEOFITS. [§ 556. other title. ^'' Hence, it has been held that a notice of claim of superior title, or the commencement of an action to recover the land, does not, in itself, interrupt the adverse possession of a defendant, or change his attitude in regard to his adverse claim,^^ and that he is entitled to the value of improvements made by him even after notice of the plaintiff's claim.^^ The gist of the right of compensation for improvements seems to be the fact of good faith on the part of the occupant. All of the authorities seem to sustain this principle. The dif- ficulty seems to lie in the definition of good faith. Now this is one of the terms which the law has refused to define, for much the same reasons that it has refused to define "fraud," and other kindred abstractions. Nor have the legal lexico- graphers been able to give us any very satisfactory definition. In a general way we may say it implies an honesty and sin- cerity of purpose and an absence of dishonesty, insincerity, etc., . but this is about as far as we can go. When applied to a de- fendant in ejectment its essential elements would seem to con- sist of an honest belief in the rightfulness of his holding and an absence of such knowledge as would induce a doubt of same in the mind of a reasonable man.'^ Hence, it would seem, on principle, that when he has notice of outstanding title in some person claiming a better right, his occupancy, to that extent, becomes inala fide/* and, in such event, he should be refused an allowance for improvements made after such notice was re- ceived. ^^ Yet, as we have just seen, this doctrine, in a number of states is denied effect. The uncertainty which attends this branch of our subject is created more by the provisions of positive statutes than by the 30 See Dothard v. Denson, 72 ss Tolbert v. Horton, 31 Minn. Ala. 541; Barrett v. Stradl, 73 521. Wis. 385; Russell v. Mandell, 73 s* See Bank v. Hudson, 111 IT. 111. 136; McCagg Heacock, 42 S. 66; Richwine v. Cliurcli, 135 111. 157. Ind. SO, 34 N. E. Rep. 737; Dohan 31 Zwietusoh v. Watkins, 61 v. Murdock, 41 La. Ann. 494, 6 "Wis. 615; Langford v. Poppe, 56 So. Rep. 131. Cal. 73; Ferguson v. Bartliolo- 35 Holmes v. McGee, 64 Miss, mew, 67 Mo. 212; Workman v. 129, 8 So. Rep. 169; Wbite v. Guthrie, 29 Pa. St. 495. Stokes, 67 Ark. 184, 53 S. W. 32 Barrett v. Stradl, 73 Wis. Rep. 1060; Horton v. Sledge, 29 385. Ala. 478. § 557.] DAMAGES ANO MESNE PKOFITS. 613 interpretation and application of the equitable rules which un- derlie it, and the conflicting decisions found in the books are attributable, in large measure, to this cause. Special statutes designed to protect occupying claimants are now in force in a majority of the states, and while they all unite in declaring that the occupation must have been taken and the improvements made in good faith, it is yet extremely difficult, if not impos- sible, to reconcile the provisions of many of these statutes with the received rules of equity respecting good faith. By sta!tute, in some states, one who makes improvements on land after no- tice of plaintiff's claim is regarded as acting in bad faith and is therefore entitled to no compensation for any melioration he may have effected after svich notice was brought home to him. This seems eminently just and is in consonance with sound equitable doctrine. As has been well said, it would be mani- festly unjust to the owner, and a highly dangerous policy, to make allowances for improvements to one who liiade the ex- penditures with a full knowledge of superior rights."" Where this doctrine prevails the occupant acts at his peril. In other states, however, it is expressly provided that a defendant in ejectment, against whom a recovery has been had, may be al- lowed for his improvements made after notice of the plaintiff's claim, where he entered into possession under color of title as- serted in good faith. These statutes, as well as the decisions that have been made under them, are based on legal rather than equitable principles, and, as has been shown, proceed upon the theories of adverse possession. The adverse holding, it is contended, justifies 'the expenditure, and to change the nature of the adverse possession, with its resultant right of compen- sation, there must not only be a knowledge that there is a bet- ter title, but, in addition, there must be an express or implied yielding to such superior title. ^^ § 557. Character of improvements. — With respect to the character of the improvements for which an evicted tenant may recover compensation there would seem to be a wide di- versity of opinion. As a general definition we may say that 38 Lintliicum v. Thomas, 59 385, 9 Am. St. Rep. 795, 41 N. Md. 583. W. Rep. 439. Arcl see Templeton 37 Barrett v. Stradl, 73 Wis. v. Lowry, 22 S. C. 389. 614: DAMAGES AND MESNE PROFITS. [§ 557. an improvement is anything that enhances the value of the land,'"' and this is about as far as we may proceed with any de- gree of certainty. But to bring an improvement within the purview of the law respecting compensation it must be of a permanent character, affecting not only present worth but fu- ture values,^" and to this extent and for the purposes of our inquiry we may enlarge the definition just given. Within this broad definition courts have taken a wide range in the enum- eration of improvements and we find that almost every form of expenditure, either of labor of capital, has been held to con- form to the general notion involved. Thus, the digging of ditches,*" the erection of fences,''^ the clearing of land,*^ the planting of trees, *^ as well as the building of houses,*** have all been classed as improvements when their tendency has been to enhance the value of the land. As a general rule whatever comes within the character of what is popularly known as a betterment will be sufficient to sustain a claim for compensation. This, in general terms, means something done to or put upon the land by the occupant in such a manner that it cannot be removed or carried away by him, either because it has become physically impossible to sep- arate it from the land, or because, in contemplation of law, it has become so annexed to the soil as to be a part of the freehold. The test, therefore, would seem to lie in the fact of severability without injury to the land, and whatever is capable of being removed by the occupant upon eviction is not an improvement for which an allowance can be made.*^ S8 Parker v. Wulstein, 48 N. J. 4o Beard v. Morancy, 2 La. Bq. 94, 21 Atl. Rep. 623; Bacon v. Ann. 347. Thornton, 16 Utah, 138, 51 Pac. n Craskery v. Busch, 116 Mich. Rep. 153; Bond v. Hill, 37 Tex. 288, 74 N. W. Rep. 464. 626; "Williamson v. Jones, 43 "W. *= Craskery v. Busch, 116 Mich. Va. 562, 64 Am. St. 891. 288, 74 N. W. Rep. 464. 38 Clewis V. Hartman, 71 Ga. ^s Donehoo v. Johnson, 113 810; Stark v. Starr, 1 Saw. (C. Ala. 126, 21 So. Rep. 70. Ct.) 15; Hicks v. Blakeman, 74 ** Schmidt v. Armstrong, 72 Miss. 459, 21 So. Rep. 7; Lathrop Pa. St. 355. v. Michaelson, 44 Neb. 633, 63 is Stark v. Starr, 1 Saw. (C. N. W. Rep. 28; Effinger v. Ken- Ct.) 15. nay, 92 Va. 245; Reynolds v. Rey- nolds, 55 Ark. 369. § 558.] DAMAGES AND MESNE PEOFITS. 615 § 558. Measure of compensation. — As previously stated tlie general rule is, that compensation for improvements will only be allowed where the melioration, of whatever consisting, is permanent in its character and calculated to enhance the value of the land. The true measure of recovery, therefore, is not the cost of the improvement but the enhanced vahie which such improvement may have given to the land.*" To ascer- tain the just sum to be allowed it will be necessary to show the value of the land in its original condition and its value after the improvements had been made upon it, the difference, in such case, being the just amount for which a recovery should be per- mitted by the defendant."^ The enhanced value of the land, arising by reason of such improvements, should be determined only by the ordinary considerations that would apply to lands similarly situated, and not by any special advantages it may possess for the occupant or any particular worth it may have for the plaintiff in view of the purposes to which he intends to devote it.*^ Thus, it must frequently happen that improve- ments are made at large cost, that, for the special purpose for which they are designed may be of great value, and yet, the ac- tual value of the land is not materially enhanced thereby. Un- der such circumstances it is clearly apparent that to compel the successful litigant to pay the cost of such improvements would be most unjust. On the other hand, it has been held that under these remedial statutes a defendant cannot be denied all relief merely because the improvements are not adapted to the use to which the plaintiff intends to devote the land.*' *i5 Harman v. Harman, 54 S. C. Rep. 486; Fletcher v. Brown, 35 100, 31 S. fi. Rep. 881; Bacon v. Neb. 660. Thornton, 16 Utah, 138, 51 Pac. it Thomas v. Quarles, 64 Tex. Rep. 153; McMurray v. Day, 70 491; Hicks v. Blakeman, 74 Iowa, 671, 28 N. W. Rep. 476; Miss. 459; Lathrop v. Michael- Conlan v. Sullivan, 110 Cal. 624, son, 44 Neb. 633. 42 Pac. Rep. 1081; Cleland v. ^spettit v. Railroad Co., 119 Clark, 123 Mich. 179, 81 N. W. Mich. 492, 75 Am. St. Rep. 417, Rep. 1086, 81 Am. St. 161; Wil- 78 N. W. Rep. 554; Stark v. liams V. Vanderbilt, 145 111. 238, Starr, 1 Sawy. (C. Ct.) 15; 34 N. E. Rep. 476, 36 Am. St. Bacon v. Thornton, 16 Utah, 138. 49Pettit V. Railroad Co., 119 Mich. 492. 616 DAMAGES AND MESNE PROFITS. [§§ 559, 560. § 559. Continued — Assessment by commissioners. — As noticed elsewhere, provision is made in some states for the as- certainment of the value of improvements by commissioners appointed for that purpose by the court. The right is made to depend upon a variety of requirements and the procedure does not seem" to be much employed. To avail himself of the bene- fits of this act the defendant must show a plain, clear and con- nected title in law or equity, deduced from the record of some public office, and must further show that he was without actual notice of adverse title. The act is generally construed strictly and the defendant is required to bring himself fully within the letter of the statute.^" Where an assessment is permitted by a jury, either in the ejectment suit or in a subsidiary proceeding, this is the method usually followed. In states where either method may be resorted to it does not seem that an assessment by commissioners is much in favor and there is a positive dearth of judicial decision relating thereto. § 560. Crops. — The general rule is that growing and un- severed crops, or the annual produce of land, are a part of the land itself and hence included in a recovery of it. The subject is discussed in another place and will be considered in this con- nection only as it may be related to our special subject of dam- ages. There are cases which make a distinction between a trespasser and one who enters under a claim of right and holds adversely to the true owner, and which accord to the latter rights which are denied to the former. Usually, however, the growing crops go with the land as an integral part thereof and the main interest centers upon the ripened or harvested crop. The theory of damages in the action of ejectment is, that it is a recovery, either in the same action or another, of the value of the use and occupation of the land during the period it has been withheld. The recovery is usually of the "rents and profits", but this does not mean the value of the crops raised and harvested but the value of the use of the land. While it may, perhaps, be said that the annual crops represent the value of the use of the land yet they also represent the labor 60 See Mettler v. Croft, 39 111. App. 193. § 560.] DAMAGES AND MESNE PROFITS. 617 of the farmer, and to give the true owner the gross product of the land, irrespective of the labor and expense involved in such product, would be manifestly unjust.^^ Therefore, it has been held, that while the title to the land in undeter- mined the owner thereof out of possession is not entitled to the fruits of the land, nor can he, after he has estab- lished his right to the possession, recover the same from an occupant while such occupant was in the adverse posses- sion.'*^ The measure of his damages to be recovered is not the value of the crops raised and harvested, but the value of the use and occupation of the land.^^ The elementary rule is, that if a crop has actually been severed it becomes personal property and does not pass to one who afterward acquires title to the land.^* § 561. Effect of supersedeas bond. — Upon appeal or writ of error it is customary for the appellant to give a bond con- ditioned for the payment of damages and costs in the event that the judgment below shall be affirmed. Where such bond oper- ates as a supersedeas a question arises as to whether it covers the value of the use and occupation, or the rents and profits of the lands, subsequent to the rendition of judgment in the trial court and before affirmance. It has been held in foreclosure cases that such a bond does not cover rents and profits of the land in controversy which accrue pending appeal, and it has been intimated that the same rule might apply in ejectment cases. °^ But this doctrine was afterward rejected in the court where it was announced. When judgment is entered in the action the right of the prevailing party to the possession of the property is established. If such party is the plaintiff he be- «i Johnston v. Fish, 105 Cal. os Stockwell v. Phelps, 34 N. 420; Stockwell v. Phelps, 34 N. Y. 363; Brothers v. Hurdle, 32 Y. 363. And see Ray v. Gardner, N. C. 490. 82 N. C. 454; Brothers V. Hurdle, 54 Jones v. Adams, 37 Oreg. 10 Ired. (N. C.) 490; Nash v. 473, 82 Am. St. Rep. 766; Reily Sullivan, 32 Minn. 189. Y. Carter, 75 Miss. 798; Ander- 52 Page V. Fowler, 39 Cal. 412; son v. Strauss, 98 111. 485. Faulcon v. Johnston, 102 N. C. 65 Omaha Hotel Co. v. Kountze, 264; Hartman v. "Wieland, 36 107 V. S. 378. Minn. 223. 618 DAMAGES AND MESNE FEOFITS. [§ 501. comes entitled to immediate possession of the land and to the rents and profits that thereafter shall arise therefrom. If by proceedings in error or by appeal he is deprived of that pos- session, and so, pending the appeal loses such rents and profits, he is damaged to that extent and may recover whatever is shown to have been so lost under the condition of the bond.^^ 56 St. Louis Smelting, etc. Co. v. Wyman, 22 Fed. Rep. 184. CHAPTER XVI. NEW TRIAL. 562. Generally considered. 563. At common law. 564. Continued — ■ "When al- lowed or denied. 565; Upon what grounds granted. 566. When verdict will not be disturbed. 567. Under the statute. 568. Time for application. § 569. 570. 571. 572. 573. 574. Payment of costs. Who may make motion. Judgment by default — Defendant under dis- ability. Effect of granting new trial. Effect of judgment in trespass. Relief in equity. § 562. Generally considered. — Under the old practice a judgment in ejectment was very unsatisfactory. The defeated party, whether claimant or defendant, was always at liberty to bring a new action, and, from the structure of the record, it was impossible to plead a former recovery in bar of the second suit as the plaintiff was only a fictitious person and the demise could be laid in so many different ways that it never could be made to appear that the second ejectment was brought upon the same title as the first." It will be seen, therefore, that the judgment never could be final and about the only permanent re- lief which a successful party could obtain was by a perpetual injunction against the defendant, and even this could be pro- cured only in exceptional cases. The general rule was that a . recovery in ejectment was not conclusive upon the defendant or those claiming under him.^^ In time, however, as the action came to be regarded as a suit for the establishment of title as well as for the recovery of possession, the vexatious privilege of unlimited litigation was abridged, and by statute but one new trial was permitted, as of 67 See Jackson v. Tuttle, 9 Cow. (N. Y.) 233; Ives v. Lett, 14 Serg. & R. (Pa.) 301; Pollarl V. Baylords, 6 Munf. (Va.) 433. 5s Hopkins v. McLaren, 4 Cow. (N. Y.) 667. 