! Digitized by IVIicrosoft® (50m?ll ICam i'rliool Hihtarjj Digitized by Microsoft® KF 670.S4"""'"""'""""-''"'^ * ''■eatise on the principles and practic 3 1924 018 815 682 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® A TREATISE PRINCIPLES AND PRACTICE GOVERNING THE TRIAL OF TITLE TO LA^D INCLUDING EJECTMENT; TRESPASS TO TRY TITLE; WRITS OF ENTRY ; STATUTORY REMEDIES FOR THE RECOVERY OF REAL PROPERTY; TOGETHER WITH THE RESULTING CLAIMS FOR MESNE PROFITS AND IMPROVEMENTS ; EMBRACING A CONSIDERATION OF COLOR OF TITLE; TITLE BY POSSESSION, AND ADVERSE POSSESSION. BY AETHUR Q. SEDGWICK 'Vu^^rrl- AND FREDEEICK S. WAIT. ,:* .J^/^* '* -_\ - iils -J, JSTEW YOEK: BAKEE, YOOEHIS & CO., LAW PUBLISHEES, 66 NASSAU STREET. 1882. Digitized by Microsoft® 40'ii^ Copyrig-hted, 1882, By Arthur G, Sedgwick and Frederick S. Wait. ^70 iH BAKER & GODWIN, PKINTEES, 25 Park Row, New Torlj. Digitized by Microsoft® PEEFACE. The principles and practice regulating remedies for the trial of title and recovery of possession of real property are in the main uniform in this country. This may be explained, historically, by the fact that in most of our States the* ^xi^ting statutory remedies are based upon the common law action of ejectment. The system of real actions is practically extinct in America, excepting in parts of New England. It may be stated generally that our modem remedies constitute a single general system of procedure, disguised under a rarietyof names. In the United States a number of causes have contributed to pro- duce an immense amount of litigation in connection with titles to real property. Particularly in the "Western States, where the recent settlement of the country and the advance of emigration produces continual changes in possession and ownership, the courts have been, and stiU are, continually occupied with controversies of this nature, in which a system partly derived from feudal times has to be applied under novel circumstances and conditions. Almost every volume of reports contains a considerable number of actions to try title, and we have found ourselves, in the preparation of this treatise, embarrassed by the abundance of authorities. In the following pages the authors have endeavored, while mak- ing the citation of cases as complete as possible, to discuss, whenever occasion offered, the principles of law underlying them — principles which, 'in some of the newer States, are occasionally obscured or lost sight of. Simplicity, and convenience for purposes of reference, have been aimed at in the plan of the book. The history of ejectment, of real actions, and of trespass to try title, have been traced ; the nature of the interests and character of the wrongs which will support actions for the trial of title to land, or which are insufficient for that purpose, have been considered ; and the forms of action which cannot be substituted for remedies in the nature of ejectment discussed. Digitized by Microsoft® ' IV PREFACE. The aim of the authors has been to present the questions involved in the action to try title in its various stages ; the question of parties ; the attorney's authority to institute the action ; the com- plaint and answer (embracing a discussion of the rules which govern in pleading and asserting titles or defenses in the modem procedure) ; the description ; the venue ; the verdict ; the effect of, and rights secured by, the judgment ; and the practice under the writ of pos- session. To 'this have been added chapters on statutory new trials, provisional remedies, mesne profits, damages, and improvements. The treatise is not confined, however, to a consideration of the practice governing actions in the nature of ejectment, as any proper discussion of these remedies necessarily involves a consideration of the titles of the different classes of owners of real property — e. g., the rights of co-tenants, vendor and vendee, mortgagee and mort- gagor, landlord and tenant, and municipal corporations. Title by possession and adverse possession have been also discussed, and the vexed question of color of title considered at length ; and in this branch of the work an attempt has been made, which the authors venture to hope may prove of some value, to reconcile the conflict in the decisions, and when this was impossible to point out the prin- ciples which, as it seems to them, ought to govern. In this part of the work they have received invaluable assistance from Mr. Feak- ois H. Olmsted, of the New York Bar. Of the value of the work the authors must leave the profession to judge, and only desire to add that the preparation of the treatise has involved an amount of time and labor far beyond their origiaal expectations. They beg to acknowledge the kindness of professional friends in different States, in furnishing suggestions and aid during the progress of the work, especially the Hon. William P. BALLmoEE, of the Galveston Bar. New York, October, 1882. Digitized by Microsoft® XL- TABLE OF CONTENTS. CHAPTER I. PAGE HISTORY OF THE ACTION OF EJECTMENT, . . i CHAPTER n. SKETCH OF REAL ACTIONS IN THE UNITED STATES, 28 CHAPTER HI. NATURE OF THE RIGHTS UPON WHICH ACTIONS TO TRY TITLE MAY BE BASED.— FOR WHAT INTER- ESTS EJECTMENT LIES, 39 CHAPTER IV. INTERESTS FOR WHICH EJECTMENT WILL NOT LIE, . 68 CHAPTER V. RELIEF PECULIAR TO EJECTMENT NOT TO BE HAD IN OTHER ACTIONS, . . . . .78 CHAPTER VI. PARTIES PLAINTIFF, 92 CHAPTER VII. PARTIES DEFENDANT, 126 CHAPTER VIII. EJECTMENT BY MUNICIPAL CORPORATIONS FOR STREETS AND PUBLIC PLACES, . . . .156 Digitized by Microsoft® VI TABLE OF CONTENTS. CHAPTER IX. PAGE EJECTMENT BETWEEN CO-TENANTS, AND BY CO- TENANTS AGAINST THIRD PARTIES, . . . i6r CHAPTER X. EJECTMENT BETWEEN VENDOR AND VENDEE, . igr CHAPTER XL EJECTMENT BETWEEN MORTGAGEE AND MORT- GAGOR, . . . . . . .203 CHAPTER Xn. EJECTMENT BETWEEN LANDLORD AND TENANT, . 216 CHAPTER XHI. NOTICE TO QUIT AND DEMAND OF POSSESSION, . 233 CHAPTER XIV. ATTORNEY'S AUTHORITY TO PROCEED, . . 257 CHAPTER XV. OF THE COMPLAINT, . . . . . .262 CHAPTER XVI. HOW THE LANDS ARE TO BE DESCRIBED, . . 279 CHAPTER XVII. VENUE— LOCAL AND TRANSITORY ACTIONS, . . 287 CHAPTER XVIII. OF THE PLEA OR ANSWER. . Digitized by Microsoft® 296 TABLE OF CONTENTS, VII CHAPTER XIX. PAGE OF THE VERDICT, 312 CHAPTER XX. OF THE JUDGMENT 320 CHAPTER XXI. WRIT OF POSSESSION, 348 CHAPTER XXII. STATUTORY NEW TRIALS, OR SECOND ACTIONS TO TRY TITLE, . 368 CHAPTER XXIII. PROVISIONAL REMEDIES AND ANCILLARY RELIEF IN ACTIONS TO TRY TITLE, . . . .391 CHAPTER XXIV. TWO ACTIONS PENDING FOR THE SAME LAND.— CONSOLIDATION OF EJECTMENTS.— JOINDER OF LEGAL AND EQUITABLE ACTIONS.— MISJOINDER OF ACTIONS, 406 CHAPTER XXV. MESNE PROFITS AND DAMAGES, . . .416 CHAPTER XXVI. IMPROVEMENTS, 461 CHAPTER XXVII. POSSESSION, 488 Digitized by l\^icrosoft® Vlll TABLE OF CONTEiSTTS. CHAPTER XXVIII. PAGE ADVERSE POSSESSION UNDER STATUTES OF LIMI- TATIONS 498 CHAPTER XXIX. INTENTION.— CLAIM OF RIGHT, . .551 CHAPTER XXX. COLOR OF TITLE, . . . . . .566 INDEX, 603 Digitized by Microsoft® TABLE or CASES. \_References are to fages.'\ Abbey v. Merrick, 464, 473. Abbott V. Cromartie, 224. V. Pratt, 109. Abeel v. Van Gelder, 128, 129, 131, 152, 558. Abercrombie V. Baldwin, 172, 518, 570. Adam v. Ames Iron Co. 81, 167. Adams v. Emerson, 59. V. Frothingham, 316. V. McDonald, 260. V. Saratoga & W. R. R. Co. 58. V. Woods, 397. Addison v. Dawson, 107. V. Otway, 17, 22. Adkins v. Hudson, 449. Agee V. Williams, 113. Agnew V. McElroy, 322. Ahem v. White, 204. Aiken v. Benedict, 40, 74, 339. Ainslie v. Mayor, &c. 343, 414. Akerly v. Vilas, 194. Albergottie v. Chaplin, 81. Albertson v. Reding, 127. Alden's Case, 13. Alderson v. Miller, 222, 223. Alexander V. Gilliam, 187. V. Herr, 439. V. Kennedy, 171. V. Polk, 519, 539. V. Stewart, 539. Alford V. Dewin, 185, V. Vickery, 254. AUeley v. Colley, 261. Allen V. Bone, 257. V. Brown, 114. V. Chatfield, 2ig. V. Davison, 378. V. Dunlap, 127, 129. V. Gibson, 187. V. Green, 257. V. Hall, 162, 167, 171. V. Hawley, 118. V. Holding, 199. V. Holton, 525. V. Jaquish, 237. V. Ormond, 69. V. Poole, 177. V. Ranson, 107. Allen V. Rivington, 489. V. Smith, 446. AUie V. Schmitz, 270, 338. Allison V. Elder, 304. Almond v. Bonnell, 269. Almony v. Hicks, 83. Alsop V. Peck, 442. Alston V. Wingfield, 193, 452. Altemas v. Campbell, 526. Altes V. Hinckler, 361, 453. Alwood V. Mansfield, 218. American Ins. Co. v. Oakley, 257. Union Tel. Co. v. Middleton, 287, 288, 289, 346. Ames V. Harper, 132. Amesti v. Castro, 20, 331, 341. Anderson ads. Darby, 105, 220. V. Fisk, 309. V. Kent, 385. V. Smith, 222. Andrews v. Brown, 119. V. Hooper, 311. V. Senter, 114. V. Whittingham, 47. Annan v.' Baker, 600. Anonymous (2 B. & Dal. 95). 65. (I Keble, 89), 261. (3 Leon, 210), 45. (6 Mod. 16), 257. (7 Mod. 39), 164. (12 Mod. 211), 18. (I Salk. 86), 257, 261. (Salk. 260), 22, 311. (2 Sid. 15s), 350. Apalachicola v. Apalachicola Land Co. 159,430,457. Argent V. Darrell, 368. Arlington Case, The, 141, 143. Armstrong v. City of St. Louis, 77, 147. V. Hinds, 268, 423. V. Jackson, 484. V. Morrill, 519, 521, 522, 535. V. Risteau, 549. V. Wheeler, 224. V. Wilkinson, 251. Arnold v. Arnold, 321. V. Styles, 294. Arnot V. Beadle, 168. Digitized by Microsoft® X Jieferences] TABLE OF CASES. [are to pages. Arnsby v. Woodward, 231. Arundel v. Springer, 452, 460. Ash V. McGill, 365. Asher v. Mitchell, 63. Ashley v. Ashley, 581. Aslin V. Parkin, 24, 414, 419, 430, 451. Astor V. Hoyt, 205. Atcheson v. Broadhead, 208. Atkinson v. Morrissy, 482. V. Patterson, 574, 601. Atlantic, &c. Tel. Co. v. Balto. &c. R. R. Co. 287. Attorney-General v. Baliol College, 466. V. Hallett, 136. V. Parkhurst, 107. Attwood V. Fricot, 584, 589. Atwell V. McLure, 262. Atwood V. Weems, 141. Audley (Lord) v. Pollard, 16. Aurand v. Wilt, 478. Austin V. Ahearne, 221. V. Bailey, 109, 534. V. Barrett, 177, 541. V. Holt, 514, 523, 552. V. Rust, 515. V. Rutland R. R. Co. 50, 536. V. Schluyter, 271. V. Wilson, 546. Avent V. Hord, 421, 456. V. Read, 36. Averett v. Brady, 440, 448. Avery v. Hall, 170. Ayer v. Phillips, 58, 339. Ayres v. Duprey, 303. V. McConnel, 263. Babcock v. Hoey, 546. V. Lamb, 58, 59. Backus V. Chapman, 483. Badeau v. Niles, 275. Bader v. Zeise, 564. Bagot V. Williams, 321. Bailey v. Briggs, 79. 103, 148. V. Carleton, 575. V. Fairplay, 326, 446. Bainbrigge v. Baddeley, 392. Bains v. Perry, 457. Baker v. Chastang, 270. V. Gittings, 194, 247. V. Hale, 533, 535. V. Howell, 87. V. Nail, 120. V. Ramey, 193. V. Swan, 568, 579, 590. V. Whiting, 162. Balderidge v. Paterson, 18. Baldwin v. Simpson, 495. V. York, 398. Ball V. Herbert, 65. V. Palmer, 172. Ballance v. Flood, 550. Bait. & Ohio R. R. Co. v. Chase, 54. Bancroft v. Wardwell, 426. V. White, 489. Banister v. Scott, 452. Bank V. Bobo, 312. V. Bridges, 345. of Augusta V. Earle, loi. Chenango v. Cox, 398. the Commonwealth v. Hopkins, 341- Banker v. Banker, 376. Banks v. Carter, 255, 256. Banyer v. Empie, 127, 129, 266. Barclay v. Howell, 58, 283. V. Yeomans, 268. Bard v. Nevin, 426. Bargamin v. Clarke,. 545. Barger v. Hobbs, 337, 575, 598. Barges v. Hogg, 123. Barker v. Bell, 546. V. Dale, 48. V. Walbridge, 200. Barlow v. Bell, 471. Barnes v. Peterson, 280. Barney V. Keokuk, 51, 159. Barnitz v. Casey, 163, 319. Baron v. Abeel, 430, 446, 451. Barr v. Gratz, 170, 550. Barret v. Coburn, 165. Barrett v. Cocke, 468. V. French, 187. V. Watts, 290. Barron v. Abeel, 262. Barrow v. Nave, 185. Barrows v. Kindred, 345, 379, 388, 407. Barrs v. Jackson, 321. Barry v. Sonoma Co. 146. Barstow v. Adams, 122. Bartlett v. Borden, 206, 211. V. Judd, 304. Barton v. Hamshire, 70. Coal Co. V. Cox, 442, 44S. Barwick v. Fenwood, 23. V. Thompson, 2i8, 219. Batchelder v. Moore, 354. Bates V. Austin, 245. V. Campbell, 488. V. Conrow, 223. V. Rosekrans, 303, 304, 305. V. Sparrell, 7. Bath (Comm'rs of) v. Boyd, 156, 159. (Earl of) V. Sherwin, 21. Batterton v, Yoakum, 1 1 5. Battin v. Bigelow, 26, 419. Baugh V. Baugh, 323. Baumgarten v. Smith, 193. Bayard v. Colefax, 133, 355. V. Inglis, 429. Bay County v. Bradley, 160. Digitized by Microsoft® References] TABLE OF CASES, [are to pages. XI Baze V. Arper, 369. Bazemore v. Davis, 115, 543. Beach v. Beach, 119, 120. V. Sutton, 583. Beal V. Harmon, 115. Bear V. Whisler, 113. Beard v. Federy, 277, 278, 286, 423. Beardslee v. Beardslee, 1 14. Beatty v. Gregory, 71. V. Mason, 509. Beaupland V. McKeen, 514, 516. Bech V. Ruggles, 409. Becker v. Sauter, 384. Beckley v. Newcomb, 147. Bedell v. Constable, 105. ■ V. Shaw, 467, 472, 539, 543, 552, 553- Bedford v. McElherron, 234, 237, 239. Beebe v. Elliott, 337, 340. Beecher v. Grouse, 102, 103. Belfour v. Davis, 219, 221, 225. Bell V. Barnet, 449, 471. V. Goats, "597, 601. V. Denson, 512, 513, 522, 532. V. Longworth, 568, 583. V. Medford, 278, 437. Bellas V. Houtz, 287, 290. Bellinger v. Martindale, 381, 384. Bellows V. Copp, 467. Bendernagle v. Cocks, 321, 406. Benedict v. Gilman, 466, 482. Benfey v. Gongdon, 242. Benner v. Benner, 378. Bennet v. Bullock, 170, 434. V. Jenkins, 445. V. Morris, 355. Bennett v. Hunter, 141. V. Leach, 343. V. Robinson, 210. Bennington v. Goodtitle, 280. Benson v. Matsdorf, 421. V. Stewart, 192, 533, 547. Bentley v. Brownson, 338. Bernal v. Gleim, 568, 600. Bernard v. Elder, 296, 298. Bernstein v. Humes, 208, 299. Berry v. Donley, 469. Berthold v. Fox, 162. Bertram v. Cook, 218, 221. Bethell v. McGool, 163. Betz V. MuUin, 42, 1 26. Beverley v. Fogg, 284. Beverly v. Burke, 569, 597. Bickel v. Polk, 65. Bigelow v. Jones, 87, 421. V. Winsor, 321. Biggers v. Bird, 210. Bigler v. Morgan, 195. Billings V. Hall, 462, 485. Binda v. Benbow, 153. I Bindover v. Sindercombe, 45, 279, 280. Binney v. Chesapeake & O. Canal Co. 263. Birch V. Wright, 204. Birchman v. Noright, loi. Bird V. Decker, 286. v. Defonvielle, 252. v. Montgomery, 376. v. Snell, 319. Birmingham Iron Foundry v. Hatfield, 292. Black, Ex parte, 355. v. Black, 119. v. Hepburne, 41, 67, 68, 69, 70. v. Tricker, 297. Blackford v. Loveridge, 374, 378. Blackmore v. Gregg, 167. Blackwell v. Patton, 263. Blair v. Bartlett, 321. v. Blair, 202. V. Pathkiller, 362, 366. Blake v. Dennett, 298. V. Foster, 224. V. Freeman, 287, 293, 294. V. Ham, 58. V. Sawin, 147. V. Tucker, 264. Blakeney V. Ferguson, 171, 218, 219. Blanchard v. Brown, 331, 333, 388. Bledsoe v. Little, 504. Blessing V. Edmonson, 373. Blight V. Ewing, 421, 435. V. Rochester, 196. Bloomer v. Sturges, 322. Blount V. Horniblea, 123. Blum V. Robertson, 305. Blundell v. Gatterall, 65. Blunt V. Aikin, 488. Bockes V. Lansing, 87, 88, 420, 421, 426, 431. Bodley v. Gaither, 484. Bogardus v. Parker, 307. Bogey V. Shute, 399. Boggess v. Meredith, 167, 169. Bogie V. Bogie, 113, 114. Bohall v. Diller, 194. Boland v. Gillett, 384. Boles V. Smith, 343. BoUing V. Lersner, 440, 445. V. Mayor, &c. 57, 59. Bolton v. Hamilton, 175. v. Landers, 245. Bomberger v. Turner, 466. Boner v. Juner, 190. Bonner v. Greenlee, 127. v. Prop'rs Kennebeck Purchase, 81. V. Wiggins, 442, 461, 486. Bool V. Mix, 103. Booth V. Van Arsdale, 479. Digitized by Microsoft® Xll Jieferences] TABLE OF CASES. [are to pages. Borland v. Box, 222. Bornheimer V. Baldwin, 177. Borrets v. Turner, 550. Boskowitz V. Davis, 178. Boswell V. Otis, 346. Bottorff V. Wise, 278, 423, 443. Botts V. Shields, 102, 326, 341. Boudette v. Pierce, 240. Boulo V. New Orleans, &c. R. R. Co. 548. Bowdish V. Dubuque, 218. Bowen V. Guild, 513, 527, 531. V. Preston, 161, 302. Bowers v. Keesecker, 198. V. School Com'rs, 124. V. Smith, 79. Bowman v. Wathen, 72. Boyd V. Beck, 546. V. Cowan, 423. Boynton v. Bod well, 250, 251. Bracken v. Cooper, 178. Brackett v. Persons Unknown, 575. Bradbury v. Cony, 75. Bradford v. Bradford, 323, 326. Bradley v. McDaniel, 152, 421, 430,432. V. West, 505, 507, 550, 552, 588, 589. Bradstreet v. Huntington, 173, 506. V. Supervisors, &c. 123. Braintree v. Battles, 179. Brandt v. Ogden, 539. Bratton v. Mitchell, 117, 296. Breading v. Blocher, 367. Breed v. Osborne, 269. Bresee v. Stiles, 270. Brewster v. Buckholts, 419, 436. Bride v. Watt, 600. Bridges v. Cundiff, 271, 273. Briggs V. Light Boats, 136. V. Prosser, 192, 601. V. Wells, 337. Bright V. Boyd, 458, 464, 466, 467, 471, 473. 476, 484- Brimmer v. Prop'rs of Long Wharf, 550, 588. Brinkley v. Brinkley, 323. Brinkman v. Jones, 206. Bristoe v. Evans, 467, 474. Bristol V. Carroll Co. 511. Brittin v. Handy, 179, 180, 182. Brobst v. Brock, 206, 214. Broiestedt v. South Side R. R. Co. 83, 85, 89, 90, 340,411. Brolaskey v. McClain, 523, 529, 558. Brondage v. Warner, 75. Bronson v. Paynter, 108. Brooke v. Bridges, 451. Brookes v. Baldwyn, 362. Brooks v. Brooks, 106. Brothers v. Hurdle, 361, 454. Broughtonv. Broughton, 284. Brown v. Brackett, 129. V. Bragg, 218. V. Chadwick, 47, 71. V. Clifford, 210. V. Coble, 412. V. Cockerell, 560, 563, 564. V. Colson, 108, 447. V. Crim, 381, 384. V. Crump, 226. V. Galley, 58. V. Galloway, 431, 438. V. Homan, 177, 179. V. Huger, 138, 140. V. Keller, 245. V. Leigh, 89. V. Mayor, &c. 323. ' V. McCloud, 112, 435. V. Rose, 512, 516. V. Smith, 215. V. South- Western R. R. Co. 444. V. Strickland, 109. V. Supervisors, 547. V. Wells, 596, 599. Browne v. Kennedy, 50. Brownsville v. Cavazos, 20, 374, 380. Bruce v. Kelly, 402. Brack v. Tucker, 275, 297, 305. Bruckshaw v. Hopkins, 291. Bruen v. Hone, 322. Brumagim v. Bradshaw, 513, 519, 553, 557- Brush V. Cook, 343. V. Mullen, 402. Bryan v. Atwater, 554, 557. V. Averett, 434. V. Manning, 276. Buchanan v. Alexander, 136, V. King, 177, 539, 542. V. Streper, 266. Bucher v. Carroll, 373, 382. Buck v. Fischer, 274. v. Squiers, 108, 109, 574, 582. Buckley v. Buckley, 119. V. Taggart, 589. Budd V. Bingham, 40, 285, 412. v. Walker, 456. Buell V. Irwin, 311. Bufford V. HoUiman, 108. Bullion Mining Co. v. Croesus Gold & S. M. Co. 50. Bullock V. Wilson, 438. Bunker v. Locke, 402. Buntin v. Doe d. Duchane, 116. Burbank v. Payne, 287, 289. Burbury v. Yeomans, 280. Burdell v. Burdell, 393. Burden v. Stein, 402. V. Thayer, 224. Burdyne v. Mackey, no, 113. Burhans v. Van Zandt, 177, 543. Digitized by Microsoft® References^ TABLE OF CASES. \jire to fagts. Xlll Burke v. Hammond, 494. Burkholder v. Casad, 274. Burkle v. Ingham Circuit Judge, 467, 481. Burlen v. Shannon, 322. Burnett v. Bookstaver, ro6, 107. V. Caldwell, 191, 192, 194, 197, 198, 247. Bums V. Bryant, 241. V. Byrne, 162. Burrows v. Miller, 381. Burt V. Panjaud, 184, 489, 490. V. Sternburgh, 345. Burton v. Austin, 207. Busch V. Huston, 541. Bush V. Glover, 272. V. Marshall, 198. V. Treadwell, 288. Butler V. Cowles, 426. V. Lawson, 545. V. Mason, 301. V. Young, 388. Bryane v. Rogers, 255. Byrne v. Van Hoesen, 103, 104. Byrom v. Chapin, 402. Cadiz V. Majors, 304, 305. Cadwallader v. Harris, 342. Cady V. Phenix Fire Ins. Co. 387. Cagger v. Lansing, 103, 326, 335, 340, 427, 428. Cahoon v. Coe, 149. Cain V. Furlow, 173. Cairo & F. R. R. Co. v. Parks, 265, 274. Calderwood v. Brooks, 344. V. Pyser, 361. Caldwell v. Fulton, 49, 68. V. Neely, 172, 173. V. Walters, 350, 421, 456. Cal. &c. Mining Co. v. Redington, 367. Call V. Chase, 306. Callender v. Sherman, .597. Calvart v. Horsfall, 431. Camarillo v. Fenlon, 222, 347. Camden v. Haskill, 132, 133, 277, 355. Camell v. Clavering, 67. Cameron v. Phillips, 120. Camley v. Stanfield, 224. Camp V. Camp, 224. V. Forrest, 326, 327, 328. V. Homesley, 421, 434. Campau v. Campau, 162. v. Dubois, 17s, 541. Campbell v. Brown, 440. V. Campbell, 162. V. Galbreath, 259. V. James, 138, 142. V. Shipley, 230. Canal Co. v. Iron Works, 152. Candee v. Burke, 125, 427, 429. Candee v. Hayward, 93. V. Haywood, 247, 250. Cannon v. Brame, 321. V. Davies, 347, 429. Cantelou v. Doe d. Hood, 37. Caplen v. Drew, 489. CapiJier v. Flemington M. Co. 402. Carleton v. Darcy, 371. Carlisle v. Cooper, 501, 524. Carman v. Beam, 421, 423, 429, 431,432. V. Johnson, 305. V. Pultz, 195. Carpenter v. Allen, 258. V. Bowen, 206. V. Carpenter, 204, 207. V. Denoon, 115. V. Oswego & S. R. R. Co. 57, 60. V. Ottley, 200. Carpentier V. Mendenhall, 167, 168, 319, ' 434- V. Mitchell, 434. 1 V. Small, 486. Carr v. Carr, 209. V. United States, 137, 138, 142. Carrol v. Gillion, 509, 515. Carroll v. Ballance, 204, 207, 249. V. O'Conner, 40. Carrow v. Ferrior, 394. Carruthers v. Bailey, 108. Carson v. Baker, 246. V. Smart, 187. V. Smith, 431. Carter V. Hunt, 128. V. Roland, 118. V. Scaggs, 40, 328. Cartwell v. Menifee, 257. Cary v. Edmonds, 528. Casborne v. Scarfe, 204, 206. Casey v. Adams, 144, 288, 346. V. Gregory, 224. T. Inloes, 50, 65. Cassidy v. Clark, 80. Castle V. Noyes, 322. V. Palmer, 62, 339. Castleberry v. Black, 505, 596, 599. Castrique v. Imrie, 321. Castro V. Gill, 254. Catlin V. Bennatt, 303. V. Decker, 543, 544. V. Kidder, 171. Catteris v. Cowper, 489, Caufman v. Sayre, 206. Caulkins v. Harris, 445. Cavalli v. Allen, 200, 304, 307. Cavedo v. Billings, 82, 466. Cavender v. Smith, 432. Chalker v. Chalker, 231, 232. Challefoux v. Ducharme, 161, 170, 172. Challenor V. Thomas, 51, 70. Digitized by Microsoft® XIV References\ TABLE OF CASES. \are to pages. Chamberlain v. Gaillard, 322. Chamberlin v. McCarty, 372, 384. Chambers v. Furry, 58, 59. V. Handley, 117, 190. Chambersburg v. Manko, 160. Champlain & St. L. R. R. Co. v. Valen- tine, 50. , Chandler v. Kent, 255. V. Ricker, 172. V. Rushing, 533, 574, 579, S84- V. Simmons, 94. V. Spear, 576, 586. Chant V. Reynolds, 344. Chapin v. First Univ. Soc. 120. Chapman v. Armistead, 55, 326. V. Del., L. & W. R. R. 270. V. Holding, 316. V. Phoenix Nat. Bank, 264. V. Sharpe, 55. V. Templeton, 574, 589. Charlton v. King, 452. Chase's C?se, 392. Chase v. Irvin, 344, 345. V. Peck, 209. Chautauqua Co. Bank v. Risley, 124. V. White, 382,386. Cheatham v. Plinke, 232. Cheesebrough v. Parker, 373. Cheetham v. Hampson, 226. Cheney v. Cheney, 93. Chetham v. Williamson, 71. Chew V. Chew, in, 121. Chicago V. Wright, 1 56, 1 59. Chicago, B. & Q. R. R. Co. v. Knox College, 146, 236. Chicago & I. R. R. Co. v. Hopkins, 146. Child V. Chappell, 41, 69, 76, 127, 266. Childress v. Monette, 208. Chiles V. Calk, 96. Chilson V. Buttolph, 128. Chilton V. Niblett, 248. Chiniquy V. Catholic Bishop, 135. Chipman v. Hastings, 187. Chirac v. Reinicker, 414, 432, 446, 447. Cholmondeley (Marquis) v. Lord Clin- ton, 41. Christian v. Cabell, 194. Christie v. Bloomingdale, 377. V. Gage, 544, 545. Christy v. Scott, 489. Church V. Burghardt, 558. Cincinnati v. White, 42, 56, 157. City of Apalachicola v. Apalachicola Land Co. 159, 430, 457. Cincinnati V. White, 42, 56, 157. East St. Louis v. Hackett, 313, 338- Hannibal v. Draper, 67, 1 59. Los Angeles v. Signoret, 274. Marietta v. Emerson, 384. City of Natchez v. Vandervelde, 366. St. Louis V. Gorman, 581. Savannah v. Steamboat Co. 1 56. Winona v. Huff, 159. Clapp v. Bromagham, 81, 170, 173, 566, 592. Claridge v. Mackenzie, 225. Clark's Appeal, 401. Clark V. Brazeau, 47, V. Byreau, 436. V. Chase, 533. V. Clark, 118, 283. V. Crego, 167, 170, 268. V. Gilbert, 517, 518, 520. V. Keliher, 252. V. Parkinson, 361. V. Parr, 445. V. Potter, 532. V. Thompson, 270. V. Tompkins, 457. V. Vaughan, 173, 190. Clarke v. Clarke, 218, 224, 299, 490. V. Courtney, 578. V. Cummings, 228. v. McClure, 543, 552. Clason V. Rankin, 177. Claussen v. Rayburn, 485. Clay V. Ransome, 43. Clayton v. Blakey, 237. V. School District, 369. V. Yarrington, 369, 375. Clemens v. Clemens, 322. Clement V. Perry, 514. v. Youngman, 47, 68, 317. Gierke v. Rowell, 19. Clopton V. Booker, 287, 289. Close V. Samm, 590. v, Vaux, 22. Clowser v. Joplin M. Co. 448. Clymer v. Dawkins, 161, 173. Cobb V. Biddle, 435. V. Stokes, 235, 237. Cobum V. Ames, 51, 97, 474. Cochrane v. Faris, 537. Codding, In re, 119. Codman v. Winslow, 550. Cody V. Quarterman, 218. Cofer V. Echerson, 394. Coffin V. Cooper, 194, Cohens v. Virginia, 136. Coker v. Whitlock, 402. Colbum V. Mason, 170. Cole V. Aylott, 281. V. Greene, 226. V. Irvine, 185, 186, 270. v. Johnson, 467, 470, 471. V. Maxfield, 220. V. Parker, 559, 560, 561, 562, 563. Coleman's Appeal, 448. Coleman v. Billings, 511, 568, 575, 598. Digitized by Microsoft® References'^ TABLE OF CASES. [are to pages. XV Coleman v. Coleman, i8o. V. Doe d. Henderson, 316. V. Doe d. Tish-ho-mah, 124. Coles V. Coles, 119. Colgrove V. Koonce, 151. Colie V. Jamison, I2i. Collector V. Day, 136. Collier v. Sapp, 392, 396. Collins V. Hasbrouck, 228, 231, 255. V. Johnson, 545. V. Robinson, 2ii. V. State, 295. Collins' Mfg. Co. v. Marcy, 1 14. Colman v. Clements, 274. V. Packard, 204. Colston V. McVay, 43. Combs V. Jackson, 104, 105. Comm'rs of Bath v. Boyd, 156, 159. Excise, &c. V. Purdy, 257. Georgetown v. Taylor, 160. Comyn v. Kyneto, 47, 54. V. Wheatly, 47. Conger v. Duryee, 231. V. Parker, 304. Congregation S. H. M. v. Halladay, 195. Congregational Society v. Newington, 544- Conner v. Whitmore, 211. Connolly v. Hammond. 379. Connor v. West, 279, 280, 281. Conway v. Starkweather, 237. Conyers V. Crosbie, 123. V. Davis, 81. Cooch V. Geery, 442. Cook V. Babcock, 518. V. Burnley, 293. V. Creswell, 218, 251, 255. V. Gerrard, 66. V. McClure, 54. V. St. Paul's Church, 94, 113, 114, 270. V. Toumbs, 476. V. Travis, 539. Cook County v. C. B. & Q. R. R. Co. 57. Cooke V. Passage, 381. Cooley V. O'Connor, 138, 140, 303. Coolidge V. Learned, 501. Cooper V. Davis, 402. V. Lands, 122, 147. V. Ord, 538,. 569, 582, 587. V. Singleton, 151, 201. V. Smith, 55, 57, 58, 62, 218, 219, 266. V. Stower, 227. Coppinger v. Armstrong, 218. Corder v. Dolin, 198. Corley v. Pentz, 40, 88, 266. Cornell v. Green, iii. Cornell University v. Wis. Cent. R. R. 294. Corning v. Troy Iron & Nail Factory, 340, 562. Cortelyou v. Van Brundt, 65. Coryell v. Cain, 275. Coster V. Peters, 46. Costigan v. Wood, 194, 246. Cotheal v. Moorehouse, 103. Cottingham v. King, 279, 355. Couch V. Turner, 261. Coulter's Case, 464. Courtney v. Turner, 494. V. Woodworth, 194. Covington v. Stewart, 161, 172. Cowell V. Colorado Springs Co. 1 14. Cowenhoven v. City of Brooklyn, 58, 76, 147. Cox v. Dawson, 106. v. Walker, 120. Craft v. Yeaney, 350. Cragin v. Lovell, 346. Craig V. Leslie, 123. V. Taylor, 190. Cramer v. Benton, 304, 306. Crane v. Ghirardelli, 129. Crary v. Goodman, 95, 304, 305, 565, 577. 593- V. Smith, 193, 196. Crea v. Hertzler, 385. Creech v. Jones, 513. Creigbton v. Proctor, 350. Crispen v. Hannavan, 504, 531, 534, 535, 537, 538, 550, 578, 581, 589- Criswell v. Altemus, 543. Critchfield v. Humbert, 434. Crocker v. Fothergill, 41, 43, 71, 339. Crockett v. Drew, 147. Cromwell v. County of Sac, 321, 333. V. HoUiday, 189. Crosby v. Dracut, 480. Cross V. Robinson, 163. Crotty V. Collins, 361. Cruger v. McClaughry, 187. V. McLaury, 109, 231. Crunkleton v. Evert, 108. Culver V. Rhodes, 161, 169, 173, 174, 541, 542. Gumming v. Butler, 298. Cummings v. McGehee, 443. V. Wyman, 167. Cunningham v. Bradley, 132, 133, 134. V. City of Milwaukee, 387. V. Frandtzen, 574, 579. V. Morris, 442. Curran v. Shattuck, 87. Currier V. Barker, 251. V. Esty, 335. Currin v. SprauU, 81. Curtis V. Francis, 311. V. Gay, 459, 474- Cushing V. Adams, 69. Digitized by Microsoft® XVI References\ TABLE OF CASES. \are to pages. Custard v. Musgrove, 273, 299, 308. Cutter V. Waddingham, 440, 445. Cutts V. King, 163. Cythe V. La Fontain, 194, 200, 202. Dacres' (Lady) Case, 280. Dalby v. Booth, 302. Dale V. Frisbie, 297. Dally V. King, 265, 266. Dalston v. Janson, 319. Dalton V. Bank of St. Louis, 598. Dame v. Dame, 45. Dangerfield v. Paschal, 38, 375. Daniel v. Green, 81. Daniels v. Bates, 486. Darby v. Callaghan, 116, 118. V. McCarrol, 569. Dart V. Hercules, 284. Dater v. Troy Turnpike, &c. Co. 146. Davant v. Cubbage, 187. Davenport V. Sebring, 545, 551, 553. Davidson v. Barclay, 201, 277. V. Lamprey, 380, 383. V. Wallace, 178. Davies' Case, 16. Davis, The, 136, 137. Davis V. Bowmar, 505, 512, 539, 551, 553, 557. V. Carpenter, 107. V. Christian, 119. V. Davis, 218. V. Delpit, 418, 436. V. Easley, 515. V. Gray, 124, 140, 143. V. Judge, 342. V. King, 177. V. Louk, 449, 464, 472, 483. V. McArthur, 301, 504, 535. V. Powell, 484. Dawley v. Brown, 23, 30, 95, 321, 337, 340. 345. 364. 367. 406, 407- V. Van Court, 598. Dawson v. McGill, 423, 429, 437. V. Mills, 187. V. Watkins, 266. Day V. Cochran, 543. V. Howard, 162, 163, 173. V. Solomon, 193, 248. V. Wilder, 538, 558. Dayton v. Dayton, 206. Deacon v. Shreve, 293. Dean v. Comstock, 247. v. Tucker, 426, 437, 445. Decharms v. Horwood, 190. Decker v. Adams, 235. De Courcy v. Stewart, 34:6. Deere v. Guest, 86. De Graw v, Taylor, 1 50. De Lancey v. Ganong, 115, 218, 230. Delano v. Bennett, 380, 384. Demaret v. Bennett, 201. De Mill v. Lockwood, 93. De Mott V. Hagerman, 454. Demuth v. Cutler, 291. Den V. Adams, 237. V. Ashmore, 224. (d. Smallwood) v. Bilderback, 356. {i. Obert) v. Bordine, 119. \d. Dimon) v. Dimon, 211. V. Drake, 235, 238. V. Fen, 152. V. Hunt, 579, 584, 590. V. Johnson, 355. V. Kimble, 409. V. Lunsford, 430. v; McShane, 263. {d. Snowhill) v. Snowhill, 239, 244. (d. Williamson) v. Snowhill, 55'. V. Steward, 149. id. Hart) v. Stockton, 204. V. Webster, 248. v. Westbrook, 248. {d. Wright) V. Wright, 211. Denham v. HoUman, 524. Denn v. Chubb, 451. Dennison v. Genesee Circuit Judge, 380. V. Read, 218. Dent V. Simmons, 352, 353. Denton v. Noyes, 257, 261. Department of Parks, Matter of, 95, 192, 547. Depuy V. Williams, 275. Dermott v.Wallach, 229. Despard v. Walbridge, 224. Devacht v. Newsam, 224. Devens v. Bower, 298. Devyr v. Schaefer, 192, 543, 562. Dewey v. Brown, 187, 188. v. Hoag, 303, 304. V. Lambier, 189. V. McLain, 545. v. Osborn, 420, 438, 443, 464. V. Williams, 113. Dewitt v. Village of Ithaca, 58. De Young v. Buchanan, 426. Dezengreuel v. Dezengreuel, 301. Dibble v. Clapp, 138, 145. Dickerson v. Hendryx, 267. Dickey v. Armstrong, 93. Dickinson v. Hayes,- 322. Diggle V. Boulden, 194, 200. Dillaye v. Wilson, 132. Dillingham v. Brown, 599. Dilworth v. Fee, 40. Divine v. Mitchum, 119. Dixon V. Oliver, 195. Doak V. Wiswell, 323. Dobbins v. The Comm'rs, 136. Dobson V. Culpepper, 224. V. Murphy, 570. Digitized by Microsoft® References\ TABLE OF CASES. \are to pages. xvn Dodge V. Page, 431, 432. V. Walley, 125. V. Wellman, 209, Doe {A. Moore) v. Abernathy, 103. (A. Earl of Falmouth) v. Alderson, 41.47,71. {A. Sheppard) v. Allen, 231. V. Alston, 103. V. Amey, 237. [&. Queen) v. Archbishop of York, 339. V. Archer, 251. (A. Green) v. Baker, 118, 252. V. Bather, 345, 406, 407. {A. Patrick) V. Beaufort, 113. V. Bell, 237. V- Biggs, 256. {A. Nash) V. Birch, 231. (A. Hellings) v. Bird, 168, 171. V. Bluck, 19, 69, 350. (A. Colnaghi) v. Bluck, 45. {A. Darlington) v. Bond, 227. {A. Harrison) v. Botts, 185. V. Bradbury, no. V. Brewer, 311. (c? Winnall) v. Broad, 282. V. Browne, 252. {A. Freeland) v. Burt, 45. V. Chaplin, 190, 254. {A. Whayman) v. Chaplin, 252. {A. Clun) V. Clarke, 243. V. Cockell, 237. {A. Harding) v. Cooke, 490. V. Cooper, 152. (A. Davies) v. Creed, 246. {A. Macartney) v. Crick, 252, 255 V. Davis, 451. V. Durnford, 256. V. Dyeball, 489. {A. Davis) V. Elsam, 227, 229. ' {A. Poole) V. Errington, 13, 185. (A, Farmer) v. Eslava, 532. V. Fenn, 189. V. Filliter, 451. {A. Watson) v. Fletcher, 23. V. Forster, 256. {A. Bailey) v. Foster, 252. V. Franklin, 154. (A. Pultney) v. Freeman, 409. V. Frowd, 244. {A. Lyster) v. Goldwin, 251, 253. v. Gregory, 545. V. Gustard, 407. {A. Saye) v. Guy, 109. {A. Hamilton) v. Hardy, 37. V. Hare, 451. v. Harlow, 326. {A. Taylor) v. Hill, 163. V. Hughes, 254. (A. Hudgens) v. Jackson, 37. Doe {A. Matthews) v. Jackson, 251. \A. Vickery) v. Jackson, 228. V. Jones, 228. {A. Bish) V. Keeling, 228. (A. Barnett) v. Keen, i6i, 183. (d Bedford) V. Kightley, 251. {A. Ibbetson) v. Land, 122. {A. Bennett) v. Long, 243. {A. Stephens) v. Lord, 351. (1^. Harris) v. Masters, 255. {A. Lewis) v. McFarland, 112. {A. Atkinson) v. McLeod, 105. {A. Davis) v. Minge, 38. {A. Manvers) v. Mizem, 253. V. Morse, 239. (A. Harrison) v. Murrell, 117. V. Musgrave, 70. {A. Miller) v. Noden, loi, 239. v. Nutt, 55. V. Palmer, 255. {A. Dillon) V. Parker, 243. {A. Williams) v. Pasquali, 243, 244. v. Pearson, 190. (A. Flower) v. Peck, 228. {A. Bristow) v. Pegge, 23. i^A. Whitehead) v. Pittman, 244. V. Porter, 250. (<^. Shore) v. Porter, 1 10. {A. Nixon) V. Potts, 185. {A. Griffith) V. Pritchard, 124. V. Prosser, 161, 168, 174. (A. Fisher) v. Prosser, 163, 171. [A. Marsack) v. Read, 123, 189, 253 . V. Reade, 489. v. Rees, 231. • V. Reynolds, 530. {A. Rhodes) v. Robinson, 253. V. Roe (6 Bing. 613), 152. (30 Ga, 553), 129. (4 M. & P. 437), 152. (A. Cox) V. Roe, 251. (A. Gigner) v. Roe, 164. (A. Leigh) v. Roe, 136. {A. Roberts) v. Roe, 282. (A. Pitt) V. Shewin, 228. lA. Clarke) v. Smaridge, 239. v. Smith, 250. {A. Knight) v. Smythe, 218. V. Somerton, 256. {A. Strickland) v. Spence, 235. {A. Clark) v. Spencer, 122. V. Spiller, 251, 252. {A. Gaskell) v. Spry, 227. v. Stanion, 244. {A. Hodsden) v. Staple, 23. v. Staunton, 135. V. Stratton, 237. V. Summersett, 254. {A. Reed) v. Taylor, 173. V. Terry, 237. Digitized by Microsoft® XVlll References^ TABLE OF CASES. \are to pages. Doe [d. Halford) v. Tetherow, 163. V. Turford, 256. (A. Ogle) V. Vickers, 208'. V. Walters, 253. (d. Forster) v. Wandlass, 362. V. Watt, 218. V. West, 489. (d. Stace) v. Wheeler, 1 10. V. Whitcomb, 430. {A. Jefferies) v. Whittick, 243. V. Williams, 243. ijl. David) V. Williams, 255. V. Wilson, 355. {d. Upton) V. Witherwick, 361,453. {d. Hanley) v. Wood, 71. V. Woodman, 255. (d. Matthewson) v. Wrightman, 251. {d. EUe) V. Young, 121. Doggett V. Hart, 120. Dolby V. Miller, 128, 150. Dolittle V. Eddy, 191, 197. Doll V. Feller, 283, 289. Dolph V. Barney, 187. Donahue v. Gallavan, 584. Donald v. McKinnon, 218. Donnelly v. Simonton, 209. Doolittle V. Linsley, 128. Dorland v. Magilton, 545. Dormer v. Fortescue, 457. Dorn V. Dunham, 467, 469, 473. Dorrell v. Johnson, 237. Dothage v. Stuart, 471. Doty V. Brown, 322, V. Graham, 45. Douglas V. Fulda, 223. Doulson V. Matthews, 287. Dow V. McKenney, 563. Dowd V. Faucett, 472. V. Gilchrist, 108. Downer v. Smith, 305. Dows T. Congdon, 482. Doyle V. Franklin, 346. V. Hallam, 20, 331. Draper v. Kirkland, 287. V. ^hoot, 513. Dresel v. Jordan, 194. Dresser t. Dresser, 435. Dreux. V. Kennedy, 140, 142. Drew V. Swift, 495. Drexel v. Man, 445, 446. Drury v. Conner, 457. V. Fitch, 106. Dube V. Smith, 185. Dubois V. Campau, 177. Dubuque v. Maloney, 57. Duchane V. Goodtitle, no, m. Duchess of Kingston's Case, 321, 331. Duff V. Wilson, 179, 224. Dummer v. Jersey City, 1 57, 1 59. Dumper v. Syms, 232. Duncan v. Jackson, 447. Dungan v. Von Puhl, 450. Dunlap V. Wright, 193. V. Yoakum, 448. Dunning v. Fisher, 205. Du Pont V. Davis, 304. V. Ervin, 362, 365. Durand v. Sage, 202. Dutton V. Warschauer, 126, 153. Duty V. Graham, 206. Dyer v. Toothaker, 215. Eagan v. Delaney, 270, 273. Earl of Bath v. Sherwin, 21. Lonsdale v. Nelson, 73. Earle v. Hale, 219. Early v. Friend, 434, 435, 446. Eastman v. Linn, 377. East N. Y. & J. R. Co. v. Elmore, 321. East St. Louis v. Hackett, 313, 338. Eastwick v. Saylor, 433. Eaton V. Freeman, 447. v. George, 235, 236. V. Trowbridge, 409. Ebbert's Appeal, 119. Eberts v. Eberts, 468. Eberwine v. Cook, 234, 243. Echelkamp v. Schrader, 86. Edgar v. Galveston City Co. 373. Edgerton v. Bird, 568, 572, 598. v. Peckham, 202. Edmundston v. State. 264. Edwards v. Bishop, 163, 167, 171, 172, 278. v. Clemons, 237. v. Roys, 342. Edwardsville R. R. Co. v. Sawyer, 60, 146. Ege V. Kille, 420, 448, 455, 474. v. Medlar, 571, 576, 589. Ehle V. Haller, 413. Eichart v. Barges, 255. Eisenhart v. Slaymaker, 256. Elder v. Allison, 304. V. Bradley, 504. V. Dwight Mfg. Co. 291. V. Hilzheim. 289. Eldred v. Oconto Co. 300. Eldridge v. Hill, 326. EUicott V. Mosier, 268. V. Pearl, 512, 576. Elliott V. Gibbons, 307. Ellis V. Murray, 300. V. Paige, 237, 238. Ely V. Lowenstein (No. 2), 288. Emerson v. Sansome, 345. V. Spicer, 104. Emig V. Deihl, 317. Emlen v. Hoops, 153. Digitized by Microsoft® References'^ TABLE OF CASES. \a,re to pages. XIX Emmons v. Bishop, 369, 384. Emory V. Keighan, 211. Emrich v. Ireland, 278, 418, 423, 439, 442. England v. Slade, 224. English V. Johnson, 584. Ensign v. Sherman, 271. Erwin v. Olmsted, 191, 227. Esley V. People, 257. Estell V. Cole, 151, 201. Estes V. Long, 543. Estrada v. Murphy, 305. Etz V. Daily, 57, 59. Evans v. Bidwell, 222. V. Millard, 382. V. Welch, 419, 460. V. Womack, 265. Eyetts V. Tendick, 450. Ewald V. Corbett, 163, 365. Ewalt V. Gray, 420, 456, 464. Ewer V. Lovell, 171. Ewing V. Burnet, 512, 513, 516, 552. V. Handley, 449. Excise Comm'rs v. Purdy, 257. Eysaman v. Eysaman, 234. Eyton V. Jones, 228. Faganv. Barnes, 412. V. Rosier, 597. Fain v. Garthright, 260. Fairclaim v. Shackleton, 161. {d. Fowler) v. Shamtitle, 18, 23, 152, 154- ' Fales V. Thompson, 122. Falkner v. Beers, 256. V. Jones, 154. Farish v. Coon, 538, 552. Farley v. Craig, 41, 68, 125, 231. Farmers' L. & T. Co. v. Kursch, 343. Famsworth v. Fowler, 356. Famura v. Peterson, 96. Farrow v. Bullock, 505. Farwell v. Rogers, 350. Fassett v. Tallmadge, 402. Fassit V. Richard, 355. Fay V. Taft, 89. Fenwick v. Gravenor, 149. V. Grosvenor, 368. Ferguson v. Bartholomew, 528. V. Crawford, 305. V. Kennedy, 599. V. Kumler, 90, 378. V. Miles, 300. Fernander v. Dunn, 445. Ferrer's Case, 20, 29, 321. Ferris v. Brown, 42. Ferriss v. North Amer. Fire Ins. Co. 265. Fidehty, The, 136, 137. Field V. Boynton, 599. Field V. Columbet, 423, 439, 442, 456, 471. V. Jackson, 400. V. Schieffelin, 104. Fields V. Fowler, 107. Filbert v. Hoff, 173. ^ Files V. Watt, 151. Finch V. Houghton, 397. Findlay V. Artope, 120. Finlay v. Cook, 584, 598. Finnegan v. Carraher, 26, 127, 152, 342, 343- First Baptist Society v. Grant, 69. V. Hazen, 120. First Presbyterian Soc. v. Smithers, 125. Fishery. Hepburn, 132. Fisk V. Miller, 38, 383, 384. Fitch V. Boyer, 532. V. Cornell, 274, 309. Fitzgerald, In re, 106. V. Marshall, 280, 281. V. Spain, 197* Fitzpatrick v. FitzgeraJd, 120. Flagg V. Mann, 179. Flanigen v. Philadelphia, 283. Flanniken v. Lee, 129. Fleet V. Youngs, 264. Fletcher v. Holmes, 206. . V. Wilson, 194. Flinn v. McKinley, 177. Flint V. Steadman, 445. Flock V. Wyatt, 174. Florence V. Hopkms, 81, 170, 542. Fogarty v. Horrigan, 300. V, Sparks, 361, 362. Follett V. Heath, 304. Fonda V. Sage, 114. V. Van Home, 105. Foot V. Edwards, 295. Ford V. Doyle, 264, 361. V. Grey, i6i. V. Harrington, 123. V. Holmes, 505, 545. V. Holton, 463, 472, 486. V. Olden, 213. V. Sampson, 298. V. Wilson, 511, 553. Forder v. Davis, 81. Forest v. Jackson, 520, 576, 599. Forsyth v. Rowell, 269. V. Van Winkle, 383, 387. V. Wells, 448. Fosgate v. Herkimer Mfg. Co. 131, 132, 153-343- Foster's Appeal, 119. Foster v. Elliott, 265. V. Evans, 322, 328, 337, 345. V. Morris, 223. v. Perkins. 546. Fouke v. Kemp, 284. Digitized by Microsoft® XX References^ TABLE OF CASES. \are to .pages. Foulke V. Bond, i6i, 162, 164, 173, 519, 540, 542, 556, 574, 579, 592, 595- V. Stockdale, 563. Foust V. Trice, 246. Fowke V. Darnall, 490. Fowler v. Whiteman, 495. Fox V. Brissac, 76, 218. V. Southack, 123. Franklin v. Merida, 221, 223, 352, 367. V. Palmer, 224. V. Talmadge, 264. Fraserv. Hunter, 600. V. Waller, 387. ' Fraser Institute v. Moore, 147. Frazier V. Crowell, 316. Frear v. Hardenbergh, 462, 463. Frederick v. Gray, 172, 175. Freeland v. Burt, 45. Freeman v. Headley, 248. V. Sprague, 301. Freer V. Stotenbur, 412. Fremont v. Crippen, 362. French, Ex parte, 86. V. Burns, 209. V. Edwards, 187. V. Pearce, 552, 557, 560, 564. Frentz v. Klotsch, 177, i8o. Frisbee's Appeal, 82. Frisbee v. Timanus, 392, 395. Frische v. Kramer, 208. Frost ads. Brown, 36, 369, 371. V. Cloutman, 31. V. Duncan, 412. Fry V. Shehee, 207. Fugate V. Pierce, 518, 575, 578, 582, 586, 589. Fulcher v. Griffin, 106. Fulkerson v. Brownlee, 547. Fuller V. Wadsworth, 204, 249. Fullerton v. Fitzgerald, 402. V. McCurdy, 209. Funk V. Haldeman, 49, 71. V. Newcomer, 177. Furlong V. Garrett, 553, 601. Fussell V. Hughes, 84. Gage V. Bates, 232. Gaillard v. Smart, 261. Gaines v. Buford, 185. . V. Kennedy, 474, 477. Gale V. Hines, 163, 168, 171. Gallagher v. Bennett, 222, 223. V. McNutt, 296.1 Galletley v. Williams, 374. Galloway V. Finley, 197. V. Ogle, 218. Gano V. Aldridge, 282. Gardiner v. Schuylkill Bridge Co. 352. Gardner v. CoUins, 387. Gardner v. Granniss, 436, 456. V. Kersey, 453. V. Keteltas, 116. V. Ogden, 413. Garner v. Hannah, 237. V. Jones, 423. V. Marshall, 126, 129, 266. Garrett v. Adrain, 596, 599. Garrish v. Clough, 54. Garrison v. Savignac, 361. Gates V. Butler, 560. V. Preston, 321, 323. V. Smith, 200. Gatton V. ToUey, 456. Gaven v. Hagen, 191. Gay V. Kingsley, 225. V. Mitchell, 135. Geiger v. Braun, 237.- Gelpeke v. M. & H. R. R. Co. 361. Genin v. Ingersoll, 34. Georgetown (Comm'rs of) v. Taylor, 160. Gerry v. Holford, 173. Gibbons v. Martin, 133, 134. Gibert V. Peteler, 114, 200, 201. Gibson v. Bishop of Bath, 261. V. Chouteau, 328. V. Manly, 386. Gidney v. Earl, 59. Gilbert v. Thompson, 322. Gilchrist v. Ramsay, 163. Giles V. Ebsworth, 224. Gill V. Fauntleroy, 173. V. Gill, 447. V. Patten, 420. Gillespie, Ex parte, 257. Gillett V. Balcom, 361. V. Eaton, 211. V. Gaffney, 178, 184,488. V. Stanley, 168, 297. V. Treganza, 121, 398. Gilliam v. Bird, 45. GilUs V. Bailey, 114. Gilman v. Judge of Wayne, 378, 384, 389- Gittens v. Lowry, 569. Glass V. Doe, 147. Glen V. Gibson, 220. Goddard v. Foster, 444. V. Hall, 425, 426. Godeffroy v. Caldwell, 480. Godwin v. Stebbins, 236. Goerges v. Hufschmidt, 361. Golden v. Snellen, 380. Goldham v. Edwards, 265. Golding V. Golding, 112. Gomber v. Hackett, 231. Goodright v. Cordwent, 255. V. Rich, 127, 282. V. Vivian, 227. Digitized by Microsoft® References^ TABLE OF CASES. \are to pages. XXI Goodright (d. Duke of Montague) v. Wrong, 1 8. Goodtitlev. Alker, 55, 57, 59, 75, 315, 339- V. Clayton, 368. V. Jones, 120. {d. Hart) v. Knott, 121. v. Lamraiman, 288. V. North, 438, 452. V. Tombs, 41 9, 430, 434, 437, 439. {d. Miller) v. Wilson, 42. V. Woodward, 254. Goodwin v. Appleton, 290. Goodwyn v. Myers, 443, 485. Gordinier's Appeal, 20. Gordon v. Pearson, 171. V. Sizer, 58. Gorham v. Arnold, 206. V. Gorham, 107. V. Jones, 2gi. Gosser v. Hickenlooper, 296. Gossom V. Donaldson, 179. Gould V. Bennett, 292. Gourley v. Kinley, 94, 1 50. Gower v. Quinlan, 165, 530. Grable v. McCuUoh, 206. Graham v. C. & I. C. R. R. Co. 60. V. Moore, 219. V. Peat, 489. Granby v. Amherst, 104. Grand Rapids v. Whittlesey, 1 59. Grant V. Fowler, 551. V. White, 218. Grattan v. Wiggins, 546. Graves v. McKeon, 287. V. Walls, 230. Gravier v. Irory, 81. Gray v. Bates, 173. V. Blanchard, 114. V. Givens, 186, 187, 188. V. Tyler, 82. Green v. Biddle, 417, 419, 430, 457, 464, 466, 467, 468, 484, 485. V. Butler, 213. V. Chelsea, 109. V. Dixon, 470, 482. V. Harman, 70. V. Mizelle, 546. V. Neal, 387. V. Turner, 546. V. Winter, 123. Greenwich v. Railroad Co. 1 59. Greer v. McClelland, 367. V. Mezes, 133, 134, 264. V. Smith, 260. V. Tripp, 168, 169, 177, 245. Gregg V. Sayre, 588. V. Tesson, 115, 117. V. Von Phul, 194, 195, 234, 237, 247. Gregory v. Crab, 224. V. Haynes, 414. V. Jacksons, 317. V. Tozier, 1 28, 1 50. Griffin v. Lovell, 209. V. Stamper, 599. Grim v. Dyar, 170. Grimes v. Wilson, 457. Grimm v. Curley, 561. Grimstone v. Burgers, 409. Grisar V. McDowell, 138, 139, 140, 142. Griswold v. Bragg, 27, 464, 473, 478, 479, 485, 486. V. Sweet, 402. Groft V. Weakland, 522, 529, 531. Grotz V, Coal Co. 47. Grout V. Cooper, 456. Grove v. City of Fort Wayne, 73. Groves v. Marks, 269. Grubb V. Bayard, 71. v. Grubb, 71, 243, 244. Grube v. Wells, 552, 560. Grundin v. Carter, 224. Gudger v. Barnes, 198. V. Hensley, 523. Guernsey V. Powers, 392, 393. Guild V. Richards, 113. Gulliver v. Burr, 250. Gunderson v. Cook, 88. Guthrie v. Pugsley, 445. Gwinn v. Smith, 213. Gynn v. Kirby, 258. Hagar v. Brainerd, 207. Hagey v. Detweiler, 318. Haigh v. Jaggar, 394, 400. v. Paris, 345, 407. Haight V. Lucia, 398. Haines v. Thomson, 210. Haire v. Baker, 305. Halford v. Tetherow," 176, 177. Hall V. Austin, 309. v. Bell, 311. V. Butler, 223. V. Dexter, 361, 362, 363. V. McLeod, 501. V. Myers, 237. V. Savill, 546. V. Stevens, 170, 543. V. White, '1 53. Hallett V. Hastie, 257. Ham V. Ham, 290. Hamer v. Raymond, 287, Hamilton v. Boggess, 543. V. Wentworth, 269. V. Wright, 96, 257, 260, 261, 569. 570, 57 1 > 597- Hamond v. Toulman, 452. Hampson v. Fall, 265. Hancock v. Walsh, 140. Digitized by Microsoft® XXll References^ TABLE OF CASES. \are to pages. Hancock v. Wentworth, 58. Hanks v. Price, 1 54. Hanna v. Phillips, 438. V. Renfro, 108, 599. Hannay V. Thompson, 211. Hannibal v. Draper, 67, 159. Hannibal, &c. R. R. Co. v. Clark, 558, 584, 589, 599. V. Knudson, 274. Hanson Y. Armstrong, 128, 358, 364. Harden v. Hays, 480. Harder v. Harder, 227. Hardie v. Young, 448. Hardin v. Crate, 598, 600. T. Kirk, 270, 409. Hardwick v. Jones, 211. Hardy v. De Leon, 122. V. Johnson, 187, 311. Hare v. Fury, 434. Harebottle v. Placock, 47. Harker v. Whitaker, 426. Harkey v. Houston, 131. . Harkness v. Hyde, 346. Harlan v. Haynie, 273. Harlow v. Lake Superior Iron Co. 71. Harmon v. James, 167. Hamage v. Berry, 558. Harney v. Lamborn, 263. Harpur's Case, (>"]. Harrall v. Gray, 423. Harrington v. Libby, 406. V. Slade, 152. Harris v. Bannon, 402. V. Bell, 199. V. Dennie, 136. V. Frink, 241. V. Mason, 258. T. Smith, 151. V. Vinyard, 305, 307. V. Waite, 381. Harrisburg V. Crangle, 318. Harrison v. Harrison, 163, 178. V. Middleton, 243. V. Parker, 58. V. Pool, 543. V. Stevens, 269, 270. V. Taylor, 177, 245. Hart V. Bostwick, 509, 539, 547. V. Gregg, 170. V. Robertson, 187. Hartley v. Brown, 305. Harvey v. Morris, 197. V. Tyler, 128. Harvin v. Hodge, 163, 171. Hasbrouck v. Bunce, 187. Haslett v. Crain, 477, 478. Hassam v. Barrett, 209. V. Day, 81. Hastings v. Livermore, 69. Hatch V. Bullock, 218. Hatcher v. Briggs, 464, 470, 471, 473. Hatchett v. Conner, 480. Hathaway v. Valentine, 1 10. Hathorne v. Haines, 291. Hauxhurst v. Lobree, 242. Hawes v. Shaw, 218, 219. Hawk V. Sensemah, 169. Hawkins v. Hayes, 326. V. King, 449. V. Reichert, i?6, 135, 266. Hawley v. Tv\ryman, 315. Hayden v. Merrill, 435. Haynes v. Boardman, 533, 536. Haythom v. Margarem, 82, 117. Heard v. City of Brooklyn, 60. Heath v. Whidden, 291. Heatherley v. Weston, 24, 185. Hecht V. Colquhoun, 423. Heermans v. Robertson, 121. Heft V. McGill, loi. Heifner v. Porter, 285. Helfenstein V. Leonard, 133. Hemphill v. Giles, 239, 240. Hems V. Stroud, 281. Henderson v. Eason, 435. V. Griffin, 526. V. Kenner, 386. V. McPike, 467. V. Scott, 309. Hendrick v. Cannon, 237. Hendricks v. Rasson, 133. V. Snediker, 474. Hendy v. Stephenson, 272. Henley v. Branch Bank Mobile, 100. y. Hotaling, 209. V. Wilson, 284, 576, 601. Hennesy v. Farrell, 211. Henwood v. Cheeseman, 288. Hepburn v. Dunlop, 194. Herbert v. Hanrick, 570. V. Laughluyn, 63, 69. Herrell v. Sizeland, 234, 242, 243. Herrington v. Santa Clara Co. 265. V. Williams, 302, 304. Hestres v. Brannan, 494. Hetzel V. Barber, 224. Hewlins v. Shippam, 68, 69. Hiatt V. Kirkpatrick, 563, 564. Hibbard v. Foster, 187. Hickman v. Dale, 358. Hicks V. Rogers, 186. v. Sheppard, 304. Higbee v. Rice, 163, 298. Higginbotham v. Higginbotham, 356, 358. Hjggins V. Highfield, 429. V. Turner, 222, 224. V. Woodward, 399. Higinbotham v. Stoddard, 95. Hildreth v. Thompson, 355. Digitized by Microsoft® References^ TABLE OF CASES. \are to pages. XXlll Hill V. Allison, 265, 273. V. Cooper,' 457. V. Crosby, 501. V. Draper, 184. V. Giles, 280. V. Hill, 44, 298. V. Kricke, 128. V. Meyers, 455. V. Pay son, 214. V. Spear, 469. V. United States, 136. V. Winn, 192, 197, 200. Hillegass v. Hillegass, ,147. Hiller v. Shattuck, 387. Hillingsworth v. Brewster, 23, 67, 135. Hillman v. Baumbach, 38, 442. Hills V. Loomis, 209. Hines v. Trantham, 187. Hinkley v. Greene, 173. V. Wheelwright, 213. Hinman v. Warren, 51. Hinton v. McNeil, 350. Hipp V. Babin, 83. Hitchin v. Campbell, 322. Hlawacek v. Bohman, 397. Hoag V. Hoag, 121, 224, Hoboken Land & Imp. Co. v. Mayor, &c. 61, 157, 158. Hodges V. Eddy, 550, 574, 579, 582, 583. Hodgson V. Gascoigne, 361, 453. Hodsden v. Staples, 2. Hodson V. Van Fossen, 149. Hoffman v. Beard, 81. Hogan V. Kurtz, 264, 301, 331, 333. Holbrook v. Moore, 295. Holdfast V. Shepard, 521, 524. HcTldridge v. Gillespie, 213. Holford V. Bailey, 64. V. Dunnett, 226. Holley V. Hawley, 174, 509, 541, 542, 544- HoUingsworth v. Holshousen, 309. Hollister V. Young, 553, 557. Holmes v. City of Carondelet, 326, 328. V. Davis, 278, 382, 422, 427, 441. V. Holmes, 196. V. Seely, 103, 269, 270, 338. V. Williams, 412, 423. Holt V. Miers, 323. V. Rees, 211, 268, 276. Holton V. Whitney, 537. Holtzapple v. PhiUibaum, 526, 527. Home Manuf. Co. v. Gough, 193. Hood V. Palmer, 529. Hooper V. Bridgewater, 311.' V. Cummings, 114. V. Hall, 187, 199. Hopkins v. McLaren, 326. V. Myers, 316. V. Stephens, 120. Hopkins v. Ward, 121. Hoppough V. Struble, 304, 305. Hord V. Walker, 290. Horn V. Keteltas, 209. Hornback v. Cincinnati & Z. R. R. Co. 114. Home V. Howell, 173, 542. Horner v. Chicago, M. & St. P. Ry. 113, 114. V. Leeds, 224. Horsefall v. Mather, 226, 227. Horsey v. Horsey, 235, 243. Horton v. White, 396, 398. Hosfordv. Ballard, 230, 232, 255. Hostetter V. Hykas, 218. Hotaling v. Hotaling, 247. Hotchkiss V. Auburn & R. R. R. Co. 412, 423,435,436. Hough V. Hammond, 344. Houston, &c. R. R. Co. v. McGehee, 373- V. Ryan, 292. Houx V. Batteen, 564. Howard v. Fessenden, 45. V. Gosset, 265. V. Howard, 258, 259, 592, V. Kennedy, 358, 361. V. Railway Co. 125, 361. V. Rawson, 258. V. Reedy, 560. Howards v. Davis, 193. Howe V. Butterfield, 356. V. Willson, 289. Howell V. Eldridge, 366. Howland v. Needham, 403. V. Newark Assoc'n, 538, 593. Hoyle V. Stowe, 93, 185, 276. Hubbell V. Lerch, 94, 264, 276, 277,411. V. Moulson, 212, 482. Hudson V. Putney, 81, 169, 545. Huff V. Walker, 104. Huffell V. Armitstead, 235. Hughes V. Devlin, 488. V. Edwards, 205. V. Hazard, 495. V. Holliday, 313. V. Israel, 569, 578, 582, 600. V. Lane, 273, 275, 310. Hulce V. Thompson, 412. Hull & Selby Railway, In re, -52. Huls V. Buntin, 598. Humbert v. Trinity Church, 161, 171, 503, 504, 552, 556, 567, 571, 573, 578, 592. Humphrey v. Hurd, 212. Humphreys v. Taylor, no. Humphries v. Huffman, 511, 575, 600. Hunt V. Crawford, 120. V. Guilford, 531. V. Turner, 309. Digitized by Microsoft® XXIV References] TABLE OF CASES. [are to pages. Hunt V. Wickliffe, 550. Hunter v. Middleton, 61. V. Morse, 286. V. Osterhoudt, 232. V. Starin,- 490, 495. V. Trustees of Sandy Hill, 42. Huntington v. Cotton, 206. Hurd V. Tuttle, 129. Hurley v. Cox, 1 50. Hurt V. Blackburn, 299. Huston V. Wickersham, 26, 439, 440, 442, 446- Hutchins v. Bacon, 469, 486. Hutchinson v. Puller, 46, 280. Hyde v. Hyde, 55. Hyndman v. Hyndman, 213. Hynes v. McDermott, 433. Ibgrave v. Lee, 23. Indianapolis, &c. R. R. Co. v. Ross, 554. Inge V. Garrett, 281. Inloe V. Harvey, 152. Ireland v. Nichols, 231, 392, 393, 394. Irish V. Scovil, 127. Irvine v. Adler, 562. V. Hanlin, 426. v. McRee, 83. Isler v. Foy, 219. Israel v. Israel, 435. Ives v. Leet, 385. Ivey v. Blum, 37, 38. Jacks V. Dyer, 436. V. Moore, 288. Jackson v. Allen, 127, 232. V. Ayers, 197, 198. V. Babcock, 152. V. Bard, 197. V. Boston & W. R. R. Co. 489. ■ V. Bradt, 185, 186, 241. V. Brink, 170. . {d. Church) v. Brownson, 226. {d. Livingston) v. Bryan, 239. V. Buel, 42. {d. Loux) V. Buel, 41. V. Burton, 544. V. Carswell, 206. V. Chevvf, 387. (d. Palmer) v. Coe, 377, 378. V. Colden, 204. F. Dains, 294. V. Davis, 224, 544. V. Demon t, 311. V. Denniston, 164. V. Dickenson, 369. V. Dieffendorf, 325, 326. V. Flint, 151. V. Foster, 601. V. Frost, 568. V. Fuller, 234, 235. Jackson V. Harder, 218. {d. Colton) V. Harper, 218. V. Harrison, 229. • {d. Yates) v. Hathaway, 58. V. Haviland, 19, 350, 530. v. Hawley, 352, 354. v. Hazen, 489. V. Hills, 432. v. Hinman, 219. V. Hotchkiss, 197. {d. Bradstreet) v. Huntington, 197. v. Johnson, 192. V. Laird, 369. V. Laughhead, 249. V. Leek, 117, 223. {d. Hopkins) v. Leek, 164. V. Leggett, 310. V. Leonard, 525, 533. V. Loomis, 420, 449, 472, 477. V. Lyons, 164. {d. Saxton) v. May, 41, 44, 74. V.' McGinness, 198, 200. v. McLeod, 218. {d. Anderson) v. McLeod, 242. V. Miller, 194, 234, 241. V. Moncrief, 194, 247. V. Nestles, 100. V. O'Donaghy, 55. V. Parker, 539. (d. Van Cortlandt) v. Parkhurst, , 242. v. Pike, 40, 88. V. Ramsay, 311. v. Rathbone, 355, 362. {d. Starr) v. Richmond, 43. V. Rowland, 224. V. Sample, 254. (d. Fitzroy) v. Sample, 190. V. Schauber, 409. (d. Livingston) v. Sclover, 43. V. Sheldon, 231. v. Sidney, 55. V. Stewart, 197, 257. V. Stiles, 147, 153, 311, 366,367. V. Stone, 453. V. Thorr.as, 506. V. Thompson, 198. V. Tibbits, 163, 170. V. Tuttle, 326, 358. V. Van Antwerp, 344. {d. Clowes) V. Vanderheyden, 55- V. Vredenburgh, 539. V. Walker, 197, ig8. V. Waltermire, 489. V. Warren, 204, 207, 249. V. Wheat, 551. (d. Bradt) v. Whitbeck, 174. V. Wilsey, 241. Digitized by Microsoft® References\ TABLE OF CASES. \are to pages. XXV Jackson [d. Miller) v. Winslow, 96. V. Wood, 263, 419, 445, 455, 456. V. \yoodruff, 566, 577, 585. V. Woods, 55, 133. Jacobs V. Seward, 172. James v. Belding, 218. V. Tait, 296. James River & Kan. Co. v. Thompson, 91- Janes v. Patterson, 586. Jarboe v. Smith, 341. Jarvis v. Hamilton, 40. Jeffery v. Hursh, 210. Jeffries v. Zane, 432. Jemot V. Cooly, 117. Jenckes v. Cook, 222. Jenkins v. Dalton, 302. V. Fahey, 194. V. Means, 455. V. Van Schaack, 81. Jenney v. Potts, 311. Jester V. Overseers, &c. 125. Jewett V. Hamlin, 215. Jinkins v. Noel, 123. Johns V. Whitley, 232, 272, 273. Johnson v. Adleman, 297, 300. V. Albany & S. R. R. Co. 337. v. Byler, 302. v..Chely, 221. V. Dixon, 227. v. Elliot, 215. V. FuUerton, 149, 358. V. Futch, 420,430, 442, 455,479- V. Gorham, 554, 557. V. Gresham, 461, 473. v. Gurley, 76, 218. V. Houston, 208, 211. V. Long, 201. V. Mcllwain, 355. V. Nevill, 267, 280, 282, 355. V. Newman, 346. V. Phillips, 546. V. Tilden, 187. V. Toulmin, 175. Jolly V. Ghering, 285. Jones V. Bivins, 505. V. Boyd, 80, 398. v. Burget, 361. V. Carwithen, 18. V. De Graffenreid, 326. V. Dove, 2i8, 219. V. Easley, 488. V. Hartley, 132. V. Hockman, 506. V. Hollopeter, 55. V. Jones, 504. V. Manly, 304. (d. Griffiths) v. Marsh, 256. V. Parker, 269. Jones V. Perkins, 163. V. Shackleford, 200. V. Weathersbee, 70, 163, 183. Jordan v. Record, 272. V. Van Epps, 322. V. Ward, 250. Jory V. Orchard, 256. Joy V. Berdell, 268. . Judd V. Leonard, 68. Judge V. Houston, 298. Karker v. Haverly, 196. Karns v. Tanner, 48, 116. Kathan v. Rockwell, 163, 541. Kaul V. Lawrence, 285. Kean v. Connelly, 435. Keane v. Cannovan, 452. Keech v. Hall, 23, 204, 249. Keeler v. Davis, 232. Keith V. Johnson, 356. Kelgour v. Wood, 125. Keller v. Auble, 177. Kellogg V. Forsyth, 1 53, 344. V. Kellogg, 271. Kelly V. Fritz, 361. V. Mack, 490. V. Tate, 294. Kelsey V. Ward, 321. Kenada v. Gardner, 221. Kenege v. Elliott, 76, 230. Kennedy v. Campbell, 35. V. Fury, 121. Kenner v. American Contract Co. 113. Kent V. Agard, 209. V. Harcourt, 576. V. Lasley, 209, 343. Kentfield v. Hayes, 304, 305. Kentucky River Nav. Co. v. Common- wealth, 218, 229. Kercheval v. Ambler, 356, 366. Kerley v. Richardson, 445. Kerr v. Hitt, 511. V. Merchants' Exch. Co. 73, 132. Kershner v. Kershner, 314. Keyser v. Evans, 171. Kidd V. Emmett, 317. Kiersted v. Orange & A. R. R. 426. Kile v. Tubbs, 43. Kilgour V. Gockley, 127. Kille V. Ege, 285, 420, 440, 467. Kimmel v. Benna, 20, 326, 327, 333, 334, 337- Kincaid v. Perkins, 545. King V. Dickerman, 254. v. Harris, 351. V. Inhabitants of Mellor, 42. V. Inhabitants of Oakley, 104, V. Inhabitants of Sedgley, 48. V. Kent, 299. V. Little, 435. Digitized by Microsoft® XXVI References^ TABLE OF CASES. \are to pages. King V. Portis, 290. V. Rowan, 180. V. St. Michael, 204. Kingsdale v. Mann, 356. Kingston's (Duchess of) Case, 321, 331. Kinna v. Smith, 204. Kinney v. Doe, 224. V. Harrett, 104, 105. V. Slattery, 162, 173, 542. V. Vinson, 297, 504, 556, 590. Kinsey v. Sensbough, 260. Kipp V. Delamater, 409. Kirby v. Harrison, 194. Kirk V. Carr, 112. Kirkland v. Cox, 120. V. Thompson, 129, 296. Kitchen v. Campbell, 30. V. Herring, 284. V. Wilson, 264, 550. Kittredge v. Locks & Canals, &c. 173. Klein v. New Orleans, 137. Kline v. Johnston, 490, 494. V. Moulton, 112. Klinkener V. School Directors, 159. Knickerbocker Ins. Co. v. Tolman, 292. Knipe v. Palmer, 106. Knolls V. Barnhart, 177, 179. Knowles v. Hull, 236. Knowlton v. Smith, 564. Knox V. Cleveland, 1 50. V. Herod, 184, 488. Koon V. Nichols, 342. Kortright v. Cady, 205, 546. Krause v. Means, 471. Krevet v. Meyer, 40. Kribbs v. Downing, 126. Kruse v. Wilson, 568, 598. Kuhns V. Bowman, 442, 446. Kunzie v. Wixom, 112, 242, 243, 244. Kurkel v. Haley, 58, 75. Ladd V. Dubroca, 598. V. Hildebrant, 386. Lady Dacres' Case, 280. Lady Windsor's Case, 87. Laflin v. Herrington, 369, 371. La Frombois v. Jackson, 551, 568, 572, 601. Lahiffe v. Hunter, 284. Lair v. Hunsicker, 490. Lamb v. Archer, 18. Lamont v. Cheshire, 304. Lamson v. Clarkson, 218, 219, 224. Lancashire v. Mason, 224, 225. Lane v. Harrold, 434. V. King, 361,453- V. Schermerhorn, 107. Lang V. Ropke, 377, 382. Langendyck v. Burhans, 164, 434. Langford v. Love, 128, 129. Langford v. Poppe, 505. V. United States, 345. Lansing v. North River S. B. Co. 400. Lapeyrev. Paul, 541, 542. Larman v. Huey, 173, 177. Larned v. Hudson, 241, 278, 347, 427, 429- , „ Larrabee v. Lumbert, 426, 428. Lattin v. McCarty, 83, 90, 410. Laub V. Buckmiller, 83, 90, 410. Law V. Jackson, 409. Lawrence v. Ball, 547. V. Du Bois, 288. v. Hunt, 337. V. Kenney, 300. v. Webster, 177. Lay v. Lawson, 300. Lea v. Hernandez, 493. v. Slatterly, 296. Leach v. Koenig, 221. V. Thomas, 227. Learned v. Corley, 471, 472, 486. Leary v. Langsdale, 281, 289. Leasure v. Union Mut. Life Ins. Co. loi. Ledyard v. Ten Eyck, 50. Lee V. Bowman, 442, 471. V. Fox, 178, 179. V. Kaufman, 141. V. Norris, 96. V. Simpson, 82, 268. Leeds v. Lockwood, 285. Leeper V. Baker, 511, 512, 513. Leese v. Clark, 360, 361, 362. Le Fevre v. Le Fevre, 68. Le Guen v. Governeur, 322. Leland v. Hathorne, 288. V. Tousey, 343, 414, 426, 452. Lenox v. Notrebe, 392, 394. Leport V. Todd, 225. Lesher v. Sherwin, 197. Lestrade v. Barth, 305. Letchford v. Cary, 62, 339. Lewis V. Adams, 219. V. Brewster, 149. V. Cocks, 83, 466. V. Ringo, no. V. San Antonio, 160, 383, 384. Lillianskyoldt v. Goss, 162, 183, 342. Lindsey v. Danville, 444. Linker V. Benson, 171, 174. Lion V. Burtis, 419. 430. Lippett V. Kelley, 442. Listowel V. Gibbings, 47. Littlewort v. Davis, 209. Livingston v. Hayes, 205, 207. V. Jefferson, 287, 288, 295. V. Livingston, 86. V. Peru Iron Co. 556, 568, 576, 592. V. Reynolds, 227. Digitized by Microsoft® References\ TABLE OF CASES. lare to pages. XXvii Livingston v. Stickles, 229. V. Tanner, 234, 235, 237, 242, 278, 423, 427, 429. Lloyd V. Lynch, 177. V. Passingham, 394. T. Peell, 452. Locke V. Motley, 65. Lockwood V. Drake, 127, 266. V. Mills, 259. Loeb V. Mathis, 287. Logan v. Goodall, 187, 189, 482. T. Jelks, 599. Loker v. RoUe, 82, 466. Lombard v. Cowham, 304. London v. Greyme, 226. London (Mayor of) v. Cole, 287, 288. Long V. Higginbotham, 578, 582. V. Linn, 315. V. Mast, 170, 543, V. Morton, 358. V. Neville, 325, 335, 362, 414. V. Stapp, 173. Longfellow v. Longfellow, 218. Longwell v. Bentley, 81. Long-worth v. Wolfington, 484. Lonsdale (Earl of) v. Nelson, 73. Lord V. Dearing, 278, 423, 430. Lord Audley v. Pollard, 16. Lorillard v. Clyde, 265, 310. Lorymer v. Hollister, 261. Los Angeles v. Signoret, 274. Lounsbery v. Snyder, 237. Love V. Edmonston, 117, 198, 199. V. Law, 218, 225. V. Powell, 452. V. Shartzer, 437, 445, 471. V. Shields, 591. V. Watkins, 200, 307. Lovell V. Frost, 524, 531. Low V. Elwell, 242. V. Purdy, 441. Lowe V. Emerson, 220, 221, 342. Lower v. Winters, 480. Lowry v. Jenkins, 352, 367. Lozier v. N. Y. Central R. R. Co. 57. - Lucas V. Brooks, 218. V. Johnson, '1 26, 136, 146. v. King, 82. Luckett V. Williamson, 194. Ludlow v. Johnson, no. V. McBride, 488. Lum V. Reed, 343, 490. Lunquest v. Ten Eyck, 461, 471. Lunsford v. Turner, 223. Lyie V. Rollins, 1 26. Lyles V. Murphy, 218. Lyman v. Mower, 249. Lynch v. Wi''hers, 35. Lynde v. Hough, 229. V. Williams, 519, 523, 584. Lyon V. Gormley, 59. V. Kain, 269. Lytle V. Burgin, 151. Macduncoh v. Stafford, 279. Machin v. Geortner, 493, 514. Maddon v. White, loi, 250. Madison Ave. Bapt. Ch. v. Oliver St. Bapt. Ch. 89, 205, 211, 212, 213. Madland v. Benland, 458. Magee v. Chadoin, 372, 377, 384. V. Magee, 507. Magruder v. Peter, 105. Magwire v. Labeaume, 441. Mahoney V. Middleton, 131, 133, 335. v. Van Winkle, 345. Main v. Payne, 378. Malcolm v. Rogers, 185. Malin v. Rose, 376. Mally V. Bruden, 525. Malone v. Marriott, 1 52, 402. V. Stretch, 443, 485. Man V. Drexel, 325, 446. Mandeville v. Reynolds, 305. Mann v. Falcon, 206, 211, 302. V. Rogers, 345. Manning V. Dove, 315. Manny v. Smith, 125. Mantle v. Wellington, 24, 185. Mapes V. Scott, 292, 394, 395, 405. Marable v. Jordan, 481. Marcy v. Darling, 45. V. Marcy, 170. Marietta v. Emerson, 384. Markel's Case, 29. Marlow v. Adams, 464. V. Wiggins, 223. Marquis Cholmondeley v. Lord Clinton, 41. Marriot v. Hampton, 322. Marshall v. Shafter, 269, 272, 331. * v. Steam Nav. Co. 64. V. Wing, 147. V. Wood, 277. Marsteller v. McClean, 94. Marston v. Butler, 263. Martin v. Bonsack, 550. V. Davis, 135. V. Fridley, 211. v. Judd, 511. V. Kennedy, 30, 321. V. Martin, 290, 317, 351, 487. V. O'Conner, 484. V. Waddell, 50. V. Wayman, 383, 386. Marvin V. Dennison, 131, 152, 153, 154, 207, 342. V. Lewis, 458. V.' Marvin, 378. Mason v. Lord, 116. Digitized by Microsoft® XXviii References] TABLE OF CASES. [are to pages. Mason v. Walker, lo8. V. Warner, 288. Massey v. Trantham, 35. Massie v. Long, 102, 185. Hasten v. Olcott, 321, 337, 371. Masters v. Eastis, 37. Masterson v. Hagan, 430. Mathews V. Horlbeck, 312. Matthews v. Bliss, 181, 182. V. Ward, 119, 120. Mauck V. Mauck, 119. Maus V. Montgomery, 311. May V. Calder, 105. Maynard v.