620 NEW TKIAL. [§ 6t)3 right, and when two verdicts of the same tenor had been re- turned the judgment rendered thereon was taken to be conclu- sive. This is the declared policy of a number of states and while it rests on but little legal reason, in view of present con- ditions, it has become so firmly established that it will probably long remain. In a few states no distinction is made with respect to new trials in ejectment and those allowed in other forms of action, and only the causes which may be urged generally will be en- tertained. It must be confessed that under the modern form of the action, where parties sue and defend in their own names, where the estates claimed can be definitely ascertained and the position and boundaries of the land fixed with certainty, the old reasons which rendered inconclusive one trial in ejectment can have no force and should not be premitted to have any weight. There is, in fact, no good reason why one judgment duly rendered should not be a bar to further prosecutions, nor do the courts attempt to give any. About all that can be said is, that when the action was remodeled a second trial was per- mitted as a sort of compromise with the old system which al- lowed a number, and that the conservative feeling which has ever pervaded both bench and bar has permitted this regula- tion to stand after the reasons which originally sustained it had failed. The policy of the law is to secure the quiet and repose of titles, and when a title has once been fairly adjudi- cated/ and the rights of the parties established the judgment should not only be conclusive but final. § 563. At common law. — The most ancient proceeding for redress at common law, in the case of a wrong verdict by a jury, was to sue out a writ of attaint. This was allowed on the theory that the jurors had made a false oath, thereby becom- ing stained with perjury which rendered them infamous. The punishment originally inflicted for this offense, upon conviction, was extremely severe, but the rigor of the law was greatly miti- gated during the reign of Henry VIII. .^^ although it was not until comparatively recent years that the writ of attaint was finally , abolished.""* The object of the writ was not only to 09 23 Hen. VIII., c. 3. eo 6 Geo. IV., c. 50. § 564.] I(EW TKIAL. 621 punish the jury for false verdict but also to reverse the judg- ment rendered thereon and restore the injured party to all that he had lost thereby. From this circumstance grew the prac- tice of applying to the court in banc for a retrial of the issues, and where sufficient cause was shown the court would always set the verdict aside and grant a new trial. Thus, if it was shown that there had been misconduct of the jury, as that the verdict had been arrived at without grave and serious deliber- ation, or if it had been perversely returned, contrary to the evidence or in opposition to the law as declared by the judge, it would be set aside by the full court and a new venire would be awarded. But if the verdict was just the court would not disturb it, although the evidence might be conflicting, or even though the weight of the evidence might seem to preponderate against it. And so it finally came to be the settled practice that a defeated litigant was always at liberty to apply for a rehear- ing of the cause before another jury, and, upon proper showing, the case might be retried either upon the same, or additional, or even different evidence. This practice has never been aban- doned, and courts still have, and continue to exercise, a general discretionary power to grant or refuse new trials according as the exigencies of the particular case may seem to indicate, in furtherance of substantial justice. § 564. Continued — When allowed or denied. — In actions of ejectment the same general grounds for a new trial may be urged as are available in other forms of action,"^ and the mo- tion is allowed or denied upon the same principles as apply in other cases. In many of the states the practice with respect to new trials is regulated by statute, yet such statutes, as a rule, are merely declaratory of the common law and in confirmation thereof. Where, as in most instances, the grounds upon which a motion for a new trial may be based are specifically enumer- ated, it is generally held that no others will be considered, but as this is a matter which rests largely in the discretion of the court a wide latitude is always permitted and the statute is lib- erally construed.''^ 01 Goodhue v. Baker, 22 111. 62 white v. Poorman, 24 Iowa, 262. 108. 622 NEW TEIAL. [§ 665. Under the old practice it would seem that the courts seldom granted a new trial in ejectment when the verdict was given for the defendant, because, all parties remaining in the situation they were previous to the commencement of the action, the claimant might bring a second ejectment without subjecting himself to any additional difficulties. But where the verdict was given against the defendant, in view of the change of pos- session thereby occasioned, and the difficulties resulting there- from in the way of evidence if such defendant should himself bring an ejectment, the courts rather leaned to new trials on his behalf. But the reasons which influenced the courts in this particular having ceased with the abolition of the practice which produced them, it follows that the old precedents are now practically valueless and without even persuasive author- ity in the granting or denying of new trials. § 565. Upon what grounds granted. — As previously re- marked, the action of ejectment is not distinguishable from other actions with respect to new trials for cause, and all of the reasons that may ordinarily be assigned for a rehearing can properly be presented. Thus, if improper testimony has been admitted, or if there has been a misdirection of the jury with respect to the law, this will generally be ground for a new trial. But, as in other actions, if the improper testimony has not prejudiced the case, or the objection was merely tech- nical, or the evidence became immaterial, or the verdict was justified without it; or, if the misdirection was upon an im- material point, or did not affect the verdict and justice ap- pears to have been done, then a new trial will not be granted. These are the general principles by which courts are guided in the determination of all motions of this kind."^ When the verdict is clearly against the evidence the court may, and should, set it aside and grant a new trial.** but, where a controversy consists chiefly of questions of fact, ob- jections to a verdict must be very cogent to induce a court to adopt this course.*"* It is not enough, as a general proposition, that a verdict is against the weight of the evidence, provided 63 See Brown v. Mitchell, 102 o* Belden v. Innis, 84 111. 78. N. C. 347: Lourance v. Goodwin, es Clark v. Day, 93 111. 480 170 111. 390. § 565.] NEW TKIAL. 623 there was evidence on both sides which was contradictory and it does not appear that such verdict has resulted from mistake or any wilful abuse of power."" Indeed, the right to set aside a verdict as against the evidence should be exercised only in extreme cases where it is clearly apparent that the jury acted under some mistake, or has plainly departed from some _ rule of law or made unwarranted deductions from the evidence."' But where the verdict is against the plain principles of law as laid down by the court, or against clear and unquestioned evi- dence, it becomes the duty of the court to grant a new trial not- withstanding the particular circumstances or general justice of the case."^ Thus, if the plaintiff recovers more land than the deeds under which he claims show him to be entitled to, a new trial should be granted."^ A new trial may be granted upon the ground that new and material evidence has been discovered, but to justify such a course it must appear that manifest injustice has been done the moving party or that the new evidence would materially change the complexion of the cause,'^" and that it could not, by ordinary diligence, have been produced at the first trial.'^ Where the effect of such evidence is merely to impeach the character of a witness,^^ or tends simply to contradict his tes- timony,''^ a new trial will rarely be granted. And, in any event, such evidence must be more than merely cumulative. ''' As the statute in most states provides for a new trial in eject- ment on payment of costs and without .special cause shown, new trials are less freely granted on common law grounds,'^ but, notwithstanding this statutory privilege, there is nothing esTolman v. Race, 36 111. 472; Schumacher, 77 111. 583; Miller Simmons v. Waldron, 70 111. 281; v. Ross, 43 N. J. L. 552. Murray v. Wells, 57 Iowa, 26; 7i Ward v. Voris, 117 Ind. 368. Cottle V. Morris, 59 Cal. 317. "2 State v. Carr, .21 N. H. 166; 07 Murray v. Wells, 57 Iowa, 26. Peyton v. Kruger, 77 Ind. 486. OS Murcliison v. Warren, 50 ^s Brown v. Mitchell, 102 N. C. Tex. 33; Wait v. McNeil, 7 Mass. 347; Kendall v. Limberg, 69 111. 261; Reynolds v. Lambert, 69 111. 356. 495; Irving v. Cunningham, 58 ^i Bums v. People, 126 111. 282; Cal. 306. Donnally v. Burkett, 75 Iowa, 69 Stumpf V. Osterhage, 94 111. 613. 115. 75 Walker v. Armour, 22 111. 70 Chicago, etc. R. R. Co. v. 658. 62i HEW TEiAL. [§§ 566, 567. to prevent the granting of new trials before final judgment, as in other cases. § 566. When verdict will not be disturbed. — It will fre- quently happen, in the trial of ejectment suits, that many wit- nesses will be called for the purpose of proving locations, non- existing monuments, acts of possession, and matters of like character, and that, as a result, there will be apparent contra- dictions and conflicting stories. But where the real contro- versy is one of fact these matters all lie within the province of the jury. They are to weigh the evidence, and reconcile it if possible, but if that cannot be done they still have a right to de- cide according to the weight of the evidence as it may appear to them.^" When this has been done and a verdict returned, then, in the absence of errors of law, the verdict will not be disturbed, notwithstanding a conflict of evidence, if by any fair and reasonable intendment the facts will authorize a ver- dict." § 567. Under the statute. — The revised statutes of most of the states have preserved to the defeated party in ejectment, the right of one new trial without cause, provided, that the ap- plication for the vacation of the judgment and reinstatement of the suit be made within a limited time ; usually one year. As a condition of the order of vacation all costs must have been paid and any other prescribed requirement must be complied with.'^ This trial is granted as a matter of right and without showing cause, and, where there has been a compliance with statutory requirements, it would seem the court has no dis- cretion." A further new trial is also provided for in some of the states and the court, upon application made within one year after the rendition of the second judgment, if satisfied that justice will thereby be promoted and the rights of the parties more satis- factorily ascertained and established, may vacate the second TsTolman v. Race, 36 111. 472; Davidson v. Lamprey, 16 Minn. Liourance v. Goodwin, 170 111. 445. 390. T9 Emmons v. Bishop, 14 111. "Lourance v. Goodwin, 170 152; Lowe v. Foulke, 103 111. 58; 111. 390. Ind. etc. Co. v. M'Broom, 103 Ind. TsSee Pugh v. Reat, 107 111. 312. 440; ' Cox V. Dill, 85 Ind. 336; § 568] NEW TKIAL. 625 judgment and grant a new trial. The granting of such second new trial, however, lies within the discretion of the court,*" which may refuse same if merit is not shown,*^ and such re- fusal cannot be assigned for error. ^- Not more than two new trials may be granted under the statute, but this does not preclude the court from granting new trials as in other cases, and where common-law grounds for a new trial are shown a compliance with statutory con- ditions is not necessary.*'' It would seem, however, that where a party has a statutory right to a new trial on payment of costs, a new trial on common-law grounds will be less readily granted.** While the privilege of applying for a statutory new trial is limited, as a rule, to one year after rendition of judgment, yet where an appeal has been taken therefrom the time during which the action may be pending on an appeal or writ of error is not reckoned as part of such year. Nor is it essential that the order vacating a judgment should be made within the year provided application has been made in apt time.*' § 568. Time for application. — As just stated an applica- tion for a new trial may be made at any time within one year after rendition of judgment in the ejectment suit. This, it will be perceived, is a distinct departure from the general rule with respect to motions for a new trial, which, in the ordinary case, must be made at the same term at which the judgment is entered. If made after the term has expired the court, as a general proposition, is without power to entertain the motion or to set the judgment aside.*" But an action of ejectment is an exception to the general rule where the statute gives the un- successful party a new trial as of course, and where the time of application is limited, a motion made within the period of limitation is in time, notwithstanding that the term at which jvidgment was entered has long expired.*^ aoRiggs V. Savage, 4 Gil. (111.) 83 Goodhue v. Baker, 22 111. 129. 262. 31 Laflin v. Herrington, 17 111. si Walker v. Armour, 22 111. 399. 658. 82 Vance v. Schuyler, 1 Gil. 85 stolz v. Drury, 74 111. 107. (111.) 160. 86 Cook V. Wood, 24 111. 295. 87 Gage v. Chicago, 141 111. 642. 40 626' NEW TRIAL. [§§ 569, 570. § 569. Pa}nnent of costs. — While a defendant is not re- quired to pay damages assessed in order to secure a new trial,^' it is yet an indispensable condition that he shall pay the costs,^" and such payment, as well as his application, must be made within the time limited by statute."" So strictly is this con- strued that if an order for a new trial has been entered and the costs, in fact, have not been paid, the order will be regarded as conditional and will be vacated at the expiration of the time limited for such payment where the moving party has failed to comply with the rule."'- A variation from this rule may be found in some states where instead of paying the costs, the moving party is required to enter into an undertaking, with surety, that he will pay all costs and damages that may be recovered against him in the action, and when such a bond is presented and approved in apt time it becomes the duty of the court to vacate the judgment and grant a new trial. It would further seem, that where a party promptly per- forms all that by law he is required to do, his right to a new trial becomes absolute and will not be defeated by mere delay on the part of the court. Thus, if the motion for a new trial is made within the time fixed by the statute, and the costs are paid as required by law, the moving party has done all that he is required to do to entitle him to a new trial, and the court has power to vacate the former judgment and award a new trial even though the period limited by the statute has ex- pired."^ As the right of new trial without cause is statutory, and, to a large extent, derogatory of the common law, the courts have generally construed the statute strictly and a failure to observe or fulfill any of the conditions precedent to the exercise of the privilege will be fatal to a second trial."' § 570. Who may make motion. — The statute giving thf. right of new trial without cause confines such right to the 88 Meyers v. Phillips, 68 111. 01 Setzke v. Setzke, 121 111. 30. 269. But compare Becker v. Sauter, 89 0etgen v. Ross, 36 111. 335; 89 111. 596. Davidson v. Lamprey, 16 Minn. 92 Stolz v. Drury, 74 111. 107. 445. • 93 Davidson v. Lamprey, 16 90 Pugh V. Reat, 107 111. 440. Minn. 445. §§ 571, 572.] NEW TRIAL. ^327 party against whom judgment was rendered, his heirs or as- signs, and usually this privilege is strictly construed. It may be resorted to by the unsuccessful party, whether plaintiff or defendant,^* but in all cases the motion can be made only by one who is concluded by the judgment.^' § 571. Judgment by default — Defendant under disability. The statute, in some states, has preserved the right of a new trial where the defendant, at the timfe of the entry of a judg- ment by default is under a disability. The disabilities men- tioned are usually those which save rights from the effect of the statute of limitations, and the time during which such dis- ability shall continue is not deemed any portion of the time al- lowed in which to make application for a new trial. Where this provision exists, a specific period, usually two years after the disability has ceased, is allowed in which application may be made. This was a part of the old New York statute on ejectment and has been very generally re-enacted in those states which adopted the New York practice during the first half of the last century. The provision permitting the vacation of a judgment by de- fault against a person under disability has been further ex- tended, in most of the states, to the heirs, devisees and assigns of a person dying while under such disability, and the persons to whom the right is thus saved may exercise it at any time within the statutory limitation. This limitation is usually fixed at two years after the death of the disabled person. On the other hand, it would seem that in some states a new trial as of right is not granted after a judgment by default, but only where there has been a trial on the merits. ^^ § 572. Effect of granting new trial. — The award of a statutory new trial in an ejectment suit wipes out the verdict so that no judgment can be rendered upon it,"^ or, if judgment has been entered, operates as a vacation of same without any 94, Chamberlain v. McCarthy, 63 »« See Fisk v. Baker 47 Ind. 111. 262. 534. 95 Hunter v. Chrisman, 70 Ind. st Edwards v. Edwards, 22 111. 439; Oilman v. Circuit Judge, 21 121. Mich. 372; Williamson v. Wach- enheim, 62 Iowa, 196. 62? NEW TEIAL. [§ 573. formal order setting it aside. °^ In all respects the action stands as though there never had been a trial, except, that after such second trial another new trial may not be demanded under the statute."^ But with this exception it would seem that the suit is to be regarded as an original proceeding, in no way af- fected by the evidence or bound by the rulings or judgments of the former trial.'- As the granting of a new trial necessarily eliminates from the record all errors which may have inter- vened at the trial had, it follows that if a party would avail himself of such errors he must abide by the rulings, permit judgment to be entered against him and then take an appeal. - § 573. Effect of judgment in trespass. — The authorities are not agreed with respect to the effect of a judgment in tres- pass when the question of title is again raised, between the same parties, in a subsequent action of ejectment. If the gen- eral issue only is pleaded in the trespass suit, the contest nar- rows down to the mere fact of trespass, the plea virtually con- ceding the title of the plaintiff to the locus in quo.^ If a plea of title is interposed, as a plea of liberum tenementum, while it technically admits the plaintiff's possession, it involves an in- quiry into the whole legal title,* including the right of posses- sion. Where this issue has been decided adversely to the de- fendant it is held by some of the cases to constitute an estop- pel. In such event the defendant is bound by the judgment and cannot afterward relitigate the title when sued in eject- ment for possession of the premises.'^ Hence, it would seem that it is not uncommon, where this rule obtains, for a party claiming title to land and the right of possession, and who de- sires to avoid the delays consequent upon the statutory right to new trials in ejectment, to bring his action in trespass, and 98 Maxwell v. Campbell 45 Ind. 2 Bitting v. Ten Eyck, 85 Ind. 360; Sheldon v. Van Vleek, 106 361. 111. 45. 3 Jacobson v. Miller, 41 Mich. 09 Sheldon v. Van Vleck, 106 90. 111. 45. * Port Dearborn Lodge v. 1 Donahue v. Klassner, 22 Klein, 115 111. 177. Mich. 252; Hewitt v. Wisconsin s See Herschbach v. Cohen, 207 Land Co., 81 Wis. 546; Ham- 111. 517, 69 N. E. Rep. 932, 99 Am. mond V. Carter. 161 111. 621; St. 233. Eichart v. Schaffer, 161 Pa. St. 519, .§ 573.] ffsw TEiAL, 329 so establish his right upon a single trial. When judgment is perfected, if the defendant does not yield the possession he may bring an action of ejectment, on the trial of which the record in the action of trespass will be conclusive evidence of his right and preclude the defendant from denying same as well as prevent him from attempting to obtain a new trial.'' In consonance with this doctrine it has also been held, that a judgment in favor of the defendant in an action of trespass, where a plea of liberiim tenementmn was interposed, is con- clusive against plaintiff's title in a subsequent action of eject- ment, if, in the trespass suit, the question of title was actually tried and determined. In such event res judicata may be pleaded in any subsequent proceeding between the same par- ties involving the same title, and the judgment will be taken as conclusive of their respective rights.^ On the other hand, numerous well considered cases an- nounce the doctrine that a judgment in trespass cannot, under any circumstances, be a bar to a subsequent ejectment suit for the same premises, nor preclude a defense on the merits to a suit so brought, even though the parties to both sviits are the same.^ It is contended that no other view is consistent with a statutory policy which permits a new trial in ejectment as a matter of right. Thus, it is said, if a judgment in trespass was permitted to be a bar to a subsequent action of ejectment between the same parties, and involving the title to the same land, the statutory right of new trial in ejectment could easily be nullified. The plaintiff, being at liberty to choose his form of action, would bring trespass and settle his title in one trial, and the statute relating to new trials would be rendered abor- tive and ineffectual. ° Where, as in some states, the scope of the action has been so broadened as to include all actions for the determination and quieting of title, it has been held that, whatever may be the 6 See Shumway v. Shumway, 12 Ind. 629 ; Parker v. Hotch- 42 N. T. 143. kiss, 25 Conn. 321; Chandler v. 7 Herschbacli v. Colien, 207 111. Walker, 2nsr. H. 286; Sablns v. 517. McGhee, 36 Pa. St. 453. s Keyser v. Sutherland, 59 ^ Keyser v. Sutherland, 59 Mich. 455; Morse v. Marshall, 97 Mich. 455. Mass. 519; Hargus v. Goodman, 630 NEW TEIA^. [§ 573. form of the action, when the title is directly put in issue by the pleadings, a new trial may be had as a matter of right.^° § 574. Relief in equity. — While disputed titles must be litigated at law and not in equity, yet equity may, and often does, interfere for the purpose of granting substantial justice. Particularly is this true in the matter of new trials. Courts of equity are invested with jurisdiction to decree new trials at law, when judgment has been entered by fraud, accident or mistake, and this jurisdiction is freely exercised in all proper cases.^^ But this relief will be granted only where the party applying for equitable aid is free from all negligence on his own part and has used the highest degree of dilligence to pre- vent the fraud, accident or mistake.^^ This, however, is the full extent of the court's powers. It may not retain the suit for the purpose of trying the issues, for it is contrary to all rules to try an ejectment suit in a court of equity, and in all cases in which the legal title is in dispute the remedy is ample and complete at law.^^ When there is a com- plete remedy at law a court of equity will never assume juris- diction, but will leave the parties to settle their rights in a legal forum.^* 10 Kreitline v. Franz, 106 Ind. knowledge of sucli entry con- 360. Thus, where, in an action cealed from the defendant until of partition, the defendant files after the time for a new trial a cross-complaint to quiet title had expired. How v. Mortell, 28 in himself, and judgment goes 111. 478. And see Chicago, etc. against him, he will he entitled R. R. Co. v. Hay, 119 111. 493. to a new trial as of right. Ham- 12 Tallman v. Becker, 85 111. mann v. Mink, 99 Ind. 282. 183. 11 As where a judgment was is Wells v. Lammey, 88 111. 174. entered in contravention of an i* Wells v. Lammey, 88 111. 174. express agreement and the CHAPTER XVII. FORCIBLE ENTRY AND DETAINER. 575. General principles. § 581. Demand for possession. 576. Right of owner to make 582. The complaint. entry on land. 583. Dismissal of complaint 577. When the action lies. 584. The issues. 578. Jurisdiction. 585. The proofs. 579. Parties to the action. 586. The judgment. 580. Cotenant versus coten- 587. Execution. ant. 588. Damages. § 575- General principles. — Partaking in some respects of the same general nature as the action of ejectment, is the statutory remedy for the recovery of the possession of lands known as the action of forcible entry and detainer, a sum- mary proceeding which has almost superseded the more cum- bersome methods of ejectment in cases where the questions in dispute go only to the right of occupancy. The general purpose of the action is, that, without respect to the actual condition of the title, where any person is in the ac- tual and peaceable possession of land he shall not be turned out by a strong hand or with force, violence and terror. It is im- material that the party so using force may have the superior title or the better right to possession, for the policy of the law is to preserve the public peace and to this end requires the party out of possession to respect and resort to the law alone to obtain a restitution of his rights. Not only will the law refuse to sanction a possession acquired by force, but will, when ap- pealed to in proper form, compel a surrender to the party thus dispossessed without inquiry as to which party owns the land or has the legal right to-its possession.^" 15 Iron Mountain R. R. v. Johnson, 119 U. S. 608; Reeder V. Purdy, 41 111. 279; Dilworth v. Fee, 52 Mo. 130; Dustin v. Cow- dry, 23 Vt. 631; Hoffman v. Har- rington, 22 Mich. 52 ; Coonradt v. Campbell, 25 Kan. 227. 632 FORCIBLE ENTKT AND DETAINEE. [§ 575. The original object and scope of the action grew out of and was founded upon these principles, and they are still the under- lying ideas of the remedy wherever administered. But of late )'ears the application of these principles has been greatly extended and they have been made to cover conditions not con- templated by the early form of the action. The statute, as generally enacted, usually provides for three classes of cases in which the remedy may be employed : ( i ) where an entry has been made, other than is permitted by law, accompanied by force and violence; (2) where a wrongful or illegal entry has been made as contradistinguished from a forcible or violent one, and (3) where there is a wrongful holding over or de- tention. The statute also very generally provides for a sum- mary restoration of a party entitled to possession, when an en- try has been made upon vacant and unoccupied lands by one without right or title thereto. These latter provisions have greatly extended the scope of the action where they have been adopted, as they have also greatly tended to obscure and com- plicate it. It is still true that controverted questions of title cannot be tried or determined in this form of action,^" yet from a review of the legislation and decisions of some of the states it would certainly seem that controverted questions respecting the right to possession may be heard and decided. This is a distinct innovation on the rules of the old remedy and the nglil in other states has been denied.'-' As the action depends almost wholly upon the statute, is summary in its nature and in derogation of the common law, the courts are generally strenuous in their insistence that all of the statutory conditions and requirements necessary to juris- diction must clearly exist, while the mode of procedure must in all cases be strictly followed.'* Unfortunately these methods are very diverse and for this reason it is well nigh impossible to frame general rules that shall be of universal application. 10 Coonradt v. Campbell, 25 211; Newton v. Leary, 64 Wis. Can. 227; Boardman v. Thomp- 190. son, 3 Mont. 387; McCarty v. Mc- 17 Sanchez v. Lonreyro, 46 Gal. Mullen, 38 111. 237; Vol! v. Hollls, 641. 60 Cal. 569; Taylor v. Scott, 10 is Fitzgerald v. Quinn, jit^ i: . Oreg. 483; Vess v. State, 93 Ind. 354, 576.] yOECIBLB ENTET AND DETAINEE. 633 In the main the remedy is calculated for the relief of land- lords, and is intended to furnish a quick and easy way of ob- taining possession from obstinate and often irresponsible ten- ants who are holding over after the expiration of the leases un- ler which they entered. This, however, is a later development. Originally the gist of the action was the forcible entry ; the de- tainer was a mere consequence and was not an independent ground for relief. This doctrine has been announced in recent years.^" § 576. Right of owner to make entry on land. — It is a cardinal rule that the right of ownership of land draws to it, as a necessary corollary, the right to the possession thereof. As a legal sequence the owner may at all times, unless by some act of his own he has waived his right so to do, peace- ably enter upon his land and exercise acts of control over it, And while he thus has possession the law favors and helps him m the assertion of his right. But if another, by any peaceable mean.5, has taken a prior possession or, in a peaceable manner, holds and detains the property to the exclusion of the rightful owner, he may not enter with force and a strong hand but must resort for legal redress to the remedies provided for such an emergency.^" This was not the doctrine of the common law, however, for by that law the owner of land was permitted to enter against the will of the occupant, and, using all necessary force, expel him therefrom, without being guilty of a trespass. But this doctrine, however suited to the turbulence and violence of early times, is not in keeping with the genius of our institu- tions or the proper administration of justice in a well ordered and law-abiding community, and so, as society advanced in the .scale of civilization and men began to claim the rights guaranteed to them by the spirit of the English constitution, its application became intolerable, and was among the first of the old laws to be abrogated by Parliament. This was effected by 19 See Peacock v. Leonard, 8 v. Water Co., 83 Gal. 96; Dil- Nev. 84; Greeley v. Spratt, 19 worth v. Fee, 52 Mo. 130; Huf- ■ Pla. 644. talin v. Misner, 70 111. 205; Judy 20 Mosseller v. Deaver, 106 N. v. Citizen, 101 Ind. 18. C. 494, 8 L. R. A. 537; Giddings 634 FOECIBLE ENTET AND DETAINER. [§ 576 the statute of 5 Richard II., which has been substantially re- enacted in all of the states. The general intendment of the statute of forcible entry and detainer has been shown in the preceding paragraph. The vital principle is, that the owner of land, notwithstanding he may have a superior right, shall not by violence oust a present occupant, but, with due regard to the proprieties of modern life and the preservation of the public peace, shall proceed in a regular and constitutional manner to assert his rights. If, in violation of this rule, he proceeds in a summary manner to oust the occupant, the possession thus gained will be held unlaw- ful,-^ and the ejector may be held to make restitution to the party so dispossessed as well as to answer to him in damages. -- As the object of the law is not only to preserve the public peace but also to compel parties to resort to the civil courts for the determination of their rights, the degree of force or vio- lence employed in a summary dispossession is immaterial so far as respects this action. At common law it was provided that the ouster might be accompanied by as much force as was "necessary", provided no wanton violence was used ; hence the owner was not at liberty to beat the intruder but only to overcome resistance by force or, as the old books quaintly ex- press it, to "gently lay hands on him." The impress of this theory is still seen in some of the American decisions, partic- ularly those of an early date, which held that actual force is necessary to constiute the injury,^' but the later cases very generally affirm the better doctrine that physical violence is not 21 Emerson v. Sturgeon, 59 Mo. There is considerable uncer- 404- tainty on tliis point arising 2=Reeder v. Purdy, 41 III. 279; through the confusion of crim- Dilworth v. Fee, 52 Mo. 130; inal and civil remedies. In many Dustin V. Cowdry, 23 Vt. 631; states a forcible entry is an in- Hoffman v. Harrington, 22 Mich. dictable offense, and to consti- 52; Larkin v. Avery, 23 Conn, tute the crime there must be a 304; Sinclair v. Stanley, 69 Tex. violent taking of possession with 718; Mosseller v. Deaver, 106 N. menaces, force, and arms. The C. 494, 8 L. R. R. 537; Judy v. entry must be accomplished by Citizen, 101 Ind. 18. acts of actual violence and terror 23 See Hoffman v. Harrington, directed against the person in 22 Mich. 52; Fort Dearborn possession. See Lewis v. State Lodge V. Klein, 115 111. 