- Cable, 194. Mayne v. Jones, 358. Mayor of London v. Cole, 287, 288. Mayor, &c. v. Ewart, 287. V. Groshon, 86. V. Mabie, 72. V. N. Shore S. I. F. Co. 72. V. Union Ferry Co. 72. Mays V. Rose, 392. McAlexander V. Wright, 257. McAUen v. Woodcock, 94. McAllister v. Devane, 549, 550. McAlpin V. Lee, 201. McArthur v. Porter, 271. McBurney v. Wellman, 209. McCall V. Neely, 570, 581, 589. V. Webb, 175. McCallum v. Boswell, 177. McCamy v. Higdon, 596, 599. McCanna v. Johnston, 237, 245, 255. McCarthy V. Yale, 275. McCauley v. Fulton, 304. McChesney v. Wainwright, 311. McChord v. McClintock, 361. McClanahan v. Barrow, 247. McClane v. White, 247. McClennan v. McCleod, 298. McClung V. Echols, 249. V. Ross, 170, 172, 518. McClure v. McClure, 237. McClurg V. Wilson, 120. McConnel v. Reed, 301. McConnell v. McConnell, 570, 597, 600. V. Wilcox, 140. McCoon V. Smith, 147. McCormick v. Nixon, 399. McCorry v. King, 545. McCourt V. Eckstein, 74, 172. McCown V. Hannah, 151. McCracken v. City of San Francisco, 552, 59°- McCravey v. Remson, 219. McCrea V. Haraszthy, 112. McCready v. Guardians, &c. 433. McCreary V. Marston, 219, 222. McCreery V. Allender, 123. V. Duane, 301. McCreery v. Everding, 358, 512. V. Sawyer, 301. McCrubb v. Bray, 430, 437, 445- McCullough V. Guetner, 261. V. Wall, 523. McDaniel v. Wailes, 263. McDermott v. Davison, 258. McDevitt V. SulUvan, 224. McElmoyle v. Cohen, 504. McEntire v. Brown, 1 50. McEvoy V. Loyd, 577. McGlynn v. Moore, 231. McGoon V. Scales, 287. McGrath v. Sinclair, 118, 119, 184, 488. McGregor v. Brown, 226, 227. McGuffie V. Carter, 225. McHan v. Stansell, 193, 247, 248. Mclndoe v. Morman, 200. McKay v. Speak, 264. McKee v. Pfout, 115. McKenzie v. L'Amoureux, 93. McKiUip V. McKillip, 106, 107. McKinlay v. Tuttle, 429. McKinly v. HoUiday, 464, 472. McKnight v. Dunlop, 337. McLane v. Bovee, 311, 345. V. Spence, 323. McLaughlin v. Barnum, 466. McLean v. Bovee, 361, 453. V. Macdonald, iii, 121. McMahan v. Bowe, 96. McMahon v. Russell, 206, 209. McMasters v. Carothers, 81. McMillan v. Richards, 206, 209. McMinn v. Mayes, 361,455, 461. V. O'Connor, 311. McMurray v. Oneal, 314. McNair v. Schwartz, 426. McNamee v. Moreland, 552, 558. McNeely v. Langan, 537. McNeil V. Bright, 350. McQuade v. Emmons, 367. McQueen v. Ivey, 599, 601. McQuiddy v. Ware, 541. McRae V. McDonald, ii2. McRea v. Central Nat'l Bank, 44, 455. McSorley v. Larissa, 482. McTeague v. Coulter, 83, 410. Meacham v. Dudley, 261. Mead v. Leffingwell, 567. Meade v. Lawe, 300. Meadow Val. Min. Co. v. Dodds, 400. Medlicot v. Bruester, 409. Meeker v. Place, 236. Meeks v. Kirby, 43. Meigs V. McClung, 138, 139, 140, 142., Meldrum v. Sarvis, 293. Mellington v. Goodtitle, 67. Melvin v. Proprietors of Locks, &c. 525, 534- Digitized by Microsoft® References'^ TABLE OF CASES. \_are to pages. XXIX Melvin v. Waddell, 504, 545. Menifee v. Hamilton, 379. V. Menifee, 112. Menkens v. Blumenthal, 537. Meraman v. Caldwell, 338. Merced Mining Co. v. Fremont, 400. Mercier v. Mercier, 259. Merrill v. Bullock, 89, 90. Merritt v. Campbell, 341. V. Carpenter, 402. V. O'Neil, 432. v. Scott, 472, 479. V. Thompson, 153. Merryman v. Bourne, 221, 223, 341, 345. Mersey, &c. Nav. Co. v. Douglas, 287. Messenger v. Armstrong, 237. Meth. Episcopal Church v. Council of Hoboken, 158, 159. T. Stewart, 120. Meth. Soc. V. Bennett, 120. Mettersv. Brown, no. Mexico V. Arrangois, 257. Meyer v. Campbell, 211. V. Metzler, 73. Mickles v. Dillaye, 466, 482. Middleton's Case, 18. Miles V. Caldwell, 329, 333, 336, 370, 388. Millard v. McMuIlin, 541. Miller v. Adsit, 344. V. Bledsoe, 276. V. Bonsadon, 221. V. Brownson, 135, 480. V. Casselberry, 45, 314, 316. V. Covert, 322. V. Henry, 446. V. Hoberg, 112. V. Ingram, 450. V. Lang, 225. V. Long Island R. R. Co., 492, 514, 580, 585. V. Manice, 321. V. McBrier, 222. V. Melchor, 421, 431. V. Miller, 87. V. Myers, 161, 168, 169, 177, 434. V. Noden, 250. V. Piatt, 170. V. Shields, 226. V. Swift, 193, 199. V. Trets, 313. Millhollin v. Jones, 304. Milliner V. Robinson, 190. Mills V. Graves, 310. V. Hamilton, 221. Milne v. Cummings, 189. Milner V. Wilson, 40. Milton V. Haden, 223. Minier v. Minier, 481. Mining Co. v. Taylor, 50, 161. Minke v. McNamee, 325. Miss. & Mo. R. R. Co. V. Ward, 288, 295. Miss. & Tenn. R. R. Co. v. Devaney, 589. 597- Missouri v. Kentucky, 295. Mitchell V. Baratta, 153. V. Barnes, 393, 411. V. Bogan, 204. V. Davis, 40. V. Freedley, 452. V. Mitchell, 421. Moak V. Bryant, 194, 246, 247. Mobleyv. Bruner, 187, 188, 189. Moffat V. Strong, 223. Moingona Coal Co. v. Blair, 579. Molineux v. Molineux, 63. Molton V. Henderson, 597, 600. V. Mumford, 433. Monroe v. Luke, 87. Montgomery v. Craig, 244. V. Dorion, 123. V. Gorrell, 274. V. Spect, 210. V. Whiting, 345. Monumoi Beach v. Rogers, 303. Mooberry v. Marye, 298. Mooney v. Cooledge, 512. V. Olsen, 488. Moore v. Burnet, 120. V. Cable, 449, 482. V. Fursden, 24, 185. V. Goodright, 22. V. Griffin, 282. V. Hawkins, 311. V. Lawder, 242. V. Morrow, 122. V. Pitts, I [4. V. Thompson, 512, 519. Mooring v. Campbell, 447. Moran v. Jessup, 326. Morange v. Morris, 196. Mordecai v. Oliver, 129. More V. Deyoe, 103. v. Massini, 396, 400. Moreton's Case, no. Morgan v. Herrick, 177. V. Moore, 57, 58, 61, 69. v. Plumb, 322. V. Varick, 426, 430, 442, 453. Morrill v. Menifee, 1 10. Morris v. Beebe, 266, 299, 421, 425, 433. V. Henshaw, 37. v. McKay, 484. V. Tinker, 447, 475. Morrison v. Bassett, 218. V. Hays, 534. V. Robinson, 420, 437,440,442, 464,467,468,471,477,479- Morse v. Sleeper, 42. Morton v. Weir, 228. Mosely v. Miller, 468. Digitized by Microsoft® XXX References\ TABLE OF CASES. \are to pages. Mosher v. Yost, no. Moss V. Hanson, 194. V. Scott, 524. V. Shear, 311, 486. Mostyn v. Fabrigas, 144, 288, 289. Mountnoy v. Collier, 221. Muldrow V. Muldrow, 194. Mumford v. Whitney, 191. Mundy v. Monroe, 207. Munro v. Merchant, 557, 585, 593, 598. Munson v. Munson, 162, 163. Murdock v. Little. 293. V. Ratcliff, no. Murphy v. Campau, 132. V. Guion, 431. V. Norton, 51, 52, 86. V. Orr, 93, 270. V. Williamson, 236, 243. Mur.-ay v. Ballou, 414. V. Gouverneur, 420. V. Harway, 232. V. Walker, 209, 305. Muskett V. Hill, 71. Myers v. Koenig, 40. V. Phillips, 372, 380, 384. Nagle V. Macy, 490. Napton V. Leaton, 458. Natchez v. Vandervelde, 366. Natoma Water, &c. Co. v. Clarkin, 399. Nave V. Berry, 226. Neale v. Cripps, 398. V. Hagthrop, 449, 482. Neave v. Avery, 303. Neddy v. State, 301. Needham v. Branson, 277. Neely v. Neely, 172, 542. Neill V. Keese. 304. Nellis V. Munson, 69. Nelson v. Allen, 431. V. Couch, 321. V. Davis, 302. V. Pinegar, 402. Nevittv. Gillespie, 401. Newby v. Jackson, 194, 247. Newell v. Sanford, 369. V. Woodruff. 164. 165, 167, 245. New England Jewelry Co. v. Merriam, 212. N. J. Zinc Co. V. N. J. Franklinite Co. 400. Newman v. Holdingfast, 67. New Orleans v. Gaines, 421, 437, 441, 445, 456, 457. 466. Newport Bridge Co. v. Douglass, 206. Newsome v. Williams, 303. Newton v. Bronson, 288, 293, 346. V Hook, 323. V. McKay, 212. N. Y. Dry Dock v. Hicks, loi. N. Y. & H. R. R. Co. V. Kip, 60. Nichols V. Lewis, 41, 50. Nicholson v. Caress, 278, 302. Nicoll V, Fash, 308. V. N. Y. & Erie Railway, 113, 114, 230, 231. V. Walworth, 119. Nims V. Sherman, 221. Ninety-nine Plaintiffs v. Vanderbilt, 257. Nixon V. Porter, 449, 531. Noble V. Biddle, 476. V. McFarland, 163, 177. Noe V. Card, 129. Nolan V. Sweeny, 318. Nolen V. Royston, 218. Norfleet v. Hutchins, 579. Norris' Appeal, 545. Norris v. Brooke, 52. V. Hoyt, 123,480. V. Russell, 548. V. Sullivan, 163, 171. Northern Ind. R. R. Co. v. Mich. Cent. R. R. Co. 287, 288, 295. Northern Turnpike Co. v. Smith, 68, 69. North Greig v. Johnson, 171. North Penn Coal Co. v. Snowden, 82. Northrop v. Wright, 174. Northrup v. Romary, 376. Northy v. Northy, 546. Nowlin V. Reynolds, 547. Gates V. Brydon, 164. Oatman v. Fowler, 601. Oberich v. Gilman, 463, 480. O'Blinskie v. Judge of Kent, 385, 386. O'Brien v. Joyce, 481. V. Wetherell, 198. O'Byrne v. Feeley, loi. Odell V. Montross, 206, 209, 211, 213. Odingsal v. Jackson, 281. Odle V. Odle, 85. O'Dougherty v. Aldrich, 81. Oetgen v. Ross, 1 52, 327, 342, 364, 380. O'Halloran v. Fitzgerald, 218. O'Hara v. Richardson, 527. Oldham v. Pfleger, 204, 207, 211. Olendorf V. Cook, no, 116, 286. Olevine v. Holman, 522. Olinger v. Shepherd, 40. Olive v. Adams, 37. Olmsted v. Elder, 205. V. Harvey, 125. OIney v. Sawyer, 177. O'Neal v. Boone, 597. O'Neill V. Capelle, 209. Ord V. Chester, 246. Oregon, &c. R. R. v. Oregon Steam Nav. Co. 490. Ormond v. Martin, 547. Ortley v. Messere, 107. Digitized by Microsoft® References\ TABLE OF CASES. \are to pases. XXxi Orton V. Noonan, 300, 338, 351. Osborn v. Bank of the U. S. 140, 143. V. Storms, 47S. Osbourn v. Osbourn, 419. Osgood V. Abbott, 113. Ostrander v. Hasbrouck, 367. Otis V. Smith, 45. Ould V. Stoddard, 205. Outcalt T. Ludlow, 547. Outram V. Morewood, 30, 324, 331. Overing V. Russell, 123. Overton v. Woolfolk, 82. Owen V. Fowler, 126. V. Homan, 392. Oxnard v. Kennebeck Purchase, 94. Pace V. Chadderdon, 211. Packer v. Rochester & S. R. R. 205. Packet Co. v. Sickles, 322, 337. Pacquette v. Pickness, 443, 484. Page V. Tucker, 112. v. Webster, 177. Palmer v. Bowker, 219. V. Parkhurst, 107. Park Dept., Matter of, 95, 192, 547. Parker v. Banks, 539, 546. V. Constable, 250. V. Proprs. Locks, &c. 173, 579. V. Staniland, 66. Parks V. Hardey, 55. Parmelee v. O. & S. R. R. 228. Parr v. Van Horn, 267, 272. Parrott v. Knickerbocker Ice Co. 443. Parsons v. Moses, 461. V. Welles, 214, 215. Partheriche v. Mason, 64. Paschal t. Acklin, 345. Paschall v. Hinderer, 545. Patch T. Keeler, 1 52. Patrick V. Sherwood, 115. Patten v. Patten, iii. Patterson v. Ely, 132, 423. V. Kreig, 297. V. Stewart, 445. V. United States, 313. V. Yeaton, 213. Paull V. Eldred, 75, 486. Payne's Case, 96. Payne v. Atterbury, 394. V. Blackshear, 598. V. Harris, no. V. Treadwell, 265, 275. Pearce v. Colden, 277. V. Ferris, 131, 132, 152, 277. Pearsall v. Mayers, 304. Pease v. Hannah, 274, 309. V. Pilot Knob Iron Co. 209. Peck V. Carmichael, 369. V. Newton, 269. V. Smith, 57, 58, 59. Peck V. Ward' 171. Pederick v. Searle, 526, 529. Pell V. Ulmar, 205. Peltz V. Clarke, 2ii. Pemble v. Sterne, 66, 69. Penn v. Klyne, 366. Pennoyer v. Neff, 346. Penny v. Walker, 144. Pentz V. Kuester, 224. People V. Alberty, 226. V. Ambrecht, 127, 135, 137, 138, 142, 145. V. Arnold, 97. V. Central R. R. Co. 288. V. Conklin, 97. V. Cook, 264. V. Cooper, 19, 350, 352, 356,357, 364- V. Darling, 237. V. Davidson, 51. V. Denison, 97. V. Dennison, 136. V. Dudley, 232. V. Dwinelle, 354. V. Folsom, 123. V. Gilbert, 498. V, Kerr, 61. V. Livingston, 96, 97. V. Mauran, 50. V. Mayor, &c. 94, 146, 268, 271, 393, 413. V. N. Y. & M. B. Railway Co. 98. V. St. Clair Circuit Judge, 374. V. Shackno, 240. V. 3nyder, 100. V. Trinity Church, 97, 489. V. Van Nostrand, 40. V. Van Rensselaer, 97. Pepper V. O'Dowd, 552, 574, 586. Perrine v. Bergen, 70, 366. Perry v. Dickerson, 321. V. Ensley, 378. V. New Orleans, &c. R. R. 1 59. Pershing v. Canfield, 197. Person v. Warren, 107. Peter v. Hargrave, 422. Peters v. Clements, 193. Peterson v. Laik, 176. V. Orr, 199. Petrie v. Shoemaker, 106, 107. Petty V. Graham, 248. Peytoe's Case, no. Phelan v, Kelly, 170, 177, 488. Philips V. Bank of Lewistown, 546. Phillippi V. Thompson, 309, 575. Phillips V. Covert, 227, 241. V. Croft, 209. v. Dunkirk, W. & P. R. R. Co. 61. V. Gorham, 83, 303, 304, 410. V. Gregg, 161, 171. Digitized by Microsoft® XXXll References] TABLE OF CASES. [are to pages. Phillips V. Phillips, 282. V. Rollings, 244. Phillpotts V. Blasdel, 20, 341. Phipps V. Mansfield, 292. Phoenix Lead Mining, &c. Co. v. Sydnor, 483. Phyfe V. Masterson, 369, 381, 382. V. Riley, 211. Piatt V. Oliver, 1 1 9. Piatt County v. Goodell, 597. Pickett V. Doe, 285. Pico V. Columbet, 435. V. Gallardo, 210. Picot V.Page, 178. Pierce v. Brown, 204, 207, 249. V. Nichols, 194. v. Pierce, 426. V. Strickland, 428. v. Tuttle, 192, 200, 246, 247, 307. V. Wanett, 319. Pilford's Case, 28, 349. Pilling V. Armitage, 463. Pillow V. Roberts, 573, 598. Pillsworth V. Hopton, 400, 401. Pinckney v. Burrage, 545. Pindell v. Maydwell, 262. Pitcher v. Livingston, 445. Pitkin v. Yaw, 268. Pitts V. Booth, 481. V. Wilder, 557, 558. Pixley V. Rockwell, 72, 1 50, 346, Platto V. Jante, 267, 268. Plimpton V. Plimpton, 472. Plumb V. Tubbs, 1 14. Plume V. Seward, 493. Plummer v. Walker, 265, 266. Poffenberger v. Blackstone, 297, 300. Poignand v. Smith, 546. Poindexter v. Cherry, 426. Polack V. Mansfield, 135, 140, 142. V. Shafer, 367. Polk V. Wendal, 387. Pollard V. Baylors, 326. V. Tait, 535. Pomeroy v. Mills, 57, 58, 124. Poole V. Fleeger, 1 86. Poor V. Carleton, 401. V. Larrabee, 545. Pope V. Cole, 303. V. Hanmer, 565, 577. V. Harkins, 218. V. Macon, 484. Porter V. Garrissino, 151. V. Robinson, 150. V. Williams, 124. Post V. Hover, 79. V. Moran, 381. v. Post, 241. Poston V. Henry, 431. Potter V. City of New Haven, 39, 88. Potts V. Cullum, 467. V. Gilbert, 521, 525. Powell V. Davis, 467, 486, 574, 587. V. Lawson, 361, 364. Power V. HoUman, 121. ■ V. Lester, 205. Powers V. Armstrong, 303, 304. Powys V. Blagrave, 399. Pratt V. Bank of Bennington, 207. Pray v. Pierce, 509. Prentice v. Wilson, 194, 246, 247. Presbyterian Congregation v. Williams, 153- Prescott V. Jones, 117. V. Nevers, 165, 170, 173. Presley v. Holmes, 187. Presstman v. Silljacks, 225. Preston v. Bowmar, 488. V. Walsh, 140. Prevot V. Lawrence, 218, 223. Price V. Blount, 201. V. Karnes, 209. V. Osborne, 43. V. Sanderson, 311. Prindle v. Anderson, 232, 255. Pringle v. Gaw, 55, 94. Prior V. Ongley, 255. Proctor V. Pool, 284. Prout V. Roby, 232. Provident Institution v. Burnham, 68, 339, 428. Pryor v. Madigan, 307. Pugh V. Bell, 430. Pullen V. Bell, 45. V. Hopkins, 515. Purcell V. Wilson, 167. Putnam v. Bond, 287. V. Ritchie, 464, 466, 467. Putnam Free School v. Fisher, 575. Quadring v. Downs, 103. Quicksilver Mining Co. v. Hicks, 128, 494. Quimby v. Dill, 1 1 5. Quinn v. Quinn, 408. Ragan v. McCoy, 435. Ragsdale v. Gohlke, 302, 467, 486. Rainer v. Huddleston, 479. Raley v. Ross, 198. Randolph v. Carlton, 224. Rannels v. Rannels, 569, 581. Ransom v. Lewis, 527. Ratcliff 's Case, 105. Raw V. Stevenson, 361. Rawley v. Brown, 488. Rawlings v. Bailey, 271, 315, 600. Rawson v. Fox, 598. V. Maynard, 46, 280. V. Taylor, 269. Ray V. Gardner, 452. Digitized by Microsoft® References^ TABLE OF CASES. Yare to pages. XXXiil Rayburn v. Elrod, 285. Raymond v. Andrews, 428. Raynor v. Timerson, 297. Reade V. Reade. 119. Reading's Case, 169. Reckhow V. Schanck, 117, 242. Reddick v. Gressman, 207. Redfield v. Utica & S. R. R. Co. 70, 146, 266. Reece v. Allen, 120. Reed v. Calderwood, 345. V. Jones, 435. V. Loucks, 377. V. McCourt, 562. V. Newton, 309. V. Reed, 474. V. Tyler, 126. Reeder v. Sayre, 237, 252, 254. Rees V. City of Chicago, 386. V. Lawless, 72. V. Perrot, 252. Reeside v. Walker, 136. Reformed Church v. Schoolcraft, 43, 57, 339' 36s, 537- Reg. V. Hartington, 322. Rehoboth v. Hunt, 66, 94. Reid V. Stanley, 431. Reily v. Lancaster, 311. Reinholdt v. Alberti, 261. Renison v. Ashley, 82. Rensselaer Glass Factory v. Reid, 444. Republic Ins. Co. v. Williams, 388. Republic of Mexico v. Arrangois, 257. Requa v. Guggenheim, 265. Rex V. Hudson, 501. V. Inhabitants of Old Alresford, 63. V. Newman, 264. V. Unitt, 262. Reynolds, Ex parte, 355, 367. V. Darling, 112. V. Pitt, 228. Rhodes v. Crutchfield, 436. Ricard v. Williams, 184, 488, 490. Rice V. Auditor General, 326. V. Bixler, 380. V. King, 321. Rich V. Baker, 454. V. Keyser, 237. V. Maples, 419. Richards v. Elwell, 200, 307. Richardson v. Harvey, 218, 220. V. Richardson, 87, 104, 426. V. Thornton, 117, 199. V. Welcome, 291. Richmond v. Bronson, 444. Ridler v. Ridler, 107. Riehl V. Bingenheimer, 270. Riemer v. Johnke, 398. Riggs V. Fuller, 522, 533, 535, 542, 597- Right V. Beard, 194, 241, 246, 247. Right V. Cuthell, 253. • V. Darby. 234, 235, 237. Rigor V. Frye, 600. Ring V. McCoun, 288. Ringhouse v. Keener, 412, 422, 429,437, 455, 458. Rippetoe v. Dwyer, 180, 303. Ritter v. Barrett, 284. V. Worth, 407. Rivers v. Foote, 273, 308. V. Thompson, 516. Rivier v. Pugh, 315. Roach V. Damron, 287. Roberti v. Atwater, 318, 319, 487. Roberts v. Heim. 322. V. Moore, 168. V. Morgan, 173. V. Sutherhn, 211. V. Thorn, 180. Robinson v. Gunnis, 75. V. Lake, 507. v. Miller, 115. V. Ridley, 466. V. Roberts, 118, 187. Robson V. Osborn, 480, 481. Roch V. Plumpton, 18. Rockwell V. Bradley, 204, 249. Rodgers v. Bell, 1 26, 266, 364. Roe v. Dawson, 350. {d. Leak) v. Doe, 18. (d. Gregson) v. Harrison, 231. V. Hersey, 569. (cL. Wrangham) v. Hersey, 108. v. Lonsdale, igo. (d. Raper) v. Lonsdale, 189. V. Pierce, 252, 253. (d. Burlton) v. Roe, 409. \d. Blair) v. Street, 362. {d. Bendall) v. Summerset, in. V. Ward, 237. Rogers v. Boynton, 220, 221. V. Bracken, 481. V. Marshall, 394. V. Moore, 115. V. Parish, 361. V. Park, 257. V. Sinsheimer, 75, 271, 315, 339, 342. V. Turley, 185. Rollins V. Bishop, 153. V. Moody, 241. V. RoUins, 151. Romero v. Munos, 85, 353, 354. Root V. McFerrin, 551, 574. Roper v. Holland, 121. Rose V. Bell, 148. V. Davis, 219. Ross V. Cobb, 105. V. Gould, 559. V. Irving, 484. Digitized by Microsoft® XXxiv Refereiuesi TABLE OF CASES. [are to pages. Ross V. Mcjunkin, 121. V. Pleasants, 384, 409. V. Van Aulen, 248. Rothschild v. Hatch, 600. Rothwell V. Devvees, 178. Rountree v. Talbot, 380, 384. Rowan v. Kelsey, 41, 43, 45, 72, 73. V. Lytle, 237. Rowe V. Beckett, 269. Rowell V. Mitchell. 215. Royston V. Eccleston, 280. Ruch V. Rock Island, 113, 114. Ruckman v. Astor, 212. Ruggles V. Sands, 521. Runyan v. Mersereau, 205. Rupert V. Mark, 269. Russel V. Pratt, no. Russell V. Allard, 224. V. Blake, 361, 461, 482. V. Davis, 539. V. Defrance, 487. V. Ely, 205, 212, 213. V Erwin, 112, 286. V. Mallon, 344. V. Maloney, 316. V. Mandell, 596. V. Marks, 183. V. Nelson, 374. V. Southard, 213. Rust V. Rust, 169. Ryan v. Jackson, 291. Ryder v. Mansell, 224. Ryerss v. Rippey, 340, 342, 343. Rynd v. Rynd Farm Oil Co. 48. Sacia v. O'Connor, 382, 383. Sacramento Valley R. R. Co. v. Moffatt, 87- Safford v. Hynds, 305. Sahler V. Signer, 2n. Sailor v. Hertzogg, 504, 558. St. Clair County v. Lovingston, 54. St. John V. Commyn, 279. V. Pierce, 94, 277, 411. V. Quitzovv, 224. St. Louis V. Gorman, 581. St. Louis, J. & C. R. R. Co. v. Thomas, 290. Sale V. Crutchfield, 466. Salisbury V. Morss, 152. Salmon v. Clagett, 402. Saltmarsh v Crommelin, 570. Sample v. Robb 285 Sampson v. Ohleyer, 364. V. Schaeffer, 87, 426. Samson v. Rose, 453. Samuels v. Borrowscale, 519. Sanders v. Partridge 54. Sands v. Davis, 484. V. Hughes, 543, 544, 592, 594. Sands v. St. John, 301. Sanford v. Cloud, 197. V. Sanford, 189. V. Tucker, 302. San Francisco v. Calderwood, 69. V. Fulde, 523, 525, 534. V. Sullivan, 159. Sankey v. Noyes, 493, 494. Santler v. Heard, 291. Sartain v. Hamilton, 469. Satterlee v. Bliss, 358. V. Mathewson, 223. Saunders v. Moore, 223. v. Wilson, 473. Savannah v. Steamboat Co. 156. •Sawyer v. Kendall. 531, 534, 535, 537. V. Newland, 128. Scales V. Anderson, 426. V. Cockiill, 535, 578. Schauber v. Jackson, 297. Schermerhorn v. Buell, 227. Schneider v. Botsch. 561. School District v. Lynch, 518. Schrack v. Zubler, 533. Schulenberg v. Harriman, 113. Schultz v. Arnot, 221, 222, 490. Schuyler v. Leggett. 237. V. Marsh, 127, 266. V. Smith, 237. Scilly V. Dal by, 273. Scott V. Delany, 515, 584, 587. V. Elkins, 583. V. Elmore, 124. V. Mather, 472, 473, 484. V. McLeod. 177. V. Reese, 487. Scruggs V. Blair, 119. Seabury v. Stewart, 192, 197. Searcy v. Reardon, 457. Sears v. Taylor, 50, 268. Seaton v. Davis, 102, 103, 105, 429. V. Son, 173, 269. Second Nat'l Bank of Titusville's Ap- peal, 119. Secrist v. Zimmerman, 341. Seeley v. Manning, 546. Sell rs V. Hayes, 194. Semayne's Case, 356 Semple v. Cook, 549, 550. Seneca Road Co. v. A. & R. R. R. Co. 69. Seward v. Jackson. 283. Shackleford v. Bailey 576, 60D. Shadwick v. McDonald, 430. Shaler v. Magin. 484. Shanks v. White, 260. Sharon V Davidson, 187. Sharp V Daugney, 298 301. V. Ingraham, 163, 168. Sharpe v. Kelly, 544. Digitized by Microsoft® References^ TABLE OF CASES. \_are to pages. XXXV Shattuck V. Tucker, 263. Shaver v. McGraw, 135. Shaw V. Bayard, 355, 366. V. Lindsey, 326, V. McMaren, 380. Sheafe v. Gerry, 546. Shearer v. Winston, 81. Sheean v. Shaw, 177. Shelby v. Guy, 387. Shepard v. Ryers, 163. Shepherd v. Orchard, 261. Sheridan v. Andrews, 340, 343, 414. V. Linden, 340. Sherman V. Abbot, 211. V. Champlain Trans. Co., 544. V. Dilley, 326, 331, 337, 344, 345- V. Kane, 540, 544, 545. Sherrid v. Southwick, 242. Sherry v. Frecking, 74. V. State Bank, 485. Shields v. Hunt, 308, 309. Shiels V. Lamar, 600. V. Stark, 435. Shipp V. Miller. 387. Shopland v. Ryoler, 103. Shucraft v. Davidson, 374. Shuman v. Gavin, 374. Shumway v. Phillips, 490. V. Shumway, 371, 375, 378. Siglar v. Van Riper, 163, 169, 170, 171'. Silloway v. Brown, 171, 483. Silly V. Dally, 272. Silvey v. Summer, 218, 219, 224. Simers v Saltus, 225. ' Simmons v. Brown, 208, 311. V. Lane, 600. V. Robertson, 221. Simms v. Richardson, 126, 127, 207. Simpson v. Downing, 538. V. Hawkms, 151. Sims V. Thompson, 284. Singer v. Scott, 408. Sinnard v. McBride, 426. Siren, The, 137. Skinner v. Crawford, 560. Slade's Case, no. Sledge v. Swift, 299. Slevin v. Brown, 328. Sloan V. Martin, 511. Slocum V. Clark, 265. Sloper V. Cottrell, 121. • Smales v. Dale, 161. Smiley v. Dixon, 180. Smith V. Anderson, 384. V. Barrett, 54. V. Blaisdell, 218. .< V. Burtis, 170, 496, 550. V. Chapin, 521, 534, 537, 548. V. Chicago, A. & St. L. R. R., 146. Smith V. Coffin, 122. V. Cox, 272. V. Crabb, 409. V. Doe d.. Carson, 37. V. Gayle, 343, 364. V. Hemstreet, 321. V. Hollenbeck, 40. V. Hornback, 350, 352. V. Jenks, 318. V. Lorillard, 467, 532. V. Low, 284. V. McCann, 120. V. McKay, 563, 564. V. Osborne, 178. V. Pretty, 361, 366. V. Roberts, 557, 588. V. Robertson, 104. V. Sherwood, 326, 327. V. Tome, 303. V. Trabue, 361, 530. V. Walker, 1 29. V. Webster, 198. V. White, 356. V. Wiggin, 68, 76, 147. Snapp V. Spengler, 284. Snook, Petition of, 264. V. Sutton, 104. Snyder v. Warford, 69. Society, &c., v. Town of Pawlet, 197, 552- V. Wheeler, 100. Somerset v. Fogwell, 64. Somerville v. Donaldson, 375, 378. Sopp v. Winpenny, 445, 446. Soto V. Kroder, 109. Soule V. Barlow, 509, 518. Souter V. La Crosse R. R., 205, 206. South Ala. R Co. v. Henlein, 321. South Beach Land Ass'n v. Christy, 361, 366. Southmayd v. Henley, 495. Sowder v. McMillan, 290. Sower V. Weaver, 304. Spalding v. Chelmsford, 480. Sparkman v. Porter, 488. Sparrow v. Kingman, 55, 489. Sparry's Case, 30. Spear v. Cutter, 401. Spellman v. Curtenius, 600. Spence v. McGowan, 38, 331, 370, 372, 376, 390- Spencer v. Tobey, 191. Sperry v. Pond, 114. Spigener v. Cooner, 35. Spitts V. Wells. 148. Squires v. Clark, 172. Staats V. Ten Eyck, 445. Stackhouse v. Reynolds, 247. Stackpole v Healy, 58, 59. Stafford v. Clark, 322. Digitized by Microsoft® XXXVl References'\ TABLE OF CASES. \are to pages. Stagg V. Eureka Tanning Co., 219. Stamper V. Griffin, 551, 599,600, 601. Stancel v. Calvert, 1 1 5. Stancill v. Calvert, 431. Stansbury v. Taggart, 192. Stark V. Barrett, 187. V. Brown, 2U. V. Starr, 309, 457, 459, 467, 473, 475, 570. Starke v. Smith, 119. State v. Arledge, 96. V. Jackson, 290. V, Martin, 264. V. Meagher, 305. v. Stark, 96. V. Wilson, 72. Stearns V. Palmer, 119, 120, 121. Stebbins v. Miller, 62, 339. Stedman v. Gassett, 249. V. Mcintosh, 234, 239, V. Smith, 74, 172. Steeple v. Downing, 96. Steffens v. Earl, 235. Steinbach v. Relief Fire Ins. Co., 321, 322. Steinback v. Fitzpatrick, 269, 495. Steinruck's Appeal, 209. Stephens v. Leach, 517. V. Mattox, 259. V. West wood, 317. Stephens & C. T. Co. v. Central R. R. Co., 265. Stephenson v. Doe, 601. Stevens v. Brooks, 574, 575. V. Church, 376. V. Erie Railway, 86. V. Griffith, 298. V. Hauser; 301. V. HoUingsworth, 63. v. Hollister, 550. V. Hughes, 324, 326, 332, 333, 336. V. Ruggles, 188. Stewart v. Crosby, 208. V. Patrick. 131, 148. V. Speer, 317. Stiles V. Jackson, 148. Stitwell V. Williams, 392. Stockham v. Browning, 71. Stockwell V. Hunter, 132. V. Marks, 237. V. Phelps, 454. Stokes V. Morrow, 365. Stone V. GruDbam, 116. V. Sprague, 304. Storch V. Carr, 430. Storm V. Mann, 400. Story V. Saunders, 163. Stott V. Rutherford, 218, Stoughton's Appeal, 49,. 106. Stout V. Merrill, 221. Stovall V. Carmichael, 162, 188. Stover V. Cory, 178. Stowell V. Chamberlain, 30, 321, 322, 407. Stratton v. Lyons, 44. Strauss v. Meertief, 337. Stribling v. Prettyman, 1 54. Strickland v. Kirk, 193. Strike and Dikes, 18. Stringfellow v. Alderson, 310. Strode V. Swim, 361. Strong V. City of Brooklyn, 58, 60, 76, n- 127, 147. V. Garfield, 442. V. Hunt, 483. V. Waddell, 198. Strother v. Lucas, 21, 326. Stroud V. Springfield, 298, 302. Stuart V. Coalter, 277. Stubblefield v. Borders, 300, 596, 597, 598. Sturdevant v. Murrell, 37. Sturdy v. Jackaway, 20, 321, 330, 333, 387, 388. Sturgeon v. Douglas, 123. Stuyvesant v. Davis, 228. Styles V. Curtis, 56. < V. Gray, 297. Suffem V. Townsend, 191, 227. Sullivan v. Davis, 125. Sullivane v. Seagrave, 46, 280. Sumner v. Stevens, 568, 581. Supervisors v. Herrington, 223, 224. Sutlive V. Jones, 119. Sutton V. Aiken, 269. V. Mason, 210. Swan V. Stephens, 62, 298, 339. Swartzel v. Rogers, 376, 378. Swasey v. North Car R. R. 140, 143, 144. Swett V. Patrick, 186. Swettenham v. Leary, 558, 561, 577. Swift V. Dean, 222. Sydnor v. Palmer, 378. Sykes v. Hayes, 134. Sylvester v. Ralston, 426. Symonds v. Page, 451. Tacey v. Irwin, 141. Talbot V. Scott, 394, 400. Taliaferro v. Gay, 206. Tamm v. Kellogg, 564. Tanner v. Hicks, 193. Tapscott V. Cobbs, io8. Tarver v. Smith, 94, m, 187. Tate V. Southard, 569. Tatura V. McLellan, 449, 467, 468. Taylor v. Castle, 321. v. Crane, 127, 267. v. Gladwin, 43, 68, 69, 339. Digitized by Microsoft® References^ TABLE OF CASES. {are to pages. XXXVU Taylor v. Hill, 164, 167, 319. V. Horde, 43, 299, 325, 326, 350. V. Sutton, 369. Y. Taylor, 93, 276. V. Trask, 261. V. Whiting-, 276, 477. Taylors v. Huston, 264. Teabout v. Daniels, 184, 488, 569. Teal V. Terrell, 93, 276. Tegarden v. Carpenter, 296, 300. Ten Eyck v. Craig, 213. Terrell v. Allison, 361. Territory v. Lee, 123. Territt v. Cowenhoven, 218, Tessier v. Wyse, 147. Tevis V. Ellis, 361. V. Hicks, 360, 365. Tewksbury v. Magraff, 218, 220. Texas Land Co. v. Tieman, 224. V. Williams, 584, 590. Thacker v Henderson, 104. Thatcher v. Powell, 387. Thayer v. McLellan, 579. Thomas v. Babb, 560. V. Garvan, 81. V, Geiger, 374. V. Malcom, 479. V. Marshfield, 507, 548. V. Orrell, 298. V. Sanford S. S.Xo. 241. V. Thomas, 471. ,v. Wright, 239, 240. Thompson v. Bower, 419, 425. V. Burhans, 488, 491, 496, 512, 576, 577, 584, 585, 598. • V. Clark, 343, 414, 446. V. Green, 117. V. Maberly, 239. V. Mylne, 323. V. Pioche, 508, 518. V. Red, 311. V. Schuyler, 126. V. Sherrard, 392, 393. V. Thompson, 467, 468. V. Williams, 399. V. Wolf, 40, 271. Thomson v. O'SuUivan, 225. Thouvenin v. Lea, 480, Thrale v. Cornwall, 291. Thrall v. Omaha Hotel Co. 223. Thrash v. Johnson, 37. Throckmorton v. Burr, 185. Thropp V. Field, 232. Thrustout V. Troublesome, 406. Thunder v. Belcher, 204, 249. Thurman v, Anderson, 304. Thyn v. Thyn, 67. Tibeau v. Tibeau, 200, 307. Tilghman v. Little, 224. Tillmes v. Marsh, 55, 62, 82, 83, 339. Tillotson V. Doe, 245. Tilton V. Cofield, 152. Timmins v. Rowlinson, 252. Tisdale V. Tisdale, 178, 179. Tison V. Yawn, 222. Titsworth v. Stout, 178. Todd V. Davis, 207. Toles V. Gardner, 321. Tompkins v. Snow, 218, 219. V, White. 413. V. WiUiams, 193, Tonnele v. Hall, 99. Tormey v. Pierce, 276. Torriano v. Young, 227. Torry V. Black, 104. Touchard v. Crow, 187. Towle V, Dewitt, 375. V. Remsen, 113. Towne v. Butterfield, 219. V. Campbell, 235. Townsendv. Davis, 218, 219. V. Shipp, 462, 466, 467, Townsend and Pastor's Case, 173. Tracy V, Kelley, 297. V. Norwich & W. R. R. Co. S3- Trammellv. Simmons, 199. Traphagen v. Traphagen, 200, 304. Trapnall V. Hill, 163. Treaster v. Fleisher, 198. Treat v. McMahon, 4. Treftz V. Pitts, 337. Trego V. Lewis, 285. Tremain v. Sands, 70. Tribble v. Anderson, 223. Trimm v. Marsh, 205, 206. Tripp V. Ide, 204. Trisconyv. Orr, 265. Tritt V. Roberts, 586. Troost V. Davis, 466. Trotter v. Cassaday, 524. V. Simpson, 75. Trubee v. Miller, 420, 421, 430, 432, 452. Truehart v. McMichael, 187. Truitt V. Truitt, 374, 378. Trull V. Granger, 116. V. Skinner, 213. Truss V. Old, 103. Trustees, &c. v. Kirk, 531. V. Meetze, 243. M. E. Church v. Council of Hoboken, 158, 159. M. E. Church v. Stewart, 120. of North Greig v. Johnson, 171. of Union College v. Wheeler, 205. Tryon v. Carlin, 317. v. Munson, 209, 211. Tucker v. Vance, 93, 117, 276. v. Whitehead, 221. TuUpch V. Worrall, 171. Digitized by Microsoft® XXXViii References\ TABLE OF CASES. \are to pages. Turberville v. Long, 313. Turner v. Davis, 258. V. Ferguson, 273. V. Hall. 511, 512, 513, 516, 517, 520. V. Reynolds, 47. V. Thomas, 221. Tumey v. Chamberlain, 584. Turpin v. Brannon, 568. V. Saunders, 222, 518. Turrell v. Warren, 206. Tuttle V. Reynolds, 245. Twyman v. Hawley, 194, 247, 248. Tyler V. Canaday, 311. V. Heidorn, 230. Ufford V. Wells, 273. Uhrick v. Beck, 108. Ulsh V. Strode, 298. Underbill V. S. & W. R. R. Co. 113, 114. Underwood v. Sims, 35. Union College v. Wheeler, 205. Union Petroleum Co. v. Bliven Petrole- um Co. 49, 71. Union R. R. & T. Co. v. Traube, 322. United States v. Athens Armory, 206. V. Bostwick, 226. V. Clarke, 136. V. Eckford, 136. V. Gear, 401. V. Hart, 144. V. Kirby, 144. V. Lowry, 355. V. Parrott, 401. V. Slaymaker, 352. Updegraff V. Trask, 108. Utterson v. Vernon, 420. Valentine v. Mahoney, 344. Valle V. Fleming, 471. Van Alen v. Rogers, 430, 436. Van Alstine v. McCarty, 87, 426. Van Alstyne v. Spraker, 270. Vanatta v. Brewer, 76, 218. Van Bibber v. Frazier, 167. Vance v. Olinger, 407. Vanderslice v. Knapp, 402. Vanderwerker v. People, 290. Van Deusen v. Sweet, 83, 411. Vandevoort v. Gould, 278, 422, 423, 437, 441,445- Van Dyck v. Van Beuren, 174, 175. Van Fossen v. Pearson, 315. Van Home v. Fonda, 178, 179. Van Pelt v. McGraw, 402. Van Rensselaer v. Ball, 76, 230. V. Barringer, 109. V. Hayes, no, in. V. Hays, 231, Van Rensselaer v. Jewett, 76, 218, 230, 232. V. Shngerland, 231. V. Witbeck, 354. Van Schuyver V. Mulford, 81. Van Valkenbergh v. Den, 248. Van Voorhis v. Budd, 264. Van Winkle v. Hinckle, 243. Vaughan v. Bacon, 161. Vause V Woods, 392, 394. Venable v. Beauchamp, 178. Venner V. Underwood, 311. Vermilya v. Beatty, 290. Vermont & Mass. R.R. Co. v.Orcutt,288. Vemam v. Smith, 218. Verplanck v. Wright, 227. Verplank v. Caines, 392. Very v. Watkins, 205. Vice V. Thomas, 47. Viele V. Troy & B. R. R. 200. Villa V. Rodriguez, 209. Vincent v. Corbin, 243. Von Schrader v. Taylor, 148. Voorhies v. Voorhies, 103, 277. Vrooman v. Jackson, 40, 73, 89, 339. Waddy v. Newton, 63. Wade V. Baker, 103. V. Doyle, 298, 301. Wager v. Schuyler, 445. V. Troy Union R. R. Co. 57, 412. Waggener v. Lyles, 198. Wake V. Tinkler, 120. Wakeman v. Banks, 204. Walbrunn v. Ballen, 564. Walcop V. McKinney, 249. Walden v. Bodley, 218 V. Craig; 24, 263. V. Gratz, 500. Wales V. Coffin, 467, 472. Walker V. Armour, 371. V. Cox, 378. V. Emerson, 193. V. Hitchcock, 442. V. Humbert, 435, 464, 483. V. Mitchell, 423. V- Quigg, 468. V. Sharpe, 255. V. Zorn, 394. Wallace v. Harris, 81. Wallen v. Huff, 152, 358, 362, 364. Walls V. Smith, 569, 579. Wain V. Shearman, 150. Walrath v. Redfield, 444. Walter V. Lockwood. 268, 271. Walton V. Jordan, 454. Ward V. Drouthett, 374. V. Herrin, 523. V. Mcintosh, 489. Digitized by Microsoft® References^ TABLE OF CASES. \jire to pages. XXxix Ward V. Parks, 129, 266, 494. V. Petifer, 66. V. Swift, 123. V. Warren, 162. Warden's Case, 281. Warden v. Eichbaum, 107. Ware v. Jackson, 193. V. Percival, 322. Warfield v. Lindell, 164, 166, 168, 169, 174. Waring v. Crow, 50. Warner V. Bennett, 114. Warren v. Kelly, 292. V. Tobey, 112. V. Wakeley, 281. V. Webb, 287, 288. Warwick v. Mayo, 57. Washabaugh v Entriken, 523. Washburn v. Cutter, 515, 552, 571, 574, 579, 598. V. Great Western Ins. Co. 322. Washington v. Conrad, 223, 226. Washington Bank v. Brown, 298. Waterhouse v. Martin, 591. Waterman v. Smith, 341. Waters v. Butler, 234. V. Stewart, 205. Wathen v. English, 185. Watkins v. Brunt, 274. V. Holman, 197. Watson V. Brainard, 426. V Fletcher, 231. V. Tmdal, 587. Watts V. Kinney, 287, 289, 346. Wattson V. Dowling, 358. Weakly v. Bucknell, 23. Weaver V. Crenshaw, 55. V. Wible, 177, 366. Webb V. Buckelew, 323. V. Goddard, 288, 291. V. Richardson, 524. Weber V. Anderson, 537, 555, 567. Webster v. Bond, 304 306, 307. V. Mann, 193. V. Stewart, 485. V. Webster, 108. Weed V. Root, 79. Weems v. Mackall, lor, 102. Weichselbaum v. Curlett, 224. Weide v. Gehl, 209. Weisbrod v. C. & N. R. R. Co. 60. Welborn v. Anderson, 571, 574, 584, 589, 598. Welch V. Winterburn, 402. Wells V. Atkinson, 132. V. Iron Co. 575, 578, 584, 599. V. Mason. 224. V. Rice, 209, 211. Wendell v. Moulton, 479, 486. Wendell v. People, 97. Wentworth v. Barnum, 406. Wernke v. Hazen, 486. West Covington v. Freking, 159, Western R. R. Co. v. Nolan, 120. Wetherbee v. Green, 210. Wetmore v. Tracy, 93. Wheeler v. Spinola, 496, 523. V. Toulson, 65. Wheelock v. Warschauer, 224, 266. Wheelwright v. Freeman, 1 50. Whissenhunt v. Jones, 219, 246, 437, 445. Whitaker v. Bramson, 323. V. McCIung, 377. White V. Clack, 451. V. Coatsworth, 321. V. Den d. Woodruff, 313. V. Hapeman, 317. V. Kyle, 326. V. Pickering, 133, 185, 277. V. Poorman, 369.» V. Reid, 523. V. Rittenmyer, 209. V. Sabariego, 122. V. St. Guirons, 36. V. Tucker, 445. V. White, 45. V. Wilson, 376. Whitehall Tr Co. v. N. J. S. B. Co. 444. Whiteside v. Jackson, 198. V. Singleton, 599. Whiting V. Taylor, 544. Whitledge v. Wait, 442, 474. Whitney v. Buckman,' 397. V. Gotten, 119. V. Marshall, 150. V Nelson, 345. V. Richardson, 467, 470. v. Wright, 489, 490. Whittington v. Wright, 550. Wicks V. Smith, 297, 300, 309. Wigg V. Wigg, 218. Wiggins V. Holley, 552. Wilbeck v. Van Rensselaer, 19. Wilcox v. Jackson, 138, 140. V. Oakland, 87. V. Wilcox, 119, 435. Wilie V. Brooks, 467, 476, 479. Wilkins v. French, 204. Wilkinson v. Col!ey 253. V. Flowers, 546. V. Pearson, 478. Wilklow V. Lane, 68, 70, 76. Williams v. Barnett, 303. V Cash 244, 543. V. Deriar, 239. V. Garrison, 221, V. Hartshorn, 37. V. Kenney, 59. V. McAliiey, 219. Digitized by Microsoft® xl References\ TABLE OF CASES. \are to pages. Williams v. McMichael, 221. V. Murphy, 200, 307. V. Rawlins, 95, 408. V. Robinson, 115. 'v. Sutton, 162, 187. V. Wallace, 514, 521, 523. Williamson V. Doe d. Crawford, 129. V. Fontain, 119. V. Paxton, 194, 248, 408. Willingham v. Long, 152, 432, 479. Willis V. Row, 122. Willison V. Watkins, 197, 243, 245, J 1 8. Willoughby v. Jenks, 59. Wills V. Dillinger, 374. Wilson V. Arentz, 117. V. Chandler, 189. V. CoUishaw, 174. V. Guthrie, 131. V. Hall, 365. V. Henry, 20. V. 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Wood, 115, 118, 234, 236, 464, 467,472,481. Woodhull V. Rosenthal, 41, 42, 55, 278, 366, 422, 431, 432, 437, 441, 455, 464, 466, 467, 468, 472, 473, 477. Woodruff V. Gamer, 443. V. Gamor, 297. Woods V. Banks, 491, 496. V. Hilderbrand, 211. V. Woods, 215. Woodward v. Blanchard, 568, 597, 598. V. Phillips, 474, 482. V. Rodgers, 201. Woolsey V. Morss, 174, 541. Worcester v. Lord, 560. Worrall V. Munn, 412,443, 457. Worrell v. Beck, 55. Worthington v. Etcheson, 236. Wray v. Chicago, &c. R. R. Co. 600, 601. Wright V. Carter, 58. V. Mattison, 568. V. Milbank, 369, 381, 384. V. Moore, 192, 194, 247. V. Sperry, 180. V. Thompson, 199. V. Wheatley, 23. Wyman v. Brown, 128, 266. V. Kilgore, 286. Wynne v. Lord Newborough, 123. Wythe V. Myers, 486. Yates V. Yates, 488, 490. York Co. Sav. Bank v. Roberts, 209. Young V. De Bruhl, 161, 163. V. Griffith, 162. V. Holmes, 109. V. Irwin, 192. V. Montgomery, 200, 307. V. Porter, 82, 83, 466. V. Rummell, 337. V. Smith, 237. V. Young, 413. Yount V. Howell, 464, 472. Zeigler v. Fisher, 296, 301. Zeller v. Eckert, 166, 169, 170, 540, 543. Zimmerman v. Eshbach, 420, 431. V. Marchland, 374. Zouch V. Parsons, loi. Digitized by Microsoft® TRIAL OF TITLE TO LAND. Digitized by Microsoft® Digitized by Microsoft® TRIAL OF TITLE TO LAND. CHAPTER I. HISTORY OF THE ACTION OF EJECTMENT. Notice to the tenant in possession. Inconvenience attending the formal- ities. Title, lease, entry, and ouster. Practice introduced by Chief Jus- tice RoUe. Consent rule, ,^ Fictions. Nonsuit. Judgment by default. Writ of habere facias possessimiem. Effect of the judgment. Judgment not conclusive. >■ Policy in America. Lord Coke's opposition to ejectment. Injunctions against further eject- ments. Strother v. Lucas. Method of regulating ejectment. Practice as to abatement. Confusion resulting from caprice of the judges. Introduction of equitable principles by Lord Mansfield. Lord Kenyon's influence. Liberal view of fictions by the courts. Rules governing personal actions re- tained. Legislative changes. Requisites of the complaint. General principles. Legal title must prevail. Judgment. Writ of possession. Damages. Mesne profits. Improvements. § I. Origin of the action. — The action of ejectment, the legal proceeding by which the title to land in most of the United States is now usually tried, was originally an action of trespass brought by a lessee or tenant for years to re- dress the injury inflicted upon him by ouster or amotion of 1 Digitized by Microsoft® I. Origin of the action. § 32. 2. Real writs. 33- 3- Practice in real actions. 4- Influence of the statute of forcible 34- entries. 35- 5- Strictness of pleading. 6. Abuses in practice under real writs. 36. 7. Advantages of personal actions. 37- 8. Abandonment of real writs. 38. 9- Influences leading to the change. 39- 10. Advantages of ejectment. 40. II. Influence of practice in trover and 41. assumpsit. 42. 12. EjecHone Firmce. 43- 13- Freehold estates. 44- 14- Imperfect remedies of tenant for 45- y^*''^- ... 46. 15- Quare ejecit tnfra termmum. i6. Provisions of the writ. 47- 17. Against whom the writ lay. 48. I8. Additional remedies of tenants for 49- years. 50. 19- Sketch of ejectione firmm. 20. Its requisites. 51. 21. Defined by Blackstone. 22. When it issued. 52. 23- Recovery in ejectione firmee. 53- 24. Term not recoverable in early prac- tice. 54- 25. Extension of recovery to the term. 55- 26 Adoption of ejectment and disuse of 56. real actions. 57- 27. Early practice in ejectment. 58. 28. A valid lease necessary. 59- 29. Actual ouster not requisite. 60. 30. Injustice of the rule. 61. 31- Abuses in early practice in eject- 62. ment. 63. 2 HISTORY OF THE ACTION OF EJECTMENT. possession. The lessee merely recovered damages for the loss of the term and of the possession, the measure of these being usually the mesne profits of the land from which he had been evicted. It was a purely personal action, in which neither lands nor tenements v/ere recoverable, as opposed to a real action, in which a freehold interest in land was recov- ered or possession awarded. § 2. Real wf'iis. — The common law furnished an endless number of real writs to determine the rights of property in, or possession of, a freehold estate. The highest technical skill and learning were requisite to comprehend and define the nature and purposes of these various writs, the distinc- tions between which were refined, abstruse, and often scarce- ly perceptible. In personal actions, however, there were never many writs at common law. This very scarcity made personal actions attractive in early times, the pleader being seldom at a loss to know which writ to choose ; while, in real actions, the most experienced practitioner, exercising the utmost care, frequently sued out a real writ of the wrong degree, class, or nature, thereby rendering the proceeding of no avail, and frequently imperiling the demandant's right to the proper writ or remedy. Not only were the distinctions between real writs very technical, and the selection of the proper writ a delicate task, but the proceedings under them were so inconveniently long, tedious, and costly, and the re- sources for delays so numerous, that the judgment, when obtained, was often a tardy and inadequate remedy. § 3. Practice in real actions. — In real actions the practice required the demandant to set forth upon the record, with the utmost exactness and precision of statement, his legal title.^ Great technical skill and ingenuity were requisite to select, frame, and adopt the count to the nature and circum- stances of each particular case. A variance of scarcely a hair-breadth between the writ and the count (or pleading), " Hodsden v. Staples, 2 T. R. 684, per Lord Kenyon. See Steams on Real Actions, p. 149; Reeves' Hist. Eng. Law (ed. l88o), vol. 4, p. 241. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMI:NT. 3 or between the count and the evidence, was frequently fatal to the demandant. Equal precision and nicety of statement were required to interpose a meritorious plea, or to defend or defeat the action ; v;^hile the power of amendment as un- derstood and permitted in modern times was wholly un- known, and even the limited power which the courts pos- sessed was exercised with reluctance. " At common law," says Baron Gilbert, '' there was very little room for amend- ments.''^ § 4. Influence of the statute of forcible entries. — The Statute of 8 Henry VI, ch. 9, rendering more effectual Stat. 15 Rich. II, ch. 2, furnished a writ of forcible entry to re- cover possession of land, which is one of the causes assigned by Sir Matthew Hale for the scarcity of real actions, or assizes, in the reports during the reigns of Edward IV, Rich- ard III, and Henry VII.* It is the general belief that the idea of giving ejectment the effect of a real action originated from the practice and 'procedure under this statute concern- ing forcible entries. Prior to the use of ejectment by tenants for years to recover unexpired terms, the technical learning as to the management of real actions began to be less known and understood, and was speedily becoming a lost art. § 5. Strictness of pleading. — The same distinguished wri- ter observes, concerning the pleadings at this period (1422 to 1509), that "the pleaders, yea, and the judges too, became somewhat too curious therein, so that that art or dexterity of pleading, which, in its use, nature, and design, was only to render the fact plain and intelligible, and to bring the mat- ter to judgment with a convenient certainty, began to de- generate from its primitive simplicity and the true use and end thereof, and to become a piece of nicety and curiosity." * ' Gilbert's Hist, and Prac. Common Plsas, p. 107. ° Hale's Common Law (ed. 1794), p. 301. ° Ibid, p. 301. Digitized by Microsoft® 4 HISTORY OF THE ACTION OF EJECTMENT. Much prolixity and repetition in pleading, and the miscar- riage of important causes resulted by reason of small mis- takes or trivial refinements, and subtleties in practice. The rules of pleading were so severe that the action abated if the same thing was twice demanded in the writ ; ^ or if by mis- take too many demandants had been joined ;^ or if the ten- ant pleaded non-tenure where the demandant claimed more land than the tenant was possessed of;* or if the demandant had by mistake declared on the seizin of his father instead of his grandfather.* Nor could the demandant abridge his de- mand.^ The substantial merits or justice of the cause were frequently overlooked or disregarded by the judges, and the action or defense wrecked by some frivolous variance or captious objection bearing no relation to the merits of the controversy. It was an era of critical precision in pleading and practice, substance being sacrificed to form. § 6. Abuses in practice under real writs. — Parliament did not interpose to reform these evils, or attempt to rid real actions of the intolerable abuses which sprang from them. The duty devolved upon the courts to correct, without legislative aid, the evils which they had themselves created and fostered. Real wrrits became not only a source of oppression and injustice to suitors, but of scandal and reproach to the system of remedial law, of which they formed a part. By vouching over, demanding view,* and praying aid, a skilful practitioner could prevent the joinder of issue, term after term, for years, and the trial of the action was frequently delayed until one of the parties died, whereupon the whole proceeding abated, and a new writ became nec- essary. ' Stearns on Real Actions (2d ed.), pp. 86-134; Booth on Real Actions (Am. ed. 1808), p. 2. = See Treat v. McMahon, 2 Greenl. (Me.) 120. » See Steams on Real Actions (2d ed.), p. 181 [208]. Mbid, p. 186 [215]. ' Com. D. title Abridgment A, 2. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 5 § 7. Advantages of personal actions. — We can, there- fore, easily imagine with what eagerness both court and counsel availed themselves of the loophole which was at length discovered, by means of which the questions, ordina- rily raised in a real action, could be brought up and decided in a personal action, and, at least so far as possession was concerned, the results of a real action attained in a simple action of trespass. § 8. Abandonment of real writs. — It is impossible to trace with precision, at this late day, the immediate circum- stances which led to the sudden abandonment of real writs. The reasons assigned by the early writers are fragmentary and imperfect. Mr. Sergeant Adams, who wrote early in the century, says,' that " neither the causes which led to this important change, nor the principles upon which it was founded, are recorded in any of the legal authorities of those times." The history of procedure nowhere presents a more curi- ous fact, than that the owners of the soil should have sud- denly relinquished a system of remedies which had been matured by the experience of centuries, and have consented to try titles, to the freehold, in a personal action originally devised to protect the precarious estates of the inferior tenantry. § 9. Influences leading to the change. — The controlling influence undoubtedly was, as we have said, that the forms and pleadings in real actions were minutely varied, accord- ing to the source and quality of the demandant's title, or the nature of the alleged disseizin, deforcement, or injury. But this very fact had been the boast of the early writers. ' Adams on Ejectment (4th Am. ed. 1854, by Waterman), p. 10, *9. We have, in writing this treatise, made frequent use of Mr. Adams' excellent work on Ejectment. This book is the highest authority as to the early practice and pro- cedure in the remarkable action of which it treats, but it has been superseded by the radical changes effected in our system of remedial law by modern legislation, more especially by the abolition of the fictions. Digitized by Microsoft® 6 HISTORY OF THE ACTION OF EJECTMENT. who maintained that the assortment of real writs was so va- ried and complete that a demandant could suffer no injury and sustain no wrong, which there was not a real writ ex- actly suited to redress. Blackstone says that the provision, Westm. 2, 13 Edw. I, c. 24, for framing new writs, when wanted, was almost rendered needless by the very great per- fection of the ancient forms. " And, indeed," he continues, " I know not whether it is a greater credit to our laws to have such a provision contained in them, or not to have oc- casion, or at least very rarely, to use it."^ There is no doubt, however, that this supposed merit came, in process of time, to be a crying evil. § ID. Advantages of ejectment. — In ejectment the form of the action was always the same, without regard to the source or nature of the lessor's title, or the character of the disseizin, deforcement, or ouster. This dispensed with the delicate task of selecting a writ exactly suited to the nature of each particular case, and the necessity of tracing or disclosing the demandant's title, or specifying the character of the ouster. To fully understand the historical causes which led to the substitution of eject- ment for real actions, it must be regarded as part of the general struggle for supremacy going on at about the same period between exact and general forms of procedure, spe- cific and general pleading. § II. Influence of practice in trover and assumpsit.— In the personal actions of trover and assumpsit, both of which assumed their modem form about the time that eject- ments came into common use, a system of general pleading prevailed. This fact undoubtedly had an important influ- ence in forming and popularizing ejectments. Suitors quickly discovered the advantages to a complainant of a remedy which enabled him to prove any title that he could produce at the trial, without the dangers incident to a vari- ' 3 Bla Com p. 184. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 7 ance, and which deprived the defendant of the right to vouch over, demand view, or pray aid. § 12. Ejectione firmce. — The writ of ejectione firmce (probably modeled after ejectione custodies'), out of which the modern action of ejectment has gradually grown into its present form, is not of any great antiquity.^ In this ac- tion every fiction by which questions of title to land could be raised and decided, was encouraged and adopted. The Court of Common Pleas had exclusive jurisdiction of real actions, while ejectment could be brought in all three of the great common law courts. This fact contributed in no slight degree to the great favor with which the fictions in ejectment were received and encouraged by the judges of the King's Bench, for that court thereby acquired juris- diction over real property concurrently with the Common Pleas. The practitioners in the King's Bench also encour- aged ejectment, for it enabled them to share in the lucrative practice of the Common Pleas. § 13. Freehold estates. — In feudal times a freehold estate was the only acknowledged title to land. Estates for years were unknown. A demise of the possession of land for a term of years was not considered as conveying to the grantee any title to the land, but was construed merely as a covenant, contract,^ or agreement between the lord and the tenant. The termor was considered as a bailiff to the freeholder or reversioner, or mere pernor of the profits,^ and his term was regarded merely as a chattel. § 14. Imperfect remedies of tenant for years. — The ten- ant was not made a party to controversies over the title to the freehold, and if a recovery was had against his lord, whether bona fide or covinous, the freehold was discharged ■ See § 19. " See Bates 9. Sparrell, 10 Mass. 323; 2 Bla. Com. p. 140. ° See Dorsey on Ejectment, p. 9. » Digitized by Microsoft® 8 HISTORY OF THE ACTION OF EJECTMENT. of the term.^ The lessee was remediless ^ until the statute of 2 1 Henry VIII, c. 15, allowed him to falsify fraudulent recoveries.^ If the tenant was evicted by his lessor, he had a writ of covenant against him by which, under the old prac- tice, he recovered the term as well as damages;* but, if ousted of his possession by a stranger, he was, prior to the time of Henry III, without remedy. He had, indeed, his writ of covenant against his lessor, but Ijis only recovery was damages. He did not regain the term or possession.® Such a remedy was obviously inadequate, and the lessee fre- quently recovered nothing on his judgment. § 15. Quare ejecit infra terminum. — During the reign of Henry III, however, a writ was introduced by Walter de Merton, or William Moreton,^ chancellor of that king, which furnished the lessee, or termor, a remedy against any one who, claiming from his lessor, evicted him. By this writ, which was called " Quare ejecit infra terminum" the plaintiff recovered damages for the loss of so much of the term as the defendant had wrongfully withheld, and the sheriff put the lessee in possession for the unexpired portion of the term. § 16. Provisions of the writ. — This writ required the defendant to show wherefore he deforced the plaintiff of certain premises which C. had demised to plaintiff for a term not yet expired, within which term the said C. sold the lands to the defendant, by reason of which sale the defend- ant had ejected the plaintiff The writ was drawn either as 2i prcecipe or a si te fecerit securum. When first introduced the former was considered ' See Stearns on Real Actions (2d ed.), p. 116; Dorsey on Ejectment, p. 9. = Steams on Real Actions, p. ii6.i ' Reeves' Eng. Law (ed. 1880), vol. 4, p. 349. * 3 Bla. Com. p. 200. ' Ibid. p. 200; Reg. Brev. p. 227. " Reg. Brev. p. 227. " Provision was made," says Bracton, ■' de consilio curia" (Bracton, f. 220). ' Reg. Brev. p. 227 ; F. N. B. p. 197. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 9 the better form/ but in the time of Edward III the latter was universally adopted.* § 1 7. Against whom the writ lay. — It is to be noted that the writ ran, " by reason of which sale the defendant, etc." According to the authorities, it was -a very essential part of the lessee's case that he should show that the de- fendant claimed under the lessor, for the writ would not lie against a stranger who ejected the lessee, and who, in so do- ing, did not rely upon any privity of title or estate with the lessor.^ Mr. Reeves * quotes Bracton as authority for the state- ment that the writ lay against any person who ejected the lessee, but a careful examination of Bracton's language has shown that he did not consider it so large a remedy.^ The ancient authorities seem to be overwhelming in support of the view that the lessee must show that the defendant claimed under the lessor. ^ Furthermore, if qu^re ejecit would run against a stran- ger, it is difficult to imagine any reason for the introduction ' Bracton, f. 220; Reeves' Hist. Eng. Law (Am. ed. 1880), vol. 2, p. 137. ° Reeves' Hist. Eng. Law (ed. 1880), vol. 3, p. 232. = 18 Edw. n, f. 599. * Reeves' Hist. Eng. Law (ed. 1880), vol. 2, p. 136; Bracton, f. 220. ' See Adams on Ej. (4th ed. 1854), p. 7, *4, where Mr. Reeves' interpretation of Bracton is shown to be erroneous. • See Stat. Abr. Title " Quare Ejecit." " In quare ejecit plaintiff shall recover his term, and damages by him sustained by reason of the sale." Reg. Brev. p. 227 : " Sciendum est quod breve (sc. Quare Ejecit), * * * habet fieri quando, A dimisit B, decem ^cras terras ad terminum decem annorum, & ide A, durante termino illo vendit eandem terram C, in feodo, occasione cujus vendi- tionis durante adhuc termino praedicto, idem C, ipsum B, de prsedicta terra ejecit. * * * Fuit hoc breve inventum^ per discretum virum Wilhelmum de Merton ut terminarius recuperet catalla sua versus feofFatum." See, also, 18 Edw. II, f. 599; Hil. Term, 46 Edw. Ill, f. 4, pi. 12; Gilbert on Ejectment (2d ed.), p 123 ; also, Roscoe on Actions Relating to Real Property, p. [98] : " Quare ejecit. &c., only lies where the ejector claims title under the lessor, and not against a mere stranger, for, in the latter case, the remedy was by ejectionejirma.^'' F. N. B. II, p. 197; i9Henry VI, pp.56, 19; 21 Edw. IV, pp. 10, 30, per Choke, J.: "Quare ejecit, &c., lieth where one is in by title, ejectione JirmtE where one is in by wrong." See Reeves' Hist. Eng. Law (1880), vol. 3, p. 232, note (a). Digitized by Microsoft® lO HISTORY OF THE ACTION OF EJECTMENT. of the writ of ejectione firmce more than half a century after quare ejecit was devised. § 1 8. Additional remedies of tenants for years. — The title of a lessee or tenant for years was not, as yet, of suffici- ent importance to receive any consideration from the courts in actions affecting real property, nor was the lessee allowed to make his precarious estate the basis on which to raise or discuss questions of title to land with a stranger. That duty devolved upon the freeholder or lord, and the lessee's re- dress, as against a stranger, was to induce the lord to insti- tute a real action to regain the freehold. If the lord or freeholder neglected to institute the action, or, as frequently occurred, was. in collusion with the stranger, the unfortunate tenant for years next applied to a court of equity, to compel a specific performance of the lease or contract by the lessor,^ and as against strangers for a perpetual injunction to quiet the possession. § 19. Sketch of ejectione firmce. — During the reign of Edward II, or the early part of the reign of Edward III, a neviT writ made its appearance, which gave the termor or ten- ant for years a remedy against strangers, who, not claiming under the lessor, entered and evicted the lessee. This new remedy was in its nature a writ of trespass. The first men- tion of it, in the reports, refers to it simply as a writ of tres- pass.^ Later it acquired the name of ejectione firmce. The purpose of the writ was to give the plaintiff" damages, for the injuries inflicted upon him, in being evicted from his possession by the defendant. § 20. Its requisites— The writ required the defendant to show wherefore, with force and arms, he entered upon cer- tain lands which C. has demised to plaintiff" for a term not ^ ♦ ' Gilbert on Ejectment, p. 2; Steams on Real Actions (2d ed.), p. 56 [54]; Runninglon on Ejectments, p. 5. ' •■ A certain Adam brings writ of trespass against R. of S., and K. of D., for that with force and arms he ejected him from a manor which he holds for a term under the lease of one B." 44 Edw. Ill, f. 22, pi. 26. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. II yet expired, and ejected the said plaintiff from his farm. There was usually a clause, charging that the defendant had carried off the plaintiflTs goods and chattels, and often a clause declaring that he had occupied the premises for a long time.^ The process, as upon all writs of trespass, was by attachment, distress, and outlawry. § 21. Defijted by Blackstone. — Blackstone says, that, " For this injury (z. e., ouster or amotion of possession from an estate for years) the law has provided him [the lessee] with two remedies, according to the circumstances and situ- ation of the wrong-doer : the writ of ejectione firmce, which lies against any one — the lessor, reversioner, remainderman, or any stranger, who is himself the wrong-doer and has com- mitted the wrong complained of; and the writ of qiiare ejecit infra terminum, which lies not against the wrong- doer or ejector himself, but his feoffee or other person claiming under him."- This distinction is not warranted by the authorities, and the commentator's position is not sustained by the form of the writ qtiare ejecit infra ter^iii- num, which alleges an ejectment by the defendant. The en- try and wrongful act of the defendant created the cause of action against him, not any act of his lessor. It would be extraordinary if an alienee of a wrong-doer w*as liable in damages for the torts committed by his alienor. Damages always constituted a part of the recovery, and when the term had expired the only recovery in quare ejecit} § 2 2. When it issued. — The writ of ejectione firmcs issued in all cases, except that where the ejector claimed under the lessor, resort was usually had to the older writ of q%are ejecit infra terminum. Even the grantor was liable to be ' Reg. Brev. f. 227, 228. ' 3 Bla. Com. p. 199. ' Mr. Reeves falls into the same error. " The second (sc. quare ejecit infra terminum) lay only against the alienee of the ejector.'' Reeves' Hist. Eng. Law (1880), vol. 4, p. 237. See Bel. p. 159. Digitized by Microsoft® 12 HISTORY OF THE ACTION OF EJECTMENT. sued on this writ, notwithstanding the old doctrine that a man could not enter, vi et armis, into his own freehold.^ § 23. Recovery in ejectione firtncs. — In the action of ejectione firmce, the plaintiff at first only recovered damages, as in any other action of trespass. The remedy of damages was, however, often inadequate. The courts, consequently, following, it is said, in the footsteps of the courts of equity,^ and probably, by analogy with the form of recovery in quare ejecit, introduced into this action a species of relief not warranted by the original writ nor included in the prayer of the declaration, which sounded for damages only, and was silent as to any restitution — viz., a judgment to re- cover the term, and a writ of possession thereupon. Pos- sibly the change was inspired by jealousy of the chancery courts." § 24. Tenn not recoverable in early practice. — It cannot be stated precisely when this change took place. In 1383 it was conceded, by the full court, that in ejectione firmce the plaintiff could no more recover his term than in trespass he could recover damages for a trespass to be done.* § 25. Extension of recovery to the term. — ^The decision shows that the point was then debated. The same doctrine was held in 1455 by one of the judges.* But in 1468 it was agreed by opposing counsel that the term could be recov- ered, as well as damages.^ The earliest reported decision to ' Reeves' Hist. Eng. Law (ed. 1880), vol. 3, p. 233. ' Reeves* Hist. Eng-. Law (ed. 1880), vol. 4, pp. 237, 238; 3 Bla. Com. p. 200. The nature of this equitable jurisdiction cannot be clearly defined. The authorities usually cited are Lill. Prac. Reg. p. 496, quoting 27 Henry VIII, p. 15 ; Litt. Rep. p. 166 ; 3 Bulst. p. 34 (Court of Marches), where it was held that the chancellor and the Counsell del Marches could quiet possessions, but had not the power to deter- mine the title. The same equitable jurisdiction is exercised in some of the courts of the United States. ' See Dorsey on Ejectment, p. 10. ■* Bel. p. 159 ' Mich. 33, Henry VI, f. 42, pi. 19. » 7 Edw. IV, f. 5-10 ; Brooke's Abr. Title, " Quare Ejecit,- part 2, f. 171. See also, 21 Edw. IV, f. II ; Jenkins' Centuries Case, pp. 26, *67. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 13 this effect was in 1499/ and is referred to by Mr. Reeves as the most important adjudication rendered during the reign of Henry VII,^ for it changed the whole system of remedies for the trial of controverted titles to land, and the recovery of real property. § 26. Adoption of ejechnent and disuse of real actions. — The result was not foreseen at once, but in the next reign the action of ejectment came to be commonly applied to the trial of titles. Real actions disappeared save in a few cases where ejectments would not lie, and in the reign of Elizabeth were practically supplanted by the action of eject- ment.* Real writs gradually sank into disrepute, and at length were chiefly resorted to by speculators and unprin- cipled practitioners of the law to defraud persons of low condition of their substance under pretense of recovering for them large estates to which they had no color of title.* § 27. Early practice in ejectme^it. — Blackstone describes the practice under this new writ as follows :^ "The better to apprehend the contrivance whereby this end is effected, we must recollect that the remedy by ejectment is, in its original, an action brought by one who hath a lease for years, to repair the injury done him by dispossession. * * * When * * * a person who hath a right of entry into lands determines to acquire that possession which is wrongfully withheld by the present tenant, he makes (as by law he may) a formal entry on the premises ; and being so in the pos- ' 14 Henry VII ; Rast. Ent. f. 252. " Reeves' Hist. Eng. Law (ed. 1880), vol. 4, p. 235. ' Alden's Case, 5 Rep. 105 (1601). Plea to a writ of ejections firmcBv^a& an- cient demesne. It was answered and resolved that the plea was good, because the common intendment is, that the title and rights of the land will come in de- bate. •' And forasmuch as at this day all titles of land are for the greatest part tried in actions of ejectment, if in them ancient demesne should not be a good plea, the ancient privileges * * * would be utterly taken away and defeated." See Doe d. Poole v. Errington, I Ad. & El. 750; especially the learned note at page 756. * Report of the English Real Property Commissioners, p. 42. ° 3 Bla. Com. p. 201. Digitized by Microsoft® 14 HISTORY OF THE ACTION OF EJECTMENT. session of the soil, he there, upon the land, seals and delivers a lease for years to some third person or lessee ; and, having thus given him entry, leaves him in possession of the prem- ises. This lessee is to stay upon the land till the prior ten- ant, or he who had the previous possession, enters thereon afresh and ousts him ; or till some other person (either by accident or by agreement beforehand) comes upon the land and turns him out, or ejects him. For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to re- cover back his term and damages." % 2%. A valid lease necessajy. — The plaintiff was required to show that he was on the land rightfully, and that his lessor had executed a valid lease. The title of the lessor, therefore, became an essential part of the plaintiff's case. An actual and formal entry by the lessor was necessary, for, by the old law, one conveying an interest in land, when out of possession, was guilty of maintenance, a penal offense. In- deed, it was doubted at first whether this occasional posses- sion, taken merely for the purpose of conveying the title, excused the lessor from the legal guilt of maintenance.