177. 99 Ga. 692. § 577.] FORCIBLE ENTET AND DETAINEE. 635 required to make the entry forcible. It is sufficient if the en- try, either in the presence or absence of the possessor, is at- tended with such a display of force as manifests an intention to intimidate the party in possession, or to deter him from de- fending his rights, or to excite him to repel the invasion.^* § 577- When the action lies. — The action of forcible en- try at the present time is purely statutory and the rights of parties affected thereby must be sought for in the statute and be measured by its terms. As a general rule a person entitled to the possession of lands or tenements may be restored thereto whenever he has been dispossessed by a forcible entry, or, when a peaceable entry has been made, the possession is unlawfully withheld. Upon this general basis the statute makes a num- ber of specializations, varying with the policy of the particular state. It is invariably extended to include lessees for years, and persons holding under them, who continue to hold pos- session, without right, after the determination of the tenancy, whether such termination occurs by limitation or through a breach of any of the conditions upon which the estate was held. It is also generally made to apply to cases where a vendee, hav- ing obtained possession under an agreement of purchase, fails to comply with such agreement and withholds such possession after demand or notice by the person entitled to same. So, too, where lands have been conveyed and the grantor remains in possession, or where the lands have been sold under a judgment or decree, and the judgment debtor or defendant refuses or neglects to surrender possession, after the expiration of the period allowed for redemption, such parties may be ousted by a judgment of restitution in this form of action. The action lies only for the recovery of possession and hence no damages should be asked for or allowed in the judgment.-'^ The character and extent of the plaintiff's prior possession, sufficient to enable him to sustain an action, does not seem to be altog/ether well settled. The ancient formula was that he should be in "actual" possession, and this is also the language of the statute in many cases. But slight circumstances have 24 Ely V. Yore, 71 Cal. 130; The statute in some states per- Ladd V. Dubroca, 45 Ala. 421. mits damages, tut this is not 25 poe V. Bradley, 44 Ark. 500. the general rule. 636 FOECIBLB ENTRY AND DETAINEE. [§§ 578, 579. often been permitted to indicate actual possession, and almoit any series of overt acts which tend to show dominion and a purpose to occupy and exclusively control will be sufficient.^'' But mere occasional acts of possession," or acts which amount to no more than a trespass,^^ will not confer the right to main- tain an action for restitution. § 578. Jurisdiction. — Actions of forcible entry and de- tainer have always been cognizable by justices of the peace, both in England and America. This grows out of the fact that originally the action was of a criminal nature — a trespass — and the injury complained of was an infraction of the peace. When the purely civil action was created the right to hear and deter- mine the issue was allowed to remain as theretofore. As no damages are assessed it follows that the jurisdiction of the justice is not limited as in civil actions ex contractu and the value of the lands is an immaterial circumstance.^'' The action may also be prosecuted in a court of record the same as other cases at law. In either event the issue may be tried by a jury. § 579- Parties to the action. — As a general proposition any person in the actual and peaceable possession of lands upon which a forcible entry is made may maintain an action for summary restitution.^** So, too, any one entitled to possession may, in many cases, institute this form of action against a party wrongfully withholding the same from him.^^ It would further seem that the right of action is personal to the injured party and will not pass to an assignee.^^ 2s Greeley v. Spratt, 19 Pla. so Fore v. Campbell, 82 Va. 644; Coonradt v. Campbell, 25 808; Sinclair v. Stanley, 69 Tex. Kan. 227; Pensoneau v. Bertke, 718; Brown v. Feagins, 37 Neb. 82 111. 161. 256; Oklaboma v. Hill, 4 Okla. 27 Hays V. Altizer, 24 W. Va. 541; Jones v. Shay, 50 Cal. 508. 505; Clements v. Hays, 76 Ala. ai Lewis v. Brandle, 107 Mich. 280; Johnson v. West, 41 Ark. 7; Young v. Barr, 69 Miss. 879; 535. Muller v. Blake, 167 111. 150; 2s Anderson v. Mills, 40 Ark. Brown v. Burdick, 25 Ohio St. 192; Williams v. McGaffigan, 132 280. Mass. 122; Wray v. Taylor, 56 32 Dudley v. Lee, 39 111. 339; Ala. 188. Fitzgerald v. Quinn, 165 111. 354. 29 Silvey v. Summer, 61 Mo. 253. § 580.] FOECIBLE ENTKY AND DETAINEE. *38T Where the original entry was tortious or unlawful the ac- tion will lie only against the person who made the entry, or such other persons as are collusively in under him and who are privy to the tort. Hence, a person who purchases for value and takes possession in good faith cannot he turned out by this summary remedy merely becaiise the party from whom he purchased may have unlawfvilly entered years before. In such a case the parties must resort to ejectment.^' Nor can a defendant be evicted on a sham possession. The possession, for an invasion of which complaint is made, must be actual, or at least of such a character as to show a holding in good faith. ^'^ In any event there must be a showing of an intention to possess, accompanied with acts indicative of that purpose, and if these are wanting the action will not lie.^^ Neither can the action be maintained on a scrambling possession. Where two parties are struggling for possession neither may maintain the action against the other until he has acquired an actual possession which has ripened into a peaceable occupation of the land.^" It has further been held, that one who enters under a bona fide claim to rightful possession and in a peaceable manner, is not liable to proceedings for forcible entry and detainer.^^ This is fully in consonance with the old ideas involved in the action but the statute, in some instances, has greatly disturbed the old rules. A corporation, like an individual, is within the operation of the forcible entry and detainer act, and a possession acquired by violence must be restored without reference to the better right.^^ § 580. Cotenant versus cotenant. — At common law cote- ants were practically without a remedy against each other, the possession of one, in contemplation of law, being the posses- sion of all, and, it seems, this principle precluded the mainten- ance of an action for forcible entry and detainer. But pro- 33 Fitzgerald v. Quinn, 165 111. S7 Townsend v. Chapman, 45 354; Alderman v. Boeken, 25 Cal. 673. And see Conroy v. Kan. 658. Duane, 45 Cal. 597; Russell v. 3* De Graw v. Prior, 60 Mo. 56. Chambers, 43 Ga. 478. 35 Edwards v. Cary, 60 Mo. 572. sa Iron Mountain R. R. Co. v. 36 Voll v. Butler, 49 Cal. 75. Johnson, 119 U. S. 608. 63& FORCIBLE ENTRY AND DETAINEE. [§ 5S0. ceedings under the English law relating to this remedy par- took largely of a criminal nature, subjecting the offender to fine and imprisonment, as well as restoring the injured party to his possession, and under the criminal phases of the law an indictment would lie against a joint tenant or tenant in com- mon who forcibly ejected his cotenant or forcibly held out against him, for, notwithstanding the entry of the offending tenant was lawful yet this did not excuse violence done to the other.''' This, however, seems to have been the extent of the remedy and if the ejected tenant desired to try the right of possession it seems he was forced to proceed by ejectment. In the early cases in this country the common-law doctrine of unity of possession was frequently appealed to by cotenants in possession who held out against the others but the courts very generally held, that a tenant in common who had been ejected by his cotenant was as much injured as though he held in severalty ; that the denial of a summary remedy for such in- jury, up6n a presumption of law which the facts of the case contradicted, was a defect of the common law which the acts concerning forcible entry and detainer were intended to supply, and that there were.no good reasons why a joint tenant should not be entitled to their benefits. The courts, in arriving at this conclusion, seem to have proceeded upon the following theory : That our law is intended to furnish a civil remed)' in all cases where a party has been forcibly deprived of posses- sion ; that the scope and design of our acts are the same as that of England, and hence where a party may be indicted there a civil action may be maintained here, and that, if a cotenant may maintain ejectment, if he can prove an actual ouster, which rebuts the presumption that the possession of one is the pos- session of the other, there is no reason why he should not be permitted to avail himself of the summary remedy furnished by the statute.*" The rulings of the early cases seem to have been generally followed and the settled law would now seem to be, where the statute is silent upon the subject, that one joint tenant or ten- 39 Russell on Crimes, 286. Dana (Ky.), Ill; Presbery v. 40 See Mason v. Finch, 1 Scam. Presbery, 13 Allen (Mass.), 281. (111.) 495; Eads v. Rucker, 2 i 5 81. J FOKCIBLE ENTEY AN1> DETAINEE. 639 ant in common, may maintain an action of forcible entry and detainer against his cotenant and may have restitution of his undivided interest.*^ In such event he vi^ill simply be restored to the common possession,*^ which he will share with his co- tenant, as neither can recover the exclusive possession of the premises against the other.*^ § 581. Demand for possession. — The general subject of notice to quit and demand for possession has already been quite fully considered in former parts of the work,** and a passing allusion is all that will be attempted in this place. Originally it would not seem that any demand was necessary by one who had been forcibly evicted from his land, and in some cases this is still the rule, but usually the statutes relating to forcible en- try and detainer have made provision for a written demand by the party out of possession as a prerequisite to the maintenance of the action. As a rule no definite time is prescribed for the service of the notice before the commencement of the suit, and when such is the case it has been held that the demand need not even be made a reasonable time before action, provided it ac- tually was made before the complaint was filed. *^ On the other hand, if the statute fixes the time or duration of notice a strict compliance therewith will be necessary in order to maintain the action.*" The essentials of a demand for possession, when same is re- quired, are generally fixed by statute. When such is the case these requirements become matters of substance. But where the statute simply prescribes a demand in writing, then a no- tice which calls upon the withholding party to "quit and deliver up possession" to the demandant will be a full compliance with the statutory requirement.*'' In every case, however, the no- tice should show who it is that claims to be entitled to posses- sion and who makes the demand, and no one but the person « Bowers v. Cherokee Bob, 45 45 Huftalin v. Misner, 70 111. Cal. 495. 205. In this case the demand for *2 Jamison v. Graham, 57 111. possession was made and suit 94. brought the same day. *3 Jamison v. Graham, 57 111. *s Nason y. Best, 17 Kan. 408. 94; Henderson v. Allen, 23 Cal. 47 Vennum v. Vennum, 56 111. 519. 430. 44 See § 150, ante. 64:0 FOECIBLE ENTET AND DBTAINEK. [§ 582. who thus claims the premises and who makes demand can main- tain the action under such notice.*" The demand itself should be made by the claimant or party entitled to possession/^ but this, it seems, may be accomplished through an agent when the fact of agency is disclosed. '^^ The service of the notice must be proved by a witness,''^ and it seems that neither an endorsement upon the paper nor a separ- ate statement of service, either by an officer or private person, whether sworn to or not, will be sufficient to prove a demand or fulfil the intendment of the statute."'' § 582. The complaint. — The action is instituted by the filing of a statement of the demandant's grievance, called a complaint. As before remarked the proceeding by forcible entry and detainer being in derogation of the common law, and the right to pursue same being dependent wholly on the statute, all of the statutory requirements must be substantially observed. This applies with particular force to the complaint, which, being the foundation of the action, must contain all Oa the essential elements which confer jurisdiction or the whole proceeding will be void. It would seem that formerly much difficulty was experienced in framing the complaint but, in most of the states, this has to a great extent been overcome by a statutory prescription of the substance of same in the simplest terms and form. At present the principal allegations are those which relate to the plaintiff's right of possession ; the withholding thereof by the defendant, and the description of the property or locus in quo. It has beer, held that thii latter should be as precise and specific as is re- quired in an action of ejectment,^^ but the general and better rule would seem to be that any description by which the prop- *8Nason v. Best, 17 Kan. 408. Elliott's Bluff, a survey of land ■»9 Ball V. Chadwick, 46 111. 28. situate on the south side of 50 Nixon V. Noble, 70 111. 32. Crooked river, in Camden 61 Doran v. Gillespie, 54 111. county, Georgia." Held, fatally 366. indefinite. Orme v. King, 60 Ga. 52Vennum v. Vennum, 56 111. 523. Land described as "Three 430. and one-half acres off of" a des- 63 Premises were described as ignated tract is not a good d& "fifty acres of what is known as scription. Klingensmith v. Faulk- ner, 84 Ind. 331. §§ 583, 584.J FOECIBLE ENTET AND DETAINEE. 641 erty can be readily identified and located will be sufficient. ^^ It is essential, however, that the description be wholly free from ambiguity or uncertainty, for otherwise it will confer no juris- diction,^^ and defects of this character cannot be supplied by parol evidence given on the trial. ''^ As the venue is local the complaint should state the county in which the land is situated, a failure in this respect will render the pleading defective for want of certainty.^' § 583. Dismissal of complaint. — Where the complaint in an action of forcible entry is defective in substance, advantage thereof may be taken .by a motion to quash the complaint. Such motion, however, must be made in the first instance, and it seems an objection to the sufficiency of the complaint comes too late if made on the trial, ^' or for the first time on appeal.'"' § 584. The issues. — In the original form of the action the only question presented is the fact of dispossession, and where the injury complained of consists of a forcible or violent ouster this will be the only issue to be tried.''" But in practice this form of the action is infrequent, the usual complaint being for a withholding of possession. When this is the case the ma- terial question to be determined is the right to possession." The only plea necessary is "not guilty'', and under this plea the defendant may give in evidence any matter of defense that «* Cairo, etc. R. R. Co. v. Ferry premises were described as "the Co., 82 III. 230. Where land was messuage or dwelling house." described as "the premises in- 56 Schaumteffel v. Beem, 77 III. closed by us, situate in the 567. As where land is described county of Cook, and state of Illi- as "part of the northeast quar- nois, 'being the same on which ter, etc., with the house situated you now reside, containing about' thereon." one hundred acres, more or less, 57 Supervisors v. Ellison, 8 W. and commonly called North Va. 308. Grove," this was held sufilciently bs Brown v. Keller, 32 111. 151. certain for the purpose of the ac- 59 Leary v. Patterson, 66 111. tion. Atkinson v. Lester, 1 203. Scam. (111.) 407. And see eo Allen v. Tobias, 77 111. 169; Houghton V. Potter, 23 N. J. L. Jones v. Shay, 50 Cal. 508. 339; Silvey v. Summer, 61 Mo. ei Myers v. Koening, 5 Neb. 253. 419; Smith v. HoUenback, 51 111. ssApplegate v. Applegate, 16 223; Milner v. Wilson, 45 Ala. N. J. Li. 321. In this case the 478; Van Eman v. Walker, 47 Mo. 169. 41 6i2 FOIiDIELE ENTRY AND DETAINEE. [§ 585. may properly tend to negative or defeat the plaintiff's claim. Where it appears from the evidence that the question involved is one of title, and not merely of possession, the case should be dismissed. "- § 585. The proofs. — The character of the evidence will vary somewhat with the different phases of the action. Thus, if the complaint is for a forcible entry and detainer it will be necessary to show that the plaintiff was in the actual posses- sion of the premises upon which the forcible entry is alleged to have been made ; that the defendant unlawfully invaded such possession and expelled the plaintiff therefrom, and that he still detains it."' It has been held that the possession thus, shown must be an actual occupancy as distinguished from a mere constructive possession, such as the legal title to land draws to it,''* but where the statute gives a right of action for entry upon vacant or unoccupied land the rule may not apply. It has also been held, that one who is in actual possession of part of a tract of land, holding the entire tract under color of title, will be regarded in law as in possession of the whole ; and that actual occupancy thereof will not be necessary to entitle him to maintain the action.*"^ This, however, brings up one of the contradictory phases of the action. A person may have title to land of which he is not in the actual possession, but a.s the action of forcible entry does not proceed on title this fact may not avail him in many cases, and to enforce his right of possession he must resort to ejectment."" The allegation of the time of the forcible entry is material, and the date thereof must be proved as alleged."^ The facts constituting the alleged forcible entry or forcible detainer must also appear, and if no evidence is offered tending to show that the defendant detained the premises by force, or by menaces oaPettit V. Black, 13 Neb. 142; Ala. 5; Barlow v. Burns, 40 Cal. Taylor v. Scott, 10 Oreg. 483; 351. Hughes V. Mount, 23 W. Va. 130; es prewitt v. Burnett, 46 Mo. Grohousky v. Long, 20 Neb. 362. 372; Moore v. Douglass, 14 W. 63 Conroy v. Duane, 45 Cal. Va. 708. 597 ; McCartney v. Aner, 50 Mo. es Thompson v. Sorenberger, 59 395. 111. 326. 64 Thompson v. Sorenberger, 59 «r Hoffman v. Harrington, 25 111. 326; Womack v. Powers, 50 Mich. 146. § 586.] FORCIBLE ENTEY AND DETAINEE. 643 and threats of personal violence, the suit fails. The action can- not be made a substitute for the action of ejectment."^ Where the action is brought for an unlawful detainer or withholding of possession, it will be sufficient to show that the relation of landlord and tenent had existed ; that the time for which the premises were let has expired, and that the defend- ant persists in holding the lands after proper demand made for the possession thereof."" In case the tortious entry is made upon vacant and unoccu- pied lands, thus invading a constructive possession only, the course to be pursued is not so clear. A person in the actual and peaceable possession of land will usually be deemed to be rightfully in possession, and the burden of disproving same is cast upon the person who disputes this apparent possessory right.'" Hence, a party suing in a case of this kind is re- quired to show a right of possession in himself,'^ and cannot rely upon the lack of right in those whom he seeks to dis- possess.'^ This phase of the action is not recognized in many states and is of doubtful utility where allowed. As the title is not in any sense involved, the sole question being the fact of dispossession,'^ it follows that no evidence res- pecting ownership should be received,'* yet, where there is no apparent actual possession of a portion of the premises, the plaintiff may, for the purpose of showing the extent of his pos- session, introduce the deeds or other muniments of title under which he claims.'" This principle, however, is never extended so as to permit a defendant to introduce title papers which would tend to show an adverse possession,'" although it has been held that the defendant may introduce evidence of title in himself, not for the purpose of establishing or trying title, ss Taylor' v. Scott, 10 Oreg. 483. 73 McCarty v. McMullen, 38 111. 69 Cairo, etc. Co. v. Wiggins 237. Ferry Co., 82 111. 230. 74 Sanchez v. Lonreyro, 46 Cal. 70 McLean v. Farden, 61 111. 641. 106. 75 Pearson v. Herr, 53 111. 144; 71 Fitzgerald v. Quinn, 165 111. Allison v. Casey, 4 Baxt (Tenn.) 354. 587; Murphy v. Snyder, 67 Cal. 72McIlwaln v. Karstens, 152 451. 111. 135. 76 Slate v. Eisenmeyer, 94 111. 96. 644 FOECIBLE ENTET AND DETAINEE. [§§ 586, 687. but to show that his entry was made in good faith and not with wrongful intent.'^ § 586. The judgment. — If the defendant is found guihy the judgment usually is that the plaintiff have restitution of the premises, together with his costs, and that a writ of restitution be awarded/* It does not seem that any particular form is required in the rendition of the judgment and any order ab- solute that the plaintiff be restored to the possession of the land detained, or upon which entry has been made, and that a writ issue to execute such judgment, will probably be suf- ficient. In a few states damages may be recovered in ad- dition,'" but this hybrid form of action finds but little recog- nition and the general rule is that the judgment should be only for possession and costs and not for damages.*" As the immediate right of possession is all that is involved in this action it follows that a judgment therein is not a bar to ejectment.*'- § 587. Execution. — "the judgment in forcible entry, if rendered for the plaintiff, is enforced by a writ of restitution. The manner of executing the writ is much the same as in case of a writ of possession in ejectment. The officer executing the writ may enter the premises, forcibly if necessary, and hav- ing entered he should remove the defendant, his servants and his chattels, doing as little damage as possible to effect the purpose.*^ It has been held that the officer is not bound to re- move the defendant's goods, but may do so as the agent of the plaintiff.*^ He must, however, evict all persons in possession, the test being that the plaintiff must be so established in his 77 Dennis v. Wood, 48 Cal. 361. si Riverside Co. v. Townsend, But see Walls v. Bndel, 7 Fla. 120 111. 9. 478. 82 Miller v. White, 80 111. 580; 78 Thompson v. Sorenherger, 59 Union Township v. Bayliss, 40 111. 326. N. J. L. 60; De Graw v. Prior, 68 T9 Hitchcock V. Pratt, 51 Mich. Mo. 158. 263. 83 Union Township v. BayUss, 80 Walker v. McGill, 40 Ark. 40 N. J. L. 60. 38. 84 Union Township v. Bayliss, 40 N. J. L. 60. § 588.] FOECIBLB ENTET AND DETAINEE. 64-5 possession that any person entering upon him, otherwise than by his invitation, would be subject to indictment for a forcible entry.^* But an officer serving a writ of restitution has no right to remove a party who does not hold under the defendant in the writ,^^ or who is not in privity with him. § 588. Damages. — The remedy of forcible entry and de- tainer is designed only as a protection of the actual possession, whether right or wrong, and the judgment therein usually is that the dispossessed occvipant have restitution of such posses- sion. The entry, if forcible, undoubtedly constitutes a tres- pass, but the statute, as a rule, makes no provision for the trespass and if any damages are recovered they are only nom- inal and for the purpose of saving costs. But where an occupant is forcibly evicted without due pro- cess of law he may always have his action for the trespass against the wrongdoer, and while there has been much diversity of opinion as to whether an action of trespass quare clausum fregit can be maintained against the owner of land, and whether he way not justify under the plea of liberum tenementum, the constant trend of the decisions has been that he is not to be distinguished from a stranger. It is contended, in support of this position, that the statute, not in terms, but by necessary im- plication, forbids a forcible entry upon the actual possession of another even by the owner. That such an entry is therefore unlawful ; that being unlawful, it is a trespass, for which an action must necessarily lie.*" The evicted party may, in all cases, recover nominal damages for the trespass, while some of the decisions hold that he is en- titled to recover for any injuries inflicted upon his person or property, and that there may be exemplary damages if the un- lawful act was done in a wanton and reckless manner.*'' The 85 Wallace v. Hall, 22 Kan. 271. C. 494, 8 L. R. A. 537; Reeder v. seReeder v. Purdy, 41 111. 279; Purdy, 41 111. 279. And see Bau- Chisholm v. Weise, 5 Okla, 217. mSer v. Antiau, 65 Mich. 31. 87 Mosseller v. Deaver, 106 N. 646 FOECIBLE ENTEY AND DETAISBR. [§588. statute is not the same in all of the states and while' the primary purpose in all cases is to recover possession, yet, in some states, the statute permits a subtantial recovery for the wrongful en- try and withholding as well.** In any event, however, a mere money judgment is erroneous. The judgment should be for possession and also for damages,*" and the damages allowed cannot exceed the sum specifically claimed by the plaintiff."" 88 Chisholm v. Weise, 5 Okla. so Farwell v. Easton, 63 Mo. 217; Farwell v. Easton, 63 Mo. 446. 446. 80 Moore v. Dixon, 50 Mo. 424. INDEX. ABATEMENT— pleas in, may be filed when, 199. former action pending as ground for, 201. ABUTTERS— on streets and highways, rights of, 33, 34. ABSENCE— long continued and unexplained, to prove death, 397. from state not material if possession is continued by tenants, 436. for short periods not abandonment. 437. ACCOUNTING — by mortgagor in possession must be had in equity, 139. ACCRETIONS— rules respecting, 29. may be recovered, when, 29. ABANDONMENT— breaks the continuity of adverse possession, 420, 437. what necessary to constitute, 437. ACKNOWLEDGMENT- of deeds, dinspenses with other proof, 284. how certified, 287. effect of if defective, 287. of deeds of married women, 288. of deeds of corporations, 289. ACTIONS— real, divisions of at common law, 2. to quiet title, distinguished from ejectment, 12. of trespass to try title, 11. of replevin must be brought, when, 15. joinder of, when allowed, 77, 193. concurrent, may be maintained when, 78. process and appearance in, 87. by cotenants, 120, 122. by doweress, when may be brought, 125. by tenant by curtesy, 126. by married women in own right, 128. by married woman against husband, 129. by mortgagee, 135. by mortgagor against mortgagee, 137. by mortgagor against strangers, 142. by vendor of land, 146. by vendee against vendor, 147. by vendee against third persons, 148. by landlord against tenant, 150. 648 INDEX. References are to sectiona. ACTIONS (continued) — by assignee of landlord, 153. by tenants, 155, 156, 158. by trustees, 102. by executors and administrators, 163. will not lie in name of guardian, 165. or conservator, 166. may be maintained by receiver, when. 167. by receiver in foreign jurisdiction, 168. may be had against receiver, 169. do not lie against trustee in bankruptcy, 170. do not lie against the United States, 171. but may be laid against officers of government, 172. cities and towns may bring, when, 175. changing nature of, when allowed, 192. in official capacities, what averment required for in pleadings, 195. former, pending, plea of, 201. death of parties does not abate, 105. for damages and mesne profits, 526, 530, 535, 536. of forcible entry and detainer, lie, when, 577. attorney's authority to bring, how shown, 85. ADMINI STRATORS— may bring ejectment, when, 163. statutory powers of, 164. ADMINISTRATOR'S DEEDS— requisites to validity of, 321. of estates of living persons, 322. proof of, 323. ADMISSIONS— of ancestor bind heir, when, 414, 433. of adverse occupant may be shown, 433. after the statute has run not available, 433. ADOPTION— nature and effect of act of, 407. rights conferred by, 408. extra-territorial effect of, 409. proof required to establish heirship by, 410. parental consent, when necessary to validate, 411. ADOPTIVE HEIRS— right of, to take by devise to heirs, 358. may inherit from adopter but not through him, 408. proof necessary to establish right of, 410. ADVBRE POSSESSION— may be set up by special plea, 206. proof required to sustain, 250. effect of deed of land held in, 300. nature and requisites of, 415, 419. derivation of right of title by, 416. disseizin necessary to institute, 419. requisites and sufficiency of, 420, 422. good faith as an ingredient of. 423, 424, may be had by tacking, 427, 428. INDEX. References are to sections. 049 ADVERSE POSSESSION (continued) — by one of several occupants, rules respecting, 429. nature of occupancy necessaary to constitute, 430, 431. payment of taxes does not evidence, 432. interruption of, destroys rights under, 434, 435, 436. abandonment of land, effect of upon, 437. no presumptions raised to support title by, 438. may be bad in mines and sub-strata, 439. of land enclosed by mistake, 440, 441. by one tenant in common against cotenant, 448, 449. life tenant cannot have, against remainderman, 451. ■when stranger may have, against remainderman, 452. may be asserted under parol gift, 454. as between husband and wife, 455. as between parent and child, 456, 457. as against dower rights, 458. tenant may have against landlord. 459, 460, 461. does not lie against the United States, 463. or a grantee of the United States, 464. nor against the state, 465. unless it submits to operation of statute, 465. rules respecting assertion of, against cities and towns, 466, 467, 468, 469. may be had in lands owned by semi-public corporations, 471. AFFINITY— heirship through, nature of, 412. AGENTS— service of process on, may be had when, 83. are proper parties, when, 108. of the government may be sued, 172. ALLEGATIONS— proof should conform to, 228. proof offered must be consistent with, 230. variance from, on the trial, 231. objection to, when taken. 232. AMENDMENTS— to pleadings, when allowed, 191. ANCESTRAL ESTATES- will not descend to heirs of the half blood, 373. ANCIENT— deeds, how proved, 285. grantor's possession under need not be shown, 286. ANNULMENT— of judgment, when application for, may be made, 498. ASSIGNEE— of reversion, rights of, 117, 153. of doweress, may sue when, 125. of lessor, may maintain action, 153. in bankruptcy, may not be sued, 170. ASSISTANCE— writ of, may issue when, 320. 650 INDEX. References are to sections. ATTORNEY— authority of, to bring suit, 85. B. BANKRUPTCY— assignees and trustees in may sue, 170. but cannot be sued in state courts, 170. BARGAIN AND SALE— forms of deeds of, 301. BETTERMENTS— allowance may be made for, 546. consist of what, 557. BIRTH— fact of, how proved, 389. general reputation with respect to, 390. BOUNDARIES— parol agreements respecting, 261, 272. disputed, original survey governs, 269. in disagreements respecting, monuments control other matters, 270. parol evidence may be received to determine, when, 271. common repute may be received to establish, 273. hearsay concerning, when admissible, 274. declarations of deceased persons with respect to, 274. of land enclosed by mistake, 440. when agreed upon may not be changed, 442. may be fixed by parol agreement, 443. acquiescence in will conclude parties, 444. must be in dispute to give validity to parol agreements, 445. BUILDINGS— severed from land become chattels, 15. parts of, may be recovered in ejectment, 24. BURIAL LOTS— ejectment does not lie for, 30. c. CASUAL EJECTOR— function of, in ancient practice, 8. CEMETERY LOTS— when ejectment may be brought for, 30. CHATTELS— not recoverable in ejectment, 15. when replevin will not lie for. 15. CHILDREN— definition of the word, 355. is generally a word of purchase, 355. devise to, means legitimate, 357. by adoption will not take under devise to, 358. posthumous, take by descent, 402. INDEX. References axe to sections. 