^ § 29. Actual ouster not requisite. — An actual ouster, by the tenant in possession, was not requisite, for, if, after the lessee's entry under the lease, the tenant remained on the land, he was deemed, without any other act, to have ousted the lessee.^ § 30. Injustice of the rule. — It is matter of deep regret that the courts did not require proof that the ouster had been committed by the tenant in possession of the prem- ises, for he was, of course the person most interested in op- posing a change of possession. It was held in 1608, that the servant of the tenant in possession was a sufficient ' 3 Bla. Com. p. 201 ; i Chanc. Rep. App. p. 39 [*76] ; see Stat. 32 Henry VIII. c 9. s. 2. " Lill Prac. Reg. p. 674. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 1 5 ejector/ but the line was not drawn even here. Any one who came on the land, by chance, after the sealing and de- livery of the lease, with no intention of disturbing the pos- session of the lessee, was considered a sufficient ejector to be made defendant.^ § 31. Abuses in early practice in ejectment. — The action as thus regulated was liable to great abuse, for the tenant could be turned out of possession without any notice of the suit, or opportunity of asserting or defending his title, on a judgment rendered by default against an ejector with whom he had no interests in common. The ejector was, in many instances, not affected by the judgment, and being, as a rule, friendly to the plaintiff, he frequently suppressed or concealed from the party in possession all knowledge of the suit. § 32. Notice to the tenant in possession. — The abuses re- sulting from these " clandestine ejectments" led to the es- tablishment of a rule that no plaintiff should proceed in ejectment to recover the land against a casual ejector, un- less notice of the suit was first given to the tenant in pos- session, if any there were.^ The courts refused to sign judg- ment against the casual ejector, unless proof of such notice was produced.* The tenant in possession was uniformly admitted to defend, upon his undertaking to indemnify the defendant, against the cost of the suit. § 2,2)- Inconvenience attending the formalities. — Much trouble and inconvenience, however, attended the observ- ance of the different formalities. If several persons were in possession of the disputed lands, it was necessary to execute separate leases upon the premises of the different tenants, and to commence a separate action upon each lease.® ■ Wilson t>. Woddel, i Brownl. 143 ; Yelv. p. 144. ^ Lill. Prac. Reg. p. 673. ° 3 Bla. Com. p. 202. ' Rules B. R. Trin. 14 Car. II; Cooke's Rules and Orders. ' Adams on Ejectment (4th ed.), p. [*I4] 17. Digitized by Microsoft® 1 6 HISTORY OF THE ACTION OF EJECTMENT. § 34. Title, lease, entry, and ouster. — The plaintiff was obliged to establish four points to maintain the action, if a defense was interposed, viz., title, lease, entry,^ and ouster. First, he was compelled to show a good title in his lessor. Secondly, that his lessor, having such title, made a lease to him for a term not yet expired. Thirdly, that the plaintiff took possession under the lease. Fourthly, t\\-dX the defend- ant ejected him. § 35. Practice introduced by Chief jfustice Rolle. — To put the question of title to land solely in issue, and to eliminate all other controversies which might arise under this practice, a new feature was engrafted upon the action by Lord Chief Justice Rolle, who presided in the court of the Upper Bench in the time of the Protectorate. We have seen that permission was granted by the court to the tenant in possession to defend the ejectment suit only as a matter of favor. The courts could, therefore, couple with the granting of this favor any equitable conditions that seemed proper. § 36. Consent rule. — Accordingly the practice invented by the Chief Justice, and afterwards generally adopted by the courts, was to require the tenant, as a condition of making him a party, to enter into a rule, called the consent rule, by which he agreed to confess, at the trial, the lease, entry, and ouster, and to insist and rely solely upon his title. A further condition was imposed, that if the defendant broke this engagement at the trial, he should pay the costs of the suit and allow judgment to be entered against the casual ejector. It is the general belief that this novel prac- tice was introduced about the year 1656, but we find it re- ferred to in a case in Styles' Reports,*' decided in 1652 in ' An actual entry was necessary to avoid a fine. Lord Audley v. Pollard, Cro. Eliz 561 ; see 4 H. VII, c. 24. = Styles' Reports, p. 368. The practice is mentioned in the Court Rules in 1662 ; Cooke's Rules and Orders, B. R. Trin. 14 Car. II, and was continued un- der Charles 11 ; see Davies' Case, i Keb. 28, P. 13, Car. if. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. Ij C. B., and as the practice was first established in the Upper Bench, the proper date must be somewhat earlier. § 37. Fictions. — The introduction of imaginary or ficti- tious persons as parties followed/ and was finally adopted as the universal practice, though reprobated by Blackstone,^ chiefly because the defendant could not collect his costs from an imaginary person. This objection was overcome by framing the consent rule so that in the event of judg- ment for defendant the plaintiff's lessor should pay the costs. The practice was briefly as follows : A., the claimant of the title, delivered to B., the tenant in possession, a dec- laration in ejectment, in which John Doe (or Goodtitle) and Richard Roe (or Badtitle) were respectively plaintiff and defendant. John Doe declared on a fictitious lease or demise of the lands from A. to himself for a term of years, and alleged that during the continuance of the term he was ousted from possession by Richard Roe. The title of the action then stood John Doe in the demise of A. against Richard Roe. To the declaration was annexed a notice signed by Richard Roe and directed to B., informing him as " a loving friend " that he (Roe) had been sued as a cas- ual ejector, and advising B. to appear and cause himself to be made a defendant in his stead, otherwise he, Richard Roe, would suffer judgment to be entered by default, and B. would be turned out of possession.^ As under the former practice, proof of service of the declaration and notice on B. was an essential prerequisite to the entry of judgment against the casual ejector. If there was no tenant in possession judgment could not be entered. Consequently in cases of vacant possession the old prac- tice was followed, under which notice was required only ' See Cooke's Rules and Orders, B. R. Mich. 1654. We find a rule forbidding any attoi'ney from acting as lessee in an ejectment, which shows that the lessee was not then an imaginary person. " 3 l;la. Com. p. 203. The parties were imaginary in many cases in 1678 ; see Addisori V. Sir John Otway, i Mod. 250-252. ' See* Archbold's Practical Forms (N. Y. 1828), p. 363. Digitized by Microsoft® 1 8 HISTORY OF THE ACTION OF EJECTMENT. in cases where there was a tenant. The plaintiff, on re- sorting to the old practice, was of course compelled to prove an actual lease, entry, and ouster. § 38. Nonsuit. — If B. failed to appear, judgment was entered by default against the casual ejector. But, on ap- pearing and entering into the consent rule, B. was substi- tuted as defendant in place of the casual ejector, and could plead the general issue. If B. failed to appear on the trial and confess lease, entry, and ouster, the plaintiff was neces- sarily nonsuited, because the fictitious lease, entry, and ous- ter were not susceptible of proof. § 39. Judgment by default. — By indorsing this cause of nonsuit on the postea the plaintiff was entitled to judg- ment against the casual ejector,^ according to the condition imposed upon the tenant when he entered into the consent rule. Though the declaration was served only on the tenant in possession, the landlord was admitted to defend^ with the tenant, and not in his stead.^ After the statute, 1 1 Geo. II, c. 19, § 13, the landlord was admitted to defend instead of, as well as with, the tenant in possession. Who was a landlord so as to be entitled to defend, was a subject of much contention in the courts,* though the term was ulti- mately held to include every person whose title was con- nected and consistent with the possession of the occu- pier.^ § 40. Writ of habere facias possessionem. — If the plaint- iff recovered judgment either by default or after verdict, a ' Sir Hugh Middleton's Case, i Keb. 246. '' Styles' Rep. 368 ; I^och v. Plumpton, Casual Ejector of V^^itherings, I Keb. 706; Anon., 12 Mod. 211 ; Roe d. Leak v. Doe, Barnes, 193. = Balderidge z/. Paterson, Barnes, 172; Goodright d. Duke of Montague i/. Wj-ong, Barnes, 175 ; see Fairclaim d. Fowler i/. Shamtitle, 3 Burr. 1290, especially thelearned argument of Mr. Harvey, one of the counsel, and Lord Mansfield's admirable statement of the nature of ejectment. * See Lamb v. Archer, Comb. 208 (5 W. & M.); Jones, Lessee of Pridyies.Car- withen, Comb. 339 (7 Will. Ill) ; Strike and Dikes, Comb. 332. L' ' See Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1290, per Lord Mans sfield, Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. ig writ habere facias possessionem was issued to the sheriff to put him in possession. §41. Effect of the judgment. — The judgment, however, did not establish the title or right of property of the plaint- iff to the land. He recovered the possession but not the seizin. He became possessed " according to his right." If he had a title in fee simple, he became thereby seized in fee simple ; if he had a chattel interest he was in as a termor, but if he had no title he was in as a trespasser, except that he was not liable in trespass for such an entry.^ § 42. Judgment not conclusive. — The judgment was not conclusive upon the title or right of property, even between the parties.^ The action could be repeated and the same questions retried indefinitely, because there was no privity between the successive fictitious plaintiffs, and the record and judgment, unlike a real action, did not reveal the na- ture of the title that had been established upon the former trial. Each successive ejectment was on a new lease, en- try, and ouster. The title was never formally or directly in issue, but was tried collaterally. The gist of the action was the trespass of the defendant and the plaintiff's right of possession. Every fresh trespass was a fresh cause of action. As the right of property might be in one person, the right of possession in a second, and the actual possession in a third, a judgment for the possession did not necessarily conclude the title. Under the feudal system a peculiar sanctity attached to a man's right of possession of land, and when ejectments were introduced the courts were reluc- tant to hold that he must stake his possession upon the results of a single trial, but inclined to afford him arnple and repeated opportunity to exhibit his title and prove his rights. ' See Jackson v. Haviland, 13 Johns. (N. Y.) 229-234; Wilbeck v. Van Rens- selaer, 64 N.Y. 27-31; People z/. Cooper, 20 Hun (N. Y.), 486 ; Doew. Bluck, 3 Campb. 447. ' Gierke v. Rowell, i Mod. lo. Digitized by Microsoft® 20 HISTORY OF THE ACTION OF EJECTMENT. § 43. Policy in America. — When this question of the conclusiveness of a judgment in ejectment came up in the Supreme Court of the United States, it was decided that where the fictitious scaflfolding of lease, entry, and ouster had been demolished, and the parties made the issue in their own names, the judgment was conclusive without being made so by statute.^ § 44. This was not the rule while the fictions lasted. The principles of this case, though probably sound, have not been universally acknowledged. The general policy in America has been to make the judgment in ejectment con- clusive upon the title by statute, the defeated party being allowed one new trial as of right, and in some States a second trial, in the discretion of the court, for cause shown. § 45. Lord Coke's opposition to eject-merit. — Lord Coke strenuously opposed the adoption of ejectments,^ because they introduced " infiniteness of verdicts, recoveries, and judgments," and "sometimes contrarieties of verdicts and judgments, one against the other," in one and the same suit; and because the suits could be repeated for thirty or forty years, to the utter impoverishment of the parties, all of which tended "to the dishonor of the common law, which utterly abhors infiniteness and delaying of suits, wherein is to be observed the excellence of the common law, for the receding from the true institution of it introduces many inconveniences, and the observation thereof is always ac- companied with rest and quietness, the end of all human laws." Yet in real actions, to which this great lawyer clung so .tenaciously, the judgments were not always conclusive, ' Sturdy v. Jackavvay, 4 Wall. (U. S.) 174. This subject is discussed at length in the chapter on the judgment. See, further, Dawley v. Brown, 79 N. Y. 390; Doyle V. Hallam, 21 Minn. 515; Wilson v. Henry, 40 Wis. 594; Phillpotts V. Blasdel, 10 Nev. 19 ; Kimmel v. Benna, 70 Mo. 52 ; Brownsville v. Cavazos, 100 U.S. 138; Gordinier's Appeal, 89 Pa. St. 528; Amesti v. Castro, 49 Cal. 325- = Ferrer's Case, Coke's Rep. vol 3, 274, part VI, 8 b, 9 a. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 21 and as was decided in the case just cited, did not bar new actions of a higher degree or nature. If ejectments could be repeated infinitely, a single real action could be prolonged for a lifetime.. § 46. Injunctions against further ejectments. — After a suitor in ejectment had prevailed in several trials, he ap- plied to a court of chancery for a perpetual injunction against further ejectments, which that court, as a rule, seems to have been reluctant to grant, because every new ejectment supposes a new demise, and the costs were a recompense for the trouble and expense to which the possessor had been put.^ The House of Lords, upon appeal, granted an injunction in the case of Earl of Bath v. Sherwin,^ against further ejectments after five verdicts, in as many successive ejectments, had been rendered in three different counties in favor of the defendants. § 47. Strother v. Lucas. — An instructive and curious case in our own reports bearing upon this subject is Strother V. Lucas,* decided in the Supreme Court of the United States in 1838. The controversy was before the same court in 1832.* The court refers to the former decision and reaffirms the doctrine that a judgment in ejectment is not conclusive upon the right either of possession or of prop- erty, and says that the case now presents new features which the court deems it proper to pass upon and settle, otherwise a court of chancery might not think it proper to enjoin further suits " so long as new or material facts could be developed, or pertinent points of law remained unset- tled." The court then proceeded to clear the way for a per- petual injunction against further ejectments by discussing and deciding in all their bearings the various questions in- ' Runnington on Ejectment (ed. 1 806), p. 12. " Earl of Bath v. Sherwin, 4 Brown's Par. Rep. 373. 'Strother v. Lucas, 12 Peters (U. S.), 410. * See 6 Peters (U. S.), 763. Digitized by Microsoft® 22 HISTORY OF THE ACTION OF EJECTMENT. volved. This decision, it should be observed, was made before the question was raised as to the conclusiveness of the judgment, where the issue is between the real parties in interest, in their own names. § 48. Method of regulating ejectment. — Though the general form of proceeding in ejectment was settled in the time of Charles the Second, yet the nature of the action was not clearly understood, nor the rules governing it definitely established until the beginning of this century. § 49. Practice as to abatement. — The courts adopted an arbitrary system of regulating the action by permitting per- sons who had not been made parties to become defend- ants, and continued to exercise this jurisdiction by adopt- ing whatever rules were thought to best accomplish the ends of justice. Thus, when the plaintiff was an actual per- son, it was held that his death did not abate the action, for the lessor was really the interested party, and the suggestion that there lived a man of the same name in the county was considered sufficient.^ The plaintiff was not allowed to re- lease the costs, and was held in contempt for so doing,^ and an attorney who assigned for error the death of the plaintiff in ejectment was adjudged in contempt.® § 50. Confusion resulting from caprice of the judges. — There was a wide divergence between the decisions, the natural result of regulating the action by the mere will or caprice of the judges, who differed frequently as to what rules best accomplished the ends of justice. Some cases were decided upon the theory that the action was, in its nature as well as origin, an action of trespass ; that the damages constituted the principal recovery, the restoration ' Addison v. Sir John Otway, i Mod. 250-252. ' Anon. Sall<. [*26o]. ' Moore v. Goodright, Stra. 899 ; such release was void. Close v. Vaux, Comb. 8. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 23 of the term and possession being merely an incident.^ Other cases were decided by analogy to real actions.^ Thus it was held that the subject of the action must be demisable, and that the plaintiff must have power to demise.* On the other hand again an ejectment for a rectory was upheld.* § 5 1. Introduction of equitable principles by Lord Mans- field. — The. action was moulded into a more definite form in the time of Lord Mansfield, who declared ^ " that he had it much at heart to have the practice upon ejectments clearly settled upon large and liberal grounds for the advancement of the remedy." But he brought equitable principles into the trial of this action, as he did into other branches of the law, and favored and encouraged ejectment as an equitable rem- edy, calculated to subserve the ends of individual justice rather than as a legal action governed by fixed and positive rules and principles. Thus a mortgagee was permitted to maintain ejectment against a tenant claiming under a lease granted prior to the mortgage, where he gave notice to the tenant that he did not intend to disturb the possession, but only to get into the receipt of the rents and profits of the estate." Nor could the legal estate of a trustee be set up against the cestui que trust,"^ and an agreement for a lease was held tantamount to a lease as a defense in ejectment.^ These cases have been overruled in England.' The principles and practice which the Court of King's Bench, during the career of this illustrious judge, sought to impress upon the remedy have been, in some instances since his time, introduced by statute. ' Wright V. Wheatley, Cro. Eliz. 854 ; Ibgrave v. Lee, Dyer, 116, b. (71). ' Barwick v. Fenwood, Comb. 250. ' Adams on Ejectment (4th Am. ed.), p. [18.] ' Doe d. Watson v. Fletcher, 8 B. & C. 25 ; Hillingsworth v. Brewster, SalL 256 ; see Plowd, 199. ' Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1290. ' See note to Keech d. Warne v. Hall, Doug. 21-23. ' Bull. N. P. no; Doe d. Bristow v. Pegge, i T. R. 758 n. ' Weakly d. Yea v. Bucknell, Cowp. 473. • See Doe d. Hodsden v. Staple, 2 T. R. 684, per Kenyon, Ch. J. Digitized by Microsoft® 24 HISTORY OF THE ACTION OF EJECTMENT. § 52. Lord Kenyan's influence. — Lord Kenyon estab- lished the action on a sounder basis. Since his day the courts have held that the plaintiffs lessor must establish a legal title. He must have a right of entry, for if he made the lease without entering on the land it was maintenance, and though in the modern practice an actual entry is unnec- essary, yet the right of entry must exist, for that is the ques- tion to be tried. § 53. Liberal view of fictions by the courts. — The courts have generally looked beyond the fictitious form of the ac- tion, and have taken judicial notice that the real controversy is between adverse claimants to the possession of land ; that the plaintiff's lessor and the tenant in possession (or landlord if made defendant) are the real parties in interest ; ^ that the legal title must prevail, and that, as the fictions were " fabri- cated for the mere purposes of justice," the plaintiff ought not to be defeated in his recovery by technical or captious objections founded on the peculiar and somewhat technical form of the action. It became common practice to allow amendments enlarging the term laid in the declaration when it expired pending the action, Chief Justice Marshall in granting such a motion remarking that there was " every reason for allowing amendments in matters of mere form."^ § 54. Rules governing personal actions retained. — In many respects the rules applicable to real actions have been adopted,^ yet the principles and practice governing personal actions have been in some instances retained unmodified, though apparently not suited to the new issue raised. Thus the description of the premises need not be much more certain than in an ordinary action of trespass. The plaintiff may also recover a part and in some cases an undivided por- tion of the premises for which he declares. ' Aslin V. Parkin, 2 Burr. 665, per Lord Mansfield. ° Walden v. Craig, 9 Wheat. 576. 'Heatherley ^. Worthington w. Weston, 2 Wils. 232; Moore v. Fursden, I Show. 318 [342]; Mantle v. Worllington, Cro. Jac. 166. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 25 § 55. Legislative changes. — The action is now divested by statute of all its useless forms. The fictitious lease and ouster have been abolished, and the real parties in interest appear in the action as the nominal parties ; the defendant being the tenant, or person in possession, or the landlord ; sometimes even a claimant to the land or one exercising acts of ownership over it. § 56. Requisites of the complaint. — An accurate descrip- tion of the premises is also generally required in the declara- tion, both to inform the sheriff of what he is to deliver possession, and to apprize the defendant of the extent of the plaintiff's claim. The nature of the estate or interest in the land, whether in fee, for life, or for years, which the plaintiff demands must generally be specified in the com- plaint, and whether he claims the entire estate or an undi- vided share or interest. § 57. General principles. — It is also a fundamental rule that the plaintifT must recover upon the strength of his own title, and not on the weakness or imperfections of the de- fendant's title. He must ordinarily show a legal title, with a present right of possession, paramount to the title of the defendant. The defendant may avail himself of any imper- fections in the plaintiff's title, or may, unless estopped, de- feat the action by proving an outstanding title in a third person with which the defendant is wholly unconnected. § 58. Legal title must prevail — In some States where the distinctions between legal and equitable redress do not exist, or the jurisdictions have been blended, the defendant can succeed with a' superior equitable title, but the general rule is that the legal title must prevail, the holder of the equitable title being remitted to a court of chancery for re- dress. As against a naked trespasser, having neither claim nor color of title, proof of prior undisturbed possession is sufficient. Nor can a trespasser show an outstanding title in a third person. The principles of the action remain Digitized by Microsoft® 26 HISTORY OF THE ACTION OF EJECTM.ENT. essentially unchanged. In form it is still one to recover the possession of land, in which the plaintiff must show a present legal right of possession, though in fact it is an action for the determination of the title.^ As the action retains many of its ancient characteristics, it is important to study its origin and to remember that in its early form the question of title to land came before the court incidentally and collaterally, the trespass and ouster being the main issue. § 59. Judgment. — The judgment is, as formerly, that the sheriff put the plaintiff in quiet and peaceable possession, though it now generally specifies the nature of the contro- verted title. § 60. Writ of possession. — The courts exercise a species of equitable jurisdiction over the execution of the writ of possession, and sometimes award a writ of restitution where the judgment has been reversed, or the defendant, or even a stranger, has been wrongfully evicted under the writ. § 61. Datnages. — The damages given for the injury suffered by the loss of the term, which originally constituted the only recovery and later an important part of the relief in ejectment, necessarily became nominal when the fictions were introduced, and the practice of making others than the tenants ejectors prevailed.^ It has been decided in some of the cases, however, that even while the fictions were con- tinued the plaintiff might recover his real damages by giving notice of his intention to proceed therefor, ** but this practice was much questioned* for the reasons stated, and on the further ground that the defendant signed the consent rule for the purpose of trying only the right of possession. ' Finnegan v. Carraher, 47 N. Y. 493. ^ Reeves' Hist. Eng. Law (ed. 1880), vol. 4, p. 241. ' Battin v. Bigelow, i Peters' C. C. 452. * Huston V. V^ickersham, 2 W. & S. (Pa.) 308. Digitized by Microsoft® HISTORY OF THE ACTION OF EJECTMENT. 2'] § 62. Mesne profits. — The successful plaintiff in eject- ment brought an action of trespass for mesne profits against the person who had withheld the possession. Now, the claims for damages and mesne profits are generally made by- statute part of the recovery in the ejectment suit, though in some States a separate action is still necessary or may be brought at the election of the plaintiff. § 63. Improvements. — ^The defendant is permitted in many States to set-off against the mesne profits the value of permanent and useful improvements made in good faith.^ ' See Griswold v. Bragg, 18 Bla. C. C. 202, and cases cited. Digitized by Microsoft® CHAPTER II. SKETCH OF REAL ACTIONS IN THE UNITED STATES. 64. Real actions. 65. How classified. 66. Characteristics. 67. Judgment in real actions. 68. In personal actions, 69. Writ of right. 70. Writs of entry. 71. Writs of formedon. 72. Real actions in England. 73. Ejectment in New England. 74. Unpopularity of the remedy. 75. Objections to real writs. ' ' \ Their adoption in New England. 78. Disuse in England. 79. Modern changes. 80. Classes of injuries affecting realty. 81. Trespass to try title. Its introduction in South Carolina. 82. What plaintiff must prove. 83. Origin of trespass to try title. 84. Statutory changes. 85. Reason for the change. 86. Aversion to real actions. 87. Trespass to try title abolished in South Carolina. 88. Trespass to try title in Alabama. 89. Statutory changes. 90. Fictions in ejectment retained in Alabama, gl. Trespass to try title in Texas. 92. General principles the same in the various actions. § 64. Real actions. — Real or feudal actions were the ancient remedies by which the right of property, or of pos- session, in freehold estates or hereditaments, was determined, and the seizin recovered or possession restored. The com- plainant, or party deforced, was called the demandant ; the defendant, or party in possession, the tenant. The name real actions was used in contradistinction to personal actions, founded upon torts or contracts, such as trover, assumpsit, or debt. At common law, in purely real actions, the de- mandant counted for and recovered the seizin of land, or an interest in realty, and rarely proceeded for compensation in damages or for personal property.^ The right to recover damages in real writs was, in some instances, superadded by statute. § 65. How classified. — Real actions were classified ac- cording to the nature of the demandant's title, into actions ' Booth on Real Actions, pp. 74, 75 ; Robert Pilford's Case, 10 Rep. 115 (vol. 5. 459) I Stearns on Real Actions (2d ed.), pp. 346 (389), 90 (94) ; Jackson on Real Actions, p. 99. Digitized by Microsoft® REAL ACTIONS IN THE UNITED STATES. 29 droitural, based upon the demandant's mere right of title — that of possession being lost — and actions possessory^ which involved the right of possession. The former class was sub- divided into writs droitural, founded upon the demandant's own seizin, and writs ancestral droitural, founded upon the demandant's claim in respect of a mere right which had de- scended to him from an ancestor. Possessory actions were likewise subdivided into actions founded upon the demand- ant's own seizin, and actions predicated upon the seizin of an ancestor.^ § 66. Characteristics. — The system of real writs had many distinguishing peculiarities. In personal actions, such as trover, assumpsit, or debt, the judgment operated as an estoppel upon fresh suits, involving the same matter in con- troversy. Unless the plaintiflF submitted to a nonsuit, with- drew a juror, or obtained leave to discontinue the action, the only redress for the defeated party was by writ of error, ap- peal, or motion for a new trial in the same action. It has been supposed that a different rule of action prevailed in real actions, because if the demandant was barred by judg- ment on a verdict or demurrer rendered upon an inferior writ, he could avoid the estoppel by suing out a real writ of a higher class or nature ; for real actions were of different grades, and a judgment upon the merits, founded upon an inferior writ, did not constitute a bar, or an estoppel, to an action between the same parties, brought upon a writ of a higher degree.^ § 67. Judgment in real actions. — Lord Coke^ is respon- sible for the once prevalent notion that the same title and precise question of right involved in and adjudicated upon an inferior writ, could be retried in the second action upon ' Roscoe on Actions Relating to Real Property, p. 2 ; Stearns on Real Actions (2d ed.), p. 83 [84] ; Markel's Case, 6 Rep. 3 b. ' Ferrer's Case, 6 Coke, 7 b ; Stearns on Real Actions, p. 84 ; Booth on Real Actions, p. I. ° Ferrer's Case, 6 Rep. 7. Digitized by Microsoft® 30 REAL ACTIONS IN THE UNITED STATES. the higher writ ; but this was not true. Each writ, as was shown by Lord EUenborough in the case of Outram v. Morewood,^ was final for its own purpose and object, and the judgment was conclusive as to the injury complainfed of or the particular right claimed. Possessory writs settled dis- puted questions of possession. The higher writs, while in- cluding all that was adjudicated on the trial under the pos- sessory writs, went further and established the whole right to the land, both of property and of possession. Placitum per breve de recto utrumqite jus, tarn possessionis guam pro- prietaiis comprehendit} § 68. In personal actions. — When the same evidence is required to support two different personal actions, a judg- ment in one action constitutes a bar to the other.^ Thus a judgment in assumpsit bars an action of debt for the same demand. This important principle of the common law was not violated by the practice in real actions, for a judgment upon a writ of right, the highest real writ, estab- lished rights different from and additional to those conferred by the judgment under a possessory writ. § 69. Writ of right. — The most important of the real writs was the Writ of Right.* This writ was resorted to in the time of the Saxons to recover the right of property in land ; the jus proprietatis or jus merum.^ It would not lie for incorporeal hereditaments, or for any estate less than a fee simple," and was the exclusive remedy available to the owner of land who had lost the right to recover it by a pos- sessory action. The judgment was final and could be pleaded in bar of a fresh suit involving the same contro- ' 3 East, 346, and cases cited. ' Bracton, f. 328. = Kitchen v. Campbell, 3 Wils. 304; s. c. 2 W. BIa.827 ; Martin v. Kennedy, 2 Bos. & P. 71, per Lord Eldon ; see Sparry 's Case, 5 Coke, 61 (iii, 124) ; Dawley v. Brown, 79 N. Y. 390 ; Stowell v. Chamberlain, 60 N. Y. 272, and cases cited. * 3 Bla. Com. p. 193; Fitz. N. B. i. ' Gil. Ten. ['47] ; see Roscoe on Actions Relating to Real Property, p. *I9. " Jackson on Real Actions, p. 276. Digitized by Microsoft® REAL ACTIONS IN THE UNITED STATES. 3 1 versy, because no other writ could establish any different, higher, or additional rights. For this reason a writ of right was rarely selected by a demandant who was entitled to pros- ecute one of an inferior grade.^ § 70. Writs of entry. — Of the possessory actions writs of entry only were adopted in Massachusetts.^ These were of various kinds, according to the nature of the injuries in- tended to be redressed,^ and were supposed by Blackstone to be the most ancient of possessory actions. Whether or not all the writs of entry were engrafted into the law of that Commonwealth, is a moot question which it is unnecessary now to discuss.* Mr.^ Justice Jackson says,^ that writs of en- try, as conducted in the courts of his State, were considered more simple, convenient, and effectual than the action of ejectment ; the writ and declaration were shorter ; there were no mysterious fictions to incumber the record, and the judgment effectually settled the right of possession. This opinion was subsequently approved by the Massachusetts law commissioners. § 71. Writs of formedon. — Writs of formedon, the an- cient remedies provided for any one having a right to lands or tenements by virtue of a gift, in tail,^ were not infrequent in some States. As late as 1834 a decision was rendered in an action of formedon in remainder in New Hampshire, in which the defense of a common recovery, levied in 1819, was learnedly discussed by court and counsel.' These writs are, however, wholly unsuited to try titles in this country. § 72. Real actions in England. — The system of real ac- tions is now extinct in England. But an inquiry into the ' Booth on Real Actions, p. i. ° Jackson on Real Actions, p. 2. ° Roscoe on Actions Relating to Real Property, p. 88. ' See Judge Jackson's article on this subject, 3 Am. Jur. p. 65. ' Jackson on Real Actions, p. 12. ' Steams on Real Actions, p. 321 ; Booth on Real Actions (ist Am. ed.), p. 138. ' Frost V, Cloutman, 7 N. H, 9. Digitized by Microsoft® 32 REAL ACTIONS IN THE UNITED STATES. condition of the remedial law of England, at or prior to the time of the Revolution, is nevertheless important to Ameri- can jurists, because that law has been adopted in many of our States by statute or constitutional provision, and mod- ern legislation is often framed to perfect or supersede it. We can afford here only the slightest reference to this curi- ous and obsolete branch of our ancient remedial law, and discuss so much of the learning affecting the system as will illustrate the principles governing modern actions in States where dismembered fragments of the old system are still to be found. The influences which led to the disuse and aban- donment of these ancient remedies have been considered in part in tracing the history of the action of ejectment. § 73. Ejectment in New Bn£^land.— 'Ejectment was al- ready firmly established in England as the most simple and expeditious method of trying controverted titles when our Atlantic seaboard was colonized. Yet the New England colonists seem to have been disinclined to transplant and foster the remedy.^ Professor Stearns says:^ "We should hardly expect them to resort to the indirect method of mak- ing a lease of their lands in order to try the title. And as to the confessing a lease, an entry, and an ouster, which never had any existence in fact, they seem (as we should naturally expect) to have regarded it as a violation of truth, and therefore wholly inadmissible." § 74. Unpopularity of the remedy. — The inconclusive- ness of the judgment also tended to render ejectment unsat- isfactory. Lands in the new world were of little value, and scarcely worth the trouble and expense of a sufficient num- ber of trials to justify a perpetual injunction against further ejectments. Furthermore equity jurisprudence had scarcely any existence in colonial times.' Hence only two fictitious ' Nor did ejectment flourish in Virginia. New York was then under control of the Dutch. ' Stearns on Real Actions (2d ed. 1831), p. 352 [396]. ' I Story's Eq. Jur. § 56 and note. Digitized by Microsoft® REAL ACTIONS IN THE UNITED STATES. 33 actions of ejectment upon the English model are to be found in the court records of Massachusetts.^ § 75. Objections to real writs. — But the adoption of the intricate system of real actions as practiced in England was wholly impracticable. The sources of information available to the colonists concerning the practice were few and imper- fect ; many of the real writs were wholly unsuited to try the titles by which the colonial lands were held, and few of the early settlers possessed the critical skill and precision in practice which the successful management of the writs ex- acted. Mistakes and vexatious delays were consequently not infrequent. The colonists were not, however, " bigoted to legal forms." They abruptly departed from the ancient precedents (intentionally however rather than from igno- rance, as the result shows) and introduced a loose and irreg- ular system of pleading in real writs, altering and adapting the process and writs so as to satisfy the needs and require- ments of settlers in a new country. The English system of real actions was transplanted into the colonies practically divested of aid prayers, vouchers, protections, parol demur- rers, and essoins, the cumbersome appendages which de- stroyed it in England. Hence we have in our jurispru- dence the remarkable anomaly of a system of feudal reme- dies which the mother country abandoned as outgrown, im- practicable and useless, " rooted in soils that never felt the fabric of the feudal system." § 76. Their adoption in New England. — The attempt was made to retain what was valuable and useful of the sys- tem and to reject what was useless and pernicious.^ The ancient process and forms were very little regarded, and all real actions were called by the general name of actions of ejectment* Little or no distinction was made, either in the ' Stearns on Real Actions (2d ed. 1831), p. 352 [396]. ' Steams on Real Actions (2d ed.), p. 92 [97]. ' Jackson on Real Actions, p. 194. 3 Digitized by Microsoft® 34 REAL ACTIONS IN THE; UNITED STATES. declaration or the pleadings, between the different writs of entry, or between possessory writs and the writ of right.^ § ']']. Though this loose and irregular practice was un- doubtedly the cause of many mistakes which the colonists made iq determining the rights of litigants, yet had they clung to the established forms, and sought to apply, in their practice, the mass of ancient learning relating to real writs, the system would necessarily have become as vexa- tious, oppressive, and unpopular as in England. § 78. Disuse in England. — The feeling in England toward the system of real actions is reflected in the report of the English real property commissioners, in which they conclude that "it would have been beneficial to the com- munity if real actions had been abolished from the time when the modern action of ejectment was devised."^ § 79. Modern changes. — Statutory real actions in various forms are employed in Maine and New Hampshire. Writs of right have been swept away in Massachusetts and a statu- tory writ of entry adopted as the remedy for trying titles in that State. The entire system is superseded in New York by a statutory action of ejectment. In Virginia writs of right, of entry, and of formedon, have been abolished, and ejectment, as reformed and corrected by statute, retained. In that State, as in New York and West Virginia, the statutory ejectment may be maintained in the same cases in which a writ of right could have been brought. A controversy over a title in West Virginia, in which the parties proceeded by a writ of right, was decided in 1868,'' but the system of real actions has, since that date, been superseded in that State by statutory ejectment. The influence of the old system is occasionally reflected in the opinions of our courts,' and exerts some effect in framing legislative changes in our ' Jackson on Real Actions, p. 162. " Report of English Real Property Commissioners, p. 42. " Genin v. Ingersoll, 2 W. Va. 558. Digitized by Microsoft® TRESPASS TO TRY TITLE. 35 remedial law, but the general system, with most of its peculi- arities, is obsolete. § 80. Classes of injuries affecting realty. — Injuries af- fecting real property are chiefly of two classes. First, Those that divest the owner of the possession, and usurp his right of dominion over the property. Secondly, Those that in- jure the land, or diminish its value, or disturb, or impair, the owner's enjoyment of it, without divesting the possession. Trespass, waste, and nuisance are examples of the latter class. The former injury, which is attended with amotion from or deprivation of possession, is denominated an ouster. This elementary principle must not be overlooked in con- sidering the form of remedy for the trial of title to land which will next be noticed. § 81. Trespass to try title. Its introduction in South Carolina. — Trespass to try title was substituted for eject- ment in South Carolina as early as 1791.^ It was in form an action of trespass quare clausum fregit, except that a notice was indorsed upon the writ, to the effect that the ac- tion was brought to try the title as well as for damages. This remedy v/as subject to the principles of law relating to ejectment, which, down to that time, had been the action for trying titles to land in that State.^ There were, of course, no fictions in this new action, and the names of the real parties appeared as plaintiff and defendant.* § 82. What plaintiff must prove. — The plaintiff was compelled to prove a trespass committed by the defendant, no matter how trifling.* Even the cutting or blazing of a tree was held sufficient.® The judgment was in form for damages, but the plaintiff, if successful, was entitled to a writ of habere facias possessionem. ' Stat, at Large, S. C. vol. v, p. 170; since repealed. See Chapter 147, Gen- eral Statutes, p. 801. ' Kennedy v. Campbell, 2 Tr. Con. R. (S. C.) 760. ' Lynch v. Withers, 2 Bay (S. C), 11 5-1 19, in notis. ' Massey v. Trantham, 2 Bay (S. C), 421 ; Underwood v. Sims, 2 Bailey (S. C), 81. / ' Spigenerz/. Cooner, 8 Rich. (S. C.) 301. Digitized by Microsoft® 36 TRESPASS TO TRY TITLE. § 83. Origin of trespass to try title. — Trespass quare clausum fregit was, of course, a form of action calculated to redress injuries to real property not amounting to an ouster. This remedy, as enlarged by statute in South Car- olina, under the name of trespass to try title, usurped the functions, and subserved the purposes of a real action. § 84. Statzitory change. — The result achieved by the use of fictions in ejectment in England, after many years of ef- fort, was thus accomplished summarily in South Carolina by a simple statutory enactment. § 85. Reason for the change. — The Legislature of that State solemnly resolved,^ as a justification for the change, that " since the disuse of real actions, the common method of trying titles to land has been by action of ejectment, which, depending upon a variety of legal fictions, is rarely understood by the professors of the law." Still, the name of the new remedy, and the practice requiring proof of a trespass, which certainly had no logical or necessary con- nection with the trial of the title, occasioned some confu- sion. § 86. Aversion to real actions. — The writ of right was never employed in South Carolina,^ and the profession seem to have shunned the whole system of real actions. §87.' Trespass to try title abolished in South Carolina. — Trespass to try title has at length been swept away in South Carolina, and an action for the recovery of real prop- erty substituted in its stead. ** § 88. Trespass to try title in Alabama. — Trespass to try title was introduced in Alabama, in 182 1,* as a substitute for the fictitious proceedings in the action of ejectment.^ The ' Stat, at Large, S. C. vol. v, p. 170. ' ' Frost V. Brown, 2 Bay (S. C), 133-144. ' Revised Statutes South Carolina (ed. 1873), p. 586; Ibid. chap. 147, p. 801. ' Session Acts of Alabama, 1821, p. 23 (approved December 17, 1821). • White V. St. Guirons, Minor's Rep. (Ala.) 331 ; Avent v. Read, 2 Porter Digitized by Microsoft® TRESPASS TO TRY TITLE. 37 act provides that " the mode of trying the right and title to lands, tenements, or hereditaments, shall be by the action of trespass, in which the plaintiflF shall indorse on his writ and copy "writ, that the action is brought as well to try titles as to recover damages." All the principles and rules relating to ejectment at common law, except the fictitious proceed- ings, which were abolished, were made applicable to this action. § 89. Statutory changes. — In 1835,^ the General Assem- bly of that State passed an act restoring the remedy of eject- ment with the exception of the fictions, and conferring upon the plaintiff the right to elect between trespass to try title and ejectment, damages being added to the recovery in the latter action. Both these remedies were superseded by the Code of 1852,^ which established a statutory proceeding "in the nature of an action of ejectment." In 1863,^ the action of ejectment, as established at common law, was restored, and in all actions to recover land the plaintiff was allowed to elect between a writ of ejectment and a writ in the nature of an action of ejectment. This act was embodied in the Code of 1867,* and was transferred to the Code of 1876.^ § 90. Fictions in ejectment retained in Alabama. — Hence two remedies may now be invoked in that State : the action in the nature of ejectment,^ and the fictitious ejectment at common law.'' John Doe, the litigious lessee, appears in his (Ala.), 480 ; Masters v. Eastis, 3 lb. 368 ; Thrash v. Johnson, 6 lb. 458 ; Sturde- vant V. Murrell, 8 lb. 317. ' Clay's Digest (Ala.), p. 320, § 46. " See Code of 1852, §2209; also §10; lb. 1867, §2610; see Williams v. Hartshorn, 30 Ala. 211. = Acts of Alabama, 1863, p. 58, No. 54. * Code of 1867, § 2621. ' Code of 1876, § 2970. "Morris -u. Henshaw, 54 Ala. 300; Olive v. Adams, 50 Ala. 373; Ivey v. Blum, 53 Ala. 172. ' Doe rf. Hudgensz/. Jackson, 51 Ala. 514; Doe d. Hamilton v. Hardy, 52 Ala. 293 ; Smith v. Doe d. Carson, 56 Ala. 456 ; Cantelou v. Doe d. Hood, 56 Ala. 519. Digitized by Microsoft® 38 TRESPASS TO TRY TITLE. old role in an ejectment instituted in that State, as late as 1874 and decided in 1876/ but the common law writ of ejectment is now but little resorted to except by the older practitioners, and the statutory action in the nature of eject- ment is the remedy generally in use. The writ of right has not been in use, in Alabama, since 1852.^ § 91. Trespass to try title in Texas. — Ejectment, with or without its fictions, has never been in use in Texas,* tres- pass to tiy title being the exclusive action given for the trial of controverted titles in that State.* By a proper indorse- ment on the petition, the action may be brought both to try the title and to recover mesne profits and damages.^ § 92. General principles the same in the various actions. — The decisions, rendered while the remedy was in force in South Carolina and Alabama, are, notwithstanding the statutory changes, still important, as illustrating the general principles governing ejectment, and the statutory remedies in other States, especially in Texas ; the change being one chiefly of form. The essential principles governing real actions, ejectment, and trespass to try title, are uniform, in this country, as to the interests for which the actions will lie, the titles that will support them, the pleadings, evidence,^ defenses, judg- ments, writs of possession, and new trials. They constitute, practically, one general, method of procedure disguised un- der a variety of names. For this reason cases decided under the different systems will generally be cited side by side in this treatise. ' Doe ex dem. Davis v. Minge, 56 Ala. 121, ^ See Ivey v. Blun, 53 Ala. 172. ^ Fisk V. Miller, 20 Texas, 572-578. ' Dangerfield v. Paschal, 20 Texas, 552 ; Paschal's Digest, Art. 5292. ' See Spence v. McGowan, 53 Texas, 30. This case discusses the distinctions between trespass to try title, as practiced in that State, and the fictitious action of ejectment. Hillman v. Baumbach, 21 Texas, 203 ° Greenl. on Ev. vol. 2, § 303, p. 286. Digitized by Microsoft® CHAPTER III. NATURE OF THE RIGHTS UPON WHICH ACTIONS TO TRY TITLE MAY BE BASED.— FOR WHAT INTERESTS EJECTMENT LIES. § 93. Distinction between ejectment and trespass. 94. Between ejectment and forcible en- t'T- 95. Ejectment maintainable for corps- real hereditaments only. 96. Early practice. 97. Nature of the interest sought to be recovered. 98. Plaintiff's title and interest. gg. Reservation of right of entry in a deed. 100. Right of possession essential, loi. True test as to when ejectment lies. 102. Rights and privileges appurtenant. 103. Annexation to the soil. 104. Fixtures. 105. Ejectment for a room, chamber, or portion of a building. 106. Theory of the decisions. 107. Vaults. 108. Mining rights and interests, log. Coal mine. no. Tin bound. 111. Quarry. 112. Oil wells. 113. Right and privilege of boring for oil. 114. Oil regarded as a mineral. 115. Vein or lode. 116. Possessory mining claims. 117. Land underwater. 118. Made lands. 119. Lands under water granted by land office. § 120. Rivulet or pool. 121. Bed of the ocean. 122. Tide lands. 123. Land swallowed by the sea. 124. New islands. 125. JH:cretions. 126. Salt boilery. 127. Inaccessible lands. 128. Distinct tracts of land. 129 Dower. 130. Land subject to an easement, servi- tude or public use. 131. Cincinnati v. White discussed. 132. Ownership of the soil and the right to an easement independent. 133. Character of defendant's occupa- tion. 134. Rights of the owner of the fee. 135. Ejectment for lands applied to un- authorized use. 136. Wrongful use for public purposes not protected. 137. Rule in Illinois. 138. Rule when fee is granted for public use. 139. Municipal corporations. 140. Attempted distinction between pub- lic and private easements. 141. Land subject td homestead rights. 142. Ejectment for fishery. 143. Pasturage and herbage. 144. Church property. 145. Common appendant and tithes. § 93. Distinction between ejectment and trespass. — Eject- ment is a remedy designed to redress wrongs amounting to a disseizin or an ouster. TPje action will not lie for a mere trespass on land ; the plaintiff must furnish proof of eviction or amotion of possession. " There is," says the Supreme Court of Connecticut, "a clear land-mark between trespass and ejectment, which should not be broken down by permit- ting a plaintiff in ejectment, if he fails to prove an ouster, to prove a mere trespass, however trifling, and recover." * ' Potter V. City of New Haven, 35 Conn. 520. Digitized by Microsoft® 40 FOR WHAT INTERESTS EJECTMENT LIES. Neither can the action be sustained upon proof of an un- lawful interference with a right incident to property in pos- session/ — e.g., projecting a cornice, a gutter, or the eaves of a building over plaintiff's lands. § 94. Between ejectment and forcible entry. — An impor- tant distinction must be noticed between an ejectment and the statutory action of forcible entry and unlawful detainer, which will, perhaps, serve more clearly to illustrate the na- ture of the remedy. The title or right of possession is al- ways involved in the Irial of an action of ejectment. The party who seeks to change the possession by ejectment, must first establish a legal title to it. But the remedy for a forcible or unlawful enfry is designed to protect the actual possession, whether rightful or wrongful, against unlawful invasion, and to afford summary redress and restitution. The forcible entry, even of the owner himself, and still more' the entry of any other person, whether forcible or not, is un- lawful.^ The title cannot be drawn in question in forcible entry proceedings, which are frequently conducted in tribu- nals having no jurisdiction to determine titles to real prop- erty.^ In the one case the question of the unlawful invasion of an actual possession only is involved ; in the other the absolute right of possession is to be tried and determined.* A forcible entry and detainer proceeding may be supported independent of, and opposed to the title and legal right of possession.^ ' Vrooman v. Jackson, 6 Hun (N. Y.), 326 ; see Jackson v. Pike, 9 Cowen (N. Y.), 69; Aiken v. Benedict, 39 Barb. (N. Y.) 400. Ejectment cannot be em- ployed as a substitute for trespass quare clausum /regit : per Sharswood, J. Corley v. Pentz, 76 Pa. St. 57. Nor can trespass quare clausum /regit and eject- ment be united in the same complaint. Budd v. Bingham, 18 Barb. (N. Y.) 494. ," dinger ». Shepherd, 12 Gratt. (Va.) 462; see Thompson v. Wolf, 6 Ore- gon, 308. = Myers v. Koenig, 5 Neb. 419; Mitchell v. Davis, 23 Cal. 381 ; Carroll v. O'Conner, 25 Ohio St 617 ; Jarvis v. Hamilton, 16 Wis. 574. * Carter v. Scaggs, 38 Mo. 302. ' Smith V. HoUenbeck, 51 111. 223; Milner v. Wilson, 45 Ala. 478- Krevet w. Meyer, 24 Mo. 107; Dilworth v. Fee. 52 Mo. 130; The People v. Van Nostrand, 9 Wend. (N. Y.) 50. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 4I § 95. Ejectment maintainable for corporeal heredita- ments only. — At common law, ejectment was maintainable only for corporeal hereditaments/ which consist wholly of substantial and permanent objects,^ and the remedy was a substitute for the assize in cases where the thing sought to be recovered was of a corporeal nature.* § 96. Early practice. — In its original form, as already shown, damages constituted the exclusive recovery in this action, but the increase in length of terms for years, and their growth in importance, induced the courts to allow the writ habere facias possessionem, so that the tenant for years might regain his unexpired term and be restored to the possession itself. From this change arose the necessity of confining the action to such things as the sheriff might with certainty have recourse to for the purpose of delivering pos- session after judgment* § 97. Nature of the interest sought to be recovered. — The thing sought to be recovered must be visible and tangible,*^ something which, in early times, would have been capable of livery of seizin, and upon which an entry can be made ; ^ something capable of physical possession,'^ and of which the owner can be disseized,^ and of which possession can be de- livered by the sheriflF to the plaintiff.^ § 98. Plaintiff's title and interest. — As will presently appear, the plaintiff must be vested with a present, subsist- ' Child V. Chappell, 9 N. Y. 246; 3 Bla. Com. p. 206; Rowan v. Kelsey, 18 Barb. (N. Y.) 484; 3 Bac. Abr. (ed. i860), p. 272, Eject. D. ' 2 Bla. Com. p. 17. ° Farley v. Craig, 3 Green (N. J.), 191. * Runn. on Eject. (Am. ed.) p. 121. ° Farley v. Craig, 3 Green (N. J.), 191. ' Jackson d. Loux v. Buel, 9 Johns. (N. Y.) 298 ; Nichols v. Lewis, 1 5 Conn. '37- ' Woodhull V. Rosenthal, 61 N. T. 382. ° See Marquis Cholmondeley v. Lord Clinton, 2 Meriv. 361. " Blake v. Hepburne, 2 Yeates (Pa.), 331 ; Farley v. Craig, 3 Green (N. J,), 192 ; Jackson v. May, 16 Johns. (N. Y.) 184 ; Doe v. Alderson, i M. & W. 210 ; Crocker I/. Fothergill, 2 B. & Aid. 652; Nichols v. Lewis, 15 Conn. 137. Digitized by Microsoft® 42 FOR WHAT INTERESTS EJECTMENT LIES. ing title, or corporeal estate in the premises/ or with an un- restricted right to the immediate possession,^ which must be of some duration and exclusive; and the action cannot be maintained unless the interest or estate be more substantial than a mere license to use the land or the right to a stand- ing place thereon.' § 99. Reservation of right of entry in a deed. — In the case of Jackson v. Buel,* a grantor had made a reservation in a deed to himself, his heirs, and assigns, of "the right and privilege, without any fee or reward, of erecting and building a dam " at a certain place within the granted premises, "to occupy and possess the aforesaid premises without any let, hindrance, or molestation" from the grantee, his heirs, and assigns, " agreeably to the express condition contained in the foregoing clause and reservation." The Supreme Court of New York, in a per curiam opinion, held that this reservation created an interest sufficient to support ejectment. The first reason assigned by the court is that the interest would be considered a te^iement within the decisions under the English settlement law ; this test, though sometimes applied in England, can hardly, as we shall pres- ently see, be considered a safe criterion. Another ground suggested — that the grantor possessed a right of entry, and that the interest was tangible — is that upon which the case must probably be supported. § 100. Right of possession essential. — Whatever takes away the right of possession in prcssenti is fatal, and consti- tutes a complete defense to the action.* The plaintiff must ' Woodhull V. Rosenthal, 61 N. Y. 382 ; see Ferris v. Brown, 3 Barb. (N. Y.) 105. ° Betz V. MuUin, 62 Ala. 365. = See King^/. Inhabitants of Mellor, 2 East. 190. See Goodtitle d. Miller v. VS^ilson, II East. 334-345. In Maine it is provided by statute that in certain cases an officer levying on land may convey to his grantee a momentary seizin sufficient to support an action in his own name. Morse v. Sleeper, 58 Me. 329. ' 9 Johns. (N. Y.) 298. ' Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.), 407 ; City of Cincinnati v. White, 6 Peters, 431. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 43 have a right of entry in virtue of or incident to some cor- poreal estate or interest in the premises,^ for the right to take actual possession of the land is the question to be tried, and constitutes the foundation of the action, whatever the character or source of the claimant's title may be.^ Chitty says : " A party having a right of entry, whether his title be in fee simple, fee tail, or in copyhold, or for life, or years, may support an action of ejectment."^ § loi. True test as to when ejectment lie's. — "The true test of this action," says the New York Supreme Court, " seems to be that the thing claimed should be a corporeal hereditament, that a right of entry should exist at the time of the commencement of the action, and that the interest be visible and tangible, so that the sheriff may deliver the possession to the plaintiff in execution of the judgment of the court."* Hence rights or interests in land which lie in grant, being invisible and incorporeal, are not, at common law, the subject of this action. § 102. Rights and privileges appurtenant. — But though ejectment will not lie for a right or privilege which is a mere incorporeal hereditament, yet, when an ejectment is brought for lands, the rights and privileges appurtenant to the lands may be recovered therewith.® -Taylor?/. Horde, i Burr. 60, 119; Priqe v. Osborne, 12 Ired. (N. C.) 26; Jackson d. Lmngston v. Sclover, 10 Johns, (N. Y.) 368; Jackson d. Starr z/. Richmond, 4 Johns. (N. Y.) 483 ; Reformed Church v. Schoolcraft, 65 N. Y. 134, 150; Kile V. Tubbs, 32 Cal. 332 ; Meeks v. Kirby, 47 Cal. 168. "Colston V. McVay, i A. K. Mar. (Ky.) 251; Clay v. Ransome, i Munf. (Va.) 455- ' I Chitty on Pleadings, p. *i89. * Rowan v. Kelsey, 18 Barb. (N. Y.) 48.^. ' Crocker v. Fothergill, 2 B. & Aid. 653-661. But see Taylor v. Gladwin, 40 Mich. 232, in which case the declaration clp-imed, and the judgment recited as in- cluded in tl^e recovery, the right to use ar) adjacent alley. This recital was de- clared to be nugatoiy, as the easement in the alley was an incorporeal and intan- gible interest, and therefore not the proper subject of an ejectment. The point actually decided was that the recital of such a right did not impair or affect the validity of the'judgment as to the land itself, to which the easement was adjacent. Crocker v. Fothergill must, however, be regarded as stating the correct rule. Digitized by Microsoft® 44 FOR WHAT INTERESTS EJECTMENT LIES. § 103. Annexation to the soil.^-lt is frequently said that ejectment will lie for anything attached to the soil/ but this test cannot by any means be regarded as conclu- sive. It is probably derived from the common law princi- ple with regard to fixtures, that, as between grantor and grantee, anything which was attached to the soil would pass with the realty as a part of it. This is no longer treated as conclusive, however, with regard to fixtures, as to which three criteria are now generally applied : first, an- nexation to the realty ; second, adaptability to the use or purpose to which the realty is appropriated, and third, the intention of the party making the annexation.^ It is ob- vious, therefore, that, while ejectment will lie for anything that is a fixture, annexation to the soil is no longer suffi- cient to settle the question. § 104. Fixtures. — It has been held by the Supreme Court of Pennsylvania that where a boiler, engine, and stack were erected upon the lands of the plaintiff, at the joint ex- pense of himself and the defendant, under an agreement to use the same as a common source of power, without limit- ation as to time, the interests thereby created in the fixtures were in the nature of an estate in lands, and that if one of the tenants in common excluded the other from the use and possession of the fixtures, an action of ejectment could be maintained.^ § 105. Ejectment for a room, cham,ber, or portion of a huilding. — It was contended at one time that the common law definition of land as extending usque ad ccelum et ad infernos,'^ was fatal to the prosecution of ejectment in the case of rooms, chambers, or portions of buildings. The land itself including these by definition, it was supposed that the possibility of partial ejectment was excluded ; but it is now ' Jackson d. Saxton v. May, 16 Johns. *i84. " McRea.t/. Central Nat'l Bk. of Troy, 66 N. Y. 489. • = Hill V. Hill, 43 Pa. St. 521. * As to the application of this principle to a clay-bed, in an action of trespass on the freehold, see Stratton v. Lyons, 53 Vt. 641. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 45 settled that interests in realty may be created sufficient to support ejectment which fall far short of this comprehensive measure of ownership.