051 CHILDREN (continued) — Illegitimate, take under what circumstances, 403. by adoption, rights of inheritance of, 407. death of, not presumed from long absence, 399. CHURCH RECORDS— admissible to prove facts of pedigree, 376. CITIES— right of, to sue for recovery of streets, 175. adverse possession cannot be had of streets and public places in, 466. adverse possession may be had of lands of, 469.. may acquire title by adverse possession, 470. CIVIL DEATH— not sufficient to create rights of inheritance, 401. CLAIMANTS— by hostile titles may not join, 197. CODE PLEADINGS— sufficiency of, determined, 190. COLOR OF TITLE— distinguished from claim of title, 422. what is necessary to constitute, 422. character of possession under, 421, 430. constructive possession will follow a claim under, 425. COMMON LAW— real actions at, 2, 3. status of married women at, 128. relation of mortgagor and mortgagee at, 133. rules of, respecting landlord and tenant, 150. pleadings in the action at, 176. COMMON REPUTE— may be shown in case of disputed boundary, 271, 273. admissible to prove fact of marriage, 381. COMMON SOURCE— general doctrines respecting title from, 264. evidence under plea of title from, 208. extent of proof required where both parties claim from, 265- denial of, by defendant, effect of, 265. defendant may assert outstanding title though claiming from, when, 266. COMPENSATION— for taxes paid, 544. for Incumbrances discharged, 545. for improvements on land, 546. cannot be claimed by tenants, 548. nor by strangers, 549. nor by persons' entering pending suit, 550. nor by occupant under defeasible title, 551. assessment of, by commissioners, 559. tender of, by corporation, effect of, 32. COMPETENCY- of witnesses, 218. 652 INDEX. References are to sections, COMPLAINT (see Declaration) — sufficiency of, under the code, 190. joinder of causes of action in, 193. in forcible entry and detainer, 583. CONCURRENT ACTIONS— may be maintained when, 78. CONDEMNATION— entry upon land without, by corporation, 32. establishes right of entry, 112. permissive entry without, effect of, 112. CONDITION— legal effect of a, 335. deeds upon, effect of, 338. construction of, 336, 338. action lies on breach of, 47, 338. proof required to recover on breach of, 236. may be avoided,'how, 339. what may be shown against breach of, 252. termination of tenancy for breach of, 51. devise upon, effect of, 362. estate upon, how created, 337. subsequent, ejectment lies for breach of, 47, 338. may be avoided, how, 339. judgment must not impose, 482. CONFIRMATION— of execution sales not required, 316. of judicial sales necessary, 318, 323, 324. CONSANGUINITY— relationship by blood is called, 369. degrees of, how computed, 370. CONSENT RULE— invention and nature of, 9. CONSTRUCTION— of deeds, rules respecting, 290. of wills, rules respecting, 346, 354. of descriptions in wills, 359, 360. CONSTRUCTIVE POSSESSION— legal effect of, 425. two persons cannot have against each other, 425. CONTINGENT ESTATES— pass to heirs in what manner, 413. rules respecting inheritance of, 413. COPARCENERS— may sue in what manner, 101. CORNICE— and other projecting parts of buildings, 27. CORPORATIONS— are proper parties to suits, 110. deeds by, how executed, 289. merger of, requires substitution of plaintiff, 110. lands owned by, subject to adverse possession, 471. INDEX. €53 References are to sections. COSTS— recoverable as of course by prevailing party, 527. must be paid before new trial allowed, 569. COTENANTS— may join as parties plaintiff, 94. suits between, when permitted, 120. extent of recovery by, 121. may sue strangers and recover, 122. extent of recovery by, 123, 124. ouster of, by tenants in possession. • deed to stranger by one of several, 450. may sue each other for forcible entry, 580. COUNTIES— may sue and be sued in what manner, 174. COURT RECORD— may be received to prove facts of heirship, 379. COVERTURE- disabilities of, 288. CROPS— pass with a recovery to prevailing party, 26. growing, may be taken under writ of possession, 514. may entitle cropper to possession, 26. harvested, may be taken under writ, when, 515, 516. CUMULATIVE REMEDIES— landlord may have, 151. CURTESY— tenant by, when entitled to sue, 126. D. DAMAGES— discussion of methods of recovery of, 526. nominal, not necessary to- carry costs, 528. exemplary, may be awarded, when, 529. recovered in action for mesne profits, 530. limit of recovery of, 533, 534, 537. suggestion of, upon the record, how made, 535. allowed in original action, 536. on judgment by default, 538. what defenses may be urged against, 539. measure of, general rules respecting, 540. assessment of, by writ of inquiry, 541. recovery of, not affected by death of parties, 542. what defendant may offset against, 543, 544. in actions of forcible entry, 588. DEATH— of parties defendant, 105, 500. of parties plaintiff, 106. must be proved the same as any other fact, 394. of grantor, deeds to take effect at, 303. of intestate essential to validity of probate proceedings, 321. proof of, to establish heirship, 394. by reputation and hearsay, 395. by circumstantial evidence, 394. 65-± INDEX. References are to sections. BEATH (continued) — presumption of, raised tiy administration, 396. raised by unexplained absence, 397. does not apply to children, 393. presumption of time of, 398. where several die in same disaster, 400. civil, confers no rights of inheritance, 401. of parent, status of children born after, 402. of former spouse will be presumed, when, 3S5. of parties, damages may be assessed after, 542. presumption of life in absence of proof of, 394. abates action, when, BOO. not suggested i-enders judgment merely irregular, 500. DECLARATION (see Complaint) — office of, under the ancient practice, 176. general rules of pleading apply to, 176. should show proper venue, 177. need not state the demise, 178. need not aver lease, entry and ouster, 181. must allege possessory rights, 182. allegations of, with respect to ownership, 183. must state nature of estate claimed, 184. must describe the premises sought to be recovered, 185. amendments to, how made, 191. may contain several counts, 194. hostile claimants cannot join in the same, 197. DECLARATIONS- of persons deceased, may be admitted to show boundary, 274. of ancestor in disparagement of title binds heir, 414, 433. against interest may be shown to defeat claim of declarant, 433. absence of, cannot be shown against party, 433. DEDICATION— of streets and highways, effect of, 38. by parol, title by, insufficient to maintain ejectment, 40, DEDICATED STREETS— theory of rights in, 38. DEEDS- deraignment of title by, 280. requisites of, 281. form and contents of, 282. effect of omission of stamps from, 283. proof of, how made, 284. ancient, how proved, 285. grantor's possession under, 286. acknowledgment of, 287. of married women, how proved, 288, 332, of corporations, requisites of, 289. construction of, rules respecting, 290. identification of parties to, 291. description of premises in, 292. limitation of estates in, 294. repugnant clauses and recitals In, 295. signed by one not described as grantor, 297. INDEX. 655 References are to sections. DEEDS (continued) — forged, effect of as muniments of title, 298. in fraud of creditors, effect of, 299. of land held adversely, effect of, 300. of bargain and sale, rights of claimant under, 301. of release and quitclaim, 302. to take effect at grantor's death, 303. by the donee of a power, 304. lost, proof of, how made, 305. presumption with respect to, 306. by officials and fiduciaries, 307. by the sheriff, 308. recitals in, 309. description of lands conveyed by, 311. invalidities of, 312, 313, 314, 315. confirmation of, not essential, 316. by ministerial officers, 317. proof of, how made, 318. invalidities of, 319. by administrator, 321. of estate of a living person, 322. proof of, 323. by guardian, proof of, 324. invalidities in, of what consisting, 325, 326. made in pursuance of tax sales, 328. defects appearing in, 329. extrinsic proof required to support, 330. of minors, effect of, 333. of lunatics, effect of, 334. upon condition, 335. how construed, 336 how avoided, 3E9. DEFAULT— of defendant dispenses with need of proof, 238. damages recoverable under judgment by, 538. new trial where defendant is under disability at time of judg- ment by, 571. DEPENDANTS (see Plaintiffs)- in ejectment, who may be made, 92. persons not in possession may be made, 93. all persons claiming interest may be joined as, 96. joint, may demand separate trials, when, 97. improperly joined, objection to, must he made, how, 98. death of, what necessary in case of, 105. persons entering under, bound by judgment, 109. married women should be made, when, 130. landlords may be let in as, 154. DEFENSES- pleas of, must not be inconsistent, 212. under the general issue, 241. estoppels preclude what, 242. under special pleas, 243. must not be inconsistent, 244. affirmative, how shown, 245. 656 INDEX. References are to sections. DEFENSES (continued) — equitable, not available, when, 255, 256, 25& theory of, 25S. must be pleaded, how, 215. where both parties claim from common source, 266. of tenant to landlord's suit, 279. to claim for damages and mesne profits, 539. DELIVERY— of deeds, proof required of, 281. of possession under writ, how effected, 508. DEMISE— the, need not be pleaded or proved, 178, nature of, in modern pleading, 178. DEMURRER— should be interposed, when, 200. DENIAL— general, effect of, 202. by defendant of title from common source, 265. DESCENT— title by, generally considered, 366. what interests pass by, 368. proof in defense of claim by, 251. how traced from intestate, 3G9, 372, 374. of ancestral estates, rules respecting, 373. evidence to prove, 374, 375, 376. 378. DESCRIPTION- of lands in the pleadings, 185. what particulars of, required, 186. by reference, when permissible, 187. double, rules respecting, when conflicting, 188. of the premises of deeds, 292. when insufficient, how land may be identified, 293. of the parties to grants, presumptions as to grantees, 291. of devisees in wills, 353. of land devised by will, how construed, 359. .error in, effect, of, 360, 361. of land in verdict, rules respecting, 475. of land in judgment, rules respecting, 483. of estate recovered In judgment, 484. of specific degree of interest recovered in judgment, 485. DEVISE— title by, how proved, 341, 345. of same tract to different persons, 352. to children, how construed, 355, 357. upon condition, effect of, 362. of power of disposition, construction of, 363. by joint tenant inoperative, 364. to heirs, rules respecting, 365. DEVISEE— right of entry of, 114. description of, what necessary for, 353. INDEX. 657 References are to sections. DEVOLUTION— of title, how shown, 224, 233. DISABILITY— right of action saved to persons under, 58. arising out of coverture, 288. heirs and successors of persons under, 59. DISCLAIMER- of title, evidence under plea of, 211. DISPUTED BOUNDARIES— proof required in case of, 268. parol evidence may be received to settle, 271. rules respecting, where title is claimed by adverse possession, 440. DISSEIZIN— necessary to maintain action, 45. wrongful detention the gist of a, 45. as a basis of title, what constitutes, 419. DITCHES— of water, ejectment will lie for, 16. DIVORCE— may be presumed to support second marriage, 386. lawfully granted at place of domicile valid everywhere, 383. DOUBLE DESCRIPTIONS— effect of. In pleading, 188. DOWER— not usually recoverable by ejectment, 53, 125. when ejectment will lie for, 53, 125. proof to rebut claim for, 253. right of wife to, not affected by adverse possession against hus- band, 458. DOWERESS— may bring action, when, 125. assignee of, cannot sue in ejectment, 53, 125. E. EASEMENT (see Pkopits a Peendbb) — not recoverable in ejectment, 21, 22. land subject to, may be recovered, 23, 263. of public in streets and highways, 34, 39. appendant, recoverable at common law, 14. outstanding, no defense to action, 249. will not justify exclusive possession of land, 263. distinguished from profits a prendre, 21. EJECTIONS FIRlVLaB— writ of, 5. EJECTMENT— origin and history of, 5. for what action of, lies, 14. when the action may be brought, 44, 46. chattels not recoverable in, 15. does not, lie for water, 16. 43 65 S INDEX. References are to sections. EJECTMENT (continued) — lies for lands in hostile possession, 18. lies for incorporeal liereditaments, "wien, 21. may be brought for dower, when, 53, 125, 253. lies for condition broken, 47, 51. must be brought in apt time, 56. right to maintain accrues, when, 57. notice to quit must be given before bringing, 62. may be maintained without notice to quit, 65. form of action of, 76. process and appearance in, 79. attorney's authority to bring action of, 85. appointment of receiver in, 86. may be restrained by injunction, 89. parties to the action of, 90. pleadings in the action of, 176. evidence in the trial of disputed titles, 217. verdict and judgment in, 472. EMINENT DOMAIN— nature of entry under right of, 112. EMPLOYEES— and servants not necessary parties, 108. husbands may be of wives, 130. of government may be sued, 172. ENTRY— writ of, nature and requisites, 2. purpose served by, 3. on land, not essential to forfeiture, 47. within what periods must be made, 56. right of, when lost, 54. when saved to persons disabled, 58. by owner where land is occupied, 576. under void lease confers no rights, 160. and ouster, need not be pleaded, 181. nor proved, 219. except in case of joint tenants, 219. under municipal license, 35. under void deed is yet color of title, 424. by owner interrupts adverse possession, when, 435. EQUITABLE- mortgage, passes title at law, 143, 262. titles, may be pleaded, when, 179, 257. action may be brought upon, 235. relief may be granted, when, 180, 235. defenses, not admissible at law, 255. may be shown, when, 256. as affected by statute, 257. theory of,' 258. not permitted in federal courts, 258a, must be pleaded, how, 179, 215. estoppel, may be shown, when, 260. EQUITIES— at common law, rules respecting, 255. INDEX. 659 References are to sections. EQUITIES (ccntinued) — under the statute, when admissible, 179, 257. in the federal courts, how regarded, 258. character of, when permitted, 259. EQUITY— relief in, will be granted, when, 12, 574. . new trial may be awarded by court of, 574. ESTATE— claimed must be specified in the pleadings, 184. limitation of, in deeds, 294. verdict should specify, 475. recovered should be described in judgment, 484. ESTOPPELS— must be- pleaded, when, 216. when defendant is bound by, 242. in pias, may be shown, when, 260. effect of judgments as, 488. against the public, when permitted, 468. EVICTION— of occupants in execution of writ of possession, 506, 508, 510. who not liable to, under execution, 511. ot persons entering pending suit, 512. EVIDENCE (see Peoof)- in ejectment, general rules of, considered, 217. secondary, may be introduced, when, 226. of deeds, 226, 305. substantial variance from allegations, 231, 232. under special pleas, 243. where both parties claim from common source, 264. parol, may be received to establish monuments, 271. may be received to establish lost writings, 305. hearsay, admitted under some circumstances, 274. to prove deeds, 284. unstamped deeds may be admitted in, 283. of pedigree, 374. character of, to overcome presumption of legitimacy, 39J. EXCEPTIONS— from grant, how shown in pleadings, 189. EXECUTION— interest levied upon by sheriff under, 310. sale under, on dormant judgment, 312. sale under, after judgment is barred, 313. sale under, where judgment is satisfied, 315. sale, void, rights of purchaser under, 314. sale, confirmation of, not required, 316. sale, title claimed under, how shown, 233. of writ of possession, 506, 507, 508, 513. of writ will be restrained, when, 521, EXECUTORS— may have ejectment, when, 163. relation of devisees to, 164. EXHIBITS— are no part of the pleadings, 198. 660 INDEX. References are to Bectiona. F. FAMILY RECORDS— admissible to prove facts of pedigree, 375. FEDERAL COURTS— equties may not be shown in, 258. FICTIONS— in ejectment, of what consisting, 8, 9. FIXTURES— may be recovered with the land, 517. may not be recovered, when, 518. FORCIBLE ENTRY— nature of action of, 13, 575. principles of the action of, 575, 576. will lie in what cases, 577, 578. parties to the action of, 579, 580. action of, how instituted, 582. joinder of issues in, 584. proofs required to sustain, 585. form of judgment in, 586. execution of judgment in, 587. damages recoverable in, 588. FOREIGN PROBATE— effect of, 343. requires ancillary probate, when, 343. FORFEITURE- of estate, for condition broken, 47, 51, 152. of estate for waste and spoliation, 116. of lease, 51, 52, 152. of tenant's rights generally, 161. FORGED DEED— effect of, as muniment of title, 298. FORMER ADJUDICATION— effect of, where parties relitigate title, 267. FORMER RECOVERY— may be pleaded in bar, when, 209. FRAUD— may be shown in defense, when, 254. FRAUDULENT— conveyance, may be attacked at law, 299. G. GENERAL ISSUE- the proper plea In bar, 202. theory of the, 203. nature of proof required under, 241. GENERAL REPUTATION— to prove fact of marriage, 381. must not be divided, 382. to prove legitimacy of birth, 390. to prove fact of death, 395. to prove location of lost monuments, 273. ' INDEX. 661 References are to sections. GOOD FAITH— character of, discussed, 423, 556. as an element of limitation of mesne profits, 534. improvements must be made in, to recover value, 5S2. GOVERNMENT— land in possession of, ejectment lies for, when, 31, GROWING CROPS— go with, land on recovery, 26. right to recover land to cultivate, 26. GUARDIANS— rights and duties of, 165. may not bring action in own name^ 165. deeds of, how proved, 324. invalidities of, of what consisting, 325, 326. may be avoided by ward, when, 327. H. HABENDUM— of deeds, when Inconsistent with premises, 296. HALF BLOOD— distinctions respecting, abolished, 371. will not take ancestral estate, when, 371. HEARSAY— admissible under what circumstances, 274, 395. to prove fact of death, 395. HEREDITAMENTS— value of term in modern law, 17. HEIRS— of persons under disability, rights of, 59. nature of estate held by, 114. devises to, how construed, 356. adoptive, do not take under a devise to, 358. HEIRSHIP- by what law ascertained, 367. rights conferred by, 371. evidence to establish, 372, 374. through affinity, rules respecting, 412. in cases of contingent estates, 413. HOMESTEADS- necessary parties to recover land held as, 132. HOSTILE CLAIMANTS— cannot join as parties plaintiff, 95. HUSBANDS AND WIVES- status of, at common law, 127. when servants of each other, are not necessary parties, 130. must both be joined, when, 132. may not have adverse possession against each other, 455. may not be evicted at suit of either, 510. 662 INDEX. lEeferenoes are to seotiona IDENTIFICATION— of parties to deeds, 291. of land after conveyance, 293. ILLEGITIMATES— make take under a devise to children, when, 357. rules of the common law respecting, 403. may be given the status of legal heirs, 404. may be legitimatized, how, 405, 406. IMMEMORIAL USAGE— presumptions of law founded upon, 417. IMPROVEMENTS— by adverse occupant, of what consisting, 430. compensation for, may be allowed, when, 546, 547. by tenants, compensation not allowed for, 548. made during pendency of suit, 550. made under defeasible title, no recovery for, 551. must be made in good faith, 552. made after notice of plaintiff's claim, 553. made after action commenced, 555, 556. character of, for which compensation may he paid, 557. measure of compensation to be paid for, 558. INCONSISTENT PLEAS— how far may be permitted, 212, 213. INCORPOREAL HERERITAMENTS— may be recovered in ejectment, when, 21. INFANTS— must sue and be sued in person, 104, 165. INHERITANCE (see Heirship) — rights of, how determined, 371. succession to, how proved, 372. of ancestral estates, half blood excluded, when, 373. accrues only to legitimate descendants, 372, 380. of contingent estates, rules respecting, 413. INJUNCTION— to restrain suit, when allowed, 89. to stay waste, when allowed, 87, 88. to restrain execution of writ of possession, 521. INSANE PERSONS— may be made parties, how, 103. deeds of, are generally valid at law, 334. INTERMENT— rights of, not the subject of ejectment, 30. INTERRUPTION— of continuity of possession destroys adverse claim, 434, INTER VENORS— cannot be made parties, 107, landlords may be, 154. INDEX. 663 References are to sections, INTRUSION— of strangers breaks continuity of possession, when, 434. ISSUE— construed how, as a term in wills, 354. lawful, adoptive heirs are not, 358. general, evidence that may be given under, 241. verdict should respond to, 472, 474. when writ of possession must, 505. J. JOINDER— of actions, when permitted, 77. of parties plaintiff, 94. of parties defendant, 96. not permitted to hostile claimants, 95. of improper parties, effect of, 98. neglect of, of necessary parties, 99. of wife, when not necessary, 131. when necessary, 131, 132. of landlord and tenant, 154. JOINT-TENANTS— must sue and be sued, how, 102. devise by, effect of, 364. JUDICIAL SALES— proof of deeds made under, 318, 323, 324. nature of title derived under, 317. rights of purchaser at, void, 319. JUDGMENT— nature of, at common law, 478. nature of, under the statute, 479. by confession, how treated, 480. must conform to verdict rendered, 481. must not be conditional, 482. must describe or designate the land recovered, 483. must describe the estate of parties in land recovered, 484. must designate the specific degree of interest of the party, 485. operation and effect of, 486. conclusiveness of, 487. operates as an estoppel to what matters, 488. effect of vacation of, 489. effect of prior, in different proceeding, 490. parties and privies to, distinguished, 491.' effect of, on after-acquired title, 492. effect of, on adverse possession, 493. effect of, on persons entering pending suit, 494. where plaintiff's rights expire pending suit, should be in what form, 495. of discontinuance should be entered, when, 496. may be amended in what particulars, 497. may be annulled for what reasons, 498. against officers of government, 499. against persons deceased, effect of, 500. against tenant in possession, effect on landlord, 501. 664: INDEX. References are to sections, JUDGMENT (continued) — revivor of, when required, 502. reversal of, effect on parties, 502a. sale under, satisfied, effect of, 315. barred by limitation, effect of sale under execution issued on, 313. in actions of forcible entry, 5S6. possession will be restored on reversal of, 522. JURISDICTION— to try disputed titles purely legal, 12. in actions of forcible entry, 578. K. KIN— next of, construction of the term, 354. adoptive heirs considered as, 358. husband and wife are not, 371, 412. L. LAND— under water, may be recovered, 16. in hostile possession, action lies for, 18. partial possession, effect of, 19. vacant or unoccupied, recovery of, 20. In possession of government, action will lie for, 31. in possession of semi-public corporations, rules respecting, 32. LANDLORD— and tenant, relations of, 149, 275. inay sue tenant in ejectment, when, 150. cumulative remedies in favor of, 151. assignee of, may assert same rights, 153. as defendant, when may be joined as, 154. title of, how proved, 276. forfeiture of lease by, 51, 277. may dispense with notice to quit, when, 64. re-entry of, for non-payment of rent, 51, 278. tenant's defenses to suit of, 279. may be served with pi'ocess, 84. not bound by judgment in action of which he had no notice, 84. effect on, where judgment is rendered against tenant, 84, 501. tenant must notify, of pending suit. 84. LEASE— termination of tenancy under, 50, 51. . outstanding, may be shown as defense, 50, 115, 247. statutory provisions respecting forfeiture of, 52. LEGITIMACY— of birth, how established, 389. general reputation of, admissible, 390. presumptions with respect to, 391, 392. what is necessary to show to disprove, 391. ante-nuptial conception does not destroy, 392. character of evidence to overcome presumption of, 393. accruing through subsequent marriage of parents, 405. INDEX. 665 Eeferences are to sections. LEGITIMATION— of bastards, how effected, 405. extra-territorial effect of, 406. LICENSEES— must be given notice to quit, 74. vendees in possession regarded as, 145. cannot set up adverse possession, 431. of municipality may occupy streets, 35. LIMITATION— statutes of, nature and operation, 55. are suspended, when, 61. must be pleaded, when, 204. ' do not run against the sovereign, 463, 465. do not run against grantees of the sovereign, 464. state may submit itself to the operation of, 465. rules with respect to cities and towns, 466, 468. of right of entry on lands, 55, 56, 57. by persons disabled, 58. by heirs of persons disabled, 59. mortgage debt barred by, does not affect rights of mortgagee in possession, 141. , of right of entry on land sold for taxes, 61. and possession as a basis of title, theory of, 418. of estates in grants of land, rules respecting, 294. of period for recovery of mesne profits, 533. LIMITATION AND POSSESSION— nature and requisites of title by, 415. LOST DEEDS- general rules respecting proof of, 226, 305. presumptions with respect to, 306. preliminary proof of, when necessary, 226, LOST WILLS— general rules respecting proof of, 344. LUNATICS— deeds by, effect of, 334. M. MARRIAGE— proof to establish fact of, 380. certificate, evidentiary value of, 377. may be proved by general reputation, 381. divided reputation with respect to, 382. validity of, general rules respecting, 383. presumptions with respect to, 384, 385, 386. when void, without effect for any purpose, 388. MARRIAGE CERTIFICATES— evidentiary value of, 377. MARRIED WOMEN— rules of common law respecting, 128. may sue in own name and recover, 128. may sue husband in ejectment, 123. are necessary defendants, when, 130, 132. 666 Eeferences are to sections. MARRIED WOMEN (continued) — need not be joined, when, 131. disabilities of, in matters of conveyance, 288, 332. execution of deeds by, 2SS, 332. MASTER'S DEEDS— character and effect of, 317. proof of, how made, 318. executed in pursuance of void sale, 319. MEASURE— of damages on recovery of mesne profits, 540. of compensation for improvements, 558. MESNE PROFITS (see Damages) — action for, may be brought, when, 530, 531. limit of recovery of, 533. MINES- may be recovered in ejectment, 21, 25. rights connected with, action will not lie for, 21. may be held in adverse possession, 439. MINORS (see Wards; Guardians) — deeds by, effect of, 333. MISTAKE— land enclosed by, may be recovered, when, 440. MIXED POSSESSION— legal rules respecting, 426, 429. MONUMENTS— control courses and distances, 270. parol evidence admissible to locate, 271. lost, may be established by parol, 271. MORTGAGE— legal character of, 134. effect of provision for possession in, 138. protects mortgagee in possession although debt is barred by lim- itation, 141. equitable, passes title at law, 143. outstanding, not a defense, 248. MORTGAGEE— actions by, will lie, when, 135. may retain possession of land, when, 138, 141. in possession, can be compelled to account only in equity, 139. may hold adversely, when, 453. MORTGAGOR— may sue mortgagee for possession, 137. may sue and recover from strangers, 142. MORTGAGORS AND MORTGAGEES— relation and status of, 133, 134. MUNICIPAL LICENSE— occupation of streets under, 35. INDEX. 667 Eeferenees are to sections. MUNICIPAL RIGHTS— in streets and highways, 39, 175. theory of, in respect of adverse possession, 467, 469. effect of the doctrine of estoppel upon, 468. distinctions respecting, in different classes of property, 469. in lands held adversely, 470. N. NEW TRIAL— general rules respecting, 562. procedure to obtain, at common law, 563, 564. upon what grounds granted, 565. will not be granted, when, 566. as matter of right under statute, 567. motion for, must be made, when, 568. conditions precedent to allowance of, 569. who may move for, 570. effect of granting, 572. NOMINAL DAMAGES— not necessary to secure costs, 528. NOTICE— to quit, reasons for, 62. Is required, when, 63. is dispensed with, when, 64. is not required, when, 65. tenant from year to year, 66. tenant at will, 69. tenant by suffrance, 70. vendee in possession, when entitled to, 71. vendor remaining in possession not entitled to, 72. licensee must receive, 74. Improvements made after, value of not recoverable, 553. o. OBJECTION— to variance between declaration and evidence, how taken, 232. OCCUPATION— requisites of, to constitute adverse possession, 420, 430. partial, under color of title, effect of, 421. by several, rules respecting adverse claims in case of, 129. under license not adverse, 431. evidences of, to support adverse claim, 430. without claim of title not adverse, 431. OFFICERS- of the United States, may be sued, when, 172. OFFICIAL CAPACITY— should be stated in the pleadings, 195. OFFICIAL DEEDS— general rules respecting, 307. OFFSETS— by defendant to plaintiff's claim for damages, 543. 668 INDEX. References are to sections. ORAL DECLARATIONS— to show facts of pedigree, when admitted, 378. ORDER OP PROOF— no specific rules for, 227. OUSTER— need not be pleaded, 181. proof of, not required, 219. joint tenant must show, when, 219. of cotenants, by tenant in possession, 449. by stranger under deed from one, 450. of remainderman by strangers, 452. of landlord by tenant, how accomplished, 459. United States, cannot be subject to, 463. nor the states, 465. unless they shall submit themselves, 465. municipalities protected against, when, 466. OUTSTANDING TITLE— defendant claiming from common source may assert, when, 266. OVERHANGING ROOF— may afford ground for action, 27. OWNER— out of possession, may be made defendant, 84. not bound by judgment in action of which he had no notice, 84. OWNERSHIP— character of, must be pleaded, 183. of accretions, how determined, 29. in burial lots, character of, 30. PARENT AND CHILD— may institute adverse holdings against each other, when, 456, 457. PAROL AGREEMENTS— respecting boundaries, may be received, 261, 443. may be made to settle uncertain lines, 272, 445. PAROL GIFT- possession under, is adverse, 454. may ripen into title, when, 454. PAROL EVIDENCE— admissible to show boundaries, 261, 271. PARTIES— plaintiff, general rules respecting, 91. who may be joined as, 94. hostile claimants cannot be, 95. improper joinder of, 98. death of, does not abate suit, 106. defendant, who are necessary, 92. may have separate trials, when, 97. nonjoinder of necessary, 99. death of, effect of, 105. servants and employees not proper, 108. INDEX. 669 References are to sections. PARTIES (continued) — purchaser pending suit, need not be made, 109. to deeds, identification of, 291. presumptions as to, 291. judgment conclusive on, 488, 492. distinguistied from privies, 491. liable for mesne profits, 532. in action of forcible entry, 579. PARTS OP BUILDINGS— may be recovered, when, 24. PAYMENT- of taxes, not an act of possession, 432. and possession under deed confers title, 432. tax receipt evidence of, 432. may be set off against claim for damages, 544. of incumbrances, reimbursement should be made for, 546> for improvements may be claimed, -when, 546. PEDIGREE- defined, 369. evidence of, consists of what, 374. may be shown by family records, 375. may be shown by church records, 376. may be shown by court records, 379. PLAINTIFFS (see Defendants; Parties) — in ejectment, ownership required for, 91, several persons may join as, 94, 194. hostile claimants may not join as, 95, 197. improper joinder of, how objection taken to, 98. misjoinder of, advantage of, bow taken, 99. death of, who may continue action in case of, 106. married women may be, 128. PLEA— in abatement, 199. of former action pending, 201. of title, requisites of, 205, 206. of former recovery, may be made, when, 209. of title from common source, 208. puis darrien continuance, 214. must be special, when, 207, 208, 211. of the general issue, effect of, 202. theory of, 203. of the statute of limitations, 204. of title from common source, 208. of disclaimer, 211. defendant not limited one, 212. of several defenses must not be inconsistent, 212. of estoppel, when required, 216. PLEADINGS— general rules respecting the, 176. estate claimed must be stated in, 184. description of premises in, 185. sufficiency of, under codes, 190. amendments to, when allowed, 191. 