^ Thus the action will lie to recover a room or charober in a house,^ even without any grant or devise of land,' for possession may be delivered of a portion of a building and there is clearly enough to direct the sher- iff in execution* § 106. Theory of the decisions. — These decisions are founded upon the necessity of the case. In crowded cities different persons sometimes have several freeholds over the same spot. The cellar may belong to one person and the upper rooms to another.^ " It is manifest," says Mr. Justice Brown of the New York Supreme Court, " that the com- mon law signification of land, that embraces all above as well as below, to an indefinite extent, cannot be applied to such interests."^ A man may- have an inheritance in an upper chamber," and a house may be held separate from the land on which it stands,® when placed there by permission of the owner of the soil, and it may be attached or sold on execution as personal property, and the owner will not be liable in trespass for such removal' In Pennsylvania a ver- dict for the use of a brick-house and store-room has been sustained." So ejectment lies for a " passage-room,"'^ for a ' Freeland v. Burt, i T. R. 701. ' White V. White, i Harr. (N. J.) 202; Anon. 3 Leon, 210, de una rooma; Runn. on Eject, pp. 122, 123; Gilliam v. Bird, 8 Ired. (N. C.) 280; Doe d. Col- naghi v. Bluck, 8 C.*& P. 464. ' Per Parker, C. J., Otis v. Smith, 9 Pick. (Mass.) 293. See Rowan v. Kelsey, 18 Barb. (N. Y.) 484; 3 Kent's Com. (12th ed.) p. *40i [529], note e. * Bacon's Abr. Eject. D. ' Doe d. Freeland v. Burt, i T. R. 701 ; Rowan v. Kelsey, 18 Barb. (N. Y.) 484. " Rowan v. Kelsey, 18 Barb. (N. Y.) 484: ' Coke on Litt. 48 b. ' PuUen V. Bell, 40 Me. 314; Dame v. Dame, 38 N. H. 429; Howard v. Fes-^ senden, 14 Allen (Mass.), 124; Doty z/. Gorham, J Pick. (Mass.) 487; Marcy t/. Darling, 8 Pick. (Mass.) 283. ° Ibid. See Gilliam v. Bird, 8 Ired. (N. C.) 280. '° Miller v. Casselbeny, 47 Penn. St. 376. " Bindover v. Sindercombe, 2 Ld. Raymond, 1470. Digitized by Microsoft® 46 FOR WHAT INTERESTS EJECTMENT LIES. part of a house known by the name of the " Three Kings in A,"^ for a vestry^ and for the fourth part of a house in N.' § 107. Vazdis.—ln Coster v. Peters* a controversy arose over the right of possession of a vault beneath the street in front of certain demised premises. The vault had been made by the tenant under a personal license or grant of permission from the city of New York, the fee of the street being in the city. It was held that the space in which the vault in question was built was in possession of the tenant as part of the soil or land as much as if it had been a room in the building ; that the right to the possession of the vault was not a mere easement ; and "that ownership of the soil extends downwards and upwards from the surface as much as it does over the mere superficial area, and may be sub- divided horizontally as v/ell as perpendicularly ; " that being land in itself the vault carried with it all the rights of domin- ion, and not a mere right to a temporary, or permanent use of the vault as an incident to the occupation of another ad- joining piece of land, and that it was not such an appurte- nant as to pass by a mere conveyance of the latter. § 108. Mining rights and interests. — Ejectment may be maintained for the recovery of the possession of a mine. " It might certainly be contended," says Bainbridge,^ " when mines form a distinct inheritance that the action of eject- ment is possessory ; that the object of contention must, at least, be such as to be capable of actual possession from the delivery of the sheriff, that all the excavated parts would be of an incorporeal nature, or, at any rate, would become part of the general freehold, through which a mere right of way would be permissible ; and that all the portions which are severed instantly lose the character of land", and become ' Sullivane v. Seagrave, 2 Str. 695. ° Hutchinson v. Puller, 3 Lev. 96. " Rawson v. Maynard, Cro. Eliz. 286. ' 5 Robt. (N. Y.) 192-202. ' Bainbridge Law of Mines (4th edition, London), p. 332. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 47 mere personal chattels. Such an action would certainly not seem to correspond, in such a case, with its exact definition. But in this, as in some other instances, the action of eject- ment has been carried beyond its original limits." § 109. Coal mine. — A coal mine or a coal pit may be recovered in ejectment^ because it is not to be considered a profit a prendre, for the mine comprehends the ground or soil itself which is capable of being delivered in execution. §110. Tin bound. — In England the interest of an owner of tin bounds in Cornwall was held not to be a mere ease- ment or incorporeal hereditament, and was declared to be the subject of an action of ejectment, and this where the claimant was not in actual possession at the time of the de- fendant's wrongful entry,^ but ejectment will not lie for tin bounds eo nomine ; they should be described as a mine lying within certain bounds called tin bounds,'^ the tin bound itself being a mere liberty of entry and marking out certain bounds within which the party entering acquires the right to work a tin mine. § III. Quarry. — In Ireland a distinction has been sug- gested between a mine and a quarry ; the former being de- fined as a place where the substratum is excavated but the surface left unbroken, whereas, in a quarry, the surface is opened ; and it was intimated by the Irish Court of Com- mon Pleas, that ejectment would not lie for a quarry.* Again, the word "mine" is defined to import a cavern, or subterranean place containing metals or minerals. This defi- nition does not include a quarry.® The distinction, how- ' Comyn v. Kyneto, Cro. Jac. 150; Comyn v. Wheatly, Noy, 121 ; Bac. Abr. Eject. D. See Turner z/. Reynolds, 23 Penn. St. 199; Jenkins, 313; Harebottle V. Placock, Cro. Jac. 21 ; Andrews v. Whittingham, Carthew, 277; s. C. i Show. 364; 4 Mod. 143 ; I Salk. 255 ; Grotz v. Coal Company, I Luz. Leg. Reg. Rep. 53. ■' Vice V. Tliomas, 4 Y. & C. 538; S. C. Smirke's Rep. i. ' Doe d. Earl of Falmouth v. Alderson, T. & G. 543 ; s. C. i M. & W. 210. ' Brown v. Chadwick, 7 Irish C. L. 101 ; see Clement v. Youngman, 40 Penn. St. 341 : see Clark v. Brazeau, i Mo. 290. ' Listowel V. Gibbings, 9 Irish C. L. 223. Digitized by Microsoft® 48 FOR WHAT INTERESTS EJECTMENT LIES. ever, is sometimes difficult of application. The question whether a quarry is or is not a mine has been said to be rather a question of fact, to be determined by the method of working.^ § 1 1 2. Oil Wells. — The decisions in Pennsylvania with regard to oil wells do not seem to be altogether reconcilable with the general principles which govern actions of eject- ment, or with each other. A lease granted " for the sole and only purpose of mining and excavating for petroleum, coal, rock or carbon oil, or other valuable mineral or vola- tile substances," was held to vest a corporeal interest which would support ejectment.^ On the other hand it was held, in the same State, that ejectment was the proper remedy for the wrongful ouster of a tenant of an oil well, notwithstand- ing the grant under the lease may have been of an incorpo- real nature.^ But where R. granted W. the exclusive right to bore for oil, reserving a one-fourth interest, with an agree- ment that, in the event of profitable results, after a reasona- ble time for experiment, the lease was to become perpetual, otherwise the land to revert to R. ; and R. brought eject- ment for a part of the land, alleging that the working of that portion had not proved profitable — it was held that eject- ment would not lie to test the right to bore for oil.* § 1 13. Right and privilege of boring for oil. — An agree- ment conferring "the exclusive right and privilege of boring for salt, oil or minerals," was held by Judge Sharswood to grant the right to experiment for oil, and, if found, to sever it from the land and take it, as a chattel, but not as any part of the realty. The court said that this was a grant of an in- corporeal hereditament only, and that the remedy for any disturbance of the rights of the grantee was by action on ' King V. Inhabitants of Sedgley, 2 B. & Ad. 65, and note. ° Barker v. Dale, 3 Pittsb. (Pa.) igo. ° Karns v. Tanner, 66 Penn. St. 297. * Rynd v. Rynd Farm Oil Co. 63 Penn. St. 397. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES., 49 the case and not ejectment.^ The case is distinguished by the court from Caldwell v. Fulton,^ where the conveyance in controversy was of the full right, title and privilege of dig- ging and taking away stone coal to whatever extent the grantee might think proper. This was held to be a convey- ance of the entire ownership of the coal in place. § 114. Oil regarded as a mineral. — In Stoughton's Ap- peal^ oil was declared to be a mineral like coal or any other natural product which, in situ, forms part of the land. The point of contention was the validity of a lease, made by a guardian of his ward's lands, which purported to confer the exclusive right to bore and dig for oil, and gather and col- lect the same. The guardian's power to lease any property of his ward, of such character as to be the proper subject of a lease, was recognized, but oil, being a mineral, was treated as realty, and the lease was held to be a grant of a part of the corpus of the estate, and not of a mere incorporeal right. The guardian having no power to dispose of any portion of the realty, the lease was adjudged void. This decision of the highest court of Pennsylvania, rendered subsequent to the cases already discussed, tends strongly to confirm such of those cases, construing oil deeds or leases, as hold that the rights of grantees or lessees are corporeal, and hence the proper subject of an ejectment. § 1 1 5. Vein or lode. — We have seen already that the an- cient common law doctrine that the ownership of land nec- essarily includes everything above and below it, is now ob- solete. This is illustrated in the case of veins and lodes no legs than in that of rooms or portions of a building. Thus ejectment lies for a vein or lode beneath the surface ; but the plaintiflF, if successful, acquires no right to the hoisting works erected for the purpose of taking ore from the vein ' Union Petroleum Co. v. Blivin Petroleum Co. 72 Penn. St, 173; see Funk v_ Haldeman, 53 Penn. St. 229. = Caldwell v. Fulton, 31 Penn. St. 475. = 88 Penn. St. 198 (decided in 1878). 4 Digitized by Microsoft® 50 FOR WHAT INTERESTS EJECTMENT LIES. recovered, unless the surface upon which the hoisting works stand is also recovered.^ § ii6. Possessory mining claims. — And ejectment will lie to recover possessory as well as patented mining claims or interests,^ and for an undivided interest in a mining claim and lode.^ § 117. Land under water. — Land under water may be made the subject of an action of ejectment,* and where it was originally below high-water mark, in navigable waters or arms of the sea, and has been transformed by human labor or artificial means into dry land, it is subject to all the rights incident to ownership of other land, and recover- able in this form of action.^ § 118. Made lands. — In Vermont it has been held that land made by a stranger by filling in earth in front of lands owned by plaintiff, bordering on the waters of Lake Cham- plain, cannot be recovered in ejectment, because riparian owners have no title to the soil below low-water mark.' § 119. Lands under water granted by land office. — In New York ejectment is maintainable for land under water, the title to which has been granted by the commissioners of the land office for the purpose of erecting docks for com- mercial use.'' And in Connecticut the rights of a riparian proprietor to land below high-water mark may be vindicated in this action,^ § 120. Rivulet or pool. — A rivulet may be recovered by ' Bullion Mining Co. v. Croesus Gold & S. M. Co. 2 Nevada, 168. See §§ 105, 106. ° Sears v. Taylor, 4 Col. 38. = Mining Company v. Taylor, 100 U. S, 37 ; Waring v. Crow, 11 Cal. 366. * Martin v. Waddell, 16 Peters, 367; Casey's Lessee v. Inloes, i Gill (Md.), 430; see Browne v. Kennedy, 5 Harr. & John. (Md.) 195. " People V. Mauran, 5 Denio (N. Y.), 389. = Austin V. Rutland R. R. Co. 45 Vt. 215; but see Ledyard v. Ten Eyck, 36 Barb. (N. Y.) 102. ' The Champlain & St. L. R. R. Co. v. Valentine, 19 Barb. (N. Y.) 484. ' Nichols V. Lewis, 15 Conn. 137. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 5 1 laying the ejectment for so many acres of land covered by water ;^ and so of a pool or pit of water — the words compre- hending both land and water.^ § 121. Bed of the ocean. — In California the title to the bed of the ocean is vested in the State, and it is said that the latter may maintain ejectment for a wharf constructed beyond low-water mark by defendant without authority.* § 122. Tide lands. — In Oregon tide lands on the Co- lumbia river, which are covered and uncovered by the ebb and flow of the sea, belong to the State by virtue of its sov- ereignty, and may be recovered by ejectment* § 123. Land swallowed by the sea. — In Murphy v. Nor- ton^ an interesting question as to the title to lands which had emerged from the sea by natural means was considered by the Supreme Court of New York. The action was in- stituted to test the ownership of four miles of sand beach extending from Rockaway Beach to Long Beach, on the shore of Long Island, The plaintiff claimed that those through whom he derived title had at all times owned, and had been in undisputed possession of the land bordering up- on and extending down to the ocean ; that as far back as 1 797 the shore or line of the ocean extended outside of the present sea front; that, in i860, the plaintiffs shore was cut off, washed away, and swallowed by the sea; that since 18 70 the beach had emerged from the sea, and reformed outside the mainland, divided from it by a bay of navigable water, but within the plaintiffs original boundaries. The owner of the mainland took possession of the newly formed beach for the reason that it had formed within the limits of his ancient boundaries ; while the town of Hempstead, in which the lands were located, claimed the whole of the new beach by ' Challenor^/. Thomas, Yelv. 14.3; S. C. i Brownl. 142. " Ibid. ; see, also, Co. Litt. 5 b. ' Coburn v. Ames, 52 Cal. 385; see People v. Davidson, 30 Cal. 389. ■* Hinman v. Warren, 6 Oregon, 408 ; see Barney v. Keokuk, 94 U. S. S. C. 324. * 61 How. Pr. (N. Y.) 197. This case is at present pending on appeal. Digitized by Microsoft® 52 FOR WHAT INTERESTS EJECTMENT LIES. right of sovereignty as an accretion upon Long Beach. The court held that the title of the original owner attached to the restored beach. In re Hull & Selby Railway ^ was relied upon by the parties claiming under the town of Hempstead adversely to the original proprietor. That case establishes the doctrine that where the sea, by gradual and imperceptible progress, encroaches upon private land, the title to the land thereby covered with water becomes vested in the sovereign power. The Supreme Court of New York decided, however, in Murphy v. Norton, that this principle applied only for the period during which the land remained submerged, and that when it reappeared, or emerged from the water by natural means, within the ancient boundaries, the title of the original owner was revested and restored. This decision rests upon the authority of Lord Chief Justice Hale :^ " If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it ; or though the marks be defaced, yet if by situation and extent of quanr tity, and bounding upon the firm land, the same can be known, though the sea leave this land again, or if it be by art or industry regained, the subject doth not lose his prop- erty ; and accordingly it was held by Cooke and Foster,* though the inundation continue forty years." § 124. New islands. — A similar question was decided by the Court of Common Pleas of Delaware county, Penn- sylvania, as early as 1815.* It appeared that the surface of the lower part of Little Tinicum Island had been washed away by the force of the winds and waves, and consequent- ly overflowed by the water of the river. Subsequently a bar began to form by the deposit of alluvion, and appeared above ' 5 M. & W. 327. " De Jure Maris— Hargraves' Law Tracts, p. 15; see, also, pp. 16, 30, 31, 36, 37; 2 Bla. Com. pp. 261, 262. = M. 7, Jac. C. B. "■ Norris v. Brooke, Albany Law Journal, vol. 25, p. 90. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 53 the water in the same place which had formerly been occupied by the part of Little Tinicum Island swallowed up by the river. The bar began forming below the island, and was for, a long time entirely distinct from it,, but at length became united with the old island by its own extension upwards through gradual accretions. The defendant procured a grant of the bar or new island from the Commonwealth, but the former proprietor claimed, and the court decided, that the latter did not lose his property in the soil covered by water if it was regained either by natural or artificial means, but that it continued to belong to him, and was not the subject of a new grant from the Commonwealth. In a case in the Su- preme Court of Connecticut,^ it appeared that the plaintiff's ancestor had sunk an old scow filled with stones in a naviga- ble river, on a flat between two channels, and had used it for the purpose of fishing when it was bare at low water. The scow was overflowed, and completely submerged, at high water. By gradual accretion of sand an island had finally formed over the scow, and emerged above the water. Plaint- iff" and his ancestor continued to use the island for fishing purposes, and each year mowed the grass growing upon it, but it appeared that a large number of people had used the island for fishing, without license from any one, and without paying for its occupation, and that the plaintiff's claim was not generally known or recognized. It was held to be set- tled law, in Connecticut, that the title to an island emerging, as this did, in navigable waters, vested in the State, and that a grant from the State could be presumed from long continued and adverse possession, but that the plaintiff's possession was not safficiently exclusive to give him title against the State, or any one else, the island having been treated as common or public property. § 125. Accretions. — Alluvion has been described by the Supreme Court of the United States as " an addition to riparian land, gradually and imperceptibly made by the water ' Tracy v. Norwich & W. R. R. Co. 39 Conn. 382. Digitized by Microsoft® 54 FOR WHAT INTERESTS EJECTMENT LIES. to which the land is contiguous. It is different from rehc- tion, and is the opposite of avulsion. The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see, from time to time, that pro- gress has been made, they could not perceive it while the process was going on. Whether it is the effect of natural or artificial causes make no difference. The result as to the ownership in either case is the same. The riparian right to future alluvion is a vested right. It is an inherent and essen- tial attribute of the original property. The title to the increment rests in the law of nature."^ These accretions constitute a part of the realty, and may be enjoyed and pro- tected as such. § 126. Salt boilery. — Ejectment for a boilery of salt has been upheld, although the claimant was only entitled to a certain number of buckets of salt water drawn out of a well.* By the grant of a boilery of salt it is said that the soil passes, for it is the whole profit of the soil,^ and the water being fixed in a certain place within the bounds and compass of the well is considered a part of the soil.* § 127. Inaccessible lands. — It was objected in New York to a recovery in ejectment that the lands in controversy, which did not touch upon any road or street, were inaccessi- ble at the time of trial, so that the sheriff could not deliver possession, but the Commission of Appeals held that this was a misconception of a well-known rule of law that where the property is not, in its own nature, capable of physical possession, an action of ejectment would not lie, and that the cases lend no countenance to the idea that land itself cannot be recovered in ejectment because it happens to be inacces- ' County of St. Clair v. Lovingston, 23 Wall. 46-68. See Bait. & Ohio R. R. Co. V. Chase, 43 Md. 23 ; Cook v. McClure, 58 N. Y. 437 ; Garrish v. Clough, 48 N. H. 9. = Sanders v. Patridge, Noy, 132 ; Smith v. Barrett, i Sid. 161 ; s. C. Lev. 114. ' See Comyn v. Kyneto, Cro. Jac. 150; Co. Litt. 4 b. ' Gilbert on Eject. (2d ed.) p. 62. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 55 sible at the time the judgment is entered, or during the trial.^ § 128. Distinct tracts of land. — Plaintiff may recover in a single action several distinct tracts of land claimed under different titles if he has been unlawfully ejected from them all by the same defendant.^ § 129. Dower. — At common law a widow cannot main- tain ejectment for dower until it has been admeasured or set ofl[ to her, because she is not seized of any part of the land, and has no right of entry, or of present possession, before assignment;^ nor is her grantee before admeasurement in any better position.* And when ejectment is brought, after admeasurement, the validity of the widow's claim to dower, the title of her husband, his seizin, and her marriage, may all be controverted and tried, notwithstanding the ad- measurement.^ § 130. Land subject to an easement, servitude, or public use!" — In general, ejectment lies to recover the possession of the soil subject to either a public or private easement over it.'' In the leading case of Goodtitle v. Alker,^ Lord Mans- field, after exhaustive argument, decided that the action might be maintained by the owner of the soil for land which ' WoodhuU V. Rosenthal, 61 N. Y. 382, per Dwight, C. See §§ 96-101. ° Den d. Williamson v. Snowhill, I Green (N. J.), 23. See Worrell v. Beck, cited in i Wils. I. See Jackson v. Woods, 5 Johns. (N. Y.j 278, per Kent, Ch. J.; Jackson v. Sidney, 12 Johns. (N. Y.) 185. " Doe V. Nutt, 2 Car. & P. 430; Jackson d. Clowes v. Vanderheyden, 17 Johns. (N. Y.) 167, per Spencer, Ch. J. ; Weaver v. Crenshaw, 6 Ala. 873 ; Chap- man V. Sharpe, 2 Show. 186; Pringle v. Gaw, 5 S. & R. (Pa.) 536; Jackson v. O'Donaghy, 7 Johns. (N. Y.) 247 ; Chapman v. Armistead, 4 Mumf. (Va.) 382 ; 4 Kent's Com. 62 ; Dorsey on Ejectment, 43. ' Jones V. Hollopeter, 10 S. & R. (Pa.) 326. " Parks V. Hardey, 4 Brad. (N. Y.) 15; Hyde v. Hyde, 4 Wend. (N. Y.) 630; and see Sparrow v. Kingman, i N. Y. 242, and cases cited. ° For a consideration of the right of municipal corporations to maintain eject- ment for the possession of public streets or places, see the chapter on that subject. ' Tillmes v. Marsh, 67 Penn. St. 507, per Sharswood, J. ; Cooper v. Smith, 9 S. & R.(Pa.) 26. ' Goodtitle v. Alker, i Burr. 133, per Lord Mansfield. Digitized by Microsoft® 56 FOR WHAT INTERESTS EJECTMENT LIES. was part of the King's highway. In the argument of coun- sel in this case, reference was made to a ruling, attributed to Lord Hardwicke, that, as no possession could be delivered of the soil of a highway, therefore no ejectment would lie for it ; but the judges of the King's Bench seem to have been doubtful whether any such ruling had ever been made by Lord Hardwicke. If made at all, it was clearly over- ruled by Lord Mansfield's decision. §131. City of Cincinnati v. White discussed. — The Su- preme Court of the United States, however, in Cincinnati v. White,^ intimated the opinion that the supposed ruling of Lord Hardwicke was sound in principle, and that eject- ment was not rnaintainable for lands dedicated to a public use, for the reason that the plaintiff by invoking that remedy seeks to be put in actual possession of the land, which would subject him to an indictment for a nuisance, the private right of possession being in direct hostility with the easement or use to which the public are entitled ; and taking possession subject to the easement being utterly impracticable. This action, however, was brought to test the right of the public to an easement in the land, and the remarks of Mr. Justice Thompson on this head must therefore be considered as entirely obiter. In ad- dition to the ruling attributed to Lord Hardwicke the court cite only two cases as authority for the proposition that ejectment is not maintainable for land subject to a public use. In Styles v. Curtis,^ the first case cited, certain proprie- tors of an ancient township had appropriated common lands for a public highway, by laying out the land adjoining thereto and selling the same as being bounded on the high- way. At the time of the trial this land had been used as a highway for a century, but was no longer needed for that pur- pose. One of the adjoining owners inclosed and took pos- session of a portion of it, and the Supreme Court of Con- ' City of Cincinnati v. White, 6 Peters, 431, per Thompson, J. = 4 Day R, (Conn.) 328. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 57 necticut held that ejectment could not be maintained against him by the township proprietors. The grounds of the de- cision do not clearly appear from the opinions of the judges, but it seems to have been considered a sufficient reason for refusing to maintain the action that the plaintiff", by laying out the highway, had parted with all his title as proprietor. Peck V. Smith,^ the second case relied upon, was an action of trespass, by the owner of the fee in a highway, against a defendant who had obstructed it by maintaining a shop upon it, and the plaintiff"'s right to support the action was upheld. The remarks of the court concerning his right to bring ejectment are obiter. These cases, however, are in conflict with the universal current of modern authority, the easement being now regarded as a mere liberty, privilege, or advantage existing distinct from the ownership of the soil.^ § 1 32. Ownership of the soil and the right to an easement independent. — The grantee of such a right is not the owner or occupant of the estate over which the right extends,^ but the right to the fee and the right to an easement in the same estate are rights independent of each other, and may well subsist together when vested in different persons. Each can maintain an action to vindicate and establish his right ; the former to protect and enforce his seizin of the fee ; the latter to prevent a disturbance of his easement.'' It may, there- fore, be considered settled that the owner of the fee of a highway, over which the public have an easement for travel, may recover the land within the limits of the highway in eject- ment, against one who has illegally appropriated it to a pur- pose not authorized by the easement or servitude.* And ' I Conn. 103. '' Dubuque v. Maloney, 9 Iowa, 450 ; Pomeroy v. Mills, 3 Vt. 279. => Cook Co. V. C. B. & Q. R. R. Co. 35 111. 460. * Morgan v. Moore, 3 Gray (Mass.), 319. ' Reformed Church v. Schoolcraft, 65 N. Y. 134; Wager v. Troy Union R. R. Co. 25 N. Y. 526; Goodtitle v. Alker, i Burr. 133; Etz v. Daily, 20 Barb. (N. Y.) 32 ; Lozier v. N. Y. Central R. R. Co. 42 Barb. (N. Y. ) 465 ; Carpenter v. Oswego & S. R. R. Co. 24 N. Y. 655 ; Cooper v. Smith, 9 S. & R. (Pa.) 26; War- wick V. Mayo, 15 Gratt. (Va.) 528; Boiling v. The Mayor, &c. 3 Rand. (Va.) Digitized by Microsoft® 58 FOR WHAT INTERESTS EJECTMENT LIES. the rule is the same with regard to a private way, e.g., an alley/ a passage way,^ and so of a ferry right.^ The sheriff in such cases delivers possession of the land subject to the easement* § 133. Character of defendant's occupation. — The occu- pation of the land by the defendant must, however, to sus- tain the action, be wholly inconsistent with the pubHc ease- ment,^ hence proof that at the commencement of the action the locus in quo was in use by the defendant as one of the public streets of a city, has been held insufficient to sustain ejectment, such use not affording evidence of any claim of title to, or interest in, the land itself, and being a mere claim of an easement not incompatible with the title or possession of the plaintiff.* § 134. Rights of the owner of the fee. — -The right of the owner of the fee to maintain ejectment is founded on his right to continue to use the land in any manner not incon- sistent with the public right, or that does not impair the en- joyment of the easement.'^ He may maintain trespass for any injury done to the soil not incidental to the public right of passage,^ as where the defendant continues a shop, there- 563; Wright -v. Carter, 3 Dutch. (N. J.) 76; Pomeroy v. Mills, 3 Vt. 279; Blake V. Ham, 53 Me. 430; Ayer v. Phillips, 69 Me. 50; Bac. Abr. Tit. Highways B.: Brown v. Galley, Lalor's Sup. 308; Stackpole v. Healy, 16 Mass. 35. Writs of Entry, — Hancock v. Wentworth, 5 Mete. (Mass.) 446 ; Morgan v. Moore, 3 Gray (Mass.), 319. ' Gordon v. Sizer, 39 Miss. 805. ° Morgan v. Moore, 3 Gray (Mass.), 319. ' Cooper V. Smith, 9 S. & R. (Pa.) 26. ' Ibid. " Adams v. Saratoga & W. R. R. Co. 1 1 Barb. (N. Y. ) 41 4. Reversed on anoth- er point, 10 N.Y. 328; Dewitt z/. Village of Ithaca, 15 Hun (N.Y.), 568. See §135. » Cowenhoven v. City of Brooklyn, 38 Barb. 9. But see Strong v. City of Brooklyn, 68 N. Y. i. See Kurkel v. Haley, 47 How. Pr. (N. Y.) 75 ; Dewitt v. Village of Ithaca, 15 Hun (N. Y.), 568. ' Jackson d. Yates v. Hathaway, 15 Johns. (N. Y.) 447; Peck v. Smith, I Conn. 104-130; Babcock v. Lamb, I Cowen (N. Y.), 238; Stackpole v. Healy, 16 Mass. 35. "Chambers v. Furry, i Yeates (Pa.), 167; Barclay v. Howell's Lessees, 6 Peters, 498; Stackpole v. Healy, 16 Mass. 35; Harrison v. Parker, 6 East, 154; Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 59 bn/ or ploughs the road, unless it be done merely to make repairs, or keeps goods continuously in the street for the purpose of sale ; for the freehold and the profits, the trees upon the land, the right to take the herbage,^ to remove the soil or sand,® to carry water in pipes,* to work the mines under the surface, and to utilize the quarries, springs of water, and timber,® belong to the owner of the soil. He has a right to all the remedies for the protection of the freehold subject to the easement." In a case which arose in New York plaintiff conveyed a farm to defendant, excepting from it the land embraced in its boundaries included in a high- way. The defendant dug up the road, and rAn a water pipe across it, set out fruit and shade trees, and piled stones, lum- ber, and manure within its boundaries, and used a portion of it for farming purposes, and claimed, as against the plaintiff, the right to appropriate the highway to the uses described. Under these circumstances the right to maintain ejectment was sustained by the Supreme Court.'^ § 135. Ejectment for lands applied to unauthorized use. — A railroad corporation having .acquired land under its charter for its own use, and subsequently having discon- tinued its railroad, deeded the land to a municipal corpora- tion to be used for the purpose of a street. Ejectment was sustained against the latter by the owner of the fee on the ground that he owned a reversionary interest, and was en- titled to resume possession on the discontinuance of the use for which the land had been taken, and that it was not law- ful to appropriate the land to a new additional use without Peck V. Smith, i Conn. 104; Babcock v. Lamb, i Cowen (N. Y.), 238; Gidney v. Earl, 12 Wend. (N. Y.) 98; Willoughby v. Jenks, 20 V\^end. (N. Y.) 96. ' Peck V. Smith, i Conn. 103. " Stackpole v. Healy, 16 Mass. 33; Adams v. Emerson, 6 Pick. (Mass.) 56. ° Williams v. Kenney, 14 Barb. (N. Y.) 629. ' Goodtitle v. Alker, i Burr. 133-144. " Lyon V. Gormley, 53 Penn. St. 261. ° Boiling V. The Mayor, &c. 3 Rand. (Va.) 563 ; Chambers v. Furry, i Yeates (Pa.), 167. ' Etz V. Daily, 20 Barb. (N. Y.) 32. Digitized by Microsoft® 6o FOR WHAT INTERESTS EJECTMENT LIES. fresh condemnation and additional compensation.^ So an action may be maintained by the owner of the fee of a street charged with a public easement, against a railroad company which had laid tracks in the street, though the tracks had not been used or connected with the other por- tions of the railroad.^ A fortiori this must be the rule where' a railroad occupies any part of a street for actual use as its roadway.^ § 136. Wrongful use for public purposes not protected. — The wrongful possession of land by a railroad company in any such case will not be protected by the courts merely be- cause the lands are devoted to a public use, nor will the owner be remitted to a vexatious litigation to recover com- pensation.* sj 137. Rule in Illinois. — The rule, however, seems to be different in Illinois. In ejectment by the owner of the fee of a country road against a railway corporation, which had laid its tracks on the road, it was decided that the public au- thorities, who had the superintendance and control of the public roads, may authorize and permit travel over them by means of a railway, and that the plaintiff could not recover the possession in ejectment against the railroad company.^ § 138. Rule when fee is granted for public use. — Where the owner, however, parts with the fee of the land to a municipal corporation, or other public body, entitled to hold it for public use, he cannot maintain ejectment while the fee continues in the grantee, but must wait until the title reverts. He has no title to be assailed and no possession that can be invaded. This differs from the case of an ordi- ' Strong V. City of Brooklyn. 68 N. Y. i ; s. C. first appeal sub. nom. Heard v. City of Brooklyn, 60 N. Y. 242. See, however, N. Y. & H. R. R. Co. v. Kip, 46 N. Y. 546. See § 133. " Carpenter v Oswego & S. R. R. Co. 24 N. Y. 655. " Weisbrod v. C. & N. R. R. Co. 21 Wis. 602; Gardiner v. Tisdale, 2 Wis. 153. ■* Graham v. C. & I. C. R. R. Co. 27 Ind. 260. ' Edwardsville R. R. Co. v. Sawyer, 92 111. 377. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 6 1 nary highway, for in the latter case the public have only a right of way or passage.^ Ejectment may be maintained for a road-bed abandoned by a railroad company which had originally acquired only an easement over the land.^ § 139. Municipal corporations. — It was contended by counsel, in a recent case in New Jersey, that a municipal cor- poration had not sufficient title to its streets to maintain eject- ment.^ But the court held that where the public easement was such that exclusive possession was essential for its enjoy- ment ejectment was the only appropriate action to obtain the possession, and the corporation may defend ejectment at suit of the owner of the fee by setting up the right of pos- session of the street acquired by dedication to the public use.* § 140. Attempted distinction between public and private easements. — In a recent case already cited,^ the Supreme Court of New Jersey intimated its opinion, that while the existence of a private easement constituted no defense to the action of ejectment by the owner of the fee, the rule was otherwise with regard to a public easement, and that in the latter case, under the decision of the Supreme Court of the United States in Cincinnati v. White, ubi sup., the owner of the easement could interpose a valid defense. This distinction seems to have been suggested by the fact that in the case of many public easements, such as streets in cities, the possession, exclusive of all interference by the owner of the fee, is essential for its use, regulation, and en- joyment, and that ejectment, being based upon a right to be put in possession, is not maintainable. But the dis- tinction cannot be supported on principle, for the owner, as we have seen, is still entitled to the use, enjoyment, and pos- ' Hunter v. Middleton, 13 111. 50. See People v. Kerr, 27 N. Y. 188. '' Phillips V. Dunkirk W. & P. R. R. Co. 78 Penn. St. 177. ' See § 130, n. 6. ■■ Hoboken Land & Improvement Co. z/. Mayor, &c., Hoboken, 7 Vroom (N. J.), 540; see Morgan v. Moore, 3 Gray (Mass.), 319. = Hob. L. & I. Co. V. The Mayor, &c. 7 Vroom (N. J.), 540. Digitized by Microsoft® 62 FOR WHAT INTERESTS EJECTMENT LIES. session of the fee in so far as it does not detract from or inter- fere with the use of the easement. He may still own, even in a public street in a city, trees and herbage, and be owns the soil under the street as well. He may, as we have already seen, maintain ejectment for a mine, and in such a case — a by no means improbable contingency in a mining commu- nity — supposing a street to run over it, the public easement could not be any objection to his recovery. As already stated, the general current of modern authority is to the effect that the two interests are entirely independent of each other, and there is no difficulty in the sheriff's delivering possession of the land subject to the easement.^ § 141. Land subject to homestead rights. — In Massachu- setts, on a writ of entry against a married woman alone to recover possession of land in which she has a homestead in- terest, a qualified judgment may, by statute, be rendered for the possession of the land subject to the right of homestead.^ In that State the owner of land impressed with this burden, in favor of a tenant and his family, may maintain a writ of entry, and recover the land except in so far as the homestead title may exclude him.** In Letchfield v. Gary, the Supreme Court of Mississippi held that a purchaser of land at execu- tion sale, subject to homestead, could recover it in ejectment, but was entitled to a judgment to the extent of his title only, and could not dispossess the occupants, or affect their rights under the homestead statute.* The decisions upon this sub- ject, however, are not uniform. Thus it has been held in Illinois that where the homestead of a debtor was sold under execution without division, although the land was worth over $1,000, the statutory limit, the purchaser acquired no title to any part of it, which was available in ejectment to either a • Tillmes v. Marsh, 67 Penn. St. 507; Cooper v. Smith, 9 S. & R. (Pa.) 26. See§ 132. = Castle V. Palmer, 6 Allen (Mass.), 401 ; Stebbins v. Miller, 12 Allen (Mass.), 591- ' Swan V. Stephens, 99 Mass. 7. * Letchfield v. Cary, 52 Miss. 791. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 63 plaintiff or defendant. The judgment was held to be a lien upon the land over $i,ooo in value, but the court said that the creditor's remedy was to proceed under the statute.' In a later case, in the same State, it was held that when the home- stead was not released in the mortgage it did not pass under a foreclosure sale, and no rights were acquired under it which could be enforced in ejectment where the owner of the home- stead right was occupying the land at the time of the sale.^ § 142. Ejectment for fishery. — In England, in an early case which arose in the King's Bench, a doubt was expressed by the judges whether ejectment could be maintained for a piscary,^ and this was followed by decisions that the action would not lie, on the ground that the right was only a profit a prendre and incorporeal in its nature.* Much confusion has been introduced into this subject, however, in part through a later decision of the same court,^ distinguishing between a mere common of piscary as incorporeal, and a several fishery united with the right to the soil. This latter case was not an action of ejectment, but turned upon the question, whether a pauper had, by the demise of a fishery, taken a tenement within the meaning of a statute relating to settlements. Buller, J., rested the decision of the court expressly on the ground that it was necessary to presume in letting a fishery, that the soil passed with it, while Ashhurst, J., said : " There is no doubt but that a fishery is a tenement. Trespass will lie for an in- jury to it ; and it may be recovered in ejectment." It is obvious that this latter statement can hardly be regarded as anything more than an obiter dicttim., but the presumption referred to, that the owner of a fishery must be taken in the absence of negative proof to be the owner of the soil, has an important bearing on the action of ejectment. Wherever such a presumption is admitted to exist, the owner of a fish- ' .Stevens v. Hollingsworth, 74 111. 202. " Asher v. Mitchell, 92 111. 480. ' Molineux v. Molineux,Cro. Jac. 144. * Herbert v. Laughluyn, Cro. Car. 492 ; Waddy v. Newton, 8 Mod. 278. ' Rex V. Inhabitants of Old Alresford, i T. R. 358. Digitized by Microsoft® 64 FOR WHAT INTERESTS EJECTMENT LIES. ery, independent of the soil, would seem to have the right to maintain ejectment against any one who cannot prove the negative fact that he was not the owner of the soil. In En- gland this presumption has been recognized in several cases,' in the last of which Lord Cockburn, though strongly con- tending on grounds of principle against its existence, ad- mitted that the doctrine was settled law. In this country, however, these precedents can hardly be considered binding, and the dissenting opinion of Lord Cockburn, in the case last cited, may, probably, be taken as placing the matter in its true light. In all these recent cases the only question really involved was whether trespass could be maintained by the owner of a fishery, and as ownership of the soil is not essential to maintain trespass, it was unnecessary for the judges to invoke the presumption in aid of the decision, and their remarks on this head were not called for by the facts before them. Such a presumption is clearly entirely out of place in an action of ejectment. The plaintiflF does not rely on any presumptions, but on the strength of his own title, and his allegation of an incorporeal hereditament cannot be supposed to imply a corporeal hereditament in support of it. The general conclusion to which these considerations all point is that where the right to the soil and the fishery are united, the owner of the former can, by bringing ejectment for the one, recover the other ; but that where the right to fish is separated from the ownership of the land the action is not maintainable, but resort must be had to other remedies.^ ' Partheriche v. Mason, 2 Chitt. 658; Somerset v. Fogwell, 5 B. & C. 875 ; Holford V. Bailey, 8 Q. B. 1000; s. c. in Error, 13 Q. B. 426; Marshall v. Steam Nav. Co. 3 B. & S. 732. ■^ In this discussion we have not thought it worth while to go into the distinc- tions between free, common, and several fisheries, nor to consider the question, once the subject of much controversy, whether the grant of a fishery necessarily carried with it as accessory the right to the soil. Whatever may have been the authority at one time in support of this proposition it must now be considered disposed of. See Angell on Watercourses, § 72 ; Butler & Hargrave's Co. Litt. 122 a, note 7 ; Woolrych's Law of Waters, 1 1 1 ; and the dissenting opinion of Cock- burn, C. J., in Marshall v. Steam Nav. Co. ubi sup. The presumption of a united Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 65 § 1 43. Pasturage and herbage. — The early cases, decided in England, with regard to the right to bring ejectment for pasturage and herbage, are of little value at the present day. They seem to have turned chiefly on questions of evidence and pleading. These rights somewhat resemble fishery rights. With regard to both, it is clear that they may exist separate from the interest in the soil. Lord Coke says^ that the grantee of herbagium terrce has a "particular right" in the land, and " shall have an action quare clausum f regit ; but by grant thereof and liverie made, the soile shall not passe." Where the right to the soil and the herbage are in the same person, the recovery of the one in ejectment would carry the other with it ; but that the owner of the separate herbage or pasturage rights would now be per- mitted to maintain ejectment may well be doubted. In an early case in the King's Bench, often cited, it was held that ejectione firmce would lie for the pasturage of one hundred sheep,** but it does not appear from the report what the interest of the plaintiff in the soil was, and the ques- tion may have been only that of the proper description of the subject of the action ; and in a later case in the Ex- chequer,^ where ejectione firmce was brought upon a demise de herbagio et pannagio of so many ^cres, the court stated as a reason for inclining against the plaintiff, that " herbage does not include all the profit of the soil, but only a part of it," referring to the passage from Coke above cited.* In ownership in tlie absence of negative proof is, of course, something entirely differ- ent. It may be observed here that, as a general rule, the right to fish in any vi^aters gives no rights in the adjoining lands. Cortelyou j/.Van Brundt, 2 Johns. (N Y.) 357; Ball v. Herbert, 3 T. R. 256; Bickel v. Polk, 5 Harr. (Del.) 323; Locke v. Motley, 2 Gray (Mass.), 267. See Blundell v. Catterall, 5 B. & Aid. 268; Casey's Lessee v. Imloes, i Gill. (Md.) 430. ' Coke Litt. 4 b. ' Anon. 2 B. & Dal, 95. ' Wheeler v. Toulson, Hardre, 330. * English cases turning on the meaning of the word "tenement" in statutes relating to the settlement of paupers, though sometimes cited in connection with ejectment have really no bearing upon it whatever. These statutes have been very liberally construed, the judges going so far in one case as to hold the rent- C Digitized by Microsoft® 66 FOR WHAT INTERESTS EJECTMENT LIES. Ward V. Petifer, and in Parker v. Staniland, in the King's: Bench/ it was said that ejectment would lie for the first crop growing upon land, but in the second case the remark was entirely obiter, while in the first it was not needed for the ac- tual decision of the question presented to the court, for the jury were told that if they believed that the plaintiffs had only the first crop (and not the entire profits through the year), they should return a special verdict to that eflfect " and leave it to the law whether an ejectment lies in this manner."' The case is chiefly remarkable for containing a suggestion,, similar to that above noted, as having been advanced with regard to fisheries, that the owner of the first crop will be presumed, in the absence of evidence to the contrary, to be the owner of the freehold. These decisions cannot certainly be regarded as sufficient to uphold ejectment for herbage or pasturage, when separated from the general ownership of the soil, and existing as a mere right to the profits of the land. Pannage, or the right to gather mast, which cannot be dis- tinguished, in the nature of the interest, from pasturage or herbage, has been held insufficient to support ejectment.^ In Massachusetts the Supreme Court of that State has de- cided,^ that the grantee of the " herbage or feeding " of land cannot maintain a writ of entry, and this decision would be regarded as authority in any State in which the action of ejectment prevails. § 144. Church property. — When ejectment was first in- troduced it was held that a church or chapel could not be recovered in the action because it was not a temporal inher- itance and not demisable, but was res sacra. This doc- trine was soon exploded and the practice of demanding and ing of cows to create a " tenement "—an interest which obviously could not sup- port an action to try title to land. ' Ward V. Petifer, Cro. Car. 362; see Parker v. Staniland, 11 East, 362, 366. See Dorsey on Ejectment, p. 17 ; Cook v. Gerrard, i Saund. 186, C. No. 7. ^ Pemble v. Sterne, i Lev. 213. ' Rohoboth V. Hunt, I Pick. (IVIass.) 224. Digitized by Microsoft® FOR WHAT INTERESTS EJECTMENT LIES. 67 recovering church property as messuages was introduced.^ Ejectment for a church ground has been upheld.- With us church property being held by religious corporations which, like other corporations, may maintain and defend . actions for the possession of their real property, the early cases and practice have ceased to be of any practical importance. § 145. Common appendant and tithes. — In England ejectment has been sustained for common appendant and appurtenant^ and for tithes.* ' Hillingsworth v. Brewster, Salk. 256; Thyn 7/. Thyn, Styles, loi ; Harpur's Case, XI Coke, 25 b. ■' City of Hannibal v. Draper, 15 Mo. 634. ' Black's Lessee v. Hepburne, 2 Yeates (Pa.), 331; Mellington v. Goodtitle, Andrews, 107; Newman v. Holdingfast, i Strange, 54. ' 2 Wms. Saund. 304, n. 12; Camell v. Clavering, 2 Ld. Raymond, 789. Digitized by Microsoft® CHAPTER IV. INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. § 146. Not maintainable for incorporeal hereditaments. 147. Ownership of land and right to ease- ment independent. 148. Interests not recoverable in eject- ment. 149. Water-courses and overflowed lands. 150. Mining rights and privileges. 151. Shore lines. 152. Ferry right or franchise. § 153. Wharfage. 154. Cloud on title. 155. Room or chamber. 156. Projecting eaves or cornices. 157. Projecting foundation. 158. Party-walls. I5g. Claim for improvement 160. Rent reserved. 161. Claim of easement. § 1 46. Not maintainable for incorporeal hereditaments. — Ejectment is not maintainable 'for incorporeal heredita- ments,' nor can a writ of entry be supported where the de- mandant possesses no higher interest in the soil than a mere easement,^ because there can be no seizin of an incorporeal hereditament ; it cannot be delivered in execution by the sheriff, and is not subject to entry. The right to enjoy an easement cannot be vindicated in this action, because an easement " lyeth in grant and not in livery ;" the owner can- not be disseized or otherwise ousted of it, and is not vested with the title to the soil.* There cannot be actual dispos- session, for the subject itself is neither capable of actual bodily possession nor dispossession.* Thus the action can- not be sustained to recover, as an easement to a mill, the right to use a wharf along a canal basin, for the purpose of loading and unloading boats carrying wheat to and from ' Farley v. Craig, 3 Green (N. J.), 191 ; Black v. Hepbume, 2 Yeates (Penn.),_ 331; Wilklow V. Lane, 37 Barbour (N. Y.), 244; Caldwell z/. Fulton, 31 Penn.St.' 475; Clement v. Youngman, 40 Penn. St. 341 ; Taylor v. Gladwin 40 Mich. 232; see Smith v. Wiggin, 48 N. H. 105; Le Fevre v. Le Fevre, 4 S. & R. (Penn.) 243. ' Provident Institution v. Bumham, 128 Mass. 458; see 104 Mass. i. ' Judd V. Leonard, i Chip. (Vt.) 204; Wood v Truckee Turnpike Co. 24 Cal. 474; Hewlins v. Shippam, 5 B. & C. 221 ; Northern Turnpike Co. v. Smith. 15 Barb. (N.Y) 355. ' 3 Bla. Com. pp. 169, 170. Digitized by Microsoft® INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. 69 the mill of the claimant, adjoining the wharf, which right the claimant had occasionally used or exercised, in common with a similar right in others.^ § 147. Ownership of land and right to easement inde- pendent. — The right to the fee and the right to an easement in the same estate are, as we have seen, rights independent of each other ; ^ the easement or servitude not being an es- tate in land.* The most effective remedy for an interrup- tion of the enjoyment of an incorporeal right is by action of trespass on the case,* though an action of nuisance is sometimes brought, or an injunction procured, in appropri- ate cases. § 148. Interests not recoverable in ejectment.— B^jectment does not lie for a mere prof t a prendre, as pannage,® nor for rent,^ nor for a privilege of a landing-place held in common with other citizens of a town.' The right to the use of an alley adjacent to the land in controversy cannot be recov- ered in ejectment, and the recital of such a right in the judgment is nugatory.^ Ejectment is not maintainable for a mere right of way,^ nor for a right to a road,^" nor, in En- gland, for glebe after sequestration," nor for an advowson,^* nor, as was held by Chief Justice Tindal, for a canonry or ' Child V. Chappell, 9 N. Y. 246. ' Morgan v. Moore, 3 Gray (Mass.), 319. See § 132. ° Nellis V. Munson, 24 Hun (N. Y.), 575; San Francisco v. Calderwood, 31 Cal. 585; First Baptist Society z/. Grant, 59 Me. 245; see 66 Me. 400; Snyder w. Warford, u Mo. 513; Hewlins v. Shippam, 5 B. & C. 221. ■* Allen V. Ormond, 8 East, 4; Gushing v. Adams, 18 Pick. (Mass.) no; Hast- ings V. Livermore, 7 Gray (Mass.), 194; Northern Turnpike Co. v. Smith, 15 Barb. (N. Y.) 355; The Seneca Road Co. v. A. & R. R. R. Co. 5 Hill (N. Y.), 170. " Pemble v. Sterne, i Lev. 212; s. C. i Sid. 416. ' Herbert v. Laughluyn, Cro. Car. 4^2. ' Black V. Hepburne, 2 Yeates (Penn.), 331. ' Taylor v. Gladwin, 40 Mich. 232. See § 102, and note. • Northern Turnpike Co. v. Smith, 15 Barb. (N. Y.) 355. '° Wood V. Truckee Turnpike Co. 24 Cal. 474. " Doe V. Bluck, 3 Camp. 447. " Peters* Sup. Blac. p. 145. Digitized by Microsoft® 70 INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. ecclesiastical office/ nor for a right of common by itself,^ nor for a free warren.® § 149. Water-courses and overflowed lands. — Ejectment cannot be brought against one who merely claims an ease- ment or right to flow land with water, the plaintiff being otherwise in full possession.'' Such overflow does not confer possession upon the party causing it, nor does it constitute an ouster of the owner.* It has been said, how- ever, in South Carolina, that where one joint tenant over- flowed the lands of the joint estate, thereby appropriating it to his own use, it constituted an ouster which would jus- tify an action on the case against him by his companion.^ Ejectment cannot be brought for diverting a water-course. A water-course or rivulet, though mentioned by name, can- not be recovered in ejectment, because it is impossible to give execution of a thing which is transient and always run- ning.^ But if the ground over which the rivulet runs be- longs to the claimant, the rivulet may be recovered by lay- ing the action for so many acres of land covered with water.* § 150. Mining rights and privileges. — It has been held in England, that one who had a mere liberty, license or power to dig, prospect, mine or search for metals or mine- rals, could not maintain ejectment, for such license was no more than a mere right to a personal chattel, and did not confer any interest or estate, and was widely different from ' Doe V. Musgrave, i Scott N. R. 451. " Barton v. Hamshire, 3 Keb. 738 ; s. C. Freeman, 447. * Tremain v. Sands, i Keb. 500. * Wilklow V. Lane, 37 Barb. (N. Y.) 244; see Redfield v. Utica & Syracuse R. R. Co. 25 Id. 54. " Perrine v. Bergen, 2 Green (N. J.), 355, 356; Green v. Harman, 4 Dev. (N. C.) 158. " Jones V. Weathersbee, 4 Strob. (S. C.) 50. ' Black V. Hepburne, 2 Yeates (Penn.), 331. » Runn. on Eject, p. 131 ; Challenor v. Thomas, Yelv. 143; Black v. Hepburne, 2 Yeates (Penn.), 331. " See Adams on Eject. (4th ed.) p. [*2i] 22. Digitized by Microsoft® INTERESTS FOR WHICH EJECTMENT WILL NOT LIE, /I a grant or demise of the mines, metals or minerals in the land.^ The action will not lie for a mere license to mine," nor for a privilege to dig in mines,^ nor, possibly, for a ^quarry,* nor a tin bound eo nomine!' " A grant or privi- lege," says Judge Grier, " to dig and carry ore from the land of another, is an incorporeal hereditament." ^ The question whether the soil and minerals, or only a mere liberty or privilege, pass by a grant, conveyance or contract, is often one of much difficulty, and a comparison of the cases in which mining rights have been held insufficient to support •ejectment, with those before considered, in which the action has been sustained, shows that it generally depends upon the particular facts attending each case, the character of the subject-matter, and the language employed in the instru- ment by which the transfer is effected.'^ § 151. Shore lines. — In New Jersey ejectment will not lie to settle shore line divisions ; the remedy being in equity.^ § 152. Ferry right or franchise. — A ferry right is in- corporeal, and, in legal consideration, not tangible property. Like a right of way or common, or other incorporeal right, no entry in point of fact can, in strict propriety, be said to be possible with regard to it, nor could the sheriff, in case of judgment of restitution, deliver possession. In sQch a case ' Doe d. Hanley v. Wood, 2 B. & Aid. 724 ; see Chetham v. Williamson, per Lord EUenborough, 4 East, 469-476. " Crocker v. Fothergill, 2 B. & Aid. 652 ; see Harlow v. Lake Superior Iron Co. 36 Mich. 105, ' Beatty v. Gregory, 17 Iowa, 109 ; Union Petroleum Co. v. Bliven Petroleum •Co. 72 Penn. St. 173. ' Brown v. Chadwick, 7 Irish C. L. loi. ' Doe d. Falmouth v. Alderson, i Gale, 441; S. C. 1 M. & W. 210; 3. c. Tyrwh. & Gr. 543. « Grubb V. Bayard, 2 Wall. Jr. 81 ; see Grubb v. Grubb, 74 Penn. St. 25. ' See Doe d. Hanley v. Wood, 2 B. & Aid. 724; Muskett v. Hill, 5 Bing. New •Cases, 694; Chetham ». Williamson, 4 East, 469; see Funk v. Haldeman, 53 Penn, St. 229-243, where this- distinction is discussed. See §§ 108-1 13, 116. , * Stockham v. Browning, 3 C. E.. Green (N. J.), 390. Digitized by Microsoft® 72 INTERESTS FOR WHICH EJECTMENT WILL " NOT LIE. an ejectment would not lie ; and, upon the same principle, a warrant of forcible entry would not.^ § 153. Wharfage. — A demise by a municipal corpora- tion to an individual of the right to collect wharfage, con- veys an incorporeal right,^ and any interference with the en- joyment of such a right must be redressed by some remedy other than ejectment. § 154. Cloud on title. — It has been held in a case which arose in New York, that a party holding a tax title cover- ing the locus in quo, with other property, but who was not in possession of, and had made no overt claim to, the property in dispute, was not a necessary or proper party defendant ini ejectment. A party desiring to quiet the title to land must proceed, in New York, under the statute regulating such proceedings or by bill in equity ; that result cannot be ac- complished in ejectment, nor can the alleged cloud upon the title be cleared or foreclosed in that action.^ § 155. Room or chamber. — Though, as we have seen, ejectment will lie for a room or portion of a building, yet, if the building is destroyed or torn down by order of the public authorities, and the identity of the room or portion claimed is lost, the lessee's right of entry is gone, for his. interest is no longer visible or tangible, nor could it be delivered in execution by the sheriff, and hence ejectment will not lie for it.* But the New York Court of Appeals, if the report of the case of Rowan v. Kelsey on appeal is correct, seems to hold that where the landlord had erected a new and entirely different structure upon the property, not ' Rees V. Lawless, 5 Litt. Sec. Cases (Ky.), 184; The Mayor v. Union Ferry Co. 55 How. Pr. (N. Y.) 138; Bowman v. W^athen, 2 McL. 376; State v. Wilson, 42 Me. 9; see 12 Am. Dec.ip. 295 (Rees v. Lawless), and notes; Bowman v. Wathen, i How. U. S. 189. " The Mayor v. Mabie, 13 N. Y. 151. = Pixley V. Rockwell, i Sheldon (N. Y.), 267 see The Mayor v. North Shore, S. I. F. Co. 55 How. Pr. (N. Y.) 154. * Rowan v. Kelsey, 18 Barb. (N. Y.) 484; see, however, S. c. on appeal, 2- Keyes (N. Y.), 594. See §§ 105, 106. Digitized by Microsoft® INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. y;^ containing rooms corresponding with those previously hired by the lessee of an unexpired term, a recovery in ejectment might nevertheless be had. It is difficult to reconcile this decision with the argument of Hunt, J., who wrote the pre- vailing opinion, or to understand what could be awarded by the judgment, or of what the sheriff could deliver pos- session.^ In another case the lessee of a cellar, after the de- struction of the building by fire, refused to surrender pos- session, and himself constructed a small house over the cel- lar, which occupied about the space of the room leased by him. The landlord brought ejectment, and recovered judg- ment, but the case went off chiefly on the point that no title to the land passed by* the lease, and that after the de- struction of the building by fire the lessee's interest was gone.** § 156. Projecting eaves or cornices. — Where one of the owners of a party wall places a cornice thereon which pro- jects slightly over the lot of the adjoining owner, this con- stitutes an unlawful interference with a right incident to property in possession, for which ejectment will not He.* Of course, no one can undermine or overhang another's land without violating his rights.* A leaning wall® and an overhanging cornice® constitute nuisances which may be abated by action, or b}'- act of the party. So the branches of a tree which extend over the premises of another, may be cut off by him ; ^ but ejectment is not an appropriate rem- edy to redress such wrongs. If one erect a building, upon the line of his own property, so that the eaves or gutters project over the land of his neighbor, this is not such an en- ' See Rowan v. Kelsey, 2 Keyes (N. Y.), 594. " Winton v. Cornish, 5 Ohio, 477 ; Kerr v. Merchants Exchange Bank, 3 Ed. Ch. (N. Y.) 316 ; but see Rowan v. Kelsey, 2 Keyes (N. Y.), 594. ' Vrooman v. Jackson, 6 Hun (N. Y.), 326. • 2 Bla. Com. p. 18. ' Meyer z/. Metzler, 51 Cal. 142. ' Grove v. City of Ft. Wayne, 45 Ind. 429 ; s. c. 1 5 Am, Rep. 262. ' Earl of Lonsdale v. Nelson, 2 B. & C. 302-311. Digitized by Microsoft® 74 INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. croachment as will sustain ejectment.^ These cases proceed upon the theory that the defendant has taken possession of nothing but an open space of air over the material land of plaintiflF. The sheriff could not put the plaintiff in posses- sion of that space ; an entry could not be made thereon ; nor is the thing sought to be recovered attached to the soil.^ The proper redress for wrongs of this character has been said to be an action of trespass on the case for the nuisance* § 157. Projecting foundation. — On the other hand, where some of the stones of defendant's foundation wall projected eight inches over plaintiff's land, it was held with some hesitation, in Wisconsin, that plaintiff might treat this as a disseizin and maintain ejdctment.* In Stedman v. Smith,^ the plaintiff and defendant occupied adjacent plots of ground, divided by a wall, of which they were owners in common. There was a shed on defendant's ground, contigu- ous to the wall, the roof of which rested on the top of the, wall across its whole width. Defendant took the coping stones off the top of the wall, heightened the wall, replaced the coping stones on the top, and built a wash-house con- tiguous to the wall, where the shed had stood, the roof of the wash-house occupying the whole width of the top of the wall ; and he let a stone into the wall with an inscription on it stating that the wall and the land on which it stood be- longed to him. The action being trespass by one tenant in common against another, in which an actual ouster must be shown, the Court of Queen's Bench held that a jury might find an actual ouster from these facts. § 158. Party-walls. — It seems that, in England, eject- ment is a remedy for recovering the ownership of land cov- ' Aiken v. Benedict, 39 Barb. (N. Y.) 400; overruling Sherry v. Frecking, 4 Duer (N. Y.), 452. ' Ibid. ; also, Jackson d. Saxton v. May,i6 John. (N. Y.) *i84. ' Aiken v. Benedict, 39 Barb. (N. Y.) 400. * McCourt V. Eckstein, 22 Wis. 153. ' Stedman v. Smith, 8 E. & B. i. Digitized by Microsoft® INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. 