670 INDEX. Heferences are to sections, PLEADINGS (continued) — by defendant, consist of wliat, 199, 202, 204. extrinsic facts must be set up by special, 207. must not be inconsistent, 212. since the last continuance, 214. POSSESSION— medieval notions respecting, 3. land in hostile, ejectment lies for, 18. partial, when ground for ejectment, 19. by government does not preclude action, 31. by semi-public corporations, rules respecting, 32. of defendant, character of, 46. proof of, 220. owner out of, not a necessary party, 84. of husband is possession of wife when occupancy is joint, 130. mortgagee, when entitled to, 135. provisions for, in mortgages, 138. rights of, by vendors and vendees, 145. rights of, under void lease, 160. when trustee entitled to, 162. right of, vests in administrator, when, 163, 164. plea of general issue admits, 210. denial of, eHect of plea of, 210. adverse, nature of plea required for, 206. title by, nature and requisites of, 415. by one of several occupants, 429. person in, presumed to be owner, 44. constructive, legal effect of, 425. character of, under color of title, 421. mixed, rules for determining rights in cases of, 426. under void deed, 424. interruption of, destroys adverse holding, 434. abandonment of, restores seizin of owner, 437. writ of, generally considered, 503. nature and requisites, 504, 505. execution and return of. 506, 507, 519. of grantor, must be shown when, 286. presumptions respecting, 438. of mines and sub-strata, 439. of land enclosed by mistake, when adverse, 440. of one cotenant the possession of all, 448. of life tenant not adverse to remainderman, 451. under parol gift, effect of, 454. of husband not adverse to wife, 455. of parent not adverse to child, 456. adverse to husband does not affect wife's dower, 458. by plaintiff, proof of, 222. and payment of taxes under color of title, effect of, 432. demand for, must be made, when, 62, 581. not necessary, when, 65. in actions of forcible entry, 581. acquired by plaintiff pending suit, effect of, 537. POSSESSORY RIGHTS— actions respecting in early law, 2, 3. allegations of, when necessary, 182. INDEX. References are to sections. POSTHUMOUS CHILDREN— rules of law respecting, 402. POWER— deed by donee of, how construed, 304. of disposition, devise of, 363. PRACTICE— incidental matters of, 75. PREMISES— must be described with, certainty in pleadings, 185. verdict must describe, or designate, 474. should be specificaily described in judgment, 483. PRESCRIPTION— as a mode of acquiring title to land, 416. negative and positive distinguished, 417, 418. distinguished from limitation, 418. PRESUMPTIONS— as to identity of grantees in deeds, 291. respecting lost deeds, 306. necessarily admitted in cases of pedigree, 374. respecting marriage, 384. of divorce, may be raised, when, 386. raised by illegal cohabitation, 387. of legitimacy, how raised and destroyed, 391. of death, may be raised, how, 385, 396, 397. of time of death, 398. of survivorship, not recognized, 400. respecting adverse possession, 438. PROBATE— of wills, effect of, 342. ancillary, how made, 343. PROCESS— in ejectment, former practice, 80. present practice, 81. how served, 82. service of, on agents, when may be had, 83. PROFITS A PRENDRE— may be recovered, when, 21, 25. PROOP (see Evidence) — general rules respecting, 217. of entry and ouster not required, 219. of defendant's possession, must be made, when, 220. of title, how made, 221. order of, rules respecting, 227, 240. .must be consistent with allegations, 230, 231. variances between allegations and, 231, 232. extent of, required to maintain action, 233, 234. on default of defendant not required, 238. on breach of condition by grantee, 236. under the general issue, 241. under special pleas, 243, 245, 246. of claim of descent, 360. what may be shown in rebuttal of, 251. 671 672 INDEX. References are to sections. PROOF (continued) — of fraud and circumvention may be shown, when, 254. of deed by donee of power, 304. of lost deeds, 305. of sheriff's deeds, 308. of administrator's deeds, 323. of guardian's deeds, 324. of tax deeds, 328. what extrinsic matters must be shown In. connection with, 330. of deeds of married women, 332. of landlord's title in action against tenant, 276. where both parties claim from common source, 264. in settling disputed boundaries, 268. of wills, in probate court, 341, 342. in collateral proceedings, 341. in actions of forcible entry, 585. PROTRUDING TREES— not ground for action, 28. PURCHASER (see Vendees) — pendente lite, need not be made party, 109. is bound by judgment, 109. of land, relation of, to yendor, 144. is entitled to possession, when, 145. actions by, 147. Q. QUARB BJECIT— writ of, 5. QUIA TIMET— nature of the action of, 12. owner in possession must resort to, 19. QUITCLAIM DEED— rights of claimant under, 302. R. RAILWAY COMPANIES— right of, to enter upon lands, 32. nature of interest acquired by, in condemnation, 42, 111. may be treated as trespassers, when, 32. lands occupied by, may be recovered, 32. lands legally condemned may be recovered by. 111. occupation of streets by, under license, 35. rights of way of, ejectment will lie for by, 42. may be recovered from, by landowner, 43. may hold lands entered upon with knowledge of owner, 43, 112. rights of way of, cannot be lost by adverse possession, 471. may be lost by adverse possession, 471. fixtures of, do not pass with land on eviction, 518. RE-ENTRY— for condition broken, not required, 47. for non-payment of rent, 278. IHDEX. 673 Eeferences are to sections. REAL ACTIONS— divisions of, at common law, 2. requisites of, at common law, 3. RECEIVER— may not be appointed in ejectment, 86. may be appointed in auxiliary proceeding, 86. may be sued only by leave of court, 169. actions against, averments of'pleadings in, 196. powers and duties of, 167. may maintain action for possession, when, 167. may not as of rigbt in foreign jurisdiction, 168. RECITALS— in sheriff's deeds, effect of, 309. RELEVANCY— of testimony, rules with, respect to, 227. REMAINDERS— when action lies to recover, 48. REMAINDERMEN— may institute action, when, 48, 119. may have injunction to restrain waste, 88. life tenant cannot prescribe against, 451. may be ousted by stranger, when, 452. RENT— default in payment of, gives right of action, 51, 150. re-entry for non-payment of, statutory provisions concerning, 52. actually received not the measure of damages, 540. REPLEVIN— when a proper remedy, 15. title to land cannot be litigated in, 15. REPUGNANCY— in recitals of deeds, rules respecting, 295. between different clauses of wills, 351. REQUISITES— of deeds, of what consisting, 281. RESIDENCE— on land not essential to continuous occupancy, 437. RESTITUTION- of possession taken under writ will be awarded, when, 520. of possession under reversed judgment, 522, 523. RETURN- of writ of possession, 519. REVERSAL— of judgment on appeal, effect of, 502a. possession will be restored on, 522. REVERSIONS— when action may be maintained on, 49. assignee of, may maintain action, 117, 153. REVERSIONERS— may have injunction to restrain waste, 88. may not enter during continuance of precedent estate, 115 by possibility, who are, US. liability of life tenant to, for waste, 116. 43 L 674: INDEX. References are to sections. REVIVOR— of judgment, at common law, 502. In actions of ejectment, 502. RIGHTS OF WAY— when ejectment will not lie for, 22. may be recovered, when, 42, 263. recovery of, by land owner, 43, 263. of railroads, nature of, 42. adverse possession does not lie against, 471. adverse possession of, may be asserted, when, 471. ROLLE— Chief Justice, fictions invented by, 9. s. SECONDARY EVIDENCE- is admissible, when, 226. SEPARATE TRIALS— may be had, when, 97. SERVANTS— are not necessary parties, 108. SERVICE— of process, how made, 82. may be had on agent, 83. on tenant binds landlord, when, 84. SHELLEY'S CASE— applied, when, in construing wills, 350. SHERIFF'S DEEDS— character and proof of, 308. recitals in, effect of, 309. interest conveyed by, 310. description of lands in, 311. made under void sales, 312, 313, 314, 315. SIGNING— of deeds, how effected, 281. by one not described as grantor, 297. SPECIAL PLEAS— may be interposed, when, 204. STAMPS— effect of omission of, from deeds, 283. STATE — may maintain ejectment, when, 173. adverse rights not permitted against, 465. may submit itself to operation of statute ol limitation, 465. STATUTE OP LIMITATIONS— may be specially pleaded, when, 204. STRANGERS— outstanding title in, may be shown, 246. may prescribe against remainderman, when, 452. to judgment cannot be ousted by sheriff, 523. INDEX. References are to sections. 676 STREETS AND HIGHWAYS— ■when ejectment will lie for, 33, 37, 175. effect of dedication of, 38, 40. rights of abutters upon, 33, 34. rights of municipality in, 39. entry upon, under municipal license, 35. extent of recovery of, 37. SUB-STRATA— ejectment lies for, when, 25. SUCCESSION— line of, how proved, 372. SUFFERANCE— tenant by, is practically a trespasser, 70. SUGGESTION— of death of parties, 105, 106, 542. for damages, how made, 535. SUEVBY- original, governs questions of disputed boundary, 269. SURVIVORSHIP— general rules respecting, 400. T. TACKING— when and how accomplished, 427, 446. TAX DEEDS— effect and proofs of, 328. defects appearing in, 329. extrinsic proof to support, 330. TAXES— lands sold for, when action for recovery will lie, 61. payment of, not evidence of adverse possession, 432. but may be shown to support actual possession, 432. and possession under color of title, 432. may be recouped against damages, 544. receipts for, admissible to support actual possession, 432. TENANCIES— how determined, 50. from year to year, how created and determined, 66. at will, how ended, 69. by sufferance, nature of, 70. created by void lease, 160. TENANT— definition, 155. from year to year, nature of estate held by, 67. entitled to notice to quit, 66. may bring ejectment for interference with possessory rights, 158. holding over, when entitled to notice to quit, 68. relation of, to landlord, 68, 461. 676 INDEX. References are to sections. TENANT (continued) — at will, entitled to notice to quit, 69. may bring ejectment, .157. by sufferance, entitled to notice to quit, -when, 70. has status of trespasser, 159. by curtesy, may bring action, when, 126. for years, may bring action for unexpired term, 156. must notify landlord when sued by stranger, 84. may protect himself when sued, how, 84. defenses of, to landlord's action for recovery, 279. cannot have adverse possession against landlord, 459. person entering under, possession of, not adverse to landlord, 462. can claim no allowance for value of Improvements, 548. TENANTS IN COMMON— may have joint or several actions for recovery, 100, 122. may sue cotenants in case of ouster, 120. extent of recovery that may be had by, 121, 123. TENEMENTS— rueaning of, in modern law, 17. TITLE— trespass to try, 11. action to quiet, 12. not triable in forcible entry, 13. plea of, by defendant, 205. disclaimer of, how pleaded, 211. proof of, by plaintiff, 221, 237. shown on trial must be valid, 223. methods of tracing, 224. origin and duration of, what must be shown, 225. secondary evidence respecting, 226. order of proof of, 227. plaintiff must rely on, as asserted, 229. plaintiff must prove, as alleged, 228. prima facie, of what consisting, 234. character of, to support ejectment, 235. need not be proved on default of defendant, 238. nor against a grantee for condition broken, 236. outstanding in stranger, may be shown, 246. may consist only of lease, 247. mortgage is not. 248. does not include easements, 249. proof of, against mere intruder, 237. possessory only, sufHcient for ejectment, 235. establishment of, by will, 345. verdict should specifically find, 473. judgment, is conclusive in respect to, 479, 487. does not transfer, 486. estops parties from disputing, 488. does not affect after-acquired, 492. TOLL ROADS— municipality may not have ejectment for, 41. TREES- protruding upon land, 28. INDEX. 677 References are to sections. TRESPASS— to try title, nature of action of, 11. acts of, insufficient to form basis of adverse claim, 420, 430. effect of judgment in, on subsequent ejectment, 573. TRESPASSERS— character of possession of, 113. proof required to sustain action against, 237. TRIAL— separate, several defendants may have, 97. TRUSTEES— may bring ejectment for trust estate, 162. TURNPIKES— municipality cannot maintain ejectment for, 41, u. UNITED STATES— may not be sued without its consent, 171. officers of, may be made parties, 172. statutes of limitation do not run against, 463. grantees of, may claim same immunity as, 464. VACANT LAND— may be recovered in ejectment, 20. delivery of possession of,, 508. damages not awarded for occupation of, 540. VACATION— of judgment, effect of, 489. VALUE— of the use of land the measure of damages, 540. VARIANCE— between allegations and proof, 231. objection to, must be taken, when, 232. VENDEES— in possession entitled to notice to quit, 71. rights of, to possession, 145. under executory contract cannot bring ejectment, 147. may defend possession, when, 146. effect of judgments against, 148. VENDORS— remaining in possession not entitled to notice to quit, 1%^ entitled to possession, 145. actions by, against vendees, 146. not affected by judgments against vendees, 148. VENUE- in ejectment is local, 177. 678 INDEX. References are to sectiong. VERDICT— requisites Qf, 472. form of, 473 suflBciency of, 474. defects and invalidities of, 475. may be directed, when, 476. finding by court sliould conform to the essentials of a, 477. judgment must conform to, 481. VOID— deed, may be color of title, 424. entry under, effect of, 424. devise, gift to heir of same estate as law would give is not a, 365. marriage, is without effect for any legal purpose, 388. sales, under decree of court, right of purchaser at, 319. W. WARD— guardian's interest in property of, 165, 166. jurisdiction over lands of, how acquired, 324. invalid sale of lands of, 325, 326. rights of, in case of invalid sale by guardian, 327. actions of ejectment must be brought in name of, 165. WARRANTY DEED- rights of claimant under, 301. WASTE— precept to stay, will be granted, when, 87. WATER- may not be recovered in ejectment, 16. ditches of, may be recovered, 16. wrongful use or diversion of, 16. WIPE- may sue husband to recover separate estate, 129. is a necessary party defendant, when, 130, 132. is, not a necessary party, when, 131. judgment against husband in favor of, how executed, 510. WILLS— title conveyed by, how established, 341, 345. probate of, establishes what facts, 342. probated in foreign state, effect of, 343. lost, how proved, 344. construction of, rules respecting, 346, 347. as affected by extrinsic facts, 348. intent expressed in must govern, when, 349. repugnancy of clauses in, rules respecting, 351. WRIT— of assiVcance, when allowed, 320. of restitution, will issue, when, 522, 523. WRIT OP POSSESSION— nature of, 5^3. form and requisites of, 504. may be issued in what time, 505. INDEX. 679 Eeferenees are to sections, WRIT OF POSSESSION (continued) — execution of, how efEected, 506, 507, 508. who may be evicted under, 509, 510, 512 who may not be evicted under, 511, 512. what may be taken under, 513, 514, 515, 516. return of, 519. may be recalled, when, 520. execution of, may be restrained, 521. restitution of possession recovered under, may be had, 522, 523. alias writ of, not allowed after execution of first writ, 524. successful plaintiff may enter without, 503, 525. Y. YEAR TO YEAR— tenancy for, how created and terminated, 66, 158. theory Involved in, 67, 158. distinguished from a holding over, 68. tenant from, entitled to notice to quit, 66. may maintain ejectment, 158. KF 652 W29 Author Vol. Warvelle , Geroge William Title Copy A Treatise on the principles