75 ered by a party- wall. ^ It was held in Pennsylvania, on the other hand, that actual possession of a party-wall, including the strip of plaintiff's land on which it was built, and ex- cluding the strip of defendant's land over which it extended, could not be recovered in an action of ejectment.^ In New York it is doubtful whether ejectment will lie for land burdened with the servitude of a party-wall ; ^ but in Maine the action has been sustained.* At all events, the only in- terest the plaintiff could recover would be the fee subject to the easement, and the nature or extent of his interest should be specified in the verdict or finding.^ We have already seen that the current of modern authority, in the case of easements of right of way or passage, is strongly in favor of upholding the right to recover in ejectment the land sub- ject to the easement.* Where, however, the easement con- sists in the right to maintain or use a party-wall, although the fee is in the owner of the servient tenement, there is a practical difficulty in the way of putting the claimant in pos- session of the locus without disturbing the enjoyment of the easement, which is somewhat greater than in the case of land over which a mere right of way exists. § 159. Claim for improvement. — In Pennsylvania, the defendant in ejectment proceedings is entitled to compensa- tion in the same action for any improvements erected by him during his unlawful possession ; but this claim for im- provements is an equitable lien, and cannot be made the subject of an independent ejectment.'^ § 160. Rent reserved. — The right to recover possession ' Trotter z/. Simpson, 5 C. & P. 51. ' Robinson v. Gunnis, 2 W. N. C. (Penn.) 224. ' Kurkel v. Haley. 47 How. Pr. (N. Y.) 75 ; Rogers v. Sinsheimer, 50 N. Y. 646; Brondage v. Warner, 2 Hill (N. Y.), 145. * Bradbury v. Cony, 59 Me. 494. ' Rogers v. Sinsheimer, 50 N. Y. 646; see Goodtitle v. Alker, i Burr. 133. ' See §§ 130-132. ' Paull's Ex'rs v. Eldred, 29 Penn. St. 415. Digitized by Microsoft® 76 INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. of lands for non-payment of rent cannot be enforced by ejectment unless the right of re-entry is reserved.^ § i6i. C/aim of ease^nent. — It has been held that eject- ment will not lie against a corporation which uses the land for the purposes of a street only, and asserts no other claim or interest than the mere right to enjoy an easement, or right of passage.^ The principles of this case must, however, be accepted with much caution. Undoubtedly the defendant's claim of title must ordinarily be such that if reduced to pos- session or enjoyment, it would constitute an actual occupa- tion of the premises, and where only a private right of way is exercised over land, and the existence of the owner's fee in the soil, and his right to the immediate possession, and use, subject to the easement, is acknowledged, ejectment is not the proper form of action.* Although, as we have seen, this rule, on principle, ought to apply in cases where a mu- nicipal corporation assumes to treat private property as a street,* the current of authority is, nevertheless, to the eflFect that a public easement of such a character embraces so many of the elements of absolute ownership, that possession of the land over which the easement exists, exclusive of any inter- ference by the owner of the fee, is essential for its proper regulation and enjoyment. We shall presently show that the public easement itself can be made the basis of an eject- ment by a municipal corporation, and it would certainly seem strange if proof of the assertion of so important and exclusive an interest, upon or over the land by the defend- ' Van Rensselaer v. Jewett, 2 N. Y. 141 ; see Van Rensselaer v. Ball, 19 N. Y. 100; Kenege v. Elliott, 9 Watts (Penn.), 258 ; Johnson v. Gurley, 52 Texas, 222 ; Vanatta v. Brewer, 32 N. J. Eq. 268 ; Fox v. Brissac, 15 Cal. 223. " Cowenhoven v. City of Brooklyn, 38 Barb. (N. Y.) 9. See §§ 132, 135-140, 158. ' Child V. Chappell, 9 N. Y. 246; Strong v. City of Brooklyn, 68 N. Y. I; Smith V. Wiggin, 48 N. H. 105; Wilklow v. Lane, 37 Barb. (N. Y.) 244; see §§133, 13s, 158- * See §§ 139, 140. Digitized by Microsoft® INTERESTS FOR WHICH EJECTMENT WILL NOT LIE. 77 ant, would not suffice to support an action of ejectment.^ It should be clearly understood that the rules with regard to ejectment in the case of streets in cities, constitute an excep- tion to the general principles governing the action. ' See Armstrong v. City of St. Louis, 69 Mo. 309, and cases cited ; Strong v. City of Brooklyn, 68 N. Y. i. Digitized by Microsoft® CHAPTER V. RELIEF PECULIAR TO EJECTMENT NOT TO BE HAD IN OTHER ACTIONS. 162. Character and scope of ejectment. 163. When ejectment, and not a suit to obtain construction of a will, the appropriate remedy. 164. Summary proceedings not proper where the title is involved. 165. When specific performance cannot be maintained. 166. Partition not a substitute for eject- ment. 167. Defect in title or adverse title must be disclosed to defeat partition. 168. Bill in equity to recover possession, when not allowed. i6g. Ejectment bills. 170. Ejectment not maintainable in the form of a bill in chancery. 171. Equitable title will not support ejectment bill. 172. Party vested with legal and equi- table estate cannot proceed in equity. 173. Jurisdiction in equity when remedy at law is incomplete. § 174. Injunction not granted when rem- edy by ejectment is adequate. When mandamus not allowed in aid of judgment in ejectment. Title cannot be tried in assumpsit. Trial of title in condemnation pro- ceedings. Distinction between trespass quan clausum f regit and ejectment. When ejectment and not action to remove cloud on title proper rem- edy. Ejectment converted into action to redeem and foreclose mortgages. Action to determine conflicting claims to land changed by amend- ment into ejectment. Equitable relief not awarded in ejectment. 183. Writs of entry, and forcible entry proceedings, changed by amend- ment to ejectment. 184. Reasons for mistakes in selecting remedies. 175. 176. 177. 178. 179. 180. 182. § 162. Character and scope of ejectment. — ^The selection of the remedy, appropriate to the character of the injury to real property for which redress is sought, is often a difficult and delicate task. The fundamental rule that ejectment can be maintained only for corporeal estates or interests has already been fully considered, and should never be over- looked. The cases in which the relief peculiar to ejectment has been refused in other actions or forms of procedure will now be discussed. A review of these cases, and of the rea- sons upon which the decisions are based, will illustrate more clearly the character of ejectment, and its statutory substi- tutes, and show the extent to which the remedy is favored by the courts. § 163. When ejectment, and not a suit to obtain con- struction of a will, the appropriate remedy. — In Post v. Digitized by Microsoft® RELIEF PECULIAR TO EJECTMENT. 79 Hover,^ the New York Court of Appeals held that the heirs at law of a testator did not possess the right to institute a Suit to settle the construction of a will ; that if the pro- visions of the instrumeat are void, the proper remedy of the heirs is to bring a direct action, in the nature of ejectment, to recover the shares to which they claim to be enti- tled. This case follows the opinion of Chancellor Wal- worth in Bowers v. Smith,* which holds that an heir at law of a testator, or a devisee who claims a mere legal estate in real property, unconnected with any trust, will not be allowed to come into a court of equity merely for the purpose of obtaining a judicial construction of the provisions of a will. The decision of such legal questions belongs exclusively to courts of law, unless they arise incidentally in a court of equity in the exercise of its legitimate powers, as where trustees seek instructions or directions as to the proper exe- cution of the trust. In Bailey v. Briggs,^ the action was brought to obtain the judicial construction of a clause in a will devising real estate. The complaint averred an inter- est in the lands ; set forth the will under which the interest was claimed ; stated that some of the defendants claimed an estate in the same land under the same will, and that a diversity of opinion existed between the plaintiff and the defendants in relation to the construction of the devise, and the testator's intention in respect to it, and concluded with a prayer for the construction of the will, and for a judgment declaring the plaintiflF to be vested with the fee of the land. The court held that the complaint did not state facts con- ferring jurisdiction upon a court of equity to entertain the case as one asking for the construction of a will. Folger, J., said : " It is when the court is moved in behalf of an ex- ecutor, trustee, or cestui que trust, and to ensure a correct administration of the power conferred by a will, that juris- ' 33 N. Y. 593-602 ; affi'g S. C. 30 Barb. (N. Y.) 312. ' 10 Paige's Ch. (N. Y.) 193. = 56 N. Y. 407 ; Weed v. Root, 14 Weekly Dig. (N. Y.) 90. Digitized by Microsoft® 8o RELIEF PECULIAR TO EJECTMENT. diction is had to give a construction to a doubtful or dis- puted clause in a will. The jurisdiction is incidental to that over trusts. There is nothing of that sort here. The title and possession of the plaintiff is purely a legal one. The title of the defendants, if th'ey have any, is of the same kind. There is no trust to be enforced, nor a trustee to be directed." § 1 64. Summary proceedings not proper where the title is involved. — In a case recently decided in the Supreme Court of Georgia, it appeared that the plaintiflF's intestate, who had owned the premises, had formerly resided on them with the defendant ; that she died leaving the defendant in pos- session, and that her administrator sued out summary pro- ceedings to dispossess him. The defendant set up that he had been lawfully married to the plaintiff's intestate, and claimed to hold as her heir. The court decided that the proper method of settling this question of title, which in- volved the validity of the marriage, was an action of eject- ment, and not summary proceedings.^ § 165. When specific performance cannot be m-aintained. — In Jones v. Boyd,^ in the Supreme Court of North Caro- lina, the vendor of real property, before the last installment of the purchase money was due, brought a suit for specific per- formance against a vendee in possession, who had defaulted on some of the installments of the purchase-money. It was decided that the remedy was prematurely sought, and ancil- lary relief in the action was denied, the court saying, how- ever, that the vendor could have maintained ejectment, and protected the property from waste or destruction by any ap- propriate provisional remedy. § 166. Partition not a substitute for ejectment. — The Court of Appeals of New York, have decided that an ac- tion for partition cannot be made a substitute for ejectment, ' Cassidy Admr. v. Clark, 62 Ga. 412. ' 80 N. C. 258. Digitized by Microsoft® RELIEF PECULIAR TO EJECTMENT. 8 1 or other action to establish the legal title of adverse claim- ants to real property. The title of the parties should be first established by the proper action before partition proceedings are instituted.^ The doctrine of these cases commends itself as sound; the right to partition is based upon a common and not a disputed title or ownership, and the remedy of parti- tion is not adapted to the trial of questions of title. The same principles prevail in other States.^ It has been said, however, in Wallace v. Harris," that the reason for remitting the investigation of conflicting questions of title to a com- mon law court, was one of policy and fitness, and did not arise from any want of inherent power in a court of equity ; and where the title had been adjudicated in an action of par- tition, the judgment should be allowed to stand, especially if the specific objection had been waived, by a failure to urge it, in the court of original jurisdiction. § 167. Defect in title or adverse title must be disclosed to defeat partition. — But the jurisdiction of equity, to make partition of lands, cannot be defeated by the simple allega- tion that defendant holds adverse possession, when, in point of fact, he does not, for if this were allowed equity could be defeated at any time, in the exercise of its jurisdiction, by a false allegation in the answer.* If the defendant sets up an adverse title, or disputes the complainant's title, he must dis- ' Van Schuyver v. Mulford, 59 N. Y. 426 ; Florence v. Hopkins, 46 N. Y. 182. Under the New York Code of Civil Procedure, § 1 543, in certain cases, questions of title may now be determined m partition proceedings. " Longwell v. Bentley, 2 Phila. (Penn.) 1 57 [284] ; Thomas v. Garvan, 4 Dev. (N.C.) 223 ; Jenkins v. Van Schaack, 3 Paige Ch. (N. Y.) 243 ; Longwell v. Bentley, 3 Grant's Cases (Penn.), 177 ; Adam v. Ames Iron Co. 24 Conn. 230 ; O'Dough- erty v. Aldrich, 5 Denio (N. Y.), 385 ; Clapp v. Bromagham, 9 Cowen (N. Y.), 530; Bonner z/. Propr's Kennebeck Purchase, 7 Mass. *475 ; Albergottiej-. Chap- lin, 10 Rich. Eq. (S. C.) 428 ; Forder v. Davis, 38 Mo. 107; Gravier v. Ivory, 34 Mo. 522; McMasters v. Carothers, i Penn. St. 324; Conyers w. Davis, 11 R. I. 527 ; Currin v. Spraull, 10 Gratt. (Va.) 145 ; Daniel v. Green, 42 111. 471 ; Hoffman w. Beard, 22 Mich. 59; Hassam v. Day, 39 Miss. 392; Shearer z/. V^inston, 33 Miss. 149. ° 32 Mich. 380-390. ' Hudson V. Putney, 14 W. Va. 561. 6 Digitized by Microsoft® 82 RELIEF PECULIAR TO EJECTMENT. cover his own title or show wherein the complainant's title is defective. And when the titles are spread before the court upon the pleadings, if the court can see that there is no valid legal objection to the complainant's title, it may proceed to decree partition.^ § 1 68. Bill tn equity to recover possession, when not allowed. — In the case of Cavedo v. Billings,^ in the Supreme Court of Florida, it was decided that a bill in equity to re- cover the possession of lands claimed under a legal title, and for mesne profits, and to set aside certain tax deeds and cer- tificates as illegal and fraudulent, could not be entertained, as the remedy at law was full and adequate. The proper redress was held to be an action of ejectment, in which the illegal and fraudulent character of the deeds or muni- ments of title could be shown, and the entire relief sought in the bill secured. § 169. Ejectment bills. — Attempts have frequently been made to obtain the relief peculiar to ejectment, by means of a bill in equity, commonly called an ejectment bill. Such a pleading is demurrable, for the proper redress is at law.*" This is especially so if, upon the face of the bill, the plaint- iff's right to draw a declaration in ejectment is clear. And a court of equity has no jurisdiction to entertain a bill in equity, brought by one tenant in common against an al- leged co-tenant, to obtain the possession and enjoyment of mining rights and privileges, founded on a legal title, until those rights have been established at law.* Under our modem Code practice, however, as we shall presently see, "Lucas V. King, 2 Stock. Ch. (N.J.) 277; Overton 2/. Woolfolk, 6 Dana (Ky.), 371. ' 16 FJa. 261. See Haythorn v. Margarem, 3 Hals. Ch. (N. J.) 324; Lee v.^ Simpson, 29 W^is. 333 ; Gray v. Tyler, 40 Wis. 579. ° Loker v. Rolle, 3 Ves. Jr. 4, and note ; Renison v. Ashley, 2 lb. 459-461 ; see Tillmes v. Marsh, 67 Penn. St.. 507, per Sharswood, J. ; Young v. Porter, 3 Woods C. C. 342. * North Penn. Coal Co. v. Snowden, 42 Penn. St. 488 ; Frisbee's Appeal, 88 Penn. St. 144. Digitized by Microsoft® RELIEF PECULIAR TO EJECTMENT. 83 legal and equitable relief may, in some States, be had in the same action.^ Thus, in New York, it has been held to be settled practice to allow a plaintiff, in an action to recover real property, claiming under a defective deed, and showing sufficient grounds for its reformation, to secure the same re- lief as if he had brought two actions : one to reform the in- strument, the other to enforce it as reformed.^ § 170. Ejectment not -maintainable in the form of a bill in chancery.— Iw. Lewis v. Cocks,^ the Supreme Court of the United States decided that an action of ejectment could not be maintained in the form of a bill in Chan- cery. This principle, in English equity jurisprudence, was declared to be as old as the earliest period in its recorded history.* And though the objection was not made by de- murrer, plea, or answer, nor was it suggested by counsel, nevertheless, if it clearly existed, it was the duty of the court sua sponte to recognize it, and give it effect.^ In such cases the adverse party has a constitutional and com- mon law right to a trial by jury, of which he will not be deprived in cases where the redress at law is complete.* Furthermore, questions affecting the title can be better tried at law than in equity, and if it be desired to have any rulings of the court below brought to the Supreme Court for re- view, such questions can be more eflfectually presented by bills of exception, and a writ of error, than by depositions, and an appeal in equity. § 171. Equitable title will not support ejectm,ent bill. — Young V. Porter,' decided by Mr. Justice Bradley of the ' Lattin v. McCarty, 41 N. Y. 107; Broiestedt v. South Side R. R. Co. 55 N. Y. 220; Van Deusen v. Sweet, 51 N. Y. 378; Phillips v. Gorham, 17 N. Y. 270; see McTeague v. Coulter, 6 J. & S. (N. Y.) 208. '' Laub V. Buckmiller, 17 N. Y. 626. ° 23 Wall. 466. But see Almony v. Hicks, 3 Head (Tenn.), 39 ; Irvine v. McRee, 5 Hum. (Tenn.) 554. * Spence's Jurisdiction of Courts of Chancery, 408, note b ; lb. 420, note a. ° lb. citing Hipp v. Babin, 19 How. 278. ' lb. ; Tillmes v. Marsh, 67 Penn. St. 507 ; Hipp v. Babin, 19 How. 278. ' 3 Woods C. C. 342. Digitized by Microsoft® §4 RELIEF PECULIAR TO EJECTMENT. United States Supreme Court, sitting at circuit, was a bill in equity to recover land of which the defendants were in possession. Complainants admitted that they did not have the legal title, and claimed only the equitable title, and this constituted their sole ground for coming into a court of equity. There was no allegation that the defendants had the legal title, nor were any facts stated tending to show that they were affected by the equities set up by complain- ants, the bill merely charging that defendants had wrongful- ly possessed themselves of the land, and were cutting timber and committing other waste thereon. The bill was charac- terized as being a mere ejectment bill, the only pretence for bringing which, in a court of equity, was, that the complain- ants could not maintain an action at law. The court, con- ceding this proposition, held that it did not prove that a suit in equity could be maintained for that purpose. Complain- ants could not maintain a suit which was the equivalent of an ejectment, merely because their title was only an equitable one. In addition some connection must be shown between the parties ; facts proving that defendants had procured the legal title with notice of complainants' equities, or were in some respect guilty of fraud, or want of equity towards complainants, in withholding the posses- sion, before relief in equity could be afforded. In Fussell v. Hughes,^ decided by Justice Matthews of the United States Supreme Court, sitting at circuit, it was held, that a bill could not be maintained for the recovery of possession of land which asserted no equity against the defendants in pos- session, but alleged that they were in possession of the premises, which in equity belonged to the complainant, and the legal title to which was in the United States. The proper remedy of the complainant, the court said, was to clothe the equity with the legal title, by a proper applica- tion to the public officers of the government for a patent, and then to proceed at law to recover the possession. ' 8 Fed. Rep. 384. Digitized by Microsoft® RELIEF PECULIAR TO EJECTMENT. 85 § 172. Party vested with legal and equitable estate can- not proceed in equity. — Where the plaintiff holds both the legal and equitable title he can, of course, assert his rights in ejectment, and will not be permitted to resort to equity.^ § ^IZ- Jurisdiction in equity when remedy at law is incomplete. — Romero v. Munos,^ decided in the Territorial Court of New Mexico, and recently reported, furnishes a curious contrast to the case of Cavedo v. Billings above cited. The plaintiff had successfully prosecuted an eject- ment against defendant, and the sheriff had placed her in possession of the premises. Subsequently, the defendant, in contempt and disregard of the judgment in ejectment, en- tered upon and took possession of the land, and pulled up and destroyed the complainant's crops planted and growing upon it. Complainant filed a bill praying for an injunction enjoining the defendant from molesting, disturbing, harass- ing, or driving complainant away from the possession of her lands, and also asking that she be restored to the posses- sion, and secured against future disturbance. The court held that equity obtained jurisdiction where the remedy at law was not plain, adequate, and complete ; that it was not always a sufficient reason for denying jurisdiction in equity that there was a remedy at law ; and that if the remedy at law failed in some essential quality the aid of equity might be invoked. The complainant had, it was said, pursued her remedy by ejectment, and all that could be accom- plished for her in that action had been done ; complete exe- cution had been had, and the cause ended. Equity, it was declared, would not leave the complainant to repeat the ejectment, nor remit her to the doubtful redress of a forcible entry proceeding, but on the contrary, as jurisdiction in equity was . often exercised to restrain the commission of threatened trespasses, the facts of this case were ample to ' Odle V. Odle, 73 Mo. 289. ' 1 New Mexico R. 314. See Broiestedt v. South Side R. R. Co. 55 N. Y. 220. Digitized by Microsoft® 86 RELIEF PECULIAR TO EJECTMENT. sustain an injunction. In some of the States, as will be shown presently, an ahas writ of possession is awarded to cover cases of this character.^ § 1 74. Injunction not granted when remedy by ejectment is adeqtiate. — Though an injunction is occasionally issued to restrain constantly repeated trespasses, requiring a succession of actions, yet this remedy cannot be resorted to in cases where ejectment would restore the complainant to all his rights.^ Hence, where the defendant was a railroad corpo- ration, the court declined to restrain the daily running of its trains, as the injunction would cause great inconvenience to the public, but remitted the complainant to his remedy at law, by ejectment and for mesne profits. § 1 75. When m,andamus not allowed in aid of judgment in ejectment. — In ex parte French,^ it appeared that judg- ment in ejectment and for mesne profits, aggregating $6,000, was rendered against a number of defendants who were respectively in the separate possession of specific par- cels of land. A writ of error was sued out by all the defendants. Two of the defendants, to render it a super- sedeas of the judgment, severally gave a bond. The plaintiff applied for a mandamus to have the judgment carried into effect on the ground that if the defendants were entitled to a stay, independently of each other, each must sue out a separate writ of error. The Supreme Court of the United States decided that there was no reason why all the defend- ants might not join in the writ, and make separate applica- tions when they asked for a stay. But, even if the writ was informal, the remedy was by motion to vacate the writ, and ' See chapter on Writ of Possession. ' Stevens v. Erie Railway, 6 C. E. Green (N. J.), 250^264! see Deere v. Guest, I Myl. & C. 516. As to the jurisdiction of equity to restrain trespasses, see Echelkamp v. Schrader, 45 Mo. 505; Mayor, &c. v. Groshon, 30 Md. 436; Livingston v. Livingston, 6 Johns. Ch. (N. Y.) 497, per Chancellor Kent; see, also, Murphy v. Norton, 61 How. Pr. (N. Y.) 197. = 100 U. S. I. Digitized by Microsoft® RELIEF PECULIAR TO EJECTMENT. 8/ not by mandamus to have the judgment carried into execution. § 1 76. Title cannot be tried in assumpsit. — In Richard- son V. Richardson/ recently decided in the Supreme Court of Maine, the principle is reaffirmed, that where the relation of tenants in common is claimed to exist, and one tenant has evicted his companion, the disseizee cannot maintain assumpsit against the disseizor for rents claimed to have ac- crued during the period of the disseizin. Possession under an adverse claim of title negatives the idea of a promise to pay rent. The disseizor is a wrong-doer against whom a writ of entry or trespass for mesne profits in proper cases ■will lie, but the disseizee does not have the freehold or possession, on which he must rely in order to prove a promise to pay rent to him. The disseizor is a trespasser and cannot be treated as a tenant. The tort cannot be waived for the purpose of trying title to land, in an action •of assumpsit, the general rule being that the right of inherit- ance, or questions of conflicting titles, must be settled in ap- propriate actions, devised for that purpose. § 177. Trial of title in condemnation proceedings. — It has been held in the Supreme Court of California, that conflicting titles to land cannot be tried in gondemnation proceedings, and that the parties in actual possession, claiming title, are presumed to be the owners of the land, and are entitled to compensation before the lands can be taken for public use.* This subject, however, is largely regulated by statute in the different States.^ ' 72 Me. 403. See Bigelow v. Jones, 10 Pick. (Mass.) 161 ; Monroe v. Luke, 1 Met (Mass.) 459-465; Miller i/. Miller, 7 Pick. (Mass.) 133 [138]; Baker v. Howell, 6 S. & R. (Penn.) 475 ; Lady W^indsor's Case, 4 Burr. 1985 ; Sampson v. Shaeflfer, 3 Cal. 196, and cases cited; Bockes v. Lansing, 74 N. Y. 437; Van Alstine v. McCarty, 51 Barb. (N. Y.) 326. '' Sacramento Valley R. R. Co. v. Moffatt, 7 Cal. 577; see W^ilcox v. Oakland, 49 Cal. 29 ; Curran v. Shattuck, 24 Cal. 427. ' See Mills on Eminent Domain, § 160, and succeeding sections. Digitized by Microsoft® 88 RELIEF PECULIAR TO EJECTMENT. § 178. Distinction between trespass quare clausum fregit and ejectment. — The distinction between trespass and ejectment has already been noticed, and it seems to be clearly established that trespass quare clausum fregit can- not be employed as a substitute for ejectment.^ The injury to support an ejectment must be something more than a trespass ; it must amount to a disseizin. § 1 79. When ejectm,ent and not action to rem,ove cloud on title proper remedy. — In Bockes v. Lansing,^ it appeared that one George Webster, in 1846, made a general assign- ment of his property, including the lands in dispute, to one Russell, who, in 1847, conveyed the same to Simeon D. Webster. In 1859, George Webster and his wife also exe- cuted a conveyance of the same premises to Simeon D. Webster, and plaintiffs claimed to have acquired this title. In 1 86 1 a receiver, appointed in supplementary proceedings instituted by a judgment creditor of George Webster, sold the lands to one Humphrey, through whom the defendants,, who were in possession, claimed title. Plaintiffs brought an action to have the receiver's deed set aside and cancelled, as being irregular and a cloud upon his title, and for possession and an accounting as to the rents and profits. It was held that the action could not be maintained, as the receiver's sale and deed were subsequent to the conveyance under which plaintiffs claimed, and that only an instrument or proceed- ing which, on its face, purported to create or convey a title or estate paramount to that of the party seeking relief, or to constitute an apparently prior incumbrance thereon, could be set aside as a cloud upon the title of a plaintiff in pos- session.* The argument was advanced by counsel that, as all the facts appeared, the court should disregard the form of the pleadings, and adjudge the proper relief; but it was ' Corley v. Pentz, 76 Penn. St. 57 ; see Jackson v. Pike, 9 Cowen (N. Y.), 69; Potter V. City of New Haven, 35 Conn. 520, 522. See § 93. » 13 Hun (N. Y), 38; affi'd 74 N. Y. 437. " See Gunderson v. Cook, 33 Wis. 551. Digitized by Microsoft® RELIEF PECULIAR TO EJECTMENT. 89 decided that this remedial rule could not be carried to that extent, and that neither the court nor referee had the power to amend the complaint so as to change the cause of action from one for equitable relief to one in ejectment. § 180. Ejectment converted into action to redeem and foreclose mortgages. — The suggestion was not, however, en- tirely unreasonable, for in the case of the Madison Avenue Baptist Church against the Oliver Street Baptist Church,* an action of ejectment was brought against a mortgagee in possession, but by answer, supplemental pleadings and subsequent proceedings, the title being found in the plaint- iff, the action was substantially turned into an action on the part of the plaintiff to redeem from the mortgages, and on the part of the defendant to foreclose them. § 181. Action to determine conjiicting claims to land changed by amendment into ejectment. — In Brown v. Leigh, '^ in the New York Court of Appeals, it was decided that a plaintiff could, as a matter of right, under the practice in that State, amend his complaint, which was framed to com- pel the determination of conflicting claims to real property, so as to set forth a cause of action in ejectment. § 182. Equitable relief not awarded in ejectm,ent. — In Vrooman v. Jackson,® in the Ne^4r York Supreme Court, on the other hand, it was decided, that where the complaint was ejectment, the plaintiff could not be allowed to amend upon the trial and proceed with the same effect as though the action had been brought to restrain an alleged unlawful interference with a right incident to property in possession. § 183. Writs of entry., and forcible entry proceedings, changed by amendment to ejectment. — In Fay v. Taft,* de- cided in the Supreme Court of Massachusetts, .it appeared ' 73 N. Y. 82-95. ' 49 N. Y. 78. = 6 Hun (N. Y.), 326. See Broiestedt v. South Side R. R. Co. 55 N. Y. 220. ' 12 Cush. (Mass ) 448. See Merrill v. Bullock, 105 Mass. 486. Digitized by Microsoft® ^O RELIEF PECULIAR TO EJECTMENT. that the demandant was entitled to a legal estate in the premises, but only for a term for years. As the estate was less than a freehold, it was held that a writ of entry would not lie. Leave was granted to amend the writ by changing it into an action of ejectment for a term. The later case of Merrill v. Bullock^ was a proceeding under the forcible en- try and detainer statutes of Massachusetts, '^ and was sub- mitted upon an agreed state of facts. It was decided that, as a cause of action under these statutes, the court had no jurisdiction of the proceeding, but upon the authority of Fay V. Taft, above cited, the plaintiflF was allowed to change the writ into an., action of ejectment, and to recover the term to which, by the agreed state of facts, he was held to be entitled. § 184. Reasons for mistakes in selecting remedies. — It is, perhaps, unnecessary to further multiply this collection of blunders in the selection of the forms of action suitable to test the title to land. Radical changes, such as have been adopted to secure the modern system of civil procedure, are certain to result, at first, in confusion and mistakes in plead- ing, and stating causes of action, and framing prayers for re- lief These errors result in part from the habit of ignoring the landmarks between legal and equitable rights and inter- ests, and overlooking the importance of substantially pre- serving the ancient and necessary distinctions as to the manner of pleading and asserting equitable rights and titles. While it is true that legal and equitable rights can, in many States, be adjudicated in the same forum and in one action,' it by no means results that the distinctions in pleading and in the nature of the reHef afforded have been abrogated. No infallible rules can be formulated to govern in selecting the appropriate remedy. We suggest, in addition to the ' loj Mass. 486. See Ferguson v. Kumler, 25 Minn. 183. ^ Gen. Sts. of Mass. c. 137. " See Laub v. Buckmiller, 17 N. Y. 626; Lattin v. McCarty, 41 N. Y. 107; Broiestedt v. South Side R. R. Co. 55 N. Y. 220. Digitized by Microsoft® RELIEF PECULIAR TO EJECTMENT. 9 1 tests already furnished, that when the facts render the selec- tion of the form of action doubtful, and the title to a corpo- real estate in land is involved, it is safer to adopt a remedy in the nature of ejectment, in preference to other less com- prehensive, and less favored, forms of procedure. Digitized by Microsoft® CHAPTER VI. PARTIES PLAINTIFF. § 185. Who may maintain actions in tlie nature of ejectment. 186. Statutory remedies cumulative. 187. Joinder of plaintiffs. 188. Hostile claimants cannot join. 189. Other cases of misjoinder. 190. Grantee suing in grantor's name. 191. Ejectment by the king. 192. Ejectment by the State or people. 193. When the people cannot recover. 194. Outstanding Indian title. 195. Corporations. 196. Infants. 197. Security for costs. 198. Disaffirmance of infant's deed. 199. Guardian in socage and general guardian. 200. Guardians for nurture and by na- ture. 201. Ejectment by both infant and guard- ian. 202. Guardian's powers and duties. 203. Committee of a lunatic. 204. Committee may maintain equitable action. 205. Heirs at law. 206. Devisees. § 207. Personal representatives. I 208. May recover estates for years. 20g. Freehold terms or leases. 210. When executors or administrators may sue. 211. Statutory changes. 212. ) Reversioners — conditions subse- 213. j quent. 214. Forfeiture of life estate. 215. Life tenant. 216. Tenant for years. 217. Tenant at will. 218. Tenant at sufferance. 219. Tenant by the curtesy. 220. Married women. 221. Partners. 222. Trustees. 223. Cestuis que trustent. 224. Insolvent. 225. Assignee of bankrupt or insolvent debtor. 226. Aliens. 227. Receivers. 228. Indians. 229. Felons. 230. Additional illustrations. § 185. Who may maintain actions in the nature of eject- ment. — The character of the estate which will support the class of actions which we are discussing, is, in some States, a matter of statutory regulation. As a general rule, any* per- son owning an estate in lands in fee, for life, or for years, having a present right of entry, or any person vested with a right to the immediate possession, incident to some corpo- real estate or interest in lands, can maintain an action in the nature of ejectment. § 186. Statutory remedies cumulative. — When the com- mon law furnishes a remedy, and another is provided by stat- ute, the latter is cumulative unless made exclusive by the Digitized by Microsoft® PARTIES PLAINTIFF. 93 Statute,^ and as the pleadings are not usually published in the reports of cases, it is often difficult to determine whether the action was framed under the statute, or brought at com- mon law, the word ejectment being sometimes applied in- discriminately. A general tendency to uniformity exists, in the legislation and decisions in the several States, but it is impossible to formulate any rule to govern in determining what persons may prosecute actions in the nature of eject- ment, which will not be subject to frequent exceptions, modifications, and limitations. A classification of the par- ticular parties who can maintain these actions, accompanied by a statement of the reasons controlling the decisions in particular cases, is therefore essential. § 187. Joinder of plaintiffs, — The general rule is that only persons may join in bringing an action at law whose interests are joint or united.^ Hence, on a joint demise, the title proved must be joint, or the plaintiflFs cannot recover.* To sustain an ejectment, as already shown, the plaintiff must establish a right of possession in prcBsenti to the premises described in the complaint. If several plaintiffs count upon a joint title and right of possession, the same principle ap- plies. The right of possession must exist in each and all of the plaintiffs, or they cannot recover.* If one of the plaint- iffs has no title the co-plaintiffs cannot recover, though they may be vested with the whole title,^ for the joinder of too many plaintiffs is ground for nonsuit on the trial, whether the action be for a tort or on contract.^ In trespass by joint tenants. Judge Story declared it to be a settled rule that all ' Candee v. Hayward, 37 N. Y. 653; Wetmore v. Tracy, 14 Wend. (N. Y.) 250, and cases cited. " See McKenzie v. L'Amoureux, 11 Barb. (N. Y.) 516; Pomeroy's Remedies and Remedial Rights, §§ 190-203. " Taylor v. Taylor, 3 A. K. Mar. (Ky.) 19; Hoyle v. Stowe, 2 Dev. (N. C.) 318; Tucker v. Vance, 2 A. K. Mar. (Ky.) 458; Teal v. Terrell, 48 Tex. 491. ' Cheney "v. Cheney, 26 Vt. 606 ; see Dickey v. Armstrong, i A. K. Mar. (Ky.) 39; De Mill v. Lockwood, 3 Bla. C. C. 56-61. ' De Mill V. Lockwood, 3 Bla. C. C. 56-61 ; Murphy v. Orr, 32 111. 489. ' Murphy v. Orr, 32 111. 489. Digitized by Microsoft® 94 PARTIES PLAINTIFF. the plaintiffs must be competent to sue, otherwise the action could not be supported.^ In Massachusetts it has been held, on a writ of entry brought by tenants in common under the statute, that if the right of either joint demandant proved defective, the action must fail,'* unless an amendment was allowed, before verdict, striking out the name of the demand- ant who was not entitled to recover. § 1 88. Hostile claimants cannot join. — It has been held in New York that two persons, each claiming the whole of a parcel of land, by titles derived from different sources, hos- tile to each other, cannot unite as plaintiffs, and set forth their separate titles, in ejectment against a third party in possession.* The Code of that State has abolished the early practice of naming several lessors, and setting forth various and hostile demises in separate and distinct counts. § 1 89. Other cases of misjoinder, — An executor cannot join with the devisees under the will to recover lands of the testator;* nor can the widow join with the heirs in eject- ment, and if she is joined the latter cannot recover-alone.^ Towns claiming as tenants in common cannot join in a. writ of entry.* In New York the people and certain individuals claiming to be their tenants, cannot unite in an action to recover land.'' Reversioners must all join.^ The general principles which underlie these cases seem to be that hostile claimants cannot be co-plaintiffs, and the absence of a joint ' Marsteller v. M'Clean, 7 Cranch, 156. '' Chandler -v. Simmons, 97 Mass. 508 ; Oxnard v. Kennebeck Purchase, 10 Mass. 179. ' Hubbell V. Lerch, 58 N. Y. 237; s. C. below, 62 Barb. (N. Y.) 295; see St. John V. Pierce, 22 Barb. (N. Y.) 362 ; affi'd in Court of Appeals, 26 How. Pr. 599. * Tarver v. Smith, 38 Ala. 135. ^ Pringle v. Gaw, 5 S. & R. (Penn.) 536 ; Gourley v. Kinley, 66 Penn. St. 270. " Rehoboth v. Hunt, i Pick. (Mass.) 224. ' People V. Mayor, &c. 10 Abb. Pr. (N. Y.) iii. » Cook V. St. Paul's Church, 5 Hun (N. Y.), 293 ; affi'd 67 N. Y. 594. Parties refusing to join as plaintiffs, may generally, under the modem systems of proced- ure, be made defendants. Mc Allen v. Woodcock, 60 Mo. 174 ; see Bliss on Code Pleadings, §§ IT, 78. Digitized by Microsoft® PARTIES PLAINTIFF. 95 or common interest in all the plaintiffs is fatal to a recovery by those who are properly joined. The difficulties resulting- from a joinder of too many plaintiffs may be averted, in some cases, by invoking the power of amendment, so liberally pro- vided by the modern codes of procedure and systems of practice. § 190. Grantee suing in grantor's name. — Statutes, rendering void for champerty deeds executed by a party out of possession of lands, held adversely by a third party, are in force in many of our States. The adverse possession, to avoid a deed upon this ground, must generally be under a claim of some specific title, and not a mere . general asser- tion of ownership,^ and must be actual as distinguished from constructive possession.^ These statutes, which will be more fully noticed hereafter, have certainly outlived their usefulness, and no substantial reason can be assigned for their further retention as a part of the statute law of this country. They were originally introduced partly upon the theory that it would be dangerous to permit the transfer of disputed or " fighting " titles, lest powerful and influential persons might purchase and use such titles as a means of oppressing poor people. There is, however, at the present day, but little reason to apprehend evils of this character ; it may be safely asserted that the influence of litigants has but little weight in controlling the decisions of our courts. Because a party vested with the title to land is deforced of the possession, by the illegal act of a wrong-doer, the law should not supplement this wrong by further depriving him of the power to sell or convey the title. But stronger rea- sons can be assigned in favor of the general repeal of these statutes. They are nearly a dead letter, for, under the de- cisions, the deed is not held to be void as a contract between the parties, or at least is enforced by applying the doctrine ' Crary v. Goodman, 22 N. Y. 170 ; Matter of Department of Parks, 73 N. Y. 360; Higinbotham v. Stoddard, 72 N. Y. 94; Williams v. Rawlins, 33 Ga. 117. ' Dawley v. Brown, 79 N. Y. 390. Digitized by Microsoft® 96 PARTIES PLAINTIFF. of estoppel, and is construed to be a power of attorney, aur thorizing the grantee to use the grantor's name, as plaintiflf in ejectment, to recover the lands even against the will of the latter, so that the only practical result attained by the statutes is a variation of the form of the action as regards the parties.^ § 191. Ejectment by the king. — Ejectment at common law was a method of redressing injuries not considered " consistent with the royal prerogative and dignity." "As, therefore," says Blackstone, "the king, by reason of his legal ubiquity, cannot be disseized or dispossessed of any real property which is once vested in him, he can maintain no action which supposes a dispossession of the plaintiff; such as an assize or an ejectment."^ The constitutional court of South Carolina, following this principle, held that the State of South Carolina, having succeedec^ to the pre- rogatives of the king of Great Britain, the analogy between the State and the king held good, and that the State could not maintain trespass to try title. The court further de- clared that it would seem inconsistent to prosecute the ten- ant in possession, as he constituted one of the artificial body which sued as plaintiff.^ This rule was enforced in England only when the king himself was plaintiflf. Ejec- tione firmts was given to the king's lessee to punish a tres- pass, and recover the possession of which the lessee had been deforced.* The royal prerogative, it was said, did not per- tain to the lessee, and hence the reason of the rule failed. § 192. Ejectment by the State or people. — Chancellor Kent, in the early case of Jackson v. Winslow,^ in the New ' Hamilton v. Wright, 37 N. Y. 502; Steeple v. Downing, 60 Ind. 478; Far- num I'. Peterson, in Mass. 148; McMahan 2/. Bowe, 114 Mass. 140. = 3 Bla. Com. *257. = State V. Stark, 2 Ere. (S. C.) 245, *ioi ; see State v. Arledge, i Bailey (S. C), 551 ; see People v. Livingston, 8 Barb. (N. Y.) 253. ^ Lee V. NoiTis, Cro. Eliz. 331. See Payne's Case, 2 Leon. 205. ° Jackson d. Miller v. Winslow, 2 John. (.N. Y.") *8i ; see Chiles v. Calk, 4 Bibb (Ky.), 554. Digitized by Microsoft® PARTIES PLAINTIFF. 97 York Supreme Court, said, in a dissenting opinion, that "the State cannot be disseized;" but the right of a State, or of its people, to recover in ejectment lands of which it is possessed by virtue of its sovereignty, or which have reverted or escheated to it from defect of heirs, is, in this country, generally conferred by constitutional provision or statute, and has been sustained in many cases.^ -When the State, as sovereign, possesses the original and ultimate prop- erty in all lands within its jurisdiction, it occupies, in ejectment proceedings, a position somewhat more advan- tageous than that of an ordinary plaintiff, for it has only to show that within a period necessary to constitute an ad- verse possession against the State, the disputed lands were vacant and unoccupied, and that the defendant subsequent- ly entered or made claim to them.^ Indeed, the proposition was strenuously contended for by counsel, in the case of The People v. Rector, &c., of Trinity Church,* that the State is presumptively the owner of all the land within its borders, and consequently, in an action of ejectment, is always entitled to recover, on proving the defendant to be in possession, unless the latter repels the presumption, by showing that it does not own the particular premises in controversy. This proposition was based.:- First, upon the Constitution of the State of New York, which declares that the people, in their right of sovereignty, are deemed to possess the original and ultimate property, in and to all lands within the jurisdiction of the State ; and Second, upon the admitted principle that in ejectment between private parties, where the plaintiff has been shown to have ' People V. Rector, &c.. Trinity Church, 22 N. Y. 44; People v. Rensselaer, 9 N. Y. 319; Wendell v. The People, 8 W^end. (N. Y.) 183; People v. Living- ston, 8 Barb. (N. Y.) 253; The People v. Conklin, 2 Hill (N. Y.), 67, per Nel- son, J. People V. Denison, 17 Wend. (N. Y.) 312; see James River & Kan. Co. V. Thompson, 3 Gratt. (Va.) 270; see Coburn v. Ames, 52 Cal. 385. 'People V. Van Rensselaer, 9 N. Y. 291-319; Wendell v. The People, 8 Wend. (N. Y.) 183; The People v. Denison, 17 Wend. (N. Y.) 312; see Peo- ple V. Arnold, 4 N. Y. 508 ; People v. Rector, &c., Trinity Church, 22 N. Y. 44. " People V. Rector, &c.. Trinity Church, 22 N. Y. 44. 7 Digitized by Microsoft® 98 PARTIES PLAINTIFF. been once the owner, the defendant must prove where and how the title has become divested, or establish title by ad- verse possession. The New York Court of Appeals held, however, in an able opinion written by Chief Justice Corn- stock, that the provision of the Constitution, above cited, was a mere declaration of political sovereignty, and was not to be regarded as a rule of evidence, and that the people, when they sue in ejectment, are not wholly relieved from the operation of the rule that the person in possession is supposed to have acquired the title which the people, or the sovereign, once held. This presumption is shifted only by showing that the lands have been vacant within forty years. § 193. When the people cannot recover. — In the case of The People v. The New Vork and Manhattan Beach Rail- way Company,^ a curious question as to the right of the people to maintain ejectment was considered by the New York Court of Appeals. By statute in that State,^ a right of action was given to the people in cases " where any money, funds,: credits or property * * held or owned, offi- cially or otherwise, for or on behalf of any public or govern- mental interest, by any municipal or other public corpora- tion, board * * [or] village * * has heretofore, with- out right, been obtained, received, converted or disposed of, and not actually recovered back and restored prior to the passage of this act." The statute in question, it may be ob- served, was enacted in view of the fact that the city of New York had been grossly defrauded by the acts of municipal officers, and others acting in collusion with them, and that large sums of money had been taken from the municipal treasury in the perpetration of the frauds thus committed. These sums the city or county had the right to recover, but resort to this method of redress was embarrassed by the fact that the city and county governments were under the ' 84 N. Y. 565. " Laws of New York, 1875, ch. 49. Digitized by Microsoft® PARTIES PLAINTIFF. 99 control of the guilty participants in the frauds. Hence arose the necessity for the enactment of the statute. It was held, in the case under consideration, that the circumstances which led to the enactment of a statute might properly be considered in aid of its interpretation.^ The complaint in the action set forth that the defendant railway company had wrongfully acquired possession of the lands in controversy, and subsequently by wrongful interference, by its servants and agents, with the action of the town meeting of the town of Gravesend, and by obtaining control of the meeting by the aid and action of persons not legal or qualified voters, procured a vote to be passed authorizing the lands to be conveyed to the defendants, by the town land commission- ers, for a grossly inadequate consideration, and that a con- veyance had been executed in pursuance of the action of the town meeting. The complaint, among other things, de- manded that the defendants be adjudged to surrender pos- session of the premises. The court held that an action for the recovery of real property was not within the purview of the act above cited, as the word property in the statute fol- lowed the enumeration of specific kinds of personal prop- erty. The words employed were " money, funds, credits or property." If it had been the intention of the legislature to apply the statute to all property, real and personal, obtained without right, some general and comprehensive words would naturally have been used. The word property, associated as it is with the prieceding words of specific description, is to be construed as referring to property of the same gen- eral kind with that previously enumerated, upon the maxim noscitur a sociis. The court considered that it would be a strained construction of the statute to extend it to the re- covery of real estate, belonging to a municipality, the pos- session of which had been wrongfully acquired, or was wrongfully withheld. Further, as the deed in question pur- ported to be the formal act of the town, executed by its ac- Citing Tonnele v. Hall, 4 N. Y. 140. Digitized by Microsoft® lOO PARTIES PLAINTIFF. credited authorities, pursuant to a vote of a town meetings, regularly called and held, having authority to direct the alienation of the lands, the court held that the statute in question was not intended to confer jurisdiction to review, revise or set aside the proceedings of towns, in town meet- ings, upon allegations that the action of a town meeting was induced by corruption, intimidation or violence. § 194. Outstanding Indian title. — In the case of The People V. Snyder,^ which was ejectment by the people for lands claimed to have escheated to the State by reason of alienage, the court, in answer to the suggestion of counsel for the people, that the fee of the locus in quo was still in the Six Nations of Indians, said that if that were true it was difficult to see why it was not entirely fatal to the plaintiff's right of recovery in the action. Clearly, the fact that the title is still in the Indians constitutes no ground of recovery by the people, and the Indians, or one occupying with their consent, could not be dispossessed from lands, the title to which had never been acquired by the State. § 195. Corporations. — At common law, in the absence of charter restrictions, or statutory prohibitions, corpora- tions, whether created by prescription or legislative act, possess the power to purchase, hold, and convey lands, so far as may be necessary to effectuate the object of their crea- tion. The character and amount of real property which a corporation may hold is usually limited by its charter or by statute. A corporation vested with the power, and having the capacity, to purchase land, may maintain ejectment to re- cover possession of it.^ "The modern method of trying the title of land by ejectment," says Kyd,^ " extends to corpora- tions of every kind, whether in the character of plaintiffs or defendants." Corporations, it has been held, may by ' People V. Snyder, 51 Barb. (N. Y.) 589; affi'd 41 N. Y. 397. " Henley v. Branch Bk. Mobile, 16 Ala. 552 : see Jackson v. Nestles, 3 John. (N. Y.)*ii5. ' Kyd on Corporations, vol. i, p. 187; see Angell & Ames on Corporations, §§ 370. 631 ; Society, &c. v. Wheeler, 2 Gallison, 105. Digitized by Microsoft® PARTIES PLAINTIFF. comity bring ejectment in States other thar granted their charters, unless expressly prohi statute of such other State from so doing.^ Union Mutual Life Insurance Company,^ it was decided that a foreign corporation could sue in the courts of Penn- sylvania, to enforce the payment of a loan of money secured by mortgage on real estate within that State. The court remarked that the principle that a foreign corporation could ■contract with a citizen of that State, and enforce its contract by suit in its courts, had never been controverted.^ But it was further said that should a foreign corporation resort to the remedy of ejectment, or become a purchaser at a sherifTs sale, a different question would arise. Even that ■condition of affairs could not release the debt, or destroy the validity of the title, except as against the common- wealth. By the common law alien friends could always sue, and there was no distinction in this respect between natural and artificial persons ; and in so far as the opinion of the learned court intimates a doubt of ejectment by a foreign corporation being sustained, it must be regarded as in con- flict with the prevailing practice. § 196. Infants. — Numerous cases hold that ejectment may be brought by an infant plaintiff, who under the early practice was entitled to make a lease, and try the title to his lands.* In Pennsylvania an infant has been permitted to maintain an action of ejectment in the name of his next friend,® but the Supreme Court in Ohio decided that the next friend of an infant could not make a demise to sustain an ejectment, as he was neither attorney nor guardian, and ' New York Dry Dock v. Hicks, 5 McL. iii. ' 91 Penn. St. 491. ' See Bank of Augusta v. Earle, 1-3 Pet. 519. ' Birchman v. Noright, Hardw. 51 ; O 'Byrne v. Feeley, 61 Ga. 77; Weems v. Mackall, 4 H. & M'H. (Md.) 484; Zouch v. Parsons, 3 Burr. [1806]; Maddon v. White, 2 T. R. 159. See MacPherson on Infancy, ch. xxx, pp. 352-354; Doe d. Miller v. Noden, 2 Esp. 530. ' Heft V. McGill, 3 Penn. St. 256. Digitized by Microsoft® I02 PARTIES PLAINTIFF. had no power to lease the lands of the infant.^ Ejectment was, however, upheld in Maryland upon the demise of a husband and wife, although the wife was under twenty-one years of age at the time of the demise laid.^ Of course, in States where the right of an infant to maintain an action in the nature of ejectment is recognized, a guardian ad litem must be appointed, so that some person may be before the court who can be held responsible for costs. The right of both the infant and his guardian to maintain ejectment for the same lands will be presently discussed. This double right of action was repudiated by the New York Supreme Court in the case of Seaton v. Davis.^ This action was instituted in the infant's name by her guardian ad litem, ta recover possession of lands from the tenant, for the life of another holding over his term, and for damages. The court held that the action could only be brought by a guardian in socage, or general guardian, and said that a minor who had a guardian in socage had no right of action to recover the pos- session of his lands, or the rents and profits thereof. This opinion is evidently based upon the theory that rights of action are not divisible, and cannot as a rule be vested in and enforced by different persons at the same time.* The court held, however, that under the then existing practice in that State the defendant, by failing to demur, had waived the objection. So it was held in New York, that an action would not lie by infants, in their own names, by a next friend,, against a defendant, for intermeddling with the rents and profits of the infants' real estate. The action must be brought in the name of the guardian in socage or general guardian.^ The New York Code of Civil Procedure, re- cently enacted, allows an infant to maintain a real action in ' Massie v. Long, 2 Ohio, 287. » Weems v. Mackall, 4 H. & M'H. (Md.) 484. • I T. & C. (N. Y.) 91. See MacPherson on Infancy, pp. 28-35. See § 201. • " There can exist at the same time but one title of entry." Botts v. Shields^ 3 Litt. (Ky.) 33. • Beecher v. Crouse, 18 Wend. (N. Y.) 307. Digitized by Microsoft® PARTIES PLAINTIFF. IO3 its own name.^ The statutory action in New York, for the determination of conflicting claims to real property, cannot be brought against an infant defendant.^ § 197. Security for costs. — The rule laid down in Doe V. Alston,^ that where an infant sues, the court will require the prochein ami, or guardian, to give security for costs, was declared in New Jersey to be peculiar to the action of ejectment* § 198. Disaffirmance of infant's deed. — An infant who has executed a conveyance of lands during his minority, may, on coming of age, recover the lands back in ejectment, but, before bringing the action, he must disaffirm the con- veyance by some notorious act, such as an actual entry, de- mand of possession, or notice of his election to repudiate the deed.^ § 199. Guardian in socage and general guardian. — A guardian in socage may bring ejectment in his own name as guardian for the lands of his ward.* Judge Nelson, in a case in the New York Supreme Court, said : " A guardian in socage has the custody of the land of the infant, and is en- titled to the profits for his benefit ; he has an interest in the estate, and may lease it, and avow in his own name, and bring trespass. He is in possession by right, and may, of course, maintain an action of trespass or ejectment against any person entering upon him without right." ^ Such a ' New York Code of Civil Procedure, § 1686. " Bailey v. Briggs, 56 N. Y. 407. ■ I T. R. 492. * Cotheal v. Moorehouse, i Zab. (N. J.) 335. " Voorhies v. Voorhies, 24 Barb. (N. Y.) 150; Bool v. Mix, 17 Wend. (N. Y.) 119; Doe d. Moore v. Abernathy, 7 Blackf. (Ind.) 442. ° Holmes v. Seely, 17 Wend. (N. Y.) 75; Byrne v. Van Hoesen, 5 Johns. (N. Y.) 66; Seaton v. Davis, i T. & C. (N. Y.) 91 ; MacPherson on Infants, pp. 28, 35; Truss v. Old, 6 Rand. (Va.) 556; Wade v. Baker, I Ld. Raym. .130; Cagger V. Lansing, 4 Hun (N. Y.), 812, affi'd 64 N. Y. 417, approving Holmes v. Seely, 17 Wend. (N. Y.) 75; More v. Deyoe, 22 Hun (N. Y.), 208-216; Shopland v. Ryoler, Cro. Jac. 98; see Beecher v. Crouse, 19 Wend. (N. Y.) 306. ' Holmes v. Seely, 17 Wend. (N. Y.) 75 ; see Quadring v. Downs, 2 Mod. 176. Digitized by Microsoft® I04 PARTIES PLAINTIFF. guardian, in the language of Lord Ellenborough, "has not a mere office or authority, but an interest in the ward's es- tate."^ He may maintain actions for injuries to his ward's realty. Being clothed with the duty of managing and pro- tecting the ward's property for his benefit, the law gives him all the necessary legal remedies to accomplish these pur- poses.^ Guardianship in socage has gone into disuse,^ and is practically unknown to our law,* for a guardian in socage must be some relative by blood who cannot possibly inherit, and in this country such a case can rarely exist.® The com- mon law right of a guardian in socage to maintain trespass and ejectment in his own name, for the possession of his ward's lands, applies to a general guardian at the present day," who possesses similar powers,^ and may bring eject- ment' The right of a guardian in socage,' general guard- ian," or of a chancery guardian," to lease his ward's real es- tate, is abundantly established. In Michigan a guardian can- not maintain ejectment for the lands of his ward, for his powers in that State are purely statutory, and his control over the real property is limited to leasing it, and to the reception of rents and profits.^^ § 200. Gtiardians for nurture and by nature. — A guard- ian for nurture has neither the right of property nor of pos- ' King V. Inhabitants of Oakley, 10 East, 491. = Torry v. Black, 58 N. Y. 185 ; Byrne v. Van Hoesen, 5 Johns. (N. Y.) 66. " 2 Kent's Com. p. 224. See, however, N. Y. R. S. (7th ed.) p. 2162, § 5. ' Combs V. Jackson, 2 Wend. (N. Y.) 1 53. • 2 Kent's Com. p. 224. ° 2 Kent's Com. p. 228. ' Thacker v. Henderson, 63 Barb. (N. Y.) 271 ; see Field v. Schieffelin, 7 John. Ch. (N. Y.) 150. ' Smith, Gen'l Gdn. v. Robertson, 24 Hun (N. Y.), 210. " Emerson v. Spicer, 55 Barb. (N. Y.) 428; s. C. affi'd, 46 N. Y. 594; Snook v. Sutton, 5 Halst. (N. J.) 133. '° Richardson v. Richardson, 49 Mo. 29; Granby v. Amherst, 7 Mass. 1-6; see Huff 2'. Walker, Guardian, &c. i Carter (Ind ), 193. " Field V. Schieffelin, 7 John. Ch (N. Y.) 150. " Kinney v. Harrett, 24 Alb. L. J. 216. Digitized by Microsoft® PARTIES PLAINTIFF. IO5 session, and, it is clear, cannot maintain the action,' that privilege not being extended to those guardians to whom belong the custody of the infant's person only.^ The same principle applies to a guardian by nature.^ § 201. Ejectment by both infant and guardian. — In Canada, under the statute 8 Geo. IV, chap. 6, which pro- vides that guardians shall have the charge and management of the estates of their wards, real and personal, and shall ap- pear and prosecute or defend any action in his or her name, it has been held that the guardian might maintain ejectment for the ward's lands, though the court was of opinion that the infant might also have brought the action independent of the guardian.* Mr. Adams says : " It is difficult to dis- cover any principle upon which both infant and guardian can have the right of maintaining ejectment for the same lands."® The existence of this double authority to sue for and recover the infant's lands is certainly somewhat anoma- lotis. Possibly, if both infant and guardian institute an ejectment at the same time, the courts can restrain one by injunction, and if both are vested with the same title and right of entry, an adjudication for or against one may be considered as controlling upon the other. Still, as already stated, there can exist but one right of entry on land at the same time, and, therefore, the case of Seaton v. Davis,* above discussed, holding that where the guardian is vested with the estate the infant cannot maintain the action, seems to embody the logical and correct rule. ' Anderson v. Darby, i N. & M. (S. C.) *369; May v. Calder, 2 Mass. 55 ; Ross v. Cobb, 9 Yerg. (Tenn.) 463; Combs v. Jackson, 2 Wend. (N. Y.) 153; Magru- dert/. Peter, 4 G. & J. (Md) 323; Bedell v. Constable, Vaughan, 177; see Fonda v. Van Home, 15 Wend. (N. Y.) 631. " See note to Ratcliff's Case, 3 Co. 37 (vol. 2, p. 99); Combs v. Jackson, 2 Wend. (N. Y.) 153; Kinney v. Harrett, opinion per Cooley, J., 24 Alb. Law Jour. 216. = Ibid. ; see Fonda v. Van Home, 15 Wend. (N. Y.) 631. * Doe d. Atkinson v. McLeod, 8 U. C. Q. B. 344. * Adams on Ejectment (4th ed.), pp. 115, *67. * I T. & C. (N. Y.) 91. See §196. Digitized by Microsoft® 106 PARTIES PLAINTIFF. § 202. Giiardiati s powers and duties. — The rights and duties of guardians have been declared and limited, with so much minuteness, by statute in most of our States, that clearly defined questions affecting the nature of their powers at common law rarely arise, and common law guardianship is comparatively obsolete. The tendency of modern legisla- tion, and the decisions of the courts, in matters affecting the ward's real estate, is to clothe the guardian with only the naked authority of an agent, not coupled with any interest in the property. In Pennsylvania, a guardian ordinarily has power to lease but not to sell his ward's real property. Oil, as we have seen, is held in that State to be a mineral, and hence a part of the realty. When a deed or conveyance of the right to bore for and collect oil on the infant's lands is made by the guardian, whether the instrument be called a lease or deed, it is considered to be in effect the grant of a part of the corpus of the estate, and not of a mere incorpo- real right, and, without the intervention and approval of the Orphan's Court, the conveyance is void.^ § 203. Committee of a lunatic. — A committee of a lunatic cannot maintain an action of ejectment in his own name for lands of the lunatic, for the reason that the committee is not clothed or vested with an estate in the lands.^ ■ " No rule of law," says the Supreme Court of Nevsr York, " is bet- ter settled than that a lunatic, by the appointment of a com- mittee, loses none of his estate, rights of property, or rights of action." '^ In North Carolina the guardian of an insane person cannot bring the action.* It has been held in New York that a committee of a lunatic is not the trustee of an express trust within the meaning of the Code of that State, ' Stough ton's Appeal, 88 Penn. St. 198. ' Petrie v. Shoemaker, 24 Wend. (N. Y.) 85; Knipe v. Palmer, 2 Wils. 130; Drury v. Fitch, Button, 16; in re Fitzgerald, 2 Sch. & Lef. 437; Burnett, as Com., &c. V. Bookstaver, 10 Hun (N. Y.), 481 ; Cox v. Dawson, Noy. R. 27 ; s. C. Hob. 215; Fulcherz/. Griffin, Popham's R. 140. = McKillip V. McKilhp, 8 Barb. (N. Y.) 552. • Brooks V. Brooks, 3 Ired. (N. C.) 389; see Knipe v. Palmer, 2 Wils. 130. Digitized by Microsoft® PARTIES PLAINTIFF. lO/ and cannot maintain ejectment, in that capacity, for lands alleged to have belonged to the lunatic prior to the appoint- ment of the committee.^ "The committee," says Judge Bronson, " is a mere bailiff or servant, and the interest and right of action remain in the lunatic."^ In Missouri, in aa ejectment by an insane person in his own name, the court held that it could proceed with the action without the ap- pointment of a guardian.^ § 204. Committee may maintain equitable action. — Though the committee cannot prosecute a purely legal ac- tion, he may maintain a suit in equity in his own name, to which the lunatic is not a necessary party, to set aside a deed executed by the lunatic when insane* This doctrine has received the sanction of Kent® and Walworth,® and is based upon an early case which maintains the principle that the lunatic should not be compelled to stultify himself, and therefore ought not to be joined in an action to cancel his own deedJ Though the reason from which this rule origin- ated is an exploded doctrine the rule survives, and the prac- tice still prevails. Even at common law, however, the com- mittee sometimes united the lunatic with him in suits to cancel conveyances of this character,^ and it has been held in Pennsylvania that ejectment for lands belonging to a lunatic may be brought in the name of the lunatic, as owner, or in the name of the committee alone.^ The powers and ' Burnett, Com. &c. v. Bookstaver, 10 Hun (N. Y.), 481. " Lane v. Schermerhorn, i Hill (N. Y.), 97. ' Allen V. Ranson, 44 Mo. 263. * Fields V. Fowler, 2 Hun (N. Y.), 400 ; Person v. Warren, 14 Barb. (N. Y.) 488 ; see McKillip v. McKillip, 8 Barb. (N. Y.) 552 ; Petrie v. Shoemaker, 24. Wend. (N. Y.) 85; Davis v. Carpenter, 12 How. Pr. (N. Y.) 287. ' Ortley v. Messere, 7 John. Ch. (N. Y.) 139. ° Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 24. ' Palmer, Attorney-General v. Parkhurst, i Cases in Chancery, 112 ; see Rid- ler V. Ridler, i Eq. Cases, Abr. 279. ' Addison, per Committee v. Dawson, 2 Vern. 678 ; Ortley v. Messere. 7 Johns. Ch. (N. Y.") 139. " Warden v. Eichbaum, 14 Penn. St. 121. Digitized by Microsoft® I08 PARTIES PLAINTIFF. duties of a committee closely resemble those of a general guardian of an infant. Our statutory policy tends to clothe him with complete control over the personalty, while his power over the realty is usually limited to leasing and the perception of profits. § 205. Heirs at law. — An heir at law may bring eject- ment for lands of which his ancestor died seized.^ Under the old practice the demise was laid on the day the ances- tor died, for if the ancestor died at five o'clock, the heir might enter at six and make a valid lease at seven.^ The heir may have the action though the ancestor died out of possession,^ or was holding by adverse possession,* and a writ of right by the heir may be supported though the ancestor was disseized at the time of his death. ^ The heirs of a trustee may maintain ejectment, the action not being adverse to the interests of the cestui que trusts After the death of the widow, the heirs may bring an action, in the nature of ejectment, for lands of which the ancestor died seized and which were assigned to the widow as dower.^ Heirs at law hold as tenants in common, and one of several heirs can recover in ejectment, though the others entitled equally with him do not join in the action.® In California the heir has the right of entry upon the real estate left by his ancestor, subject only to the administrator's statutory right of possession, and where a considerable period has elapsed, and there has been no administration, the heir may bring ejectment.^ No entry is necessary ; it is sufficient to ' Buck V. Squiers, 22 Vt. 484 ; Uhrick v. Beck, 13 Penn. St. 639 ; Tapscott v. Cobbs, II Gratt. (Va.) 172; Updegraff v. Trask, 18 Cal. 458; Carruthers v. Bailey, 3 Ga. 105. ' Roe d. Wrangham v. Hersey, 3 Wils. 274. ' Webster !<. Webster, 53 Penn. St. i6l. * Hanna v. Renfro, 32 Miss. 125. ' Mason v. Walker, 14 Me. 163. ° Crunkleton's Lessee v. Evert, 3 Yeates (Pa.), 570. ' Brown v. Colson, 41 Ga. 42. ^ Dowd V. Gilchrist, i Jones (N. C.) Law. 353 ; Bronson v. Paynter, 4 Dev. & Bat. (N. C.) 393. • Updegraff v. Trask, 18 Cal. 458; see BufFord v. Holliman, 10 Texas, 564. Digitized by Microsoft® PARTIES PLAINTIFF. IO9 prove his title as heir.^ One of six heirs of an owner of a rent charge, with condition of re-entry, may, upon non-pay- ment of rent, maintain an action of ejectment to recover an undivided sixth part of the demised premises.^ The death of the owner, and the descent by operation of law to several heirs, effects a transfer to each, and as already stated they hold as tenants in common. § 206. Devisees. — A devisee may maintain ejectment.* Reference will be presently made to the statutory policy, peculiar to several States, which permits executors or admin- istrators to retain possession and control over the real prop- ertjr of the deceased, during the settlement of the estate, and to protect and recover the possession from even the heir or devisee. In Vermont, where the statute restricted the right to ejectment by heirs or devisees until the estate had been set off to them by the Probate Court, it was held that when it was obvious that no action of the Probate Court could be- come necessary, and so long a time had elapsed that the ex- ecutor's lien would be presumed to be satisfied, the devisee might bring ejectment.* The same principle applies, in that State, to heirs, if no administrator has been appointed ; or if administration has been had, the debts will be pre- sumed to be satisfied after the lapse of nine years, and the heirs may then sue.* A devisee has by operation of law, without actual entry, such a seizin as will enable him to bring a writ of entry.^ § 207. Personal representatives. — As a general rule, an executor, administrator, or administrator de bonis non} can- ' Soto V. Kroder, 19 Cal. 87; see Buck v. Squiers, 22 Vt. 484; Austin v. Bailey, 37 Vt. 219. ^ Cruger v. McLaury, 41 N. Y. 219, and cases cited. 'Young V. Holmes, i Strange, 70; Doe d. Saye v. Guy, 3 East, 120; see Van Rensselaer v. Barringer, 39 N. Y. 9. ' Abbott V. Pratt, 16 Vt. 626. - ° Buck V. Squiers, 22 Vt. 484; Austin v. Bailey, 37 Vt. 219. ' Green v. Chelsea, 24 Pick. (Mass.) 71. ' Brown v. Strickland, 32 Me. 174. Digitized by Microsoft® no PARTIES PLAINTIFF. not maintain ejectment to recover real estate in fee simple, for he represents, and is clothed with power to administer, the personal and not the real estate of his testator or intes- tate, and ordinarily has no concern with or control over real property,^ and is not vested with the seizin or any estate in fee.^ Upon the death of an ancestor the title to real property usually vests immediately in the heirs or de- visees, whose rights to the remedy of ejectment we have just considered. Exceptions to these rules have been created by statute in several States. § 208. May recover estates for years. — An executor may maintain ejectment for lands which were held by his testator for a term of years, as such term is a chattel inter- est,^ or a chattel real,* and is treated as assets in his hands. So under the early practice he was entitled to an ejectione Jirmtz for such an interest.^ Executors of a testator who held an estate for years in land, and had leased the same for a part of the term, with condition of re-entry for non-pay- ment of rent, may bring the action." So may an adminis- trator of a tenant from year to year,'^ and it seems to be im- material whether the ouster occurred before or after the death of the testator or intestate. In a case in England, two of three executors were permitted to recover in eject- ment, on a joint demise, a mortgage term which belonged to their testator.* Ejectment has been upheld in England on ' Heirs of Ludlow v. Johnson, 3 Ohio, 553; Burdyne v. Mackey, 7 Mo 374. " Hathaway v. Valentine, 14 Mass. 501 ; Humphreys v. Taylor, 5 Oregon, 260 ; Morrill v. Menifee, 5 Ark. 629. » Duchane v. Goodtitle, i Blackf. find.) 117. See Williams on Executors (6th Am. ed.), vol. i, pp. 746, 749; Olendorf z/. Cook, i Lansing (N. Y.), 37. '■Mosher v. Yost, 33 Barb, (N, Y.) 277; Metters v. Brown, i H. & C. 686; Murdock v. Ratcliff, 7 Ohio, 119; Moreton's Case, i Ventris, 30; Blade's Case, Rep. 4, 95, a; Doe z/. Bradbury, 16 Eng. Com. Law, 115 ; 2 D. & R. 706 ; Lewis' Heirs v. Ringo, 3 A. K. Mar. (Ky.) 247 ; Payne v. Harris, 3 Strobh. Eq. (S. C.) 39. ' Peytoe's Case, 5 Coke, 143; 9 Rep. 78 b; Russel v. Pratt, cited in I An- derson, 243. ° Van Rensselaer v. Hayes, 5 Denio (N. Y.), 477. ' Doe d. Shore v. Porter, 3 T. R. 13. " Doe d. Stace v. Wheeler, 1 5 M. & W. 622. Digitized by Microsoft® PARTIES PLAINTIFF. I I I a demise laid before probate granted,^ and before letters of administration were issued.^ In Alabama the executor, suing in his representative capacity, and the devisees under the will, cannot join in ejectment.® Under the peculiar prac- tice in Pennsylvania, an administrator cum testamento annexo may maintain ejectment to enforce payment of the purchase-money for land sold by a deceased executor prior to his death under a power in a will.* § 209. Freehold terms or leases. — But the executor has no interest in freehold terms or leases, and the New York Supreme Court held that where the testator conveyed land in fee, reserving a right of re-entry for non-payment of rent, the executor could not bring ejectment for the forfeiture, because, if successful, he would thereby be invested with the original estate, that is, with a fee simple, a species of property to which the functions and duties of an executor bear no relation.^ § 210. When executors or admirtistrators may sue. — Though ordinarily, as we have seen, an execufor has no in- terest in the freehold, yet where, by the provisions of the will, he is authorized to enter on the land, and lease or otherwise dispose of it, he has a right to maintain ejectment* And where lands had been devised to trustees with power to convert the same into money, invest the proceeds, and receive and apply the income for the benefit of persons designated in the will, the trustees were held to be seized of a sufficient estate to enable them to bring ejectment.'' In Pennsylvania executors, empowered by will to sell real estate, may bring ejectment for it,^ and it has been held that ' Roe d. Bendall v. Summerset, 2 W. Blk. 692. = Patten v. Patten, T. 3 W. 4. ' Tarver v. Smith, 38 Ala.. 135. ' Cornell v. Green, 10 S. & R. (Penn.) 14. ' Van Rensselaer v. Hayes, 5 Denio (N. Y.), 477. ' Duchane «'. Goodtitle, i Blackf. (Ind.) 117. ' McLean v. Macdonald, 2 Barb. (N. Y.) 534. " Chew's Ex'rs v. Chew, 28 Penn. St. 17. Digitized by Microsoft® 112 PARTIES PLAINTIFF. the executors may bring the action when no one is desig- nated in the will to execute the power.^ In Tennessee it has been held that an executor cannot maintain an action for mesne profits of the land, even though clothed with a power of sale.^ An executor appointed under a will in Virginia, to whom lands in Kentucky have been devised, need not take out letters testamentary in the latter State to enable him to maintain ejectment for the lands.^ In Michigan an administrator has been held entitled to main- tain ejectment for lands which he acquired by foreclosure of a mortgage left by his intestate.* In New Vork, when the purchaser of real estate at execution sale dies previous to the execution of the sheriff's deed, the conveyance must be made to his personal representatives, who may bring ejectment for the land on a title so acquired, without join- ing the heirs.^ § 211. Statutory changes. — In California, during admin- istration of an estate, and until distribution, the executor or administrator -is entitled to the possession of the real prop- erty, and may recover it from the heir or devisee." In Michigan the statutory right of the administrator, before final settlement, to the possession and to the rents and profits of the real property,' may be enforced by ejectment.'^ A similar statutory policy prevails in Minnesota.^ In Ala- bama an executor or administrator has such a right to the possession of land of his testator or intestate, that he may bring ejectment without reference to the solvency of the estate," and it has been held in that State, that where the ' Kirk V. Carr, 54 Penn. St. 285. ^ Brown v. McCIoud, 3 Head (Tenn.), 280. '' Doe d. Lewis v. McFarland, 9 Cranch, 151. " Kunzie v. Wixom, 39 Mich. 384. ' Reynold's Adm'r v. Darling, 42 Barb. (N. Y.) 418. " Page, Adm'r, &c. v. Tucker, 54 Cal. 121 ; see McCrea v. Haraszthv, ?i Cal. 146. ^ ' ' Kline V. Moulton, 11 Mich. 370. But see Warren v. Tobey, 32 Mich 45 " Miller v. Hoberg, 22 Minn. 249; see Menifee -v. Menifee, 8 Ark 9 • McRae's Adm'r v. McDonald, 57 Ala. 423; Russell v. Erwin's Adm'r 41 Ala. 292 ; Golding v. Golding's Adm'r, 24 Ala. 122. ' Digitized by Microsoft® PARTIES PLAINTIFF. II 3 plaintiff brings the action as an individual the complaint may be so amended as to show that he sues as adminis- trator.^ In Missouri, however, an executor suing in his rep- resentative capacity was not allowed to recover by virtue of his individual interest.^ § 212. Reversioners — conditions subsequent. — A grantor may maintain ejectment after a breach of a condition subse- quent to recover the premises conveyed subject to such condition ; ® usually all the original grantors or their heirs must join in the action.* The grantors are reversioners, and such an interest in real estate is not and does not be- come a title till after entry,^ or the recovery of possession ; until then the title of the defendant is not divested.* " Such interest," says the New York Supreme Court, "being joint, no less than the whole number could declare the forfeiture, nor could an action to recover possession for condition broken be sustained without the consent" and joinder of all,"'' In England, by 32 Hen. VIII, c. 34, the assignee of the reversion is given a right of re-entry for condition broken and may bring the action.^ Breach of the condition can only be taken advantage of by the grantors, and the right to claim and enforce it does not usually pass by a convey- ance of the land,^ and is not assignable,^" and a stranger can- not take advantage of it.^^ If a grantor re-enters for breach ' Agee V. Williams, 30 Ala. 636. " Burdyne v. Mackey, 7 Mo. 374. = Horner v. Chicago, M. & St. P. Ry. 38 Wis. 165 ; Bogie v. Bogie, 41 Wis. 209; Bear v. Whisler, 7 Watts (Pa.), 144; Ruch v. Rock Island, 97 U. S. 693. * Cook V. St. Paul's Church, 5 Hun (N. Y.), 293; affi'd 67 N. Y. 594. ' Osgood V. Abbott, 58 Me. 73; Guild z/. Richards, 82 Mass. (16 Gray), 309. ° Ruch V. Rock Island, 97 U. S. 693: Kenner v. American Contract Co. 9 Bush (Ky.), 202. ' Cook V. St. Paul's Church, 5 Hun (N. Y.), 293; NicoU v. N. Y. & Erie Railway, 12 N. Y. 121. See Doe d. Patrick v Beaufort, 4 Eng. L. & Eq. 496. ' Adams on Ejectment, 4th ed. p. *72 (120). " Towle V. Remsen, 70 N. Y. 303-312. •° Underbill v. S. & W. R. R. Co. 20 Barb. (N. Y.) 455 ; Ruch v. Rock Isl- and, 97 U'. S. 693. " Schulenberg v. Harriman, 21 Wall. 44-63 ; Dewey v. Williams, 40 N. H. 222; 8 Digitized by Microsoft® 114 PARTIES PLAINTIFF. of a condition subsequent, the dower of the grantee's wife of course falls with the estate of her husband/ and a recovery against a life tenant, for breach of a condition subsequent, destroys the lien of a judgment on the life tenant's estate.^ The right to enforce the forfeiture may be lost by waiver.' § 2 1 3. A condition in a deed that the grantee shall not at any time manufacture or sell, to be used as a beverage, any intoxicating liquor, or permit the same to be done on the premises conveyed, was held by the New York Court of Appeals to be valid, and not repugnant to the grant. 'The right of entry upon breach of the condition being reserved in the deed, the grantor, upon proof of the breach may re- cover the premises in ejectment, without previous entry, de- mand or notice. The court, in the opinion, cites with ap- proval various cases in which conditions against the use of the premises for a school house, distillery, blast furnace, livery stable, machine shop, powder magazine, hospital, or ceme- tery, have been upheld as valid.* But where the plaintiff sold land to a railroad corporation, which paid for the same, and agreed in the contract of sale that when the road was finished it would keep the land fenced, it was held that ejectment would not lie for the failure of the corporation to maintain fences, the agreement being merely an interpro- prietary regulation.^ Hooper v. Cummings, 45 Me. 359; Nicoll v. N. Y. & Erie R. R. Co. 12 N. Y. 121 ; Fonda v. Sage, 46 Barb. (N. Y.) 109 ; Underhill v. S. & W. R. R. Co. 20 Barb. (N. Y.) 455 ; Ruch v. Rock Island, 97 U. S. 693. ' Beardslee v. Beardslee, 5 Barb. (N. Y.) 324. " Moore v. Pitts, 53 N. Y. 85. But see Allen v. Brown, 5 Lansing (N. Y.), 280. " Cook V. St. Paul's Church, &c. 67 N. Y. 594; Andrews v. Senter, 32 Me. 394; Hooper 2/. Cummings, 45 Me. 359. " Plumb V. Tubbs, 41 N. Y. 442; see Collins Mfg. Co. v. Marcy, 25 Conn. 242; Gray z/. Blanchard, 8 Pick. (Mass.) 284; Sperry's Lessee v. Pond, 5 Ohio, 388 ; Nicoll V. N. Y. & Erie Railway, 12 N. Y. 121 ; Warner v. Bennett, 31 Conn. 468; Gillisw. Bailey, 17 N. H. 18; Gibert v. Peteler, 38 N. Y. 165; Cowell v. Colorado Springs Co. 3 Col. 82; 100 U. S. 55 ; Bogie v. Bogie, 41 Wis. 209 ; Hor- ner V. Chicago, M. & St. P. Ry. Co. 38 Wis. 165. " Hornback v. Cincinnati & Z. R. R, Co. 20 Ohio St. 81. Digitized by Microsoft® PARTIES PLAINTIFF. 115 § 214. Forfeiture of life estate. — In this country a re- versioner cannot maintain ejectment on the ground that the owner of the life estate has forfeited his estate by the com- mission of waste/ nor does the life tenant forfeit his estate by claiming the fee against the reversioner,^ nor by consent- ing to a sale of it,^ nor by executing a deed purporting to convey the fee.* The early English doctrine that estates for life were liable to forfeiture for waste, or for alienation in fee, has been uniformly renounced in this country.^ Com- mission of waste can be restrained by injunction, or the property preserved by the appointment of a receiver, while a conveyance of a greater estate than the life tenant pos- sesses conveys only the title or estate which he could law- fully grant. § 215. Life tenant. — It has been held in North Carolina in a case .where B. erected a saw mill, house and fixtures on A.'s land, under an agreement that the same plight remain as long as B. wished, that B. had a life interest in the land, so far as the use of the same might be necessary for his business, and that ejectment could be maintained to recover that interest.^ A married woman in New York may re- cover, in ejectment against her husband, a life estate.'' § 216. Tenant for years. — A tenant of a term for years, or leasehold interest, may maintain ejectment. It was con- tended by counsel, in an action in the Supreme Court of ' Patrick v. Sherwood, 4 Blatch. C. C. 112; see Quimby v. Dill, 40 Me. 528. '' Robinson v. Miller, 2 B. Mon. (Ky.) 284; see, especially, De Lancey v. Ganong, 9 N. Y. 9. ° Bazemore v. Davis, 48 Ga. 341. * Carpenter v. Denoon, 29 Ohio St. 379 ; Quimby v. Dill, 40 Me. 528; Rogers V. Moore, 11 Conn. 553; Williams v. Robinson, 16 Conn. 522; McKee's Lessee V. Pfout, 3 Dall. 486; Robinson v. Miller, i B. Mon. (Ky.) 88. . ' 4 Kent's Com. 83, 84; Quimby v. Dill, 40 Me. 528; Patrick v. Sherwood, ,4 Blatch. C. C. 112. = Stancel v. Calvert, Wins. (N. C.) Law, 104. ' Wood V. Wood, 18 Hun (N. Y.), 350; affi'd 83 N. Y. 575; see Batterton v. Yoakum, 17 111. 288; Gregg v. Tesson, i Black (U. S.), 150; Beal v. Harmon, 38 Mo. 435. Digitized by Microsoft® Il6 PARTIES PLAINTIFF. New York, that as a term for years was a chattel interest, an'd constituted personal estate, the owner of the term could not maintain ejectment. But the court decided that eject- ment at common law lay to recover possession of land held under a lease for years, whatever the duration of the term might be. While it is true that the subject-matter in con- troversy must be in its nature corporeal and capable of seiz- in, yet the right of possession being shown, the nature or quality of the estate itself does not control.^ This doctrine has been repeatedly recognized in the New York Court of Appeals in actions in which leasehold interests constituted the subject-matter of contention,^ and in Pennsylvania, even where the right conferred under the lease was incorporeal.* Ejectment may be maintained by a lessee, before entry, against a stranger wrongfully withholding the possession.* § 2 1 7. Tenant at will. — It has been said by the Supreme Court of Indiana that a tenant at will may maintain eject- ment.^ The opinion is based upon the case of Stone v. Grubbam * referred to by Runnington,' which sustains the tenant's right to the action against an intruder, on the theory that ejectment is in its nature an action of trespass supposed to have been committed vi et armis, and the ouster and wrong committed must be personal to the party in actual possession, hence " the tenant at will may make a lease to punish the trespass and ejectment, otherwise there would be an injury done, and no one competent to redress it." But this authority can hardly be considered of much weight. The Supreme Court of North Carolina held that ' Olendorf v. Cook, i Lansing (N. Y.), 37. " Mason v. Lord, 40 N. Y. 476; Darby v. Callaghan, 16 N. Y. 71 ; Trull v. Granger, 8 N. Y. 115. ° Karns v. Tanner, 66 Penn. St. 297. « See Trull v. Granger, 8 N. Y. 115; Gardner v. Keteltas, 3 Hill (N. Y.), 330- ' Buntin v. Doe d. Duchane, i Blackf. (Ind.) 26. * I RoUe's Rep. 3. ' Runnington on Ejectment, pp. 23, 24. PARTIES PLAINTIFF. II 7 where the obligee of a bond to make titles went into pos- session, under a parol agreement, to the effect that he might occupy the premises until the bond matured, he was a mere tenant at will of the obligor, and not entitled to maintain ejectment against the latter, or one taking title from him.^ The definition of an estate at will excludes the idea of the tenant sustaining ejectment against his lessor^ for any acts of the lessor sufficient to warrant an ejectment against him would indicate a withdrawal of his assent, and constitute a termination of the tenancy. It is clear that the tenant has no certain and indefeasible estate ; nothing that can be granted to a third person,^ and hence his grantee cannot maintain or defend ejectment. § 218. Tenant at sufferance. — A tenant at sufferance who is evicted by his landlord, without a demand of posses- sion, cannot maintain ejectment, for he has no interest in the land ; but it has been said that he may bring trespass.* Like a tenant at will, he has no estate which can be granted to a third person. " A tenancy by sufferance," says the New York Court of Appeals, " existing only by the laches of the owner, cannot give the occupant an estate or interest capa- ble of transmission to another." ® § 219. Tenant by the curtesy. — A tenant by the curtesy initiate may sue alone for the possession of his wife's land, and for damages for withholding it* It has been held in Pennsylvania, however, that the wife must join.'^ At com- ' Richardson v. Thornton, 7 Jones (N. C.) Law, 458 : see Love v. Edmons- tbn, I Ire. (N. C.) Law, 152. " Jemot V. Cooly, Sir T. Raym. 137. ' Reckhow v. Schanck, 43 N. Y. 448 ; see Haythorn v. Margerem, 3 Hals. Ch. (N. J.) 324. ' Doe d. Harrison v. Murrell, 8 C. & P. 134. ' Reckhow v. Schanck, 43 N. Y. 448. " Wilson V. Arentz, 70 N. C. 670 ; Tucker v. Vance, 2 A. K. Mar. (Ky.) 458 ; Chambers v. Handley, 3 J. J. Mar. (Ky.) 98; see Gregg v. Tesson, i Black (U. S.), 150; Jackson v. Leek, 19 Wend. (N. Y.) 339; Prescott -v. Jones, 29 Ga. 58 ; Thompson's Lessee v. Green, 4 Ohio St. 216. ' Bratton v. Mitchell, 7 Watts (Pa.), 113. Il8 PARTIES PLAINTIFF. mon law the husband's interest in the estates of which the wife was possessed, at the time of the marriage, was a free- hold, he alone having the right of entry, and the present right of exclusive enjoyment. The wife could not recover the lands from a stranger, even though her husband was joined as defendant, and disclaimed title, and admitted the wife's right to possession.^ § 220. Married Women. — In most of our States the right to hold and enjoy real property, free from the interfer- ence or control of their husbands, has been conferred by statute on married women. A wife may now, in some States, maintain ejectment for her lands, even against her husband,^ and may recover a term for years without joining her husband,* and in Illinois may sue for homestead.* § 221. Partners. — Ejectment for real property belong- ing to a firm should be brought in the name of all the per- sons in whom the legal estate is vested.^ If one partner alone has the legal estate, he should bring the action in his own name,* and a surviving partner may recover the part- nership lands against one having no title.'' The real prop- erty held by a commercial firm, as partnership assets, upon the dissolution of the partnership, as between the partners, vests in the individual members thereof as tenants in com- mon,* and where the interest of a partner is sold on execu- tion it creates a dissolution of the firm, and the purchaser becomes a tenant in common as to the realty with the re- maining partner.^ This rule has been recognized in Georgia, where it, has been held that one partner cannot mortgage ' Clark V. Clark, 20 Ohio St. 128. ' Wood V. Wood, 83 N. Y. 575 ; s. C. below, 18 Hun (N. Y.), 350. ' Darby v. Callaghan, 16 N. Y. 71. * Allen V. Hawley, 66 111. 164, 169. ' I Lindley on Part. *482. " Doe d. Green v. Baker, 2 Moore, 189. ' Robinson v. Roberts, 31 Conn. 145. ' McGrath v. Sinclair, 55 Miss. 89. ' Carter v. Roland, 53 Texas, 540. PARTIES PLAINTIFF. II9 the interest of his copartner.^ In equity, partnership real estate is treated and governed by the same rules as person- alty,* but after the claims of partnership creditors are satis- fied, and the rights and equities of the partners adjusted, it is then considered as real estate,^ and descends to heirs.* It has been held in Pennsylvania, vsrhere the partnership real property is purchased with partnership funds, and the deeds are made to the partners as tenants in common, that as to creditors the deeds establish the status of the property, and that this cannot be altered by parol. This is because partners have the power of directing the application of part- nership moneys to suit their own purposes, and can always secure the identity of its character in the kind of title they take for it. If they take title as tenants in common, in- stead of as partners, they by their own election stamp the character of the title as to those who may subsequently deal with them.^ § 222. Trustees. — A trustee may recover in ejectment the lands affected by the trust even against his cestui que trusty and may defend the legal title against the cestui que trust unless the trust has terminated, or the trustee is en- joined, by a court of equity, from setting up the title.'' The title of the cestui que trust being merely equitable, and the ' Sutlive w. Jones, 61 Ga. 676. " Andrews' Heirs v. Brown, 21 Ala. 437 ; Black v. Black, 1 5 Ga. .445 ; Divine v. Mitchum, 4 B. Mon. (Ky.) 488; Coles v. Coles, 15 Johns. (N. Y.) 159; Piatt v. Oliver, 3 McLean, 27 ; Whitney v. Gotten, 53 Miss. 689; Davis v. Christian, 15 Gratt. (Va.) 11 ; Mauck v. Mauck, 54 111. 281. " Buckley v. Buckley, 1 1 Barb. (N. Y.) 43 ; In re Codding, 9 Fed. Rep. 849, especially the learned note of Mr. Ewell at pages 851-853 ; Scruggs v. Blair, 44 Miss. 406. * Foster's Appeal, 74 Penn. St. 391 ; Williamson v. Fontain, 7 J. Bax. (Tenn.) 212 ; McGrath v. Sinclair, 55 Miss. 89 ; Wilcox v. Wilcox, 13 Allen (Mass.), 252. ' Second National Bank of Titusville's Appeal, 83 Penn. St. 203 ; Ebbert's Ap- peal, 70 Penn. St. 79. ° Beach v. Beach, 14 Vt. 28; Reade v. Reade, 8 T. R. 118; Matthews v. Ward, 10 G. & J. (Md.) 443 ; Starke's Lessee v. Smith, 5 Ohio, 455-458- ' Stearns v. Palmer, 10 Met. (Mass.) 35 ; Den d. Obert v. Bordine, i Spencer (N. J.), 394; NicoU V. Walworth, 4 Denio (N. Y.), 385. I20 PARTIES PLAINTIFF. trustee being vested with the legal title or estate, real actions or remedies in the nature of ejectment must, of course, be brought in the name of the trustee.^ Where the defendant deeded to the plaintiff as trustee " to seize, sell, and dispose of" the real estate in controversy, and apply the proceeds to the payment of certain debts; it was held that sufficient title passed to the trustee to support ejectment to recover the lands, to enable him to carry into effect the objects of the trust.* In a case which arose in Georgia, it appeared that the plaintiff in an ejectment was appointed trustee under a marriage settlement, and vested with the title for the use of a wife, with power of disposition in her by will, and in the event of her intestacy then the property was to go to her children. Pending the ejectment the wife died. The' court held that the trustee could continue the action so as to enable him to execute the trust, by recovering and turn- ing over the possession to those entitled to it, and to accom- plish this end he was allowed to add such demises as might be necessary to bring in the children as formal parties.* A wrong-doer cannot set up the title of the cestui que trust against the trustee.* It has been held in New York, where lands were devised to trustees with directions to convert the same into money, invest the proceeds, and col- lect the rents and income, and apply it during two specified lives, to the use of certain persons named, that the trustees ' Moore v. Burnet's Lessee, ii Ohio, 334; Beach v. Beach, 14 Vt. 28; Cox v. Walker, 26 Me. 504; Hopkins v. Stephens, 2 Rand. (Va.) 422; First Baptist Soc. V. Hazen, 100 Mass. 322; Matthews v. Ward, 10 G. & J. (Md.) 443; Fitz- patrick V. Fitzgerald, 13 Gray (Mass.), 400; Chapin v. First Universalist Soc. 8 Gray (Mass.), 581 ; Reece v. Allen, 5 Gilm. (111.) 236; Doggett v. Hart, 5 Fla. 215; Stearns v. Palmer, 10 Met. (Mass.) 35 ; Wake v. Tinkler, 16 East, 36 ; Good- title V. Jones, 7 T. R. 47 ; Methodist Soc. v. Bennett, 39 Conn. 293 ; McClurg v. Wilson, 43 Penn. St. 439; Bakery/. Nail, 59 Mo. 265; Adams on Ejectment (4th Am. ed.), 127 [82] ; Kirkland v. Cox, 94 111. 400; Trustees M. E. Church v. Stew- art, 27 Barb. (N. Y.) 553 ; see Western R. R. Co. v. Nolan, 48 N. Y. 517 ; see Smith's Lessee v. McCann, 24 How. 398. ' Cameron v. Phillips, 60 Ga. 434 ; see Findlay v. Artope, 48 Ga. 537. '' Findlay v. Artope, 48 Ga. 537. * Hunt V. Crawford, 3 P. & W. (Penn.) 426. PARTIES PLAINTIFF, 121 were seized of such an estate in the lands as entitled them to maintain ejectment.^ § 223. Cestuis que trustent. — It has been held that the cestui que trust may maintain a real action upon his equi- table title against a stranger who has no title and does not claim under the trustee,*^ or possibly after the purposes of the trust have been fully accomplished though the true legal title is still in the trustee,^ But the remedy of the cestui que trust is usually in equity.* § 224. Insolvent. — It has been decided, in a case which arose in Pennsylvania, that notwithstanding the assignment of an insolvent debtor passed the legal estate in his lands, yet a trust resulted by operation of law, which, as soon as the debts were satisfied, entitled the insolvent to the posses- sion of the lands, even against his assignee, et a multo fortiori as to a stranger, against whom he might maintain ejectment in his own name. It was further held that after a lapse of fourteen years the court would, in the absence of proof to the contrary, make all necessary intendments that the debts had been paid.® In another case in the same State it was held that an insolvent, upon proof of payment of all the debts owing by him at the time of his discharge, could maintain ejectment, in his own name, for lands as- signed by him without a formal re-assignment* But one discharged as an insolvent debtor, whose debts remain un- paid, cannot support an ejectment for lands of which he was divested by the assignment, though his trustees have not ' McLean v. Macdonald, 2 Barb. (N. Y.) 534 ; see Heermanns v. Robertson, 64 N. Y. 332-352. See contra^ Doe d. EUe v. Young, 3 Zab. (N. J.) 478. Re- versed 4 Zab. (N. J.) 775. See Chew's Ex'rs v. Chew, 28 Penn. St. 17. ' Steams v. Palmer, 10 Met. (Mass.) 35; Roper v. Holland, 3 Ad. & El. 99 ; Sloper V. Cottrell, 2 Jur. N. S. 1046 ; see Kennedy v. Fury, i Dall. 72. = Hopkins v. Ward, 6 Munf. (Va.) 38 ; Goodtitle d. Hart v. Knott, Cowp. 46. * See Gillett v. Treganza, 13 Wis. 472. ' Ross V. M'Junkin, 14 S. & R. (Penn.) 364; see Hoag v. Hoag, 35 N. Y. 469; Colie V. Jamison, 4 Hun (N. Y.), 284 ; R. S. N. Y. (7th ed.) p. 2183, § dT. ' Power V. HoUman, 2 Watts (Penn.), 218. 122 PARTIES PLAINTIFF. given the bonds required by law.^ The Supreme Court of California have decided that an insolvent might maintain ejectment for a right of homestead, during the pendency of an application on his part to be discharged from his debts, under the insolvency laws of that State.^ § 225. Assignee of bankrupt or insolvent debtor. — An early case in Massachusetts held that an assignee in bank- ruptcy was not entitled to come in under the statute,' and prosecute a real action instituted by the bankrupt. The re- port of the case does not contain the reasons upon which the decision is based.* A conclusion more in harmony with the spirit of the bankrupt act was reached in Connecticut, where the right of the assignee of a bankrupt, under the act of 1800, to maintain ejectment was upheld.^ Similar decis- ions have been rendered relative to the English bankruptcy laws,® under which it is held that the assignees can eject the bankrupt himself from lands conveyed to a friendly third party in trust for him, and transferred by such third party, by order of the court, to the assignees.'' In England, both the assignee^ and provisional assignee^ of an insolvent debtor may bring ejectment for the lands of the iasolvent. § 226. Aliens. — The general rule under the former prac- tice in England was that an alien could not maintain a real or mixed action,^'' and this principle was recognized in an early case in North Carolina, in which the court held that an alien could not maintain ejectment, or any action for the ' Willis' Lessee v. Row, 3 Yeates (Penn.), 520. " Moore v. Morrow, 28 Cal. 551. ' Bankrupt Act of 1800, ch. 19, § 3. * Fales, Jr. v. Thompson, i Mass. 134. ' Barstow v. Adams, 2 Day (Conn.), 70. ° Smith V. Coffin, 2 H. Black. 444. ' Cooper V. Lands, 14 Weekly R. 610; s. C. 14 L. T. (N. S.) 287. ' Doe d. Ibbetson v. Land, 3 D. & R. 509. ' Doe d. Clark v. Spencer, 2 C. & P. 79, '" Co. Litt. p. 129; Shep. Touchstone, p. 204; see White v. Sabariego, 23 Tex. 243 ; Hardy v. De Leon, 5 Tex. 240. PARTIES PLAINTIFF. I 23 recovery of a freehold.^ But in many of our States an alien may acquire land by purchase, and hold it against all the world but the State, and may convey a good title thereto, at least until after gffice found.^ Having this right, it of course follows that an alien may maintain an action in the nature of ejectment, to recover and protect the possession of his lands.* Thus in California a non-resident alien can ac- quire title to real property by purchase, or other act of the party, though not by descent or operation of law, and until office found no individual can question the rights or title of the plaintiff on the ground of alienage, or non-residence.* The same principle has been recognized in Maryland, where the court say that the title of an alien friend could not be divested but by office found, or some act done by the State to acquire the possession, and a judgment for the posses- sion of the land in the right of the alien was upheld.^ § 227. Receivers. — In England it was held that a receiver appointed in Chancery, with general authority to let lands from year to year, had also authority to determine such ten- ancies, and, therefore, might sustain ejectment* But the re- ceiver, as a rule, cannot institute an action to recover the possession of land without first obtaining leave of the court so to do.'' In New York, a receiver in supplementary pro- ceedings obtains title to the real property of the judgment ' Barges, by Guardian, &c. v. Hogg, i Hayw. (N. C.) 485 (559). " Craig V. Leslie, 3 Wheat. 563, 589; Territory v. Lee, 2 Mont. R. 124-129; Fox V. Soutliack, 12 Mass. 143; Montgomery v. Dorion, 7 N. H. 475; i Washb. on Real Prop. p. 74 [*49]; Blount v. Horniblea, 2 Hayw. (N. C.) 36 (197); People ex rel. v. Folsom, 5 Cal. 373. ' Jinkins v. Noel, 3 Stew. (Ala.) 60; Bradstreet v. Supervisors, &c. 13 Wend. (N. Y.) 546; Ford v. Harrington, 16 N. Y. 285, 294; Overing v. Russell, 32 Barb. (N. Y.) 263, and cases cited. ' Norris v. Hoyt, 18 Cal. 217. ' McCreery v. AUender, 4 H. & McH. (Md.) 409 ; see People ex rel. v. Fol- som, 5 Cal. 372. " Doe d. Marsack v. Read, 12 East, 57. ' Wynne v. Lord Newborough, i Vesey, Jr. 165 ; S. C. 3 Bro. C. C. 88 ; Green V. Winter, i Johns. Ch. (N. Y.) 60; Sturgeon v. Douglas, i Hogan, 400; Conyers v. Crosbie, 6 Irish Eq. R. 657 ; Ward v. Swift, 6 Hare, 312. 124 PARTIES PLAINTIFF. debtor, within that State, by force of his appointment when perfected, without an execution of an assignment by the debtor, and may impeach transfers of real property made by the latter in fraud of creditors. ^ The title of receivers to the property of which they are the custodians is generally statutory, and their right to maintain actions in the nature of ejectment often depends upon the wording and construc- tion of statutes.^ § 228. Indians. — An Indian may recover in ejectment lands reserved to him by treaty, and of which he has been dispossessed.'' § 229. Felons. — In England a person attainted of fel- ony may, before office found in favor of the king, convey a title to land which will sustain ejectment.* § 230. Additional illustrations.— ^ Q cannot, perhaps, further classify, to advantage, the parties who may maintain actions for the trial of title to land. Any additional discus- sion of exceptional cases, in a particular State, might confuse the general subject. In conclusion it may be stated that, in Mississippi, trustees of school lands may maintain ejectment, in the name of their president, for school lands wrongfully withheld from them."^ So may school commissioners in Tennessee.* In Vermont a plaintiflF vested with a proprie- tor's right in a town may recover in ejectment, against one in possession without title.' In Pennsylvania, overseers of the poor have legal capacity to maintain ejectment, and if the plaintiff in ejectment dies a pauper the overseer may be sub- ' Porter v. Williams, 9 N. Y. 142 ; see, however, Scott v. Elmore, 10 Hun (N. Y.), 68; see Wing v. Disse, 15 Hun (N. Y.), 190; Chautauqua County Bank v. Risley, 19 N. Y. 374. ^ See Davis v. Gray, 16 Wall. 203, as to the general nature of a receiver's title. ' Coleman v. Doe d. Tish-ho-mah, 12 Miss. 40. * Doe d. Griffith v. Pritchard, 5 Barn. & Ad. 765. ' Windham v. Chisholm, 35 Miss. 531. " Bowers v. School Com'rs, 7 Yer. (Tenn.) 117. ' Pomeroy v. Mills, 3 Vt. 410. PARTIES PLAINTIFF. I 25 stituted in his stead,^ In Wisconsin a pre-emptor of swamp lands may maintain ejectment therefor.* In Ohio a religi- ous society may maintain ejectment by its trustees.® The owner of a conditional fee may, until a breach of the condi- tion, maintain ejectment,* and the assignee of a rent charge may take advantage, of a clause of re-entry and bring the action.^ The grantee of a deed containing covenants of war- ranty may bring ejectment against his grantor who remains in possession,* and the grantee of an ordinary quit-claim deed may, of course, maintain ejectment if his grantor could have done so.^ Where it appeared that the plaintiff pur- chased from the mortgagor, but his name had been omitted, as a party defendant, in proceedings subsequently instituted to foreclose the mortgage, it was held in Illinois that he could not maintain ejectment against the purchaser at fore- closure sale, though he was unaffected by the decree, and had the right to redeem.® The nature of the titles which will support actions for the trial of title, and recovery of posses- sion of land, will be more fully discussed in subsequent por- tions of this treatise. ' Jester v. Overseers, &c'., 11 Penn. St. 540. ' Manny v. Smith, 10 Wis. 509. ' First Presbyterian Society v. Smithers, 12 Ohio St. 248. * Candee v. Burke, i Hun (N. Y.), 546; Olmsted v. Harvey, i Barb. (N. Y.) 102. " Farley v. Craig, 6 Halst. (N. J.) Lawr, 262. ' Dodge V. Walley, 22 Cal. 225. ' Sullivan v. Davis, 4 Cal. 291. ' Kelgour v. Wood, 64 111. 345 ; see Howard v. Railway Company, loi U. S. 837. CHAPTER VII. PARTIES DEFENDANT. 231. 232. 233- 234. 235- 236. 237- 238. 239. 240. 241. 242. 243- 244- 245. 246. 247. 248. 249. Party in possession. Abandonment of possession. Defendants in writs of entry. Unoccupied lands. Claim of adverse title. Proof of possession. Possession of a part of the land. Joinder of defendants. Defendants claiming distinct par- cels. Claiming under distinct titles. Squatters. 'Servants or employees. Clergymen and trustees of religious corporations. Ejectment against the United States. r I •j The Arlington case. § 250. Ejectment against corporations. 251. County. 252. City. 253. Insolvents. 254. Infants. 255. Husband and wife. 256. Widow. 257. Defendant claiming under tax title. 258. Tenant at will. 259. Who may come in and defend — Joint owners. 260. Parties claiming by title paramount to both litigants. 261. Parties claiming in opposition to defendant's title. 262. Mortgagee. 263. Purchaser ^i?«(/^?2/^ lite. 264. Landlord as defendant. 265. Party claiming as landlord. 266. Marvin v. Dennison discussed. § 231. Party in possession. — Ejectment, as we have seen, is a possessory action which must be instituted by a party who has been disseized, or from whom the possession of the land is wrongfully withheld. Black, J., in deliver- ing the opinion of the Supreme Court of Pennsylvania said : " Ejectment is a possessory action. It is designed to redress no other wrong than that of holding the true owner out of possession, and it cannot be maintained for land of which the plaintiff is himself in possession,"^ The action must usually be brought against the tenant or person in the actual occupation or enjoyment of the lands. He is a necessary party defendant, for the reason that he is the party who withholds the possession.^ Usually all the par- ' Kribbs V. Downing, 25 Penn. St. 399-404 ; Reed v. Tyler, 56 111. 288. '' Rodgers v. Bell, 53 Ga. 94; Hawkins v. Reichert, 28 Cal. 534; Simms v. Richardson, 32 Ark. 304; Garner v. Marshall, 9 Cal. 270; Betz v. Mullin, 62 Ala. 365; Dutton V. Warschauer, 21 Cal. 609; Owen v. Fowler, 24 Cal. 192; Lucas 7/. Johnson, 8 Barb. (N. Y.) 244; Lyle v. Rollins, 25 Cal. 440; Thompson v. PARTIES DEFENDANT. I 27 ties in possession should be summoned.^ By the party in possession is meant the actual occupant " as against the plaintiff;" i.e., holding in hostility to, and not in privity with him.^ And, as a general rule, the defendants in eject- ment cannot, on motion, require the plaintiff to bring in other parties as defendants, who are not alleged to have been in possession of the land at the commencement of the action.^ § 232. Abandonment of possession. — A party in posses- sion of lands may, of course, abandon the premises at any time, and whether the owner accepts such abandonment or not, if the party is out of possession, by his own act, at the time the ejectment is instituted against him, the plaintiff cannot recover. Thus, when a mechanic, having possession of a school-house for the purpose of making repairs, offered to deliver the key, which was the only symbol of possession he had, to one of the trustees of the district school, it was held by the New York Supreme Court that his act consti- tuted an abandonment of the possession, and that a subse- quent action of ejectment could not be maintained against him, whether one or all of the trustees were present at the time the key was offered, or whether the offer was ac- cepted or not.* § 233. Defendants in writs of entry. — As a general rule a writ of entry will only lie against one claiming an estate not less than a freehold, but in Maine it has been held that if Schuyler, 2 Gilm. (111.) 271 ; Bonner v. Greenlee's Heirs, 6 Ala. 411 ; Taylor v. Crane,i5 How. Pr.(N.Y.) 358; Jackson v. Allen, 30 Ark. no; Schuyler v. Marsh, 37 Barb. (N. Y.) 350; Albertson v. Reding, 2 Murphey (N. C), 283; Allen v. Dunlap, 42 Barb. (N. Y.) 585 ; Banyer v. Empie, 5 Hill (N.Y.), 48; Lockwood v. Drake, i Mich. 14; Kilgour w. Gockley, 83 III. 109; Finnegan 7/. Carraher, 47 N. Y. 493; People V. Ambrecht, 11 Abb. Pr. (N. Y.) 97; Goodright v. Rich, 7 T. R. 327. See § 161. ' Irish -v. Scovil, 6 Binn (Penn.), 55. '' Strong V. City of Brooklyn, 68 N. Y. i ; see Childs v. Chappell, 9 N. Y. 246. ' Simms v, Richardson, 32 Ark. 304. * Allen V. Dunlap, 42 Barb. (N. Y.) 585. 128 PARTIES DEFENDANT. the person in possession has actually ousted the demandant, or withheld the possession, the demandant may, at his elec- tion, consider him a disseizor for the purpose of trying the right, though claiming an estate less than a freehold.^ For- merly, in Massachusetts, a writ of entry could not be brought against a tenant at will, who refused to surrender the premises on demand, as the writ would only lie against a tenant of the freehold, but the right has since been con- ferred by statute.^ § 234. Unoccupied lands. — Under the modern practice, if the premises are not occupied, the action can usually be instituted against any one exercising acts of ownership over the lands,^ and under such circumstances acts of trespass by one claiming title may be considered as acts of possession* Any subjection of the property to the will and dominion of the party is sufficient.' § 235. Claim of adverse title. — It has been held in Wis- consin, that a grantee in a tax deed, who had never occupied the premises, by placing the tax deed upon record might be considered as asserting and claiming title to the land, and could properly be made a party defendant in ejectment.* So it was decided under the practice in Virginia, that any person who had made entries and surveys of any part of the land in controversy, and set up claims to it, though not in the actual possession at the time the action was instituted, could be made a party defendant.'^ Any person claiming title to the lands adversely to the plaintiff, though not in actual occupation, may be made a party defendant.^ An ' Wyman v. Brown, 50 Me. 139; Gregory v. Tozier, 24 Me. 308. " See Dolby v. Miller, 2 Gray (Mass.), 135 ; Gregory v. Tozier, 24 Me. 308. = Hanson v. Armstrong, 22 111. 442; Langford v. Love, 3 Sneed..(Tenn.) 308; Hill V. Kricke, 1 1 Wis. 442. " Chilson V. Buttolph, 12 Vt. 231 ; Doolittle v. Linsley, 2 Aik. (Vt.) 155 ; Saw- yer V. Newland, 9 Vt. 383. '■■ Quicksilver Mining Co. v. Hicks, 4 Sawyer, 688. ° Hill V. Kricke, 1 1 Vi^is. 442. ' See Harvey v. Tyler, 2 Wall. 328. • Carter v. Hunt, 40 Barb. (N. Y.) 89; Abeel v. Van Gaidar, 36 N. Y. 513; PARTIES DEFENDANT. 1 29 idle declaration, however, made by the defendant, that he owns the land, will not be sufficient to justify the action ; but if the defendant seriously and deliberately lays claim to the title he does so at the peril of making good the claim, for he should not set up title to lands unless he is prepared to defend it.^ § 236. Proof of possession. — It is usually an indispen- sible part of the plaintiff's case in ejectment to show that, at the commencement of the action, the defendant was in possession of at least some portion of the lands to which the plaintiff seeks to establish title,^ and, as already shown, if the defendant proves that he abandoned the premises before the action was commenced, the plaintiff's case cannot be sustained.® It has, however, been decided to be sufficient for the plaintiff to prove that a third person is in actual possession under the defendant, especially if such possession is held under a lease or written contract,* and in . California it has been expressly held that the possession need not be actual as distinguished from constructive in its character.® In Pennsylvania proof of service of the writ is prima facie evidence of the possession of the defendant.^ There are substantial objections to the practice of requiring the plaintiff in actions to try title to prove that the defendant is in possession and exercising acts of ownership over the land. It is often very difficult, and sometimes practically impossible, to distinguish between acts which constitute Mordecai v. Oliver, 3 Hawks (N. C), 479; see Langford v. Love, 3 Sneed (Tenn.), 308. > Banyer v. Empie, 5 Hill (N. Y.), 48; see Abeel v. Van Gelder, 2 Trans. App. (N. Y.) 99; s. C. 36 N. Y. 513. 2 Brown v. Brackett, 45 Cal. 167 ; Garner v. Marshall, 9 Cal. 268 ; Flanniken V. Lee, I Ired. (N. C.) Law, 293: Doe v. Roe, 30 Ga. 553; Ward v. Parks, 72 N. C. 452 ; Williamson v. Doe d. Crawford, 7 Blackf. (Ind.) 12. 3 Allen V. Dunlap, 42 Barb. (N. Y.) 585. 4 Hurd V. Tuttle, 2 D. Chip. (Vt.) 43; see Smith v. Walker, 18 Miss. 584. ■" Crane v. Ghirardelli, 45 Cal. 235 ; Noe v. Card, 14 Cal. 609; Garner v. Mar- shall, 9 Cal. 268. '- Kirkland v. Thompson, 51 Penn. St. 216. 9 130 PARTIES DEFENDANT. merely trespasses on the land and acts amounting to a claim of title, or an exercise of ownership over it, and though tres- pass and ejectment are distinct remedies, which must not be confounded, it is not an easy task to find the dividing line. The practice of encumbering actions for the trial of title with this issue of the possession of the defendant often re- sults in the miscarriage of the action, and places the claim- ant in an extremely awkward position. Thus, questions of fact involving the title are sometimes submitted to the jury, together with disputed facts as to the possession or occu- pancy of the lands by the defendant, and the jury under the practice in some States is allowed to render a general ver- dict. If the verdict is rendered and a judgment entered for the defendant, on the ground that he has not withheld the possession, then the object of the action is not accom- plished, and though the plaintiff may have a perfect title to the land, yet there is a judgment record showing that he was defeated in an action of ejectment, in which that title was involved. The questions involved in the trial of the title to land are so important that neither the courts, the lit- igants, nor the juries ought to be called upon to consider the secondary and collateral question as to the possession of the defendant. The title alone should be brought in issue, and not complicated and embarrassed by disputed questions of possession. A still further embarrassment must be no- ticed. The defendant may be vested with an easement or profit a prendre upon or over the land, the enjoyment of which carries with it many of the elements vs^hich con- stitute the proofs of ordinary possession. It is some- times practically impossible to discover whether or not the acts amount to a disseizin, a trespass or a legal exer- cise of the rights conferred by the servitude. If the owner brings trespass he may fail because the jury find the pos- session in the defendant as proprietor of the easement. If ejectment is resorted to this carries with it the dangerous admission as to the possession of the defendant, for if the de- PARTIES DEFENDANT. I3I fendant relies upon adverse possession, the plaintiff is prac- tically called upon to prove what may constitute an impor- tant or vital part of his adversary's case. § 237. Possession of a part of the land. — Upon proof that the plaintiff is in possession of a portion of the de- manded premises, he must fail to recover judgment for that portion. The Supreme Court of California, in Mahoney v. Middleton,^ says that the error of rendering a judgment against a defendant for land not in his possession, might be immaterial were it not for the rule rendering the judgment evidence against the defendant, in a suit for the recovery of damages and mesne profits. § 238. Joinder of defendants. — Under the practice in some States, the landlord may be joined as a party defend- ant with his tenants.^ So, as shown elsewhere, husband and wife may be joined in certain cases,^ and the mort- gagee with the party in possession,* and parties occupying by a joint possession should all be made defendants.^ In an action of ejectment in New York against four defendants, the complaint charged that one of them unjustly claimed title to the premises, that the others were in possession un- der him, and that all the defendants unjustly withheld the possession. The answer merely denied the allegation as to withholding possession, and alleged that one of the defend- ants was the owner, and entitled to the premises. The de- fendants were allowed to prove, under objection, that they occupied, severally, distinct parcels of the premises. The court decided that under the pleadings the plaintiff was en- titled to recover against all the defendants, and that if there was an improper joinder of parties the objection should have ■ 41 Cal. 41. 2 Harkey v. Houston, 65 N. C. 137; Fosgate v. The Herkimer Co. 12 N. Y. 580; Abeel v. Van Gelder, 36 N. Y. 513; Wilson v. Guthrie, 2 Grant (Penn.), Ill ; Pearce v. Ferris, 10 N. Y. 280. 3 Stewart v. Patrick, 68 N. Y. 450. . -* Marvin v. Dennison, i Blatchf. C. C. 1 59. 6 See Fosgate v. Herkimer Co. 12 N. Y. 580; Harkey v. Houston, 65 N. C. 137, 132 PARTIES DEFENDANT. been raised by demurrer or answer.^ It is clear that if the defendants unite in a joint denial, they are liable to a joint verdict.^ § 239. Defendants claiming distinct parcels. — In Fisher V. Hepburn/ in the New York Court of Appeals, it was held that where different plaintiffs claimed distinct parcels of the real property in question, but all denied plaint- iffs rights upon the same ground, and claimed title from the same source, it was proper to join them all as defend- ants in the same action or proceeding. And in Minne- sota it was decided that where the possession of the land was wrongfully withheld by two persons, both were liable to a suit, and the fact that one was acting as an agent for the other afforded no protection.* On the other hand, it has been held, in Michigan, that where ejectment was insti- tuted against two defendants, it was error to direct a verdict for the plaintiff unless a joint occupancy was shown.® In Pearce v. Ferris,* it appeared that the defendants occupied, separately, different parts of a house which had been wrong- fully continued on the land after the expiration of a lease. The owner brought ejectment against them jointly, and it was held that as they all used the land in common, to sus- tain and support the house, they were all joint trespassers as against the plaintiff, who only claimed the land, and that plaintiff was not bound to elect against which defendant he desired to take a verdict. And in Michigan it was held that if a distinct portion of a house is occupied by any person, it is proper to join him as defendant, but the suit would not 1 Fosgate v. Herkimer Co. 12 N. Y. 580; see Dillaye v. Wilson, 43 Barb. (N. Y.) 261 ; Ames -v. Harper, 48 Barb. (N. Y.) 56; Camden v. Haskill, 3 Rand. (Va.) 462 ; Cunningham v. Bradley, 26 Ga. 238. 2 Patterson v. Ely, 19 Cal. 28; Jones v. Hartley, 3 Whart. (Penn.) 191. •'48N. Y. 41. See §128. ■■ Wells V. Atkinson, 24 Minn. 161. 5 Murphy v. Campau, 33 Mich. 71. 6 10 N. Y. 280. See Winton v. Cornish, 5 Ohio, 477 ; Kerr v. Merchants Ex. Co. 3 Ed. Ch. (N. Y.) 315; Stockwell v. Hunter, 11 Mete. (Mass.) 448. PARTIES DEFENDANT. 1 33 fail by reason of the non-joinder, as the only effect would be to limit the recovery by excluding that portion of the prem- ises which he occupied.^ In ejectment against a number of persons, who are severally in possession of different parcels of the demanded premises, where no damages or mesne profits are claimed, the recovery against each defendant should be confined to the parcel in his possession.^ At com- mon law in ejectment for lands, distinct parcels of which were in the several occupation of different persons, no direct objection to the misjoinder could be made, as by plea in abatement, but the parties might apply to the court to be allowed to enter into the consent rule and plead separately. But even if they pleaded jointly, evidence might be given on the trial to show that the defendants occupied distinct parcels, and in such cases, if the plaintiflF was entitled to re- cover, there was verdict and judgment severally for the par- cels respectively occupied by the defendants.^ § 240. Claiming under distinct titles. — In Helfenstein 7). Leonard,* in the Supreme Court of Pennsylvania, which was ejectment for several distinct properties against several .defendants, it was held that they could defend separately on separate titles, but if the titles were identical, as where the parties occupied the position of a landlord and tenant of the same premises, and the defendants had the same interest to defend, it was error to permit a severance at the trial. It was held, however, in Georgia, that where the defendants claimed under distinct titles, a joint recovery could not be had ; ^ but in the event of a misjoinder of defendants, the plaintiff may usually, under the modern practice, move to ' Hendricks v. Rasson, 42 Mich. 104. 2 Mahoney v. Middleton, 41 Cal. 41. ' See Gibbons v. Martin, 4 Sawyer (U. S ), 206 ; Bayard v. Colefax, 4 Wash. C. C. 38 ; Jackson v. Woods, 5 Johns. (N. Y.) 278 ; but see Camden v. Haskill, 3 Rand. (Va.) 462; White v. Pickering, 12 S. & R. (Penn.) 435; Greer v. Mezes, 2 4 How. 268. ■> 50 Penn. St. 461. See § 128. ■'' Wood V. McGuire, 17 Ga. 303; see Cunningham v. Bradley, 26 Ga. 238. 134 PARTIES DEFENDANT. Strike out the unnecessary parties, and proceed against those properly joined.^ § 241. Squatters. — The owner of the fee can maintain ejectment against a mere squatter, who neither makes claim to nor has color of title.^ And it was held in the Cir- cuit Court of the United States for the district of Oregon, that if several defendants were mere trespassers or squatters on land, without color of right, or definite claims to distinct parcels, or established and visible boundaries, they might be joined as defendants in a single action, for the reason that the plaintiff could not be expected to know how they claimed, or to what extent.^ In Greer v. Mezes,* in the Supreme Court of the United States, the rule is stated as follows: " In the action of ejectment a plaintiff will not be allowed to join in one suit several and distinct parcels, tenements, or tracts of land, in possession of several defendants, each claiming for himself. But he is not bound to bring a sepa- rate action against several trespassers on his single, separate and distinct tenement or parcel of land. As to him they are all trespassers, and he cannot know how they claim, whether jointly or severally ; or if severally, how much each one claims ; nor is it necessary to make such proof in order to support his action. Each defendant has a right to take de- fense specially for such portion of the land as he claims, and by doing so he necessarily disclaims any title to the residue of the land described in the declaration ; and if on the trial he succeeds in establishing his title to so much of it as he has taken defense for, and in showing that he was not in possession of any of the remainder disclaimed, he will be en- titled to a verdict. He may also demand a separate trial, and that his case be not complicated or impeded by the issues made with others, or himself made liable for costs un- ' See Cunningham v. Bradley, 26 Ga. 238. 2 Sykes v. Hayes, 5 Bissell, 529. 3 Gibbons v. Martin, 4 Sawyer, 206. * 24 How. 277. PARTIES DEFENDANT. 1 35 connected with his separate litigation." It may be here ob- served that possession of public land, by a mere squatter, will afford no basis for the presumption of a grant,^ and that a squatter who entered as a tenant at will, disclaiming title, cannot change the character of his possession so as to make it adverse by secretly attorning to another.^ § 242. Servants or employees. — A servant or employee claiming no title or interest in himself, or any right to the possession, is not usually liable to an action of ejectment. Such an employee is not an occupant within the meaning of the rules of law governing ejectment. He is acting un- der the control of another, and it is only in another's right that he occupies the premises.* § 243. Clergymen and trustees of religious corporations. — On this principle it has been held in the Supreme Court of Illinois, that a clergyman who preached in a church edifice, under the direction and employment of a religious corpora- tion, was not liable to an action of ejectment. As well, say the court, might the claimant of a farm bring his action against the men employed to cultivate the farm.^ Even in England, a parson claiming a right to enter and perform divine service has been held not to have a sufficient title to be admitted as a defendant.^ It has been decided in New York, that where the property in controversy was a church edifice, occupied and used by a society for the purpose of religious worship, it was to be deemed to be in the posses- - Miller v. Brownson, 50 Tex. 583. 2 Gay V. Mitchell, 35 Ga. 139. 3 Hawkins v. Reichert, 28 Gal. 534; Polack v. Mansfield, 44 Cal. 36 ; Doe v. Staunton, i Chit. 119. It has been held, however, in New York, in an eject- ment in which it appeared that the premises were not actually occupied but work was being done thereon by a servant of a person making claim thereto, that the servant was the person exercising acts of ownership over the land, and was the proper party defendant. Shaver v. McGraw, 12 Wend. (N. Y.) 558; but see People V. Ambrecht, n Abb. Pr. (N. Y.) 97. ■• Chiniquy v. Catholic Bishop, 41 111. 148. 5 Martin v. Davis, Stran. 914; but see Hillingsworth v. Brewster, i Salk. 256. 136 PARTIES DEFENDANT. sion of the corporation, and ejectment would not lie against the trustees or other officers of the church.^ § 244. Ejectment against the United States. — An inter- esting question is presented as to who shall be made defend- ant, and how a claimant shall proceed to recover the pos- session of, or try the title to, lands of which the United States government are in possession, by its officers, em- ployees, tenants, or agents. It has been held in England, that ejectment will not lie for lands belonging to the crown, or of which the crown is in possession by its officers ; the proper remedy is by petition of right,^ which may be brought in all cases where the crown has, through misinformation or inadvertence, wrongfully possessed itself of the lands or chat- tel property of a subject. It is a fundamental principle that the government cannot be summoned into its own courts against its will. "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind."^ A bill cannot be sustained that calls for an interference with the operations of the executive depart- ments of the government ; * and money in the hands of an officer of the government, as purser, cannot be attached by creditors of seamen to whom it may be due.® It may be regarded as established by the cases, that the officers and executive agents of the United States cannot be divested or 1 Lucas V. Johnson, 8 Barb. (N. Y.) 244. = Adams on Ejectment (4th Am. ed.), p. 18 [*2i] ; Doe d. Leigh v. Roe, 8 M. & W. 579; see Atty. Gen'l v. Hallett, 15 M. & W. 106; Broom's Constitutional Law, p. 241 ; 3 Bla. Com. p. 255. 3 Federalist, No. 81 ; Cohens v. Virginia, 6 Wheat. 264-380; United States v. Clarke, 8 Peters, 436, 444; United States v. Eckford, 6 Wall. 484; Hill v. United States, 9 How. 386-389 ; Reeside v. Walker, 1 1 How. 272-290 ; Briggs v. Light Boats, II Allen (Mass.), 157, 176, 177; People v. Dennison, 84 N. Y. 272; The Davis, 10 Wall. 15. See The Fidelity (16 Blatch. C. C. 569), in which case it was held that this exemption applied to a municipal corporation in so far as it was locally intrusted with a share in the government. •: Dobbins v. The Commissioners, 16 Peters, 435; The Collector v. Day, 11 Wall. 113; Harris v. Dennie, 3 Peters, 292. » Buchanan v. Alexander, 4 How. 20. PARTIES DEFENDANT. I37 dispossessed of property to which the government has an undisputed title, for the purpose of enforcing a lien upon such property.^ § 245. In Carr v. The United States,^ the question or the right of an individual to sue the government indirectly was considered by the Supreme Court of the United States. The court held in this case that a judgment in ejectment against a government agent did not constitute an estoppel against the government. Mr. Justice Bradley, in delivering the opinion of the court, said : " We consider it to be a fun- damental principle that the government cannot be sued ex- cept by its own consent ; and certainly no State can pass a law, which would have any validity, for making the govern- ment suable in its courts. It is conceded in The Siren,^ and in The Davis,* that, without an act of Congress, no direct proceeding can be instituted against the government or its property. And in the latter case it is justly observed, that, ' the possession of the government can only exist through its officers ; using that phrase in the sense of any person charged on behalf of the government with the control of the property, coupled with actual possession.' If a proceeding would lie against the officers as individuals in the case of a marine hospital, it might be instituted with equal facility and right in reference to a post office, or a custom house, a prison, or a fortification. In some cases (perhaps it was so in the present case), it might not be apparent until after suit brought, that the possession attempted to be assailed was that of the government ; but when this is made apparent by the pleadings or the proofs, the jurisdiction of the court ought to cease. Otherwise the government could always be compelled to come into court and litigate with private parties in defense of its property." The later case of Camp- ' See The Davis, 10 Wall. 15 ; The Siren, 7 Wall. 154; The Fidelity, 16 Blatch. C. C. 569; Klein v. New Orleans, 99 U. S. 149. 2 98 U. S. 433. See People v. Ambrecht, 1 1 Abb. Pr. (N. Y.) 97. 3 7 Wall. 152. " 10 Wall. 15. 138 PARTIES DEFENDANT. bell V. James/ was an action brought against a United States postmaster by a patentee who claimed that the former had, while acting in the government service, in- fringed a patent covering a stamp for printing post marks, and cancelling postage stamps. Mr. Justice Bradley, in de- livering the opinion of the court, said : " We doubt very much whether such an action can be sustained. It is sub- stantially a suit against the United States itself, and cannot be maintained under the guise of a suit against its officers and agents, except in the manner provided by law. We have heretofore expressed our views on this subject in the case of Carr v. The United States,^ where a judgment in ejectment against a government agent was held to be no estoppel against the government itself. But as the conclusion which we have reached in this case does not render it necessary to decide this question, we reserve our judgment upon it for a more fitting occasion." § 246. Notwithstanding the remarks of the Supreme Court of the United States in the cases of Carr v. The United States,^ and Campbell v. James/ already quoted, the right of an individual claimant of lands, which are in the possession of officers, employees, or agents of the govern- ment, to assert his title and recover the possession in the courts, has been upheld by the same court in a number of cases ^ which are not even referred to in Carr v. United States or Campbell v. James, and which it is difficult to be- lieve that the court intended to overrule. Indeed, in Camp- bell V. James the court, as we have seen, expressly reserves its judgment upon the point for a more fitting occasion. 1 Vol. 21 Patent Office Gazette, p. 337. 2 98 U. S. 433. .1 98 U. S. 433. •< Vol. 21 Patent Office Gazette, p. 337. s See Meigs v. M'Clung's Lessee, 9 Cranch, 11 ; Wilcox v. Jackson, 13 Peters, 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall. 363; Cooley V. O'Connor, 12 Wall. 391 ; see contra, in New York, People v. Ambrecht, 11 Abb. Pr. (N. Y.) 97 ; Dibble v. Clapp, 31 How. Pr. (N. Y.) 420. PARTIES DEFENDANT. I 39 Meigs V. M'Clung's Lessee/ one of the most prominent of these cases, was an action of ejectment — the plaintiff claim- ing the land under a grant from the State of North Caro- lina, and the United States asserting title to it under an Indian treaty. The defendants were officers of the govern- ment, and were maintaining a garrison upon the land under its authority. The objection was urged against a recovery that " the land was occupied by the United States troops, and the defendants, as officers of the United States, for the benefit of the United States, and by their direction." Chief Justice Marshall, in delivering the opinion of the Supreme Court, said: "The fact that the agents of the United States took possession of this land * * * erected expensive buildings thereon, and placed a garrison there, cannot be permitted to give an explanation to the treaty which would contradict its plain words and obvious meaning. The land is certainly the property of the plaintiff below ; and the United States cannot have intended to deprive him of it by violence, and without compensation. This court is unan- imously and clearly of opinion that the Circuit Court com- mitted no error in instructing the jury that the Indian title was extinguished to the land in controversy, and that the plaintiff below might sustain his action." § 247. In the later case of Grisar v. McDowell,^ Mr. Justice Field states the position of the parties, and the ground of the controversy, as follows : " The premises, for the possession of which this action is brought, are situated within the city of San Francisco, in the State of California. The plaintiff claims to be seized in fee of them, and derives his title from the city of San Francisco, under an ordinance of the Common Council for the settlement of land titles in the city, passed on the 20th of June, 1855, commonly known as the Van Ness Ordinance, and the act of the Legislature of the State ratifying and confirming the same. The defendant is an officer in the army of the United 1 9 Cranch, li. 2 g Wall. 363. 140 PARTIES DEFENDANT. States, commanding the Military Department of California, and as such officer entered upon the possession of the prem- ises previous to the commencement of this action, and has ever since held them, under the order of the Secretary of War, as part of the public property of the United States re- served for military purposes." In four of these cases the actions v^^ere brought against officers of the United States, in possession of the land by the alleged authority of the government, and for its use and benefit, as public property. The question of the exemption of the government from suit, and of the jurisdiction of the court to proceed, v\ras pre- sented in some form in each of these causes. In Meigs v. McClung,^ the point was distinctly taken and insisted upon by counsel. In Wilcox v. Jackson,^ it w^as sharply pre- sented by the agreed state of facts. In Grisar v. McDowell,^ it vi^as raised by the pleadings, and in Brov^n v. Huger,* it was a prominent feature in the case. In Cooley v. O'Con- nor/ the defendants were tenants of the United States, and the title of the latter was directly assailed, and though the judgment was reversed in the Supreme Court of the United States it was by reason of error which had been committed in the trial, and a venire de novo was awarded but not a judgment dismissing the action for want of jurisdiction. The right of an individual to bring actions in the nature of ejectment against officers or employees of the government is recognized in some of our State tribunals. Thus, the Supreme Court of California, in Polack v. Mansfield,* said : " But this rule which * * exempts the mere servant or employee of another from an action, presupposes that the employer may be sued, and that the wrongs of which ' 9 Cranch, 11. 2 13 Peters, 498. 3 6 Wall. 363. '21 How. 305. M2 Wall. 393. <■ 44 Cal. 36. McConnell v. Wilcox, i Scam. (Ill,) 344 ; Swasey v. North Caro- lina R. R. Co. I Hughes, 17-20; s. c. 71 N. C. 571 ; Dreux v Kennedy, 12 Rob. (La.) 489; see Osborn v. Bank of the United States, 9 Wheat. 738; Hancock v. Walsh, 3 Woods C. C. 351 ; Davis -v. Gray, 16 Wall. 203, Chase, C. J., and Da- vis, J., dissenting; Preston v. Walsh, lo Fed. Rep. 315. PARTIES DEFENDANT. 141 the plaintiff complains may be redressed by resort to an ac- tion against the employer, as being the real party commit- ting the ouster. In a case, therefore, where the employer is for any reason not amenable to an action, the rule referred to has no application, and the employee, or servant, becomes ex necessitate the proper party defendant, since he is the only party who can be subjected to suit at all. Were this otherwise, it would result that open and admitted violation of private rights would find no redress in the courts of the country. The government of the United States, as such, cannot be sued as a party defendant in the courts of the State ; and unless its servants and employees may be prop- erly held responsible for the lawless invasion of private property, committed by them under the direction or com- mand of the government, the citizen is left wholly without the protection which it is the first aim and purpose of the municipal law to afford." § 248. The Arlington case. — This subject derives fresh interest from the Arlington case,^ recently argued in the Su- preme Court of the United States, and in which a re-argu- ment has been ordered at the next term. The facts of the case are briefly as follows : The plaintiff, Lee, asserted own- ership of the premises in controversy. The government claimed title to them under a tax sale, being one of a series ' of such sales which had been adjudged void by the courts.^ The lands were occupied by officers, agents, tenants, or wards of the federal government, and were used as a mili- tary station, and as a national cemetery established for the burial of deceased soldiers and sailors, and known as the "Arlington Cemetery." Lee brought ejectment and made the officers and occupants of the land, some two hundred in number, defendants. The Attorney-General of the United States intervened upon the record, and, by way of sugges- ' The Arlington Case, Lee v. Kaufman, 3 Hughes, 36. ^ See Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall. 549; At- wood V. Weems, 99 U. S. 183. 142 PARTIES DEFENDANT. tion, informed the court that the lands in controversy were held and possessed by the United States, through its officers and agents, for the purposes above specified, and, without submitting the rights of the government of the United States to the jurisdiction of the court, insisted that the court had no jurisdiction of the subject-matter in contro- versy, and moved that the declaration in ejectment be set aside, and the proceedings dismissed. The motion made on behalf of the government to dismiss the cause was de- nied, and the plaintiff had judgment in the ejectment, from which a writ of error was prosecuted to the Supreme Court. If the principles laid down in Carr v. United States,^ Campbell v. James,^ and People v. Ambrecht,' are sound, and entitled to universal application, then the motion to dismiss for want of jurisdiction should have prevailed, for clearly Lee was indirectly attacking the title of the United States, or rather asserting that it had no title, and the ac- tion was in effect against the government. If, on the other hand, Grisar v. McDowell,* Meigs v. McClung,' Polack v. Mansfield,^ Dreux v. Kennedy,'' and similar cases, embody the correct principle, the judgment should stand. The solu- tion of this question is of vital importance. The proposi- tion that a person vested with the title to land who is de- forced of the possession, by military or executive agents of the government, is thereby divested of all legal redress, and can only procure relief by the uncertain method of petition to Congress, asking to be restored to the possession, or to be paid the value of the lands, if decided to be law, seems to justify the inference drawn by learned counsel, in the course of argument in the Arlington case, that " the citizen holds his property no longer under the protection of law, but at ■ 98 U. S. 433- ' Vol. 21 Patent Office Gazette, p. 337. 3 11 Abb. Pr. (N. Y.)97. ■> 6 Wall 363. * 9 Cranch, 11. e 44 Cal. 36. ' 12 Rob. (La.) 489. PARTIES DEFENDANT. I43 the will of the executive agents of the government."^ It is difficult to see how the exercise of such arbitrary power can be reconciled with the principle of the Constitution, that no man should "be deprived of life, liberty, ox property, with- out due process of law" In Swasey v. North Carolina Railroad Company,^ which was a suit by a bondholder to procure a sale of certain certificates of stock held by the State of North Carolina in pledge for the security of bonds owned by complainant and others. Chief Justice Waite, sitting at circuit, said : " It is first insisted by the defendant that the State of North Carolina is in fact a party defend- ant, and consequently that this court cannot entertain juris- diction of the cause. The State, although directly inter- ested in the subject-matter of the litigation, is not a party to the record. The eleventh amendment to the Constitu- tion of the United States provides that no suit can be prosecuted in this court against a State, by the citizens of another State, or by citizens or subjects of a foreign State. It has long been held, however, that this amendment ap- phes only to suits in which a State is a party to the record, and not to those in which it has an interest merely. It is next urged, that if the State is not actually a party to the suit it is a necessary party in whose absence the cause can- not proceed, and that as a State cannot be brought into court no relief should be granted upon the case made. If the State could be brought into court, it undoubtedly should be made a party before a decree is rendered, but since the case of Osborn v. The Bank of the United States,** it has been the uniform practice of the courts of the United States to take jurisdiction of causes affecting the property of a State in the hands of its agents without making the State a party, when the property or the agent is within the 1 Argument of Hon. Wm. D. Shipman in the United States Supreme Court, in the Arlington case. 2 I Hughes, 17, 20; S. C. 71 N. C. 571 ; see Davis v. Gray, 16 Wall. 203. 3 9 Wheat. 738. 144 PARTIES DEFENDANT. jurisdiction. In such cases the courts act through the in- strumentality of the property or the agent." g 249. — Ejectment, as we shall presently see, is a remedy in the nature of a proceeding in rem} and the action must be instituted in the State and county in which the lands are situated. There would seem to be no practical objection growing out of the nature of the subject-matter of conten- tion, to the exercise of jurisdiction in such cases by the courts " through the instrumentality of the property or the agent." ^ The plaintiff can only recover upon the strength of his own title, and upon proof of a wrongful withholding of the possession by the defendant. In so far as the pos- session of the agent is wrongful, and constitutes an en- croachment upon private property, to which the govern- ment has no title, it cannot be regarded as the authorized, act of the sovereign power, but should be treated as the in- dependent tort of the agent. The fact that a party is em- ployed in the federal service will not exempt him from responsibility for the commission of felonies or misde- meanors, and he may be arrested and punished even under State process,^ and certainly this principle ought to include injuries and wrongs to property. If the wrongful act of the agent is to be construed as the act of the executive depart- ment of the government, it would seem to be the proper function of the judiciary, as an independent and co-ordinate department of the body politic, to adjudge and declare the rights of the parties, enlighten the executive as to its powers and duties, and extend the appropriate relief. Surely it cannot be intended by the courts that the executive agents of the government should have an unlimited license to seize and appropriate private property to governmental uses, and then to invoke the sovereign prerogative as a ' Mostyn v. Fabrigas, Cowp. 161-176, per Lord Mansfield ; Casey v. Adams, 102 U. S. 66. ^ Swasey v. N. C. R. R. Co. i Hughes, 17, 20. ' See United States v. Kirby, 7 Wall. 482 ; United States v. Hart, Peters C. C. 390; Penny z/. Walker, 64 Me. 430; Opinions Att'y Genl. vol. 5, p. 554. PARTIES DEFENDANT. 1 45 shield against judicial inquiry, and a bar to all efforts of the owner to repossess himself of that to which he has a clear title. How can the use to which the property is appropri- ated, whether public or private, affect the rights of the par- ties .? Is it possible that any one of the vast number of our state or federal executive agents is able to deprive a citizen of his personal property, and place it beyond the reach of a replevin writ, by applying it to the uses of the government ? Can the appropriation of private property to governmental uses be treated as the equivalent of a sale in market overt ? And can the executive agents of the government place themselves above the law, and disseize the rightful owner of his lands, in a country in which private rights are so care- fully guarded that the government is not allowed to occupy private property, even temporarily, with its military forces, except in time of actual war, and then only in the manner prescribed by law ? ^ ' U. S. Constitution, III Amendment. In Dibble v. Clapp, 31 How. Pr. (N. Y.) 420, it appeared that the lands in question were purchased from the hus- band of the claimant, and also ceded by the State of New York to the United States, and were appropriated to public governmental uses. The plaintiff brought ejectment to recover dower in the lands making the government officers ■ defendants. The complaint was dismissed upon the ground that the State courts had no jurisdiction over the lands. People v. Ambrecht, 11 Abb. Pr. (N. Y.) 97, is a special term decision. The case holds that a soldier occupying real property under the direction of his superior officers, is not an actual occupant within the meaning of the statute of that State, and that an ejectment cannot be maintained against him. The court said "ejectment could not therefore be brought against the United States any more than an action of assumpsit, and it seems to follow that they cannot be indirectly sued in the person of their agents or officers, and the title and claim thus subjected by indirection to the jurisdiction of the State courts.'' But upon what theory are the acts of the officers and agents of the gov- ernment to be excepted from judicial inquiry, and why are not such acts, when shown to be in defiance of the plainest provisions of organic laws, the proper subject of judicial redress ? The grant of judicial power, which extends to all cases in law and equity arising under the Constitution, must certainly have been intended to cover cases of this character, for it seems incredible that the framers of our Constitution should have embodied provisions in that instrument guarding the rights of the citizen against executive encroachment, and furnished no means by which the exercise of arbitrary power could be checked, and these salutary provisions made effectual. New York stands in the front rank of the States 10 146 PARTIES DEFENDANT. § 250. Ejectment against corporations. — The old doc- trine that ejectment would not lie against a corporation aggregate has long been exploded.^ It has been held in New York, that if the premises are actually occupied by the tenant of a corporation, the action must be against the tenant and not against the corporation,^ and that a railroad corporation which had laid its track in a street, but had not occupied the whole street, was not an actual occupant, and could not be sued in ejectment as such.* A church edifice will be deemed to be in the actual occupation of the religious society using it, and ejectment therefor should be brought against such corporation, and not against its trustees.* It has been held in Illinois, that ejectment could be maintained against a railroad corporation in the same way as against any individual who had entered upon plaintiff's lands, with- out taking condemnation proceedings, or acquiring the title\ by deed, and was using the land for a public purpose;"^ and where the plaintiff purchased at judicial sale, land over which a railroad company had constructed its road, with- out right or condemnation, it was held that he could eject the company, and that he need take no notice of their pos- session, as they were mere intruders.^ § 251. County. — Ejectment may be brought against a county to recover land claimed by the county to have been dedicated to public use.'' which have placed the judiciary above the executive, and in v^rhich executive action is constantly supervised and annulled by the courts, and it seems curious that, even in an inferior tribunal of that State, an authority should be found tend- ing to support the startling proposition contended for by the attorney general in the Arlington case. 1 See Dater v. Troy Turnpike, &c. Co. 2 Hill (N. Y.), 629. 2 People V. Mayor, &c. of N. Y. 28 Barb. (N. Y.) 240. 3 Redfield v. Utica, &c. R. R. Co. 25 Barb. (N. Y.) 54. i Lucas V. Johnson, 8 Barb. (N. Y.) 244. 6 Smith V. Chicago, A. & St. L. R. R. 67 111. 191 ; see Chicago, B. & Q. R. R. Co. V. President, &c. 34 111. 195. But see Edwardsville R. R. Co. v. Sawyer, 92 111. 377. Hodson V. Van Fossen, 26 Mich. 68. ' Lewis V. Brewster, 57 Penn. St. 410; see, however, Johnson v. Fullerton, 44 Penn. St. 466. 3 7 Mod. "71. See Den v. Steward, 2 Pen. (N. J.) [*929] 676. ■■ Cahoon v. Coe, 57 N. H. 556. 150 PARTIES DEFENDANT. § 256. Widow. — In Pennsylvania, ejectment will not lie by an heir against a widow in possession of real estate, of which her husband died seized. The heir, it was held, must proceed under the partition acts of that State to have her share ascertained and set off to her.^ It has been held in Kentucky, that the possession of the mansion house of a de- ceased person by his widow, before allotment of dower, is consistent with that of the heirs, and the latter may there- fore be admitted to defend an ejectment brought against her.* § i^"]. Defendant claiming under tax title. — According to some of the authorities, ejectment cannot be supported against the purchaser of a tax title until he has taken pos- session,^ but in some of the States the statute of limitations begins to run from the date of the deed,* or from the date of its record, the act of recording the instrurhent being regarded as equivalent to taking possession under it.® It has been decided in Nebraska, that parties holding tax deeds are not proper parties to a foreclosure, that if made de- fendants they are entitled to defend their title, and that the plaintiff should be compelled to rely upon the strength of his own title and not on the invalidity of the tax title.** § 258. Tenant at will. — A writ of entry will lie against a tenant at will who refuses to surrender the premises on demand.^ § 259. Who may come in and defend — Joint owners. — In an action to recover land in North Carolina, it was held that a third party claiming to be a joint owner with the de- 1 Gourley v. Kinley, 66 Penn. St. 270. = Porter v. Robinson, 3 A. K. Marsh (Ky.), 253. ••> Wain V. Shearman, 8 S. & R. (Pa.) 356 ; see McEntire v. Brown, 28 Ind. 347, 352; Pixley V. Rockwell, i Sheldon (N. Y.), 267. ■* Degraw v. Taylor. 37 Mo. 310. 6 Knox V. Cleveland, 13 Wis. 245 ; Whitney v. Marshall, 17 Wis. 174. « Hurley v. Cox, 9 Neb. 230. 'Wheelwright v. Freeman, 12 Mete. (Mass.) 154; Dolby v. Miller, 2 Gray (Mass.), 135 ; Gregory v. Tozier, 24 Me. 308. PARTIES DEFENDANT. I51 fendant, had a right to be let in as a party defendant.^ This is, of course, the general rule as to joint ownership. § 260. Parties claiming by title paramount to both liti- gants. — It was decided in the Supreme Court of California, that a party did not gain the right to intervene, in an action of ejectment, who merely alleged that he had title paramount to both litigants, for a person so situated could not be said to possess any interest in the matter in litigation, and cer- tainly could not be disturbed in his possession under any process which might be issued on a judgment in the action.^ So in Files v. Watt,^ in the Supreme Court of Arkansas, the appHcation of a party to come in and defend was denied where he alleged an independent ownership, and showed no interest in common or privity of right between himself and either of the litigants. Under the practice in Texas, how- ever, in an action of trespass to try title, brought by an in- solvent vendor against the vendee, to enforce payment of purchase money for the land, the vendee has, as against his vendor, the right in equity to have the claimants of an out- standing grant, who assert title, brought in so that the title may be settled before the vendee is either evicted or forced to pay the balance of the purchase money to an insolvent vendor.* § 261. Parties claiming in opposition to defendant's title. — So it is quite clear that one claiming in hostility to the title of the defendant, cannot be admitted as a party de- fendant in the action.^ § 262. Mortgagee. — A mortgagee may be let in to de- ■ Lytle V. Burgin, 82 N. C. 301 ; see Colgrove v. Koonce, 76 N. C. 363 ; Rol- lins 7/. Rollins, 76 N. C. 264; McCown v. Hannah, 3 Oregon, 302. 2 Porter v. Garrissino, 51 Cal. 559; Colgrove v. Koonce, 76 N. C. 363. 3 28 Ark. 151. 4 Estell V. Cole, 52 Texas, 170; see Cooper v. Singleton, 19 Texas, 267; Simp- son V. Hawkins, i Dana (Ky.), *303 ; Harris v. Smith, 2 Dana (Ky.), *ii. 6 Jackson v. Flint, 2 Cowen (N. Y.), 594. 152 PARTIES DEFENDANT. fend,^ and so may the assignee of a mortgage,^ unless the plain- tiff in ejectment will satisfy the mortgage ; ^ and a mortgagee claiming title for his mortgagor, to land as being within the description of the mortgage deed, is jointly liable in eject- ment with the mortgagor.* § 263. Purchaser pendente lite, — It may be stated as a general principle, that a party who purchases or intermed- dles with Tpro^erty pendente lite, does so at his peril, and is as conclusively bound and affected by the judgment as though he had been made a party, and has no right to de- mand that the proceedings be suspended or delayed until he is brought in as a defendant. If the rule were otherwise, by successive alienations, litigations could be protracted, and the administration of justice delayed indefinitely ; ® and persons entering upon land pending ejectment, are bound by the judgment subsequently rendered, and are subject to removal by the final process.^ And in Georgia, where a de- fendant was added who took possession after the action was instituted, it was held that the only result thereby ac- complished was to hold him for mesne profits, as he would have been bound by the judgment as to the title, even though not made a party.^ § 264. Landlord as defendant. — In Finnegan v. Car- raher,' in the New York Court of Appeals, which was an 1 Doe V. Cooper, 8 T. R. 645; vide Barnes, 194; Doe v. Roe, 6 Bing. 613; Den V. Fen, i Halst. (N. J.) 478; Doe v. Roe, 4 M. & P. 437; Fairclaim v. Sham- title, 3 Burr. 1293. •>■ Jackson v. Babcock, 17 Johns. (N, Y.) 113. 5 Den -v. Fen, i Halst. (N. J.) 478; see Jackson v. Babcock, 17 Johns. (N. Y.) 112. ■• Patch V. Keeler, 28 Vt. 332 ; see Marvin v. Dennison, i Bla. C. C. 1 59. 6 Malone v. Marriott, 64 Ala. 486-490 ; Tilton v. Cofield, 93 U. S. 163 ; In- loe's Lessee v. Harvey, 11 Md. 524; Salisbury v. Morss, 7 Lans. (N. Y.) 359; Harrington v. Slade, 22 Barb. (N. Y.) 162; Canal Co. v. Iron Works, 7 Phila. (Penn.) 662. 8 Oetgen v. Ross, 47 111. 142 ; Wallen v. Huff, 3 Sneed (Tenn.), 82. ' WiUingham v. Long, 47 Ga. 540 ; Bradley v. McDaniel, 3 Jones Law (N. C), 128. 8 47 N. Y. 493. See Abeel v. Van Gelder, 36 N. Y. 513; Pierce v. Ferris, lo PARTIES DEFENDANT. 1 53 action for the possession of real estate occupied by a tenant of the defendant, it was held, that, under the practice in that State, the presence of the tenant was not essential to enable the claimant to litigate the title, and that the defendant had waived the defect of the non-joinder of the tenant because such objection had not been taken by demurrer or answer. It further appeared that the defendant (the landlord) said that he was in possession of the premises in question, and that service of the papers in the action was made upon him on the faith of this statement. The court decided that the defendant was estopped by such declaration from subsequently denying that he was in the actual posses- sion of the lands, at the time of the commencement of the action. It has been held in South Carolina, that trespass to try title will lie against a landlord, even though he was never in possession except by his tenant.^ § 265. Party claiming as landlord. — A third party claiming as landlord will ordinarily be let in to defend an action of ejectment.^ But, according to some of the au- thorities, he cannot be substituted in the tenant's place with- out the plaintiff's consent.^ If the tenant dies pending suit, the landlord may prosecute a writ of error in the name of the tenant's heirs, and against their will, upon his engage- ment to bear all the costs and expenses of the action.* And it may be stated as a general rule, that if the landlord is once allowed to appear and defend in the tenant's name, his right to conduct the proceedings is not limited to the lower courts, ** and the tenant cannot interfere with the N. Y. 280; Fosgate v. Herkimer Co. 12 N. Y. 580; Presbyterian Congregation v. Williams, 9 Wend. (N. Y.) 147; Hall v. White, 3 C. & P. 136. - Binda v. Benbow, 1 1 Rich. Law (S. C), 24. 2 Rollins V. Bishop, 76. N. C. 268; Mitchell v. Baratta, 17 Gratt. (Va.) 455; Wise V. Wheeler, 6 Ired. Law (N. C), 196; Marvin v. Dennison, i Blatch. C. C. 159. 3 Merritt v. Thompson, 13 111. 716; Emlen v. Hoops, 3 S. & R. (Penn.) 130; Jackson z/. Stiles, i Cow. (N. Y.) 134. •" Kellogg V. Forsyth, 24 How. 186. ^ Dutton V. Warschauer, 21 Cal. 609; Kellogg v. Forsyth, 24 How. r86.- 154 PARTIES DEFENDANT. cause to the prejudice of the landlord.^ It was held in Vir- ginia, that by the common law, and under the statute of that State, the policy prevailed to extend the word landlord to every person whose right or title was consistent with or connected to the possession of the occupying tenant,* and where the tenant occupied under a mere license, no lease or contract being shown, the party from whom he received the possession was let in to defend.^ The technical relationship need not always be shown, provided the title of the appli- cant is consistent with that of the occupier.* § 266. Marvin v. Dennison discussed. — In Marvin v. Dennison,^ in the United States Circuit Court, the proper construction of the statute of Vermont, which provides that " the action shall be brought as well against the landlord as the tenant in possession of the premises," is considered. The court says that it would seem to be more consistent with the general reason and policy of the law that all the parties to the' title, under and subsidiary to which the possession is held, should be liable to be joined in the first instance, and the title finally settled as to all in one suit. The court fur- ther suggests that the fitness and propriety of this rule would appear none the less obvious when it was considered that otherwise, especially where different courts, acting under dif- ferent and independent jurisdictions, existed and could be resorted to, conflicting decisions might possibly be ren- dered upon the same title. " To the joinder of mortgagee with mortgagor we are not able to perceive any well- founded objection ; nor any, we may add, to the joinder of vendor with vendee, where the latter holds under a bond or contract for a deed, or of trustee with cestui que trust, where the latter is in possession under the trust title. In these ' Doe V. Franklin, 7 Taunt. 9. = See Stribling v. Prettyman, 57 111. 371 ; Fairclaim v. Shamtitle, 3 Burr. 1290; Falkner ^z. Jones, 12 Ala. 165, 3 Hanks v. Price, 32 Gratt. (Va.) 108. •• Falkner v. Jones, 12 Ala. 165. 5 1 Blatch. C. C. 159. PARTIES DEFENDANT. 1 55 and other cases of a like nature, but especially in that of mortgagee and mortgagor, there is such a relation or con- nection existing between the respective parties as consti- tutes a tenancy, though it may not amount to that of land- lord and tenant within the meaning of the statute. A mort- gagee, if he claims title under the mortgage, cannot be al- lowed in contradiction to the tenancy to set himself up, or claim to be treated, as a stranger to the possession. If he claims nothing under the mortgage and would, on that ground, not only discharge himself from but recover costs, there can be no injustice- or hardship in compelling him to disclaim, so that he may be forever estopped by matter of record from setting up any title under the mortgage. If the mortgagee cannot be made a party, the suit would be, in a good measure, ineffectual, since a judgment against the mortgagor, though conclusive upon his rights, would Ijave no effect upon the rights of the mortgagee, who would be at liberty to bring an action in his own behalf, and have the title tried over again, or leave it unsettled and open to liti- gation during his pleasure, or until the statute of limitations should run." Much as the f)urpose sought to be accom- plished in this case is to be commended, we cannot but re- gard the decision as carrying the interpretation of the word landlord to an extreme, not to say unwarrantable limit. The decision, in effect, practically converts ejectment into a modem statutory action for the determination of conflicting claims to real property, at least so far as the title under which the actual possession is held is concerned. CHAPTER VIII. EJECTMENT BY MUNICIPAL CORPORATIONS FOR STREETS AND PUBLIC PLACES. § 267. Ejectment by municipal corpora- tions vested with the fee. 268. Vested with public easement. 269. Theory of the decisions. 270. Founded on public necessity. 271. Ejectment for streets and public places. 272. 273- 274. 275. Right to bring ejectment not uni- formly recognized. Rule in Michigan. When ejectment cannot be main- tained. Trespass to try title. § 267. Ejectment by -municipal corporations vested with the fee. — The right of a municipal corporation to recover possession of streets or public places, under its direction and control, by ejectment, has been a subject of frequent contention in the courts. Where the legal title to the soil itself is vested in the corporation, though in trust for public use, it is clearly established that the action may be brought, for the right of entry, and of possession, accompany the legal title, and the sheriff delivers possession of the ground itself to be held and appropriated to the purposes of the public trusts.-^ § 268. Vested with public easem-ent. — Where, however, the adjoining owner retains the freehold in the soil, and only a naked easement or servitude, or the power to regu- late and control the enjoyment by th'e public, of the right of way or passage, is granted or acquired by the corpora- tion, a more serious question is presented. How can the rights thus conferred, which are in their nature clearly incor- poreal, be protected or enforced by the action of eject- ment ?^ In City of Savannah v. Steamboat Company,^ the ' City of Savannah v. Steamboat Co. i R. M. Charlton (Ga.), 342 ; see Com'rs of Bath v. Boyd, I Ired. (N. C.) Law, 194; see Chicago v. Wright, 69 111. 318. ' See §§ 95, 130, 132, 139, 140, 146, 161. 5 I R. M, Charlton (Ga.), 342. STREETS AND PUBLIC PLACES. I57 recovery in ejectment was limited to cases of corporations holding the fee, and, as we have seen, the right to recover in that case was founded upon the ownership of the fee by the city. On the other hand, the case of Cincinnati v. White ^ established the doctrine that a municipal corpora- tion could defend ejectment at the suit of the owner of the fee, by setting up the right of possession, in a street or com- mon, under rights acquired by dedication to a public use ; and, as has been said by the New Jersey Court of Errors and Appeals, " if the right of possession under a public easement may be made a defense in ejectment, no reason can be advanced why it should not be also available to sup- port an action to recover the possession."^ § 269. Theory of the decisions. — In Dummer v. Jersey City,^ which was ejectment for a market ground, dedicated to public use, the New Jersey Supreme Court used this lan- guage : " Ejectment is a possessory action, and if the lessors of the plaintiff (a municipal corporation) are entitled to the possession, and they must be if they are entitled to the use, for they are inseparable, it is a legal and not a mere equi- table right, and they may recover it against the legal owner of the fee." The principles of this case, however, involve a plain departure from the common law rules governing the action of ejectment. Are the rights, which the parties are seeking to redress, incident to or connected with some corporeal interest or estate in the land, is the common law test in determining whether or ,not ejectment is the appro- priate remedy. Any easement, whether public or private, carries with it, to the extent essential for its proper enjoy- ment, the right of possession of the land over which the easement extends. Remedies for the protection and en- forcement of such incorporeal rights, exist both at law and in equity. It is going too far to say that the right of pos- ' 6 Peters, 431. = Hoboken Land and Imp. Co. v. Mayor, &c. 7 Vroom (N. J.), 540. 3 I Spencer (N. J.), 86. Ijg STREETS AND PUBLIC PLACES. session is the test as to when the remedy can be invoked, unconnected with the character of the possession claimed, or the nature of the interest or estate from which the right springs. This principle is not affected by calling the right to enjoy the easement a legal rather than an equitable right. There is no inherent distinction between public and private easements.^ Neither constitute an estate- in lands, and they differ only in degree. § 270. Founded on public necessity. — In the case of Ho- boken Land Company v. Mayor, &c., of Hoboken,^ the right of a municipal corporation, not vested with the fee, to maintain ejectment, is placed upon the ground of conven- ience and paramount public necessity. The public ease- ment in a street or public place, is considered to be of so important a character that possession, exclusive of any in- terference by the owner of the fee, is essential for its im- provement, regulation, and enjoyment. In a large city the owner of the fee is practically divested of dominion over the land, and his rights differ little from those which are com- mon to the public. Hence, for the protection of so im- portant a public use, and in furtherance of what is vaguely termed police power, the convenient and effectual remeliy of ejectment is given, instead of remitting the municipal au- thorities to test and protect the rights of the public by crim- inal prosecutions. The early decisions limited the public right in a street or highway to that of passage and repass- age, but the interests of the public in the easement have been greatly extended by the modern decisions, especially with reference to streets in crowded cities, and now include not only the right of passage, and of flagging, curbing, and paving the street, but also the privilege of constructing sewers, and laying water and gas pipes under it, and the ex- clusive right to regulate the public use and enjoyment even as against the owner of the soil, so that the latter has only a 1 See §§ 140, 161. ' Hoboken Land Co. v. Mayor, &c., of Hoboken, 7 Vroom (N. J.), 540 ; Trust- ees M. E. Church v. Council of Hoboken, 4 Vroom (N. J.), 13. STREETS AND PUBLIC PLACES. 1 59 naked fee of but nominal value. The public easement has grown to such proportions as to draw to it the remedies in- cident to an estate in lands. § 271. Ejectment for streets and public places. — The right of municipal corporations or public authorities vested with no higher estate than a public easement, or right by dedication, to invoke the remedy of ejectment, for the pos- session of streets,^ public squares,^ town commons,^ church,* and market grounds,^ is upheld in many cases.^ § 272. Right to bring ejectment not uniform^ly recog- nized. — The correctness of this doctrine, however, is not uniformly conceded. Where ejectment had been brought by a town having an easement in a street against the owner of the fee, for obstructing it, the Kentucky Court of Appeals denied the right of a party entitled to an easement to re- cover in ejectment, for the reason that the judgment would divest the owner of her absolute property in the soil. The court say that the public have a remedy by injunction or indictment.'^ § 273. Rule in Michigan. — By statute in Michigan, the plaintiff in ejectment is required to show " a valid subsisting interest in the premises claimed." Under this statute the right of a city vested by charter with the supervision and con- trol of its streets to maintain ejectment therefor was denied.* The same doctrine was applied in a case in which a county representing the public brought ejectment against a party ' San Francisco v. Sullivan, 50 Cal. 603. = Trustees M. E. Churchw. Council of Hoboken, 4 Vroom (N. J.), 13; City of Winona v. Huff, 11 Minn. 119. 3 Com'rs of Bath ». Boyd, i Ired. (N. C.) Law, 194. •* City of Hannibal v. Draper, 1 5 Mo. 634. 5 Dummer v. Jersey City, i Spencer (N. J.), 86. " Chicago V. Wright, 69 111. 318; Klinkener v. School Directors, 11 Penn. St. 444 ; City of Apalachicola v. Land Co. 9 Fla. 340 ; see Greenwich v. Railroad Co. 9 C. E. Green (N. J. Eq.), 217; see Barney v. Keokuk, 94 U. S. 324; see Perry V. New Orleans, &c., R. R. 55 Ala. 413. ' West Covington v. Freking, 8 Bush (Ky.), 121. s Grand Rapids -v. Whittlesey, 33 Mich. 109. l6o STREETS AND PUBLIC PLACES. who had occupied and obstructed land dedicated to the pub- lic use a§ a street. The easement, the court said, was not a beneficial ownership in land, and in Michigan ejectment has never been considered as a proper remedy to put the public in possession of land appropriated for streets, or to keep it clear of unauthorized impediments.^ § 274. When ejectment cannot be maintained. — In the case of The Borough of Chambersburg v. Manko,^ in the New Jersey Court of Errors and Appeals, the general rule that local municipal authorities having charge of a public highway may maintain ejectment therefor, against any per- sons encroaching thereon, is recognized ; but the rule was held not to be applicable so as to support ejectment by the municipal authorities for an encroachment upon a turnpike, under the control of a private corporation, upon which the burden of protecting the highway had been expressly imposed, even though the municipal authorities were vested with certain prescribed powers which, in the case of an ordinary highway, would have justified the use of this possessory action. § 275. Trespass to try title.— Iw. South Carolina it has been held, that the commissioners of streets cannot maintain trespass to try title for lands alleged to have been dedicated to public use as streets, and which had been closed up by those claiming under the donor. Indictment for nuisance was declared to be the appropriate reHef.* In Texas, how- ever, a municipal corporation may maintain trespass to try title for its lands.* 1 Bay County v. Bradley, 39 Mich. 163. 2 10 Vroom (N. J.), 496. 3 Com'rs of Georgetown v. Taylor, i Brev. (S. C.) loo, ♦130; s. C. 2 Bay (S. C), 282 ; second trial, lb. 288. ■■ Lewis V. San Antonio, 7 Texas, 288. CHAPTER IX. EJECTMENT BETWEEN CO-TENANTS, AND BY CO-TENANTS AGAINST THIRD PARTIES. I 276. Between tenants in common. 277. Actual ouster must be shown. 278. How distinguished from ouster in other cases. 279. Newell V. Woodruff. 280. Zeller's Lessee v. Eckert. 281. Ouster a question of fact. 282. Burden of proof. 283. What constitutes ouster. 284. Examples. 285. Wild lands. 286. Ouster to sustain trespass. 287. Conveyance of the entire estate. 288. Exceptions. 289. Presumption of ouster from lapse of time. 290. When ouster need not be proved. 291. Title of co-tenants. 292. Outstanding title. 293. ) Title acquired under same instru- 294. ) ment. 295. Ejectment between joint tenants and co-parceners. 296. Tenancy in common of naked pos- session. 297. J Tenants in common against third 298. \ farties. — Joinder of tenants 299. ) in common. ^Qj' [ What interest recovered. 302. Joinder of joint tenants against third parties. 303. Ejectment by co-parceners. § 276. Between tenants in common. — Ejectment is an appropriate remedy in cases where one tenant in common has been dispossessed or ousted by his co-tenant, from the whole or any portion of the lands of the co-tenancy.^ The principal question to be determined, in ejectments between co-tenants, is whether or not the unity of possession has been destroyed, or whether the defendant has excluded the plaintiff from the possession and enjoyment of the estate, or has ousted him therefrom. The general rule is that the possession of one tenant in common is the pos- session of his companions,^ for a fellowship exists between ■ See Culver v. Rhodes, MSB. opinion, probably reported in 87 N.Y. ' Covington v. Stewart, 77 N. C. 148 ; Bowen v. Preston, 48 Ind. 367 ; Foulke V. Bond, 12 Vrdom (N. J.), 527; Doe d. Barnett v. Keen, 7 T. R. 386; Smales V. Dale, Hob. [120] 265; Miller t'. Myers, 46 Cal. 535; Ford v. Grey, Salk. 285; Phillips V. Gregg, 10 Watts (Penn.), 158 ; Doe v. Prosser, Cowp. 217 ; Challefoux V. Ducharme, 8 Wis. 287 ; Fairclaim v. Shackleton, 5 Burr. 2604 ; Mining Co. v. Taylor, 100 U. S. 37 ; Humbert v. Trinity Church, 24 Wend. (N. Y.) 587 ; Vaughan V. Bacon, 15 Me. 455; Young v. De Bruhl, 11 Rich. (S. C.) Law, 638; Clymer's 11 1 62 CO-TENANTS. tenants in common, and the law assumes that each will be true to the other." " The seizin and possession of one ten- ant in common of real estate," says the Supreme Court of Iowa, " is seizin and possession for the use of the others."^ In a recent case, in the New York Court of Appeals, it was said that where one tenant in common acted for all the tenants, in reference to the common property, his knowl- edge would be attributed to his co-tenants, with the same effect as the knowledge of any other agent affects his prin- cipal.' But this must be regarded as an extreme statement of the legal effects of this relation, for the co-tenant's admis- sions have been held not to be evidence against his com- panions, there being no community of interest,* and the judgment in an unsuccessful action for the lands of the co- tenancy, brought by one co-tenant, does not bind or estop his companions.^ The relations of tenants in common are presumed to be amicable rather than hostile, and the acts of one co-tenant affecting the common property are presumed to be for the common benefit ; " and one co-tenant will not be presumed to intend a wrong to his companion if his acts will admit of any other construction.^ Thus, in Wood v. Phillips, the New York Court of Appeals held that one tenant in common was justified in taking peaceable posses- sion of the common property, and even though such pos- session was acquired by stealth it was legal, as against a co- tenant claiming the sole possession, if accomplished without tumult or breach of the peace.^ Lessee v. Dawkins, 3 How. (U. S.) 674-689; Campau v. Campau, 44 Mich. 31; Allen V. Hall, i McCord (S. C), 131 ; Lillianskyoldt v. Goss, 2 Utah, 292. '- Day V. Howard, 73 N. C. i. 2 Kinney v. Slattery, 51 Iowa, 353 ; Burns v. Byrne, 45 Iowa, 285; Campbell V. Campbell, 13 N. H. 483. " Ward V. Warren, 82 N. Y. 265 ; see Munson v. Munson, 30 Conn. 425. ■■ Young V. Griffith, 79 N. C. 201. 6 Stovall V. Carmichael, 52 Texas, 383 ; see Williams v. Sutton, 43 Cal. 71. Doe d. Gigner v. Roe, 2 Taunt. 397; Anon. 7 Mod. 39; Gates v. Brydon, 3 Burr. 1895; Langendyck 2/. Burhans, 11 Johns. (N. Y.) 461; Jackson z/. Lyons, 18 Johns. (N. Y.) 398; Jackson d. Hopkins v. Leek, 12 Wend. (N. Y.) 105 ; Tay- lor V. Hill, 10 Leigh (Va.), 457. 2 Doe d. Gigner v. Roe, 2 Taunt. 397. ' Jackson v. Denniston, 4 Johns. (N. Y.) 311. - Foulke V. Bond, 12 Vroom (N, J.), 527; Newell v. Woodrufr, 30 Conn. 492; see Warfield v. Lindell, 30 Mo. 272. CO-TENANTS. 1 65 seizin."^ The difference, as explained by the Supreme Court of Connecticut in a leading case, is only in the kind of evidence by which the ouster may be proved in the two cases. As against a co-tenant it cannot be proved merely by acts which are consistent with an honest intent to ac- knowledge and conform to the rights of his companion, al- though such acts might be sufficient evidence of an ouster, between the parties, if there was no tenancy in common, and each claimed the whole estate.* § 279. Newell v. Woodruff. — In this case the evidence showed that the defendant let the property, ordinarily spoke of it as her own, and paid the taxes regularly ; that no one had, to her knowledge, set up a title or claimed any right to it, except the plaintiff", who had never distinct- ly stated the nature of the claim put forward by him, and had not demanded to be let into possession of a specific interest as co-tenant. The court below on this evidence granted a nonsuit, and this was held on appeal to be correct. Mr. Freeman, in his valuable work on Co-tenancy and Par- tition,^ says of this decision, that if it be accepted as sound, ■" it follows that acts sufficient to establish an ouster when proved as a defense, are insufficient when proved as a cause of action." As an illustration he takes the case of an exclu- sive occupancy (similar to that shown in Newell v. Wood- ruff) under a claim of ownership in severalty, accompanied by the occupant's belief that his claim is unquestioned and unquestionable. " If he be sued in ejectment by a co-ten- ant, the latter cannot recover, in the absence of a demand for possession, because there is no ouster," i. e., the facts proved are insufficient as a cause of action. " But if the possession has continued for a length of time sufficient to ' Prescott V. Nevers, per Story, J., 4 Mason, 326; and see Gower v. Quinlan, 40 Mich. 572. 2 Newell V. Woodruff, 30 Conn. 492 ; and see Barret v. Cobum, 3 Met. (Ky.) 510; 13 Am. Dec. 140, note. 3 Co-tenancy and Partition, by A. C. Freeman, Esq.; § 231. 1 66 CO-TENANTS. create a title by disseizin, then the plaintifT would not be able to recover, because, from such possession, the jury- would be justified in finding an ouster," i. e., the facts proved are sufficient as a defense. If the decision were rested by the court wholly on the absence of a distinct demand by the plaintiff, it might be open to this criticism ; but the judges seem to have been quite as much affected by the lack of any positive evidence that the defendant's occupancy was actually adverse to the plaintiffs asserted title. Her speak- ing of the property as her own must be considered as of little importance. As was said by the Supreme Court of Missouri, in a leading case in that State, " To constitute an adverse possession of one tenant in common against his co- tenant, there must be some notorious act asserting an entire ownership. It is further said in some cases that this act must be brought home to the knowledge of the co-tenant. This, we suppose, depends upon the nature of the act. If it consists altogether of a mere verbal assertion of entire ownership, such an assertion could not with any propriety be regarded as an act of adverse possession of which the co- tenant was bound to take notice, unless made to him or communicated to him." ^ § 280. Zellers Lessee v. Eckert. — In Zeller's Lessee v. Eckert,'* Mr. Justice Nelson, in delivering the opinion of the Supreme Court of the United States, said : " The trustee may disavow and disclaim his trust ; the tenant, the title of his landlord after the expiration of his lease ; the vendee, the title of his vendor after breach of the contract ; and the ten- ant in common, the title of his co-tenant ; and drive the re- spective owners and claimants to their action within the period of the statute of limitations. The only distinction between this class of cases and those in which no privity be- tween the parties existed when the possession commenced, is in the degree of proof required to establish the adverse character of the possession. As that was originally taken 1 Warfield v. Lindell, 30 Mo. 272-282. 2 4 How. (U. S.) 289. CO-TENANTS. 1 67 and held in subserviency to the title of the real "owner, a clear, positive, and continued disclaimer and disavowal of the title, and assertion of an adverse right, and to he brought home to the party, are indispensable before any foundation can be laid for the operation of the statute. Otherwise, the grossest injustice might be practiced ; for, without such no- tice, he might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations." The principles on which this opinion is founded apply to every case where a party comes into possession of land while occupying a fiduciary relation to another, and include, as has often been decided, the case of a tenant in common in possession of land,^ for the proof of ouster must be sufficient to establish an adverse possession on the part of the wrong-doer.^ § 281. Ouster a question of fact. — The ouster is a ques- tion of fact which it is the province of the jury to determine, and must be expressly found by them,^ and is not a question of law for the decision of the court.* The evidence must be of a most positive and satisfactory nature.^ § 282. Burden of proof. — The burden of proving the ouster rests upon the party alleging it ; ^ the law, as we have seen, never assumes that a co-tenant is disloyal to the inter- ests of the co-tenancy, or that he intends to do an unlawful act. But before the plaintiflF can be called upon to establish an eviction, or denial of his rights, the defendant must prove himself a tenant in common with plaintiff, for it is only '-* ' Boggess V. Meredith, 16 W. Va. 1-25. i! See Edwards v. Bishop, 4 N. Y. 61. 3 Taylor v. Hill, 10 Leigh (Va.), 457. ■■ Cummings v, Wyman, 10 Mass. 465 ; Purcell v. Wilson, 4 Gratt. (Va.) 16 ; Harmon v. James, 7 Smedes & M. (Miss.) in; Blackmore v. Gregg, 2 W. & S. (Penn.) 182; Carpentier v. Mendenhall, 28 Cal. 484; Clark z/. Crego, 47 Barb. (N. Y.) 599. ' Adam v. Ames Iron Co. 24 Conn. 230; Allen v. Hall, i McC. (S. C.) 131. <^ Newell V. Woodruff, 30 Conn. 492 ; Van Bibber v. Frazier, 17 Md. 436. 1 68 CO-TENANTS. when that relation is shown to exist, that proof of the ouster becomes necessary.^ The objection that a tenant in com- mon must show an ouster, can only be taken by the co-ten- ant, or one claiming under him.^ § 283. Wkai constitutes ouster. — The determination of the question as to what constitutes an ouster, between ten- ants in common, is often perplexing and difficult, and the cases, though numerous, are not entirely in harmony. As we have seen, no proof of actual physical force,^ or " turning out by the shoulders,"* or "the heels,"^ is necessary. The intent to oust must be established to the satisfaction of the jury, and the highest and most complete evidence of an ouster is a specific demand, by the plaintiff", to be let into the possession of the premises, followed by a specific refusal on the part of the defendant to comply with the demand.*' The demand and refusal do not, however, constitute an ouster, but, like any other facts, are evidence of it just as in trover a demand and refusal do not constitute, but are only evi- dence of, a conversion. Hence, in California, a special ver- dict in ejectment between co-tenants, finding not an ouster, but merely a demand of possession, and a refusal by defend- ant to comply therewith, has been held not sufficient to au- thorize a judgment in plaintiff's favor,^ the court saying, however, that in the absence of all explanation, the court might direct the jury to infer an ouster from the fact of de- mand and refusal. It seems quite clear that a denial of plaintiff"'s title, and right of entry, by answer in the ejectment suit, is equivalent > Gillett V. Stanley, i Hill (N. Y.), 121 ; Sharp v. Ingraham, 4 Hill (N. Y.), 1 16. 2 Arnot V. Beadle, Hill & Denio, Supp. (N. Y.) 181. 3 Gale V. Hines, 17 Fla. 773. « Doe V. Prosser, Cowper, 217. ' Warfield v. Lindell, 30 Mo. 272. e Miller v. Myers, 46 Cal. 535 ; Doe d. Hellings v. Bird, 11 East, 49; Greer v. Tripp, 56 Cal. 209. ' Carpentier v. Mendenhall, 28 Cal. 484; see Roberts v. Moore, 3 Wall., Jr. 297. CO-TENANTS. 1 69 to an ouster.^ According to the Supreme Court of Mis- souri, there must be outward acts of exclusive ownership, of an unequivocal character, overt and notorious, and of such a nature as, by their own import, to impart information and give notice to the co-tenants that an adverse possession, and an actual disseizin, are intended to be asserted against them.* In the recent case of Culver v. Rhodes,^ the New York Court of Appeals said, " We are thus led to consider the reason and justice of the rule which should measure the adverse possession necessary to effect the ouster of a co- tenant. Assuredly it should be one which requires notice in fact to the co-tenant, or unequivocal acts, so open and public, that notice may be presumed, of the assault upon his title, and the invasion of his rights. The adverse possession sets running a limitation which in the end may operate as a bar. It does so only upon the theory that the party dis- seized has slept upon his rights, and by silence and inaction has waived them. The rule is just if the ouster or adverse possession is brought home to the knowledge of the owner, or is of such definite and hostile and public character that such knowledge ,may be fairly presumed : but it is unjust and unreasonable if enforced without such limitation. * * Originally an actual disseizin, a palpable turning out of the co-tenant, or hindering him from entry, seems to have been requisite.* The modern rule is content with less, but is well stated in Hawk v. Senseman,^ that to effect an ouster of the co-tenant there must be ' an actual, continued, visible, no- torious, distinct, and hostile possession.' It must be such 1 Siglar V. Van Riper, 10 Wend. (N. Y.) 414; Miller v. Myers, 46 Cal. 535; Greer v. Tripp, 56 Cal. 209. » Warfield v. Lindell, 38 Mo. 561-581 ; Zeller v. Eckert, 4 How. (U. S.) 289; Boggess V. Meredith, 16 W. Va. i ; Hudson v. Putney, 14 W. Va. 561 ; Rust v. Rust, 17 W. Va. 901. ' New York Court of Appeals, MSS., opinion per Finch, J., probably reported in 87 N. Y. * Citing Reading's Case, i Salk. 392. *6S. &R, (Penn.) 21. 1 70 CO-TENANTS. that knowledge of its existence is brought home to the co- tenant.' It must make the intention to hold adversely manifest, and palpably display such intention.* * * Wherever the acts needful to create an ouster have been stated, they have been an actual and exclusive possession of the whole premises claiming the whole ; ^ taking title from a hostile source, and refusing to let in the co-tenant ; * an exclusive possession, exclusive receipt of rents and profits, and exclusive claim of title ; ^ a public claim of the entire title, a notorious act, an open claim of exclusive right,* or where, upon demand of the co-tenant, his title is denied and possession is refused."^ § 284. Examples. — The refusal must be unequivocal. Thus, it has been held that where the plaintiff, before suit brought, demanded to be let into possession, and defendant, who occupied the whole premises, answered that she desired to pay the judgment on which plaintiff had acquired title, and did not wish to give up the premises, this was held not to be an ouster or denial of plaintiflF's rights.^ Where the defendant admitted that he was in possession, and in answer to a demand for possession, answered that " it would be hard to pay for the land twice," this was held not to amount to " an unequivocal denial of the defendant's title," and not to be evidence of an ouster.^ ' Citing Zeller's Lessee v. Eckert, 4 How. 295; Barr v. Gratz, 4 Wheat. 213; McClung V. Ross, 5 Wheat. 124; Challefoux t/. Ducharme, 8 Wis. 287; Longw. Mast, n Penn. St. 189; Bennet v. Bullock, 35 Penn. St. 364; Hall v. Stevens, 9 Met. (Mass.) 418. 2 Citing Marcy v. Marcy, 6 Met. (Mass.) 360; Prescott v. Nevers, 4 Mason, 330; Hart V. Gregg, 10 Watts (Penn.), 185. 3 Citing Florence v. Hopkins, 46 N. Y. 182. " Citing Clapp v. Bromagham, 9 Cowen (N. Y.), 530; Clark v. Crego,47 Barb. (N. Y.) 617; Phelan v. Kelly, 25 Wend. (N. Y.) 395. 5 Citing Grim v. Dyar, 3 Duer (N. Y.), 354. « Citing Smith V. Burtis, 9 Johns. (N. Y.) 174 ; Jackson v. Brink, 5 Cow. (N. Y.) 483; Jackson v. Tibbits, 9 Cow. (N. Y.) 241 ; Miller v. Piatt, 5 Duer (N. Y.), 272. ' Citing Siglar v. Van Riper, 10 Wend. (N. Y.) 419. s Avery v. Hall, 50 Vt. 11. » Colburn v. Mason, 25 Me. 434. CO-TENANTS. I7I So where defendant " claimed the land as owner in fee," such claim was adjudged not to be evidence of an ouster, or total denial of plaintiflF's rights, but was considered to be consistent therewith, for each tenant in common is an owner in fee with the others.^ It is an ouster if the tenant in pos- session refuses to suffer his companion to occupy with him.^ The ouster cannot be presumed from the fact of sole and exclusive possession,^ nor from a mere refusal to account for or pay a share or proportion of the rents,* nor from an occa- sional going upon the land and cutting and removing trees from the woods or swamps,® nor from the exclusive receipt of the profits." "The taking of the whole profits," says Coke, " is no ejectment." There must be something more than mere perception of profits and payment of taxes.''^ There must be a disturbance of the possession.^ But proof of a denial of the plaintiff's title, accompanied by an exclu- sive claim of possession, and receipt of the whole profits, is sufficient to establish an ouster.* So where defendant, in response to a demand for possession, said the demandant " could obtain it by law," this was held to justify a finding of an ouster.^" Where one of several co-tenants entered, claim- ing as exclusive owner, and locked the doors of the build- ings upon the premises, thereby excluding the other tenants in common, the latter were allowed to maintain ejectment. ^^ • Edwards v. Bishop, 4 N. Y. 61. ^ Norris v. Sullivan, 47 Conn. 474. 3 Blakeney v. Ferguson, 20 Ark. 547. * Doe d. Fisher v. Prosser, Cowper, 217 ; Phillips v. Gregg, 10 Watts (Penn.), 158-164. 5 Peck V. Ward, 18 Penn. St. 506 ; Ewer v. Lovell, 9 Gray (Mass.), 276. 6 Silloway v. Brown, 12 Allen (Mass.), 30; Keyser v. Evans, 30 Penn. St. 507; Allen V. Hall, i McC. (S. C.) 131 ; Catlin v. Kidder, 7 Vt. 12; Linker v. Ben- son, 67 N. C. 150. ' Tulloch V. Worrall, 49 Penn. St. 133. 8 Harvin v. Hodge, Dudley (S. C.) Law, 23 ; Doe d. Hellings v. Bird, 1 1 East, 49; Gale v. Hine.s, 17 Fla. 773. 9 Alexander v. Kennedy, 19 Texas, 488, per Savage, Ch. J.; Siglar v. Van Riper, 10 Wend. (N. Y.) 414; Humbert v. Trinity Church, 24 Wend. 587. 1" Gordon v. Pearson, 1 Mass. 323. " Trustees, &c , of North Greig v. Johnson, 66 Barb. (N. Y.) 119. 1 72 CO-TENANTS. It has been held in Vermont that acts of possession con- stituting the ouster must be not only inconsistent with, but exclusive of the continuing rights of the plaintiff", and such as would amount to an ouster between landlord and tenant.^ In North Carolina an ouster by one tenant in common will not be presumed merely upon evidence of an exclusive use of the common property, and appropriation to himself of its profits, unless such use and appropriation have continued for a period of twenty years.* The ouster must at least be such as would establish an adverse possession on the part of the wrong-doer.^ A silent possession accompanied by no act which can amount to an ouster, or give notice to the co-tenant of the intention to exclude him, will not make the possession ad- verse.* § 285. Wild lands. — The occupation of an extensive tract of wild mountain land, covered, except as to a patch of five acres, with forest, by occasionally cutting a small number of trees for shingle or lumber, and peeling and car- rying away a few loads of bark, at a nominal profit, does not of itself afford conclusive evidence of an ouster of a co-tenant, or of an adverse possession.^ § 286. Ouster to sustain trespass. — A tenant in com- mon can only maintain trespass quare clausum /regit against his companion for an actual ouster, such as would entitle him to maintain an ejectment,* and in an action be- tween tenants in common, recently decided in the House of Lords,'' it was held that where one co-tenant put a lock > Chandler v. Ricker, 49 Vt. 128; see Squires v. Clark, 17 Kan. 84; Ball v. Palmer, 81 111. 370. 2 Caldwell v. Neely, 81 N. C. 114; Covington v. Stewart, 77 N. C. 148; Neely v. Neely, 79 N. C. 478 ; see Frederick v. Gray, 10 S. & R. (Penn.) 182. ' Edwards v. Bishop, 4 N. Y. 61; see § 278. < Abercrombie v. Baldwin, 1 5 Ala. 363 ; McClung v. Ross, 5 Wheat. (U. S.) 116-124; Challefoux v. Ducharme, 8 Wis. 288-307. » Chandler v. Ricker, 49 Vt. 128. « Stedman v. Smith, 8 El. & Bl. i ; McCourt v. Eckstein, 22 Wis. 153, 159. ' Jacobs V. Seward, L. R. 5 H. L. 464-472. CO-TENANTS. 1 73 upon a gate, which was not shown, however, to have been kept locked, it did not constitute an ouster which would enable the co-tenant to maintain trespass. In the case of Filbert v. HofF,^ which was trespass be- tween tenants in common, the court decided that where both were in actual possession, a mere denial of the plaint- iff's title, unaccompanied by acts, did not of itself amount to an ouster. The denial is available only as showing in- tent in connection with evidence that plaintiff had been ex- cluded or expelled from the property. § 287. Conveyance of the entire estate.-*^\\&xt ^ the grantee has obtained a conveyance of the whole estate from one of the co-tenants, entry made under such a title is a disseizin of the other co-tenants.* This doctrine is just and reasonable, for the grantee does not intend to enter or hold as a co-tenant. His entry is adverse. The same principle applies to joint tenants.^ § 288. Exceptions. — In Seaton v. Son,* the Supreme Court of California, however, held that nothing short of an actual ouster severs the unity of possession, and that entry under a deed which purported to convey the entire title, followed by exclusive possession, and a belief that the deed conveyed the whole estate, when in fact the grantor had but an undi- 1 42 Penn. St. 97. 2 Foulke V. Bond, 12 Vroom (N. J.), 527 ; Homez/. Howell, 46 Ga. 9; Kinney V. Slattery, 51 Iowa, 353 ; Kittredge v. Locks & Canals, &c., \^ Pick. (Mass.) 246 ; Cain V. Furlow, 47 Ga. 674 ; Townsend & Pastor's Case, 4 Leon. 52 ; Doe d. Reed V. Taylor, 5 Barn & Ad. 575 ; Rirker v. Prop'rs, &c. M. R. 3 Met. (Mass.) loi ; Clark V. Vaughan, 3 Conn. 191 ; Long v. Stapp, 49 Mo. 506 ; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 186 ; Gray v. Bates, 3 Strob. (S. C.) Law, 498-500 ; Clapp v. Brom- agham, 9 Cowen (N. Y.), 530; Hinkley v. Greene, 52 111. 230 ; Bradstreet v. Hunt- ington, 5 Peters, 401-445 ; Clymer's Lessee v. Dawkins, 3 How. (U. S.J 674-689 ; Prescott V. Nevers, 4 Mason, 326; Gerry v. Holfore^ Cro. Eliz. 615. But see Seaton v. Son, 32 Cal. 481 ; Roberts v. Morgan, 30 Vt. 319, 324; Day v. How- ard, 73 N. C. I ; Caldwell v. Neely, 81 N. C. 114 ; Culver v. Rhodes, 87 N. Y. 3 Larman v. Huey's Heirs, 13 B. Mon. (Ky.) 436 ; Caldwell v. Neely, 81 N. C. 114; Day V. Howard, 73 N. C. i. ■■ 32 Cal. 481. See, also, Day v. Howard, 73 N. C. i ; Roberts v. Morgan, 30 Vt. 324. 1 74 CO-TENANTS. vided interest, did not amount to an ouster of the co-tenant. This case cannot be reconciled with the authorities above cited, and seems to ignore the fact that the grantee has rights which should be considered. It is doubtful, however, if the taking of a deed by one co-tenant from a third party ^ or a life tenant^ is of itself the equivalent of an ouster, un- less accompanied and followed by a hostile claim, of which the co-tenant had knowledge, or by acts of possession not only inconsistent with, but exclusive of, the rights of the co- tenant. The execution by one co-tenant of a mortgage upon the whole property was held in Pennsylvania not to be per se an ouster, for the mortgagor was left in possession, and the instrument created only a lien, and had not the force or legal effect of an absolute sale.^ § 289. Presumption of ouster from lapse of time. — When there is no evidence of actual ouster, it is frequently said that the jury may presume an ouster from long continued adverse possession. No fixed principle, or well defined rule of law, as to this seems to have governed the decisions. The exclusive possession, and receipt of profits, for more than seven years in North Carolina,^ for seventeen years in Iowa,' for twenty-six years in Missouri,* and for twenty-seven years in New York,'' appear to have been regarded as insufficient, without other evidence, to justify an inference of an ouster. But thirty-six years sole and uninterrupted possession, by one tenant in common, was held by Lord Mansfield to be sufficient to justify the jury in finding an actual ouster.* So in New York, periods of forty and forty-two years,' in Ala- ' HoUey v. Hawley, 39 Vt. 532. = Culver V. Rhodes, New York Court of Appeals, MSS. opinion. ' Wilson V. Collishaw, ^3 Penn. St. 276. ' Linkers. Benson, 67 N. C. 150. 5 Flock V. Wyatt, 49 Iowa, 466. « Warfield v. Lindell, 30 Mo. 272. ' Northrop v. Wright, 24 Wend. (N. Y.) 221. " Doe V. Prosser, i Cowper, 217. » Van Dyck v. Van Beuren, i Caines (N. Y.), 84 ; Jackson d. Bradt v. Whit- beck, 6 Cow. (N. Y.) 632; see Woolsey v. Morss, 19 Hun (N. Y.), 273. CO-TENANTS. 175 bama thirty years/ and in Pennsylvania twenty-one years ^ were, in each case, regarded as sufficient to justify the infer- ence of an ouster without other proof In one of the cases cited ^ it was said, by the Supreme Court of New York, that the jury should have been directed to presume an ouster, i. e., that the presumption was one of law, or that, as a matter of law, exclusive possession and receipt of profits, for forty- two years, is conclusive evidence of an ouster. The only au- thority cited in support of this principle is Doe v. Prosser, but in that case Lord Mansfield simply left the question to the jury upon all the facts. It is hard to see on what ground the view advanced in Van Dyck v. Van Beuren can be sup- ported, and the authorities are very generally opposed to it.* Michigan has no statute that disposes of controversies which may arise between tenants in common, from an exclusive pos- session by one co-tenant, but where such exclusive possession is continued for more than twenty-five years, it is there held that the right of the excluded parties is gone.^ These cases cannot be reconciled, but the confusion seems to have arisen partly from the misuse of the word presumption, and partly from the analogies suggested by the existence of a statutory limit with regard to most cases of adverse possession. Thus, in Pennsylvania and Alabama the courts appear, from the cases above cited, to regard the statutory period of twenty- one years as governing absolutely, but whether by actual force of law, or by analogy, is not made clear. The resort to anal- ogy, for such a purpose, is open to many objections, and, in- deed, when the legislature has omitted to provide a statutory limit to govern in cases where ouster is claimed from lapse of time, such action by the courts is merely a loose kind of judicial legislation. On principle the following rules seem ' Johnson v. Toulmin, 18 Ala. 50. 2 Fredericks. Gray, 10 S. & R. (Penn.) 182; McCall v. Webb, 88 Penn. St. 150. " Van Dyck v. Van Beuren, i Caines (N. Y.), 84. •* See Bolton v. Hamilton, 2 Vi^. & S. (Penn.) 294. ^ Campau v. Dubois, 39 Mich. 274. 1 76 CO-TENANTS. to be those which ought generally to govern, though they have never been distinctly formulated by the courts. First. There is, in ordinary cases, no presumption of law as to ouster arising from long continued exclusive posses- sion by one co-tenant. Second. Where the exclusive possession, however, has been of such long duration as to be manifestly inconsistent with the claim of a co-tenancy, the jury should be directed to find an ouster based on the presumption of fact arising from such long continued hostile possession. Third. Where the possession has been of such short du- ration as to be manifestly insufficient to support a title in the occupant, based upon an ouster, without other evidence, the question of ouster should not be submitted to the jury at all. Fourth. Where a period is fixed by statute, it of course governs absolutely. Fifth. When no such period is fixed, the limit of twenty years, from its general adoption by legislation, in ordinary cases of adverse possession, may possibly be regarded as a gen- eral guide in considering the evidence in the case ; but, other- wise, has no bearing on the question, because the possession must be more distinctly adverse than between strangers.^ Sixth. As a general rule, the evidence of exclusive pos- session is to be submitted to the jury, if its duration war- rants a submission at all, with the direction that they may infer ouster from it. § 290. When ouster need not be proved. — If the defend- ant controverts the plaintiffs title, that must be taken as an admission of the ouster. If he does not dispute the plaint- iff's title he should admit it by answer or disclaimer, and deny the ouster.^ He cannot, in one breath, deny the co- tenancy and claim the benefit of the relation.® Hence it was held that no ouster need be shown where the answer ' See § 278. 2 Withrow V. Biggerstaff, 82 N. C. 82 ; see Halford v. Tetherow, 2 Jones (N. C.) Law, 395. 3 Peterson v. Laik, 24 Mo. 541. CO-TENANTS. 1 77 alleged that the defendant held the premises " adversely against all persons,"^ or where the defendant claiming the exclusive possession pleaded "not guilty,"^ or denied the plaintiffs title, or right of entry, by answer.^ In the New- York Superior Court, Chief Justice Oakley said : " that a denial in the defendant's answer of all right, title and inter- est in the plaintiff, is an admission that his own possession is adverse, and may therefore well be treated as equivalent to a confession of ouster superseding the necessity of proof upon the trial." * § 29 1. Title of co-tenants. — Tenants in common, enter- ing into and holding possession as such, cannot, as against their co-tenants, dispute or assail the common title,® or set up a tax title as paramount and in opposition to the title of the co-tenants. But where the co-tenant relies upon the de- fense of adverse possession, any title may be proved in sup- port of that plea.* The purchase of a tax title by one co- tenant is esteemed to be for the benefit of all the tenants in common.'' The same principle applies to the grantee of a co-tenant, if he purchases with knowledge of the co-tenancy.* The tenant who relieves the estate of the incumbrance of ' Harrison v. Taylor, 33 Mo. 211. 2 Noble V. McFarland, 51 111. 226. But see Halford v. Tetherow, 2 Jones (N. C.) Law, 393. . 3 Miller v. Myers, 46 Cal. 535 ; Greer v. Tripp, 56 Cal. 209. < Clason V. Rankin, i Duer (N. Y.), 337; see McCallum v. Boswell, 15 U. C. Q. B. 343; Scott V. McLeod, 14 U. C. Q. B. 574. « Olney v. Sawyer, 54 Cal. 379 ; Bornheimer v. Baldwin, 42 Cal. 27 ; Phelan v. Kelly, 25 Wend. (N. Y) 389; Knolls v. Barnhart, 71 N. Y. 474; Funk v. New- comer, 10 Md. 301 ; Buchanan v. King, 22 Gratt. (Va.) 414; Keller z/. Auble, 58 Penn. St. 410; Weaver v. Wible, 25 Penn. St. 270; Brown v. Homan, i Neb. 448 ; Frentz v. Kiotsch. 28 Wis. 312 But see Lawrence v. Webster, 44 Cal. 385 ; reviewed in Olney v. Sawyer, 54 Cal. 379; Burhans v. Van Zandt, 7 Barb. (N.Y.) 91. « Phelan v. Kelly, 25 Wend. (N. Y.) 389; see Larman v. Huey's Heirs, 13 B. Mon. (Ky.) 436. ' Allen V. Poole, 54 Miss. 323-334; Davis v. King, 87 Penn. St. 261 ; Page v. Webster, 8 Mich. 263; Morgan v. Herrick, 21 111. 481 ; Flinn v. McKinley, 44 Iowa, 68; Lloyd v. Lynch, 28 Penn. St. 419; Sheean v. Shaw, 47 Iowa, 411 ; Du- bois V. Campau, 24 Mich. 360. 8 Austin V. Barrett, 44 Iowa, 488. 13 1 78 CO-TENANTS. taxes, has a charge upon the land against his co-tenant for reimbursement/ but not as against a purchaser from the co- tenant without notice.^ In Gillett v. Gaflfney^ a curious exception was admitted to the rule that one tenant in common, who acquires an out- standing title, will be considered as holding it in trust for his co-tenant. The fee of the lands of the co-tenancy, which was subject to entry, was in the United States. One co-ten- ant died, leaving heirs. The survivor deeded an undivided half interest in the lands to a third party, who, with the sur- vivor, thereafter acquired the title to the entire tract from the government, the heirs of the deceased co-tenant having taken no steps to do so. The survivor afterwards died, leav- ing heirs. The court held that the heirs of the co-tenant who died first, having neglected to perfect their title, should not be allowed to participate in the fruits of the greater dili- gence of the third party, and that the latter did not come within the rule making co-tenants trustees for their com- panions, as to the acquisition of an outstanding title, but that the heirs of the survivor took his interest in the prem- ises charged with all the equities, and must b.e held to hold it in trust for the heirs of his co-tenant. § 292. Outstanding title. — It is a familiar rule that one tenant in common, who purchases an outstanding title or incumbrance, cannot set it up against his co-tenant without aflFording the latter an opportunity to contribute his propor- tion of the expense of acquiring the title or incumbrance, and thus enabling him to participate in the benefits of the purchase.* The same principle applies to joint tenants and 1 Davidson v. "Wallace, 53 Miss. 475 ; see Harrison v. Harrison, 56 Miss. 174. 2 Stover V. Cory, 53 Iowa, 708. ' 3 Col. 351. 4 Smith V. Osborne, 86 111. 606; Titsworth v. Stout, 49 111. 78-80; Wilton v. Tazwell, 86 111. 29; Venable v. Beauchamp, 3 Dana (Ky.), 321; Lee z/. Fox, 6 lb. 172; Boskowitz v. Davis, 12 Nev. 446; Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 389, 407; Tisdale v. Tisdale, 2 Sneed (Tenn.), 596; Picot v. Page, 26 Mo. 421 ; Rothwell v. Dewees, 2 Black (U. S.), 613 ; Bracken v. Cooper, 80 111. 221 ; CO-TENANTS. 1 79 co-parceners.^ A defendant in possession under a deed which makes him tenant in common with the plaintiff, cannot set up an outstanding title, in a stranger, to defeat the action.* The possession of a widow as dowress, and as guardian in socage of the minor children, is as tenant in common with the heirs, and she will not be permitted to buy in a title for her individual benefit.^ The same principle holds though the co-tenant takes the title in the name of a third party.* Chancellor Kent said in Van Home v. Fonda, the lead- ing case on the subject, " It is not consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine and oust his companion. It would be repugnant to a sense of refined and accurate jus- tice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties, as joint devisees, created. Community of interest produces a community of duty, and there is no real difference, on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance, or an adverse title, to disseize and expel his co-tenant."® This doctrine is not, however, of universal application, but is limited and qualified by some of the authorities. Thus, after one tenant denies the title of his co-tenants, and claims the entire property, such denial being known to his companions, the latter cannot be justified thereafter in Brown v. Homan, i Neb. 448; Gossom v. Donaldson, 18 B. Mon. CKy.) 230; Flagg V. Mann, 2 Sumner, 486; Brittin v. Handy, 20 Ark. 381. ' Lee V. Fox, 6 Dana (Ky.), 172, 176. ' Braintree v. Battles, 6 Vt. 395. 3 Knolls V. Barnhart, 71 N. Y. 474. < Duff V. Wilson, 72 Penn. St. 442. 5 Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 389 ; Tisdale v. Tisdale, 2 Sneed (Tenn.), 596. l8o CO-TENANTS. assuming that the acts of his hostile companion, respecting the land, are for the common benefit. It is then no longer a breach of trust, or fraud upon their rights, for him to pur- chase an outstanding title, and hold it exclusively for his own benefit.* If the lands have been actually lost by an adverse title, and the co-tenants are evicted, the co-tenancy is destroyed, and one tenant may then buy the lost land, and hold it free from any claim of his companion.^ § 293. Title acquired under same instrument. — It has been laid down in several cases ^ that tenants in common are subject to this mutual obligation only when their inter- ests accrue under the same instrument, or acts of the party, or of the law, or where they enter into some obligation or understanding with one another, and that persons acquiring unconnected interests in the same subject, by distinct pur- chases, though it may be under the same title, are not bound to any greater protection of one another than would be re- quired among strangers. In most of these cases the principle was not necessary to a decision of the case. Thus in Roberts v. Thorn it ap- peared that the outstanding title acquired was of no value, and the decision is in great measure based on the distinction, drawn in the case of Smiley v. Di^con,* between a defective title and an absolute want of title. The plaintiff and de- fendant in that case had purchased from a party having neither claim nor color of title, and the defendant had sub- sequently acquired the title from the State by actual settle- ment. The court held that there existed no obligation of law, or of conscience, which prevented him from acquir- ' Wright V. Sperry, 21 Wis. 331. 338; see Frentz v. Klotsch, 28 lb. 312, 317. 5 Coleman v. Coleman 3 Dana (.Ky.), 398. 3 Roberts v. Thorn, 25 Texas, 728, 737; King v. Rowan, 10 Heisk. (Tenn.) 675; Rippetoe v. Dwyer, 49 Texas. 498; Brittin v. Handy, 20 Ark. 381,419; Frentz v. Klotsch, 28 Wis. 312, 318. * Smiley v. Dixon, i P. & W. (Pa.) 439. CO-TENANTS. l8l ing the absolute title, or that made him a trustee for the plaintiff. None of the cases, in which the principle is cited with approval, suggest any reason in the nature of the relation betw^een co-tenants why, if it is a relation of trust, it should be destroyed by the mere fact that the interests of the co-tenants are of different origin. The distinction seems to have been derived from a misconception of the principle underlying the decision of the Massachusetts Su- preme Court, in Matthews v. Bliss.^ In that case it was held that one tenant in common of a vessel, who had con- tracted with his co-tenant for the purchase of his share, was under no legal obligation to disclose the fact that a third party had previously agreed with him to purchase the entire vessel at a higher rate. Chief Justice Shaw, in delivering thq opinion of the court, says, that " the tenants in com- mon of a vessel, who are not engaged jointly in the employ- ment of purchasing or building ships for sale, do not stand in such a relation of mutual trust and confidence towards each other, in respect of the sale of such vessel, that each is bound, in his dealings with the other, to communicate all the information of facts within his knowledge, which may affect the price or value. A different rule may prevail, in respect to any contract for the use or employment of the common property, in which relation perhaps they may be deemed to place confidence mutually in each other." The rule here stated with regard to tenants in common of a ship would undoubtedly apply to tenants in common of land ; that is to say, there is nothing in the mere relation, established by such a co-tenancy, to prevent one co-tenant dealing with another, as to the purchase or sale of his share, as an entire stranger. But the Massachusetts Supreme Court suggested no distinction between co-tenancies having a common and diverse origin. The learned court did indeed suggest, that if the tenants in common of a ship were en- 22 Pick. (Mass.) 48. l82 CO-TENANTS. gaged jointly in the employment of purchasing or building ships for sale, they might be bound to communicate to each other all facts aflFecting the price or value; such a rule would, however, be founded not on considerations growing out of the origin of the co-tenancy, but out of its object and purpose. It is hard to see on what principle any dis- tinction as to the nature of the co-tenancy, growing out of its origin, can be satisfactorily supported. § 294. The distinction is absurd if the doctrine of this trust relation is founded upon elementary considerations of fair dealing between parties having a community of interest in a subject. Each tenant in common is entitled to the en- tire management and control of the property ; for one to use this right for his own individual profit, and not the com- mon benefit, would be simple fraud ; and to permit him to buy in outstanding titles, without giving his co-tenant the option of joining in the purchase, would be to permit a fraud no less distinct. All this remains true no matter how the tenancy in common originated, and, therefore the cases in which the general principle of the trust relation is de- parted from, must be rested upon the consideration that the facts showed, as in Matthews v. Bliss, ubi supra, that no trust and confidence was called for between the co-tenants. Thus, in Brittin v. Handy ^ it was decided by the Supreme Court of Arkansas, in a well-considered opinion, that there was no reason why one tenant in common should not pur- chase the interest of his co-tenant in the land under execu- tion. He having a claim against his co-tenant, enforcible by such means, was regarded as to the enforcement of it, as standing in a hostile relation to him, though no doubt as to the use of the land accounting for profits, &c., he would have been held by the same court to occupy a relation of trust In the course of the opinion, the learned court refers to the supposed distinction between tenancies in common under 20 Ark. 381, 401, 404. CO-TENANTS. 1 83 the same instrument, and such tenancies arising through purchases at different times, and held by different titles, but what was said on this head was in no way necessary to the decision of the case. § 295. Ejectment between joint tenants and co-parce- ners. — The principles governing ejectment between tenants in common are applicable to joint tenants and co-parceners. The possession of one joint tenant or co-parcener is in legal contemplation the possession of all ; the acts of each affect- ing the joint property, are considered to be for the common benefit, and proof of actual ouster, and denial of the claim- ant's rights and title, is necessary to sustain the action.^ One joint tenant or owner may, as we shall presently see, sustain ejectment upon a title acquired by adverse possession against another.^ The Court of Errors and Appeals of South Carolina, recognized the rule that one joint tenant could not sue his co-tenant except he be ousted of the joint possession, and held that it was an ouster where the defend- ant had overflowed the land by water from a mill pond, thus appropriating it to his exclusive use.^ § 296. Tenancy in common of naked possession.-— The Supreme Court of Utah, in a recent case, expressed doubts as to whether there could be any tenancy in common in a mere naked possession of land, strongly intimating the opinion that there must be some right or title to the possession to create a co-tenancy ; that in any case a mere possessory tenancy in common can exist only when all the tenants are actually occupying the land,* and, conse- quently, that where one of two joint possessors of land ousted the other, the latter could not maintain ejectment. If, however, any possessory co-tenancy at all can exist, the " 2 Cruise's Dig. *497, *5i8; Adams on Ejectment (4th ed. 1854), p. 136; Doe d. Bamett v. Keen, 7 T. R. 386 ; Jones v. Weathersbee, 4 Strob. (S. C.) Law, 50. - Russell V. Marks, 3 Met. (Ky.) 37. ' Jones V. Weathersbee, 4 Strob. (S. C.) Law, 50. •■ Lillianskyoldt v. Goss, 2 Utah, 292 (Boreman, J. diss.). 1 84 CO-TENANTS. termination of the relation by force is inconsistent with the most elementary principles of justice. The recognition of such a right would lead to the most absurd results. In all cases of co-tenancy, for instance, the tenants are entitled to partition, but the right would hardly have any value if the more powerful of the co-tenants could end the relationship by driving his companion off the property. But clearly, naked possession or occupancy of land is a degree of title, although the lowest and most imperfect/ and constitutes, in itself, prima facie evidence of title,^ which, in ejectment, is effectual against every person except the true owner. A mere naked possession can be sold at sheriffs sale, and the purchaser acquires the right to recover it ; ^ so a debtor may have homestead in a mere possessory interest,* and such an interest descends to heirs.® Actual possession of land \^ prima facie evidence of title in fee, and will support ejectment against a trespasser,® though to raise a presump- tion as to the quality or degree of the interest claimed, if not an absolute fee, proof of possession must be accom- panied by evidence of some claim of title. '^ In Gillett v. Gaffney,® the nature of title by occupancy of land, and whether or not it possesses the legal character of real estate, was considered at length by the Supreme Court of Colora- do. The common law doctrine, that a mere naked pos- session, without shadow or pretence of right, or apparent right, to continue such possession, constitutes an estate in land, is recognized, though the decision is based largely upon the construction of statutes. The court reach the conclusion that title by occupancy of land which is the subject of entry. ' 2 Bla. Com. J95. 2 Hill V. Draper, 10 Barb. (N. Y.) 458. 3 Knox V. Herod, 2 Penn. St. 26; Hughes v. Devlin, 23 Cal. 501. ■> McGrath v. Sinclair, 55 Miss. 89. 5 Gillett V. Gaftney, 3 Col. 351 ; Teabout v. Daniels, 38 Iowa, 158. « Burt V. Panjaud, 99 U. S. 180. ' Ricard v. Williams, 7 Wheaton (U. S.), 59. " 3 Colorado, 351. CO-TENANTS. 1 85 descends to heirs. There seems, therefore, no reason why a possessory co-tenancy should not be recognized as involv- ing, as far as applicable, all the legal consequences incident to an ownership of the fee by tenants in common. § 297. Tenants in common against third parties. — Joinder of Tenants in common. — Many cases hold that, at common law, tenants in common cannot join in an action of ejectment. This was certainly the rule in real actions.^ The reason upon which this rule rests is that their freeholds are several ; there is no joint property, or union and entirety of interests, but the estate is held by distinct titles, or by one title and several rights.^ The co-tenants have separate interests in the land, each has only an undivided part ; there is no privity, and consequently neither has the right to demise the whole.* Their interests are considered as different estates, depending upon different titles.* This rule has been disregarded in some of our States, and actions of ejectment, founded upon a joint demise, by tenants in common, have been sustained by courts of the highest authority, upon the theory that the possession of tenants in common is joint, and that they may join in disposing of that interest.® This is contrary to the former rule in England, and opposed to the doctrine of Littleton and 'Stearns on Real Actions, p. 198; Roscoe on Actions Relating to Real Property, p. *8. 2 Doe d. Poole v. Errington, I Ad. & El. 750; Heatherley v. Weston, 2 Wils. 232; Gaines v. Buford, i Dana (Ky.), 483; Wathen v. English, i Mo. 746; Moore v. Fursden, i Show. 342; Mantle v. Wollington, Cro. Jac' 166; Rogers V. Turley, 4 Bibb (Ky.), 355; White v. Pickering, 12 S. & R. (Penn.) 435; Throckmorton v. Burr, 5 Cal. 400 ; Cole v. Irvine, 6 Hill (N. Y.), 634 ; Malcom V. Rogers, 5 Cowen (N. Y.), 188; Dube v. Smith, i Mo. 313. 3 White V. Pickering, 12 S. & R. (Penn.) 435. ■■ Doe d. Harrison v. Botts, 4 Bibb (Ky.), 420. * Cole z/. Irvine, 6 Hill (N. Y.), 634; Malcom v. Rogers, 5 Cowen (N. Y.), 1 88; Lessee of Massie v. Long, 2 Ohio, 287; Doe <^. Nixon v. Potts, i Hawks (N. C), 469; Jackson v. Bradt, 2 Caines (N. Y.), 170 (note a); Alford v. Dewin, I Nev. 211; Hoyle v. Stowe, 2 Dev. (N. C.) Law, 321 ; Barrow v. Nave, 2 Yerg. (Tenn.) 228. 1 86 , CO-TENANTS. Coke.i Chancellor Kent said (1804), that it had ^' long been the established practice to permit tenants in common to join in the mixed action of ejectione firmcs, and when that action has become in form only a mixed action, and in substance a real action, for trying the title of the fee, having carried the fiction thus far, we ought not now to suffer ourselves to be entangled in this very fiction. If two tenants in common are competent to join in the lease or transfer of their joint possession, it is sufficient ; and for these reasons we must hold, even in opposition to several authorities, that it has now become immaterial whether tenants in common declare on joint or separate demises."^ § 298. It was held, however, in a later case in New York, that though this doctrine may be sound as to the mere rights of possession of tenants in common, it has no application to their right of property which is not joint.^ Judge Story said in the case of Poole v. Fleeger,* in error from the Circuit Court of Western* Tennessee, that it had been the uniform practice in Tennessee for tenants in common to declare on a joint demise in ejectment. In several of our States this vexed question has been disposed of by statutory enactment conferring upon tenants in com- mon the right to join in ejectment at their option,^ and that method of procedure is now very common. § 299. In New York it was held, in an action in which the title was in several tenants in common, that a joint eject- ment could not be sustained by two or more less than the whole number. All must join in one action to recover the whole premises and estate, or a separate action must be • See Jackson v. Bradt, 2 Caines (N. Y.), 170. ' Ibid. 3 Cole V. Irvine, 6 Hill (N. Y.), 634. •• Poole V. Fleeger, 11 Peters (U. S.), 185. "Gray -v. Givens, 26 Mo. 291-303; Poole v. Fleeger, 11 Peters (U. S.), 185-212; affirming s. C. i McL. 185 ; Hicks v. Rogers, 4 Cranch, 165; Swett V. Patrick, 11 Me. 179. CO-TENANTS. 187 brought by each to recover his share. The case turns upon the construction of the statutes of that State.^ § 300. What interest recovered. — A tenant in common is seized per mi et per tout, and, as we have seen, has such an interest in the lands of the co-tenancy as entitles him to the enjoyment of the entire estate as against every one ex- cept his co-tenants.* Each tenant can pursue his remedies independent of the others, and may maintain ejectment or trespass to try title alone,^ and in many States may recover the entire premises and estate from trespassers, strangers, wrong-doers, and all persons, other than his co-tenants, and those claiming under them.* Where this right is recog- nized he recovers for the benefit of all.^ Thus, in Vermont, it was held that one tenant in common had the right to oust an intruder and stranger to the title, and recover and hold the lands for the benefit of all the tenants in common.* This principle is expressly recognized in Oregon,'^ Nevada,* and California.® But the rule has been repudiated in Massachusetts,^" Pennsylvania," and Missouri.^^ In Gray v. ' Hasbrouck v. Bunce, 62 N. Y. 475. 2 Williams v. Sutton, 43 Cal. 65; Hart v. Robertson, 21 Cal. 346; Touchard V. Crow, 20 Cal. 150-162. ■■ Robinson v. Roberts, 31 Conn. 145; Alexander v. Gilliam, 39 Texas, 227; Cruger v. McClaughry, 51 Barb. (N. Y.) 642; Tarver v. Smith, 38 Ala. 135 ;• Mobley v. Bruner, 59 Penn. St. 481; Carson v. Smart, 12 Ired. (N. C.) L. 369; Hooper v. Hall, 30 Texas, 154; Hines v. Trantham, 27 Ala. 359; Presley v. Holmes, 33 Texas, 476. •" Hardy v. Johnson, i Wall. (U. S.) 371 ; Stark v. Barrett, 15 Cal. 361-371 ; Winthrop's Lessee v. Grimes, Wright (Ohio), 330 ; Hibbard v. Foster, 24 Vt. 542 ; Allen v. Gibson, 4 Rand. (Va.) 468 ; Truehart v. McMichael, 46 Texas, 222 ; Alexander v. Gilliam, 39 lb. 227 ; Presley v. Holmes, 33 Texas, 476 ; Chip- man V. Hastings, 5° Cal. 310; Logan v. Goodall, 42 Ga. 95 ; Davant v. Cubbage, 2 Hill. (S. C.) Law, *3U ; French v. Edwards, 5 Sawyer C. C. 266. " Barrett v. French, i Conn. 354. « Johnson v. Tilden, 5 Vt. 426. . ' Dolph V. Barney, 5 Oregon, 191. « Sharon v. Davidson, 4 Nev. 416. 9 Chipman v. Hastings, 50 Cal. 310; Hart d. Robertson, 21 Cal. 346. 10 Dewey v. Brown, 2 Pick. (Mass.) 387. " Dawson v. Mills, 32 Penn. St. 302. " Gray v. Givens, 26 Mo. 291-303. 1 88 CO-TENANTS. Givens/ the Supreme Court of Missouri say, tiiat "as the right of possession, which depends on title, is several, a re- covery by one will restore him only a moiety of the posses- sion against the disseizor, who will hold the other moiety with him in common." The court remark further, that the statute permitting tenants in common to join is rendered useless if one co- tenant can recover for his companions. Moreover, the dis- seizor may have a complete defense against the co-tenants who are not parties, and their rights cannot, certainly, be a proper subject of adjudication in a proceeding in which they are not represented ; and the other co-tenants may prefer that the disseizor should occupy the lands.^ It seems to be clearly settled in Pennsylvania, that, as there is no privity of estate between tenants in conimon, and they are separately seized, one cannot maintain ejectment, or sue and recover, in any form of action, for the interest and benefit of the others.® § 301. It was held by Judge Story, in the case of Stevens v. Ruggles, which arose in the Circuit Court in Rhode Island, that a tenant in common could recover no more than his moiety or portion of the estate. The co- tenant in that case had never been ousted or disseized, and dying without heirs in the colony, the town council took possession and charge of the land under the statute, and the defendants claimed as its tenants. The plaintiff, it was said, could not recover the whole estate upon his prior posses- sion, for that possession was consistent with the title of the other tenant.* In Texas, since the enactment of the Revised Statutes of that State, the claimant of an undivided interest is required to state its nature,^ and in Georgia, when tenants in ' Gray v. Givens, 26 Mo. 291-303. 2 Dewey v. Brown, 2 Pick. (Mass.) 387. "- Mobley v. Bruner, 59 Penn. St. 481. ■" Stevens v. Ruggles, 5 Mason, 221. ' Stovall V. Carmichael, 52 Texas, 383. CO-TENANTS. 1 89 common sever, each recovers only his own interest, or their respective shares.^ The rule allowing one tenant in com- mon to maintain, in his own name, but for the benefit of his co-tenants as well as himself, an action of trespass to try title, will not be allowed to prevail when it is evident that the action is speculative in its character, and is brought by the plaintiff for his own exclusive benefit? § 302. yoinder of joint tenants against third parties. — At common law, in all actions relating to the joint estate, one joint tenant could not sue or be sued without joining the other.^ Having but one joint title, and one freehold, they must join in an action for the possession of land.* Hence, in an early case in Pennsylvania, it was held that one of three joint tenants could not recover his one-third of the estate from a stranger.* All must join in that State. Less than the whole number cannot recover for the benefit of the others.^ " It is not, however," says Mr. Adams, " compulsory upon joint tenants, or parceners, to allege a joint demise ; for if a joint tenant, or parcener, bring an ejectment without joining his companion in the demise, it is considered as a severance of the tenancy, and he will be allowed to recover his separate moiety of the land."^ Cases sustaining this doctrine are numerous.* It was suggested to Lord Ellen- borough, by counsel, that if joint tenants might sever it was difficult to see why tenants in common might not join. Where joint tenants demise jointly each may recover his ' San ford v. Sanford, 58 Ga. 259; Wilson v. Chandler, 60 Ga.129; see Logan V. Goodall, 42 Ga. 95. 2 Cromwell v. Holliday, 34 Texas, 463. 3 3 Bla. Com. 182; Bac. Abr. Joint Tenants, K.; see §§ 187, 188, 189. ■■ Dewey v. Lambier, 7 Cal. 347. 5 Milne v. Cummings, 4 Yeates (Penn.), 577. « Mobley v. Bruner, 59 Penn. St. 481. ' Adams on Ejectment (4th ed, 1854), p. (*2io) 232. 'See Roe d. Raper v. Lonsdale. 12 East, 39; Doe d. Marsack v. Read, 12 East, 57-61 ; Doe v. Fenn, 3 Camp. 190. igO CO-TENANTS. share in ejectment on their several demises.^ Where sev- eral persons have a joint title to an estate, any one or more of them may sue, without joining the others, and recover against him who has no title.* § 303. Ejectment by co-parceners. — Parceners may de- clare on a joint demise,* or they may sever and each recover his moiety.* 1 Doe V. Chaplin, 3 Taunt. 120; see Craig v. Taylor, 6 B. Men. (Ky.) 457. 2 Clark V. Vaughan, 3 Conn. 191. 3 Boner v. Juner, i Lord Raymond, 726, per Holt, J., overruling Milliner *. Robinson, Moore, 682 ; see Decharms v. Horwood, 10 Bing. 526. ■" Jackson d. Fitzroy v. Sample, i Johns. Cases (N. Y.), 231 ; Doe v. Pearson, 6 East, 179 ; Chambers v. Handley, 3 J. J. Marsh. (Ky.) 98 ; Roe v. Lonsdale, 12 East, 39. CHAPTER X. EJECTMENT BETWEEN VENDOR AND VENDEE. 304. Against vendee in possession under executory contract. 305. Vendee holds as a licensee. 306. Ejectment maintainable when cove- nant or specific performance can- not be brought. 307. Election of remedies. 308. Vendor — Bond for titles. 309. Nature of vendor's interest. 310. Demand of possession and notice to quit. 311. Rescission of contract. 312. When notice of rescission is neces- sary. 313. Tender of deed by vendor. 314. When tender not necessary. 315. Nature of the relationship. 316. Rules governing relationship of land- lord and tenant not applicable. 317. Vendee in default cannot dispute vendor's title. 318. Estoppel. 319. Vendee against ven Blair v. Blair, 48 Iowa, 393. 2 Cythe V. La Fontain, 51 Barb. (N. Y.) 186; see Durand v. Sage, 11 Wis. 151 ; Edgerton v. Peckham, 11 Paige Ch. (N. Y.) 352. CHAPTER XI. EJECTMENT BETWEEN MORTGAGEE AND MORTGAGOR. Early practice. Disadvantages of ejectment between mortgagee and mortgagor. Foreclosure a more effectual rem- edy. 330. Mortgagee's rights at common law. j^ ■ [ Modem practice. 333. In what States mortgagee may bring ejectment. Statute prohibiting ejectment by mortgagee — When unconstitu- tional. Ejectment by execution purchaser. Title after default. Deed absolute on its face may be shown to be a mortgage. 327. 328. 329. 334. 335. 336. 337. § 338. Ejectment maintainable in certain States upon a deed intended as a mortgage. 339. Mortgage — Outstanding title. 340. Ejectment by mortgagor against mortgagee in possession. 341. Ejectment by mortgagor not main- tainable until after accounting and application of rents. 342. Rule in Michigan. 343. Mortgagee may purchase equity at execution sale. 344. A conveyance by mortgagor to mortgagee of entire estate — How regarded. 345. Mortgagor's remedy against mort- gagee after condition broken. § 327. Early practice. — The remedy of ejectment was formerly much resorted to by mortgagees, to recover pos- session of the premises from the mortgagor, after default in the payment of the mortgage. The ancient principle, gov- erning this relationship, was that the mortgagee became im- mediately vested with the entire estate, upon the execution of the mortgage, and the mortgagor, by continuing in pos- session, was considered to be like a tenant at will of the mortgagee. §328. Disadvantages of ejectment' between mortgagee and mortgagor. — The remedy, while in general use by mort- gagees, was not, ordinarily, a final remedy, and frequently led to litigious accountings concerning the rents and profits received by the mortgagee, during the period, of his occu- pancy, so that the practical abolition of ejectment, as ap- plied to this peculiar relationship, may be regarded as a de- sirable innovation. § 329. Foreclosure a more effectual remedy. — The mort- gagee's most common and effectual remedy is to proceed 204 MORTGAGEE AND MORTGAGOR. by bill in equity, or statutory proceeding, to foreclose the mortgage, sell the property, and thus, in a single action, bar the mortgagor's right of redemption, and secure the pos- session of the premises to the purchaser. "The case of mortgages," says Kent, "is one of the most splendid in- stances in the history of our jurisprudence, of the triumph of equitable principles over technical rules, and of the homage which those principles have received by their adop- tion in the courts of law."^ The commentator refers in this passage to the adoption by courts of law, by a gradual and almost insensible progress, of the equity doctrine that a mortgage is a mere security for the debt, and only a chattel interest, and that, until a decree of foreclosure, the mort- gagor continues the owner of the fee.^ Lord Mansfield, in King V. St. Michael,* decided in 1781, used this language: " The mortgagee, notwithstanding the form, has but a chat- tel, and the mortgage is only a security. It is an affront to common sense to say the mortgagor is not the real owner." § 330. Mortgageis rights at common law. — But, as we have said, at common law the mortgagee, even before and a fortiori after forfeiture, by reason of non-payment of the mortgage, could maintain an action of ejectment, a writ of entry, or an action of trespass to try title, to recover the possession of the lands, against the mortgagor, or any per- son in occupation of the premises claiming under him.* 1 4 Kent's Com. p. *i58. 2 4 Kent's Com. p. *i6o ; see Wilkins v. French, 20 Me. 1 1 1 ; Kinna v. Smith, 2 Green Ch. (N. J.) 14. 3 2 Doug. 632. See Casborne v. Scarfe, i Atkyns, 603, per Lord Hardwicke. " Thunder v. Belcher, 3 East, 449 ; Wakeman v. Banks, 2 Conn. 445 ; Rock- well V. Bradley, 2 Conn, i ; Keech v. Hall, Doug. 21 ; Birch v. Wright, i T. R. 378; Tripp V. Ida, 3 R. I. 51 ; Colman v. Packard, 16 Mass. 39; Pierce v. Brown, 24 Vt. 165 ; Wilson v. Hooper, 13 Vt. 653 ; Den d. Hart v. Stockton, 7 Halst. (N. J.) Law, 322 ; Jackson v. Warren, 32 111. 331 ; Jackson v. Colden, 4 Cowen (N. Y.), 266; Carpenter v. Carpenter, 6 R. L 542; Oldham v. Pfleger, 84 111. 102; Carroll V. Ballance, 26 111. 9-17; Fuller w.Wadsworth, 2 Ired. (N. C.) Law, 263; Ahem v. White, 39 Md. 409; Mitchell v. Bogan, 11 Rich. (S. C.) Law, 686. MORTGAGEE AND MORTGAGOR. 205 Whether the mortgage was legal or equitable in its nature, the mortgagee might pursue his legal remedy of eject- ment, and, at the same time, file a bill to foreclose the equity of redemption.^ § 331. Modern practice. — The law, as at present settled, in most of our States, by judicial decision, or by statute, is that the mortgagee does not possess a sufficient title to sup- port the action of ejectment, even after default. The ex- ceptions to this general rule in certain States, however, must not be overlooked. In New York the rule is settled that a mortgage is but a lien upon the land. The mortgagor, both at law and in equity, is regarded as the owner of the fee, and the mortgage is considered to be a mere chose in action, or security of a personal nature.'* Prior to the enactment of the Revised Statutes, a mort- gagee could maintain ejectment in New York, to recover possession of the mortgaged lands, but, under the present system of practice in that State, the mortgagor, both before and after default, is entitled to the possession of the mort- gaged premises, of which he cannot be deprived, without his consent, except by a decree of foreclosure and sale, or the appointment of a receiver. Ejectment by mortgagees, in that State, is expressly prohibited by statute.'' And a mortgagor, in default, may have ejectment against an in- truder, or one claiming under a void deed, since he has the right of possession, until foreclosed, against all the world, except the mortgagee lawfully in possession.* Indeed, it is ' Hughes V. Edwards, 9 Wheat. 489-494; Very v. Watkins, 18 Ark. 546. But see Ould v. Stoddard, 54 Cal. 613; Livingston v. Hayes, 43 Mich. 129. *! Trustees of Union College v. Wheeler, 61 N. Y. 88-ii8; Trimm v. Marsh, 54 N. Y. 599-604; Packer 7/. Rochester & Syracuse R. R. Co. 17 N. Y. 283-295; Kortright v. Cady, 21 N. Y. 343; Astor v. Hoyt, 5 Wend. (N. Y.) 603; Power V. Lester, 23 N. Y. 527; see 4 Kent's Com. 194, and notes; Runyan v. Mersereau, li Johns. (N. Y.) 534; Waters v. Stewart, i Cai. C. E. (N. Y.) 47. 3 Trimm v. Marsh, 54 N. Y. 599-604 ; Madison Ave. Bap. Ch. v. Oliver St. Bap. Ch. 73 N. Y. 82-94; Dunning v. Fisher, 20 Hun (N. Y.), 178; see Russell V. Ely, 2 Black (U. S.), 575 ; Souter v. La Crosse R. R. i Woolw. 80. " Olmsted v. Elder, 5 N. Y. 144; see Pell v. Ulmar, 18 N. Y. 139. 2o6 MORTGAGEE AND MORTGAGOR. the prevailing principle, in most of the States, that a mort- gage is only a chattel interest, and a lien upon the lands as a security for the debt, the legal title remaining in the mortgagor during the life of the mortgage,^ and the inter- est of the mortgagor is an estate which may be sold on execution,^ and is subject to dower and curtesy, and may be mortgaged or conveyed as any other estate in lands. The mortgagor's estate is popularly but erroneously called an equity of redemption, retaining the name it had when the legal estate vested in the mortgagee, and the right to redeem existed only in equity." § 332. It has been held in Texas, that the mortgagor of real estate remains the real owner of the land, and entitled to the possession thereof, both before and after the breach of the condition of defeasance, and that the mortgagee can- not maintain an action of trespass to try title to dispossess him.* In Florida, under the present practice, the mortgagee canpot acquire the possession until after a decree of fore- closure.^ So a mortgagee cannot maintain ejectment for the possession of the mortgaged premises in Kentucky ; * and it has been held in Wisconsin, that where the plaintiff's only title is a mortgage the action fails, even though the de- fense is imperfectly pleaded,'' and in Georgia a mortgagee has only a lien, and no right of entry, and cannot maintain ' Fletcher v. Holmes, 32 Ind. 497 ; Grable v. McCulloh, 27 Ind. 472; Turrell V. Warren, 25 Minn. 9; Carpenter r/. Bowen, 42 Miss. 28; Taliaferro v. Gay, 78 Ky. 496; United States v. Athens Armory, 35 Ga. 344; Jackson v. Carswell, 34 Ga. 279; Souter v. La Crosse R. R. i Woolw. 80; Bartlett -v. Borden, 13 Bush (Ky.). 45 ; McMillan v. Richards, 9 Cal. 365 ; see Brobst v. Brock, 10 Wall. 519- 529; Dayton v. Dayton, 7 Brad. (Ill) 136. 2 Gorham v. Arnold, 22 Mich. 247; Huntington v. Cotton, 31 Miss. 253; Trimm v. Marsh, 54 N. Y. 599. 3 Odell V. Montross, 68 N. Y. 499. ■ Mann v. Falcon, 25 Texas, 271 ; Duty v. Graham, 12 Texas, 427. 6 See McMahon v. Russell, 17 Fla. 698; see Casbome v. Scarfe, i Atkyns, 606. 6 Newport Bridge Co. v. Douglass, 12 Bush (Ky.), 673 ; see Caufman v. Sayre, 2 B. Mon. (Ky.) 202-205. ' Brinkman v. Jones, 44 Wis. 498. MORTGAGEE AND MORTGAGOR. 20/ ejectment,- and a mortgagee, as such, is not entitled to bring ejectment in Michigan.'' § 333- I''^ what States mortgagee may bring ejectment. — In Illinois the mortgagee owns the fee, and has the j'tis in re as well as ad rem, and after condition broken may main- tain ejectment against the mortgagor,^ and in that State, where the mortgage provides for the payment of interest annually or in installments, and for a forfeiture in case of non-payment, the mortgagee can maintain ejectment when- ever an installment of interest or principal is overdue and unpaid.* In North Carolina a mortgagee may bring an action to recover the lands.^ So in Vermont, the mortgagee, under the statute of that State, has the right, after condition broken, to bring ejectment against the mortgagor or his grantees without giving notice to quit,* and upon condition broken becomes absolutely vested with the interest of the mortgagor, and has a right to the immediate possession.^ So in Arkansas, the mortgagee can obtain possession of the mortgaged premises by ejectment, and apply the rents and profits in satisfaction of the debt, and it is unnecessary to make the legal representatives of a deceased mortgagor defendants in the action, for the judgment would not bar their right of redemption.^ § 334. Statute prohibiting ejectment by mortgagee — When unconstitutional. — In Todd v. Davis' the Supreme 1 Fry V. Shehee, 55 Ga. 208-212. 2 Livingston v. Hayes, 43 Mich. 129. ' Oldham v. Pfleger, 84 III. 102; Jackson v. Warren, 32 111. 331 ; Carroll v. Ballance, 26 111. 17. < Carroll v. Ballance, 26 111. 9; see Carpenter v. Carpenter, 6 R. I. 542; Red- dick V. Gressman, 49 Mo. 389. " Wittkowski v. Watkins, 84 N. C. 458. « Pierce v. Brown, 24 Vt. 165; Wilson v. Hooper, 13 Vt. 653; Pratt v. Bank of Bennington, 10 Vt. 293 ; Burton v. Austin, 4 Vt. 105 ; see Marvin v. Denni- son, 20 Vt. 662 ; see Chapter XIII. ' Hagar v. Brainerd, 44 Vt. 294. « Simms v. Richardson, 32 Ark. 304. 9 32 Mich. 160. And see Mundy v. Monroe, I Mich. 68. 208 MORTGAGEE AND MORTGAGOR. Court of Michigan decided that the act of the legislature preventing actions of ejectment by mortgagees, before their title had become absolute by foreclosure, was unconstitu- tional and void as to mortgages existing and in force at the time of the passage of the act, and it was held that mort- gagees so situated still had the right to bring ejectment. § 335- Ejectment by execution purchaser. — In Rhode Island the mortgagor is regarded as the tenant at sufferance of the mortgagee, and in a case decided by the Supreme Court of that State, it was held that a mortgagor in posses- sion, whose interest had been sold on execution, might, in ejectment brought against him by the purchaser, protect his possession by setting up a lease for years from his mort- gagee, the mortgage having been given prior to the levy.^. The sale of the mortgagor's interest upon execution, it was held, imposed no obligation upon him to redeem the mort- gage for the benefit of the purchaser at the sheriffs sale, nor did it create any such relation between them as disentitled him to acknowledge the superior title of his mortgagee, and to accept a lease from him to protect the possession from the adverse claim of the purchaser. In Alabama the mortgagor's interest, unless the right to possession is reserved, is regarded as a mere equity of re- demption, and, consequently, except in case of such a reservation, a purchaser of the mortgagor's equity of re- demption in land, after the maturity of the mortgage, does not become vested with a sufficient title to maintain a pos- sessory action in the nature of ejectment.^ § 336- Title after default. — Some of the authorities de- cide that the title of the land passes and becomes absolute in the mortgagee after condition broken ;^ but the prevail- 1 Simmons v. Brown, 7 R. I. 427. But see Doe d. Ogle v. Vickers, 4 Ad. &. El. 782. 2 Atcheson v. Broadhead, 56 Ala. 414; Childress v. Monette, 54 Ala. 317; Bernstein v. Humes, 60 Ala. 582. 3 Frische v. Kramer, 16 Ohio, 125-138; Stewart v. Crosby, 50 Me. 130; John- son V. Houston, 47 Mo. 227. MORTGAGEE AND MORTGAGOR. 2O9 ing modem principle is that even after default the title re- vests in the mortgagor upon payment of the debt, without a formal reconveyance.^ And after the condition of the mortgage has once been performed the mortgage becomes void, and no agreement of the parties to continue it in force can affect the legal title. ^ § 337. Deed absolute on its face may be shown to be a mortgage. — A deed absolute on its face may be shown by parol or other extrinsic evidence to be a mortgage, and the relation of mortgagor and mortgagee being thus established, all the rights, remedies, and obligations incident to that re- lation attach to the parties,^ and in New York such a mort- gagee cannot recover the possession of the mortgaged prem- ises in ejectment.* But a deed will be declared a mortgage only on purely equitable grounds, and in the absence of such equitable considerations the relief will be refused ; as where the conveyance was made to defraud creditors.® The evidence must be so clear and conclusive as to leave no doubt as to the real intention of the parties, otherwise the intention, as expressed on the face of the deed, will prevail.' The burden rests upon the grantor to establish that the deed 1 4 Kent's Com. p. 194, Lecture LVIII and notes; Pease v. Pilot Knob Iron Co. 49 Mo. 124; Tryon v. Munson, 77 Penn. St. 250-262; McMillan v. Richards, 9 Cal. 365 ; White v. Rittenmyer, 30 Iowa, 268 ; Wells v. Rice, 34 Ark. 346 ; McMahonw. Russell, 17 Fla. 698. 2 York Co. Savings Bank v. Roberts, 70 Me, 384 ; see Griffin v. Lovell, 42 Miss. 402 ; Donnelly v. Simonton, 13 Minn. 301. 3 Horn V. Keteltas, 46 N. Y. 605 ; Carr v. Carr, 52 N. Y. 251 ; Murray v. Walker, 31 N. Y. 399; McBurney v. Wellman, 42 Barb. (N. Y.) 390; S. C. sub nomine Dodge v. Wellman, 43 How. Pr. (N. Y.) 427 ; Odell v. Montross, 68 N. Y. 499; see Chase v. Peck, 21 N. Y. 581 ; Villa v. Rodriguez, 12 Wall. 323; Lit- tlewort V. Davis, 50 Miss. 403 ; O'Neill v. Capelle, 62 Mo. 202 ; French v. Burns, 35 Conn. 359 ; Weide v. Gehl, 21 Minn. 449 ; Steinruck's Appeal, 70 Penn. St. 289 ; Hills V. Loomis, 42 Vt. 562 ; Kent v. Agard, 24 Wis. 378. * Carr v. Carr, 52 N. Y. 251 ; Murray v. Walker, 31 N. Y. 399. s Hassam v. Barrett, 115 Mass. 256. e Henley v. Hotahng, 41 Cal. 22 ; Phillips v. Croft, 42 Ala. 477 ; Kent v. Las- ley, 24 Wis. 654; Price v. Karnes, 59 111. 276 ; see FuUerton v. McCurdy, 55 N. Y. 637. 14 2IO MORTGAGEE AND MORTGAGOR. was intended as a mortgage,^ and the question of whether or not a deed absolute in form was a mortgage is a mixed question of law and fact.** But if the lands are conveyed by a deed absolute on its face, but intended as security for money loaned, a purchaser from the grantee without notice that the grant was intended as a mortgage, acquires a title free from the equity of the grantor.' § 338. Ejectment maintainable in certain States upon a, deed intended as a mortgage. — In Michigan, a deed absolute on its face, though intended as a mortgage, confers upon the grantee a right of possession that will support ejectment. It was decided that the statute of that State, which forbids ejectment by mortgagees before foreclosure, was not intend- ed to reach a case of this description.* So in Georgia, in which State ejectment cannot ordinarily be maintained by a mortgagee, an absolute deed, conveying land in fee simple, has been held to pass the legal title, though made and de- livered as security for a debt, and a recovery may be had thereon in ejectment by the grantee against the grantor.® It has been held in California, that where the plaintiff claims under a conveyance, absolute in form, but intended as a mortgage to secure a loan of money, he is entitled to recover in ejectment, unless the defendant sets up his equi- ties by answer, accompanied with an oflFer to pay the amount of the mortgage lien, and prays that the convey- ance be declared a mortgage.* On the other hand it has been held in Texas, that the defendant, under a plea of " not guilty " in an action of trespass to try title, may give in evi- dence special matters of defense to the action, whether legal 1 Haines v. Thomson, 70 Penn. St. 434. 2 Brown v. Clifford, 7 Lansing (N. Y.), 46; see Montgomery v. Spect, 55 Cal. 352. ' Pico V. Gallardo, 52 Cal. 206. < Jeffery v. Hursh,42 Mich. 563 ; W^etherbee v. Green, 22 Mich. 311 ; Bennett V. Robinson, 27 Mich. 26-30. 5 Biggers v. Bird, 55 Ga. 650. '■ Pico V. Gallardo, 52 Cal. 206; see Sutton v. Mason, 38 Mo. 120. MORTGAGEE AND MORTGAGOR. 211 or equitable, .and may defeat the plaintiff's recoveiy'by prov- ing that the deed under which plaintiff claims, is, in fact, a mortgage.^ § 339. Mortgage — Outstanding title. — The rule that the plaintiff in ejectment cannot recover premises, the title to which is in a third person, does not apply to a case where the outstanding title is a mortgage with which defendant is unconnected.* The principle was declared in the United States Supreme Court to be settled, that an outstanding sat- isfied mortgage could not be set up against the mortgagor by a stranger for the purpose of defeating the mortgagor's title." § 340. Ejectment by mortgagor against mortgagee in possession. — The general rule, as we have seen, is, that upon payment of the mortgage debt, the title or interest of the mortgagee revests in the mortgagor, or those claiming under him, without reconveyance or release.* The mort- gagor cannot ordinarily maintain an action of ejectment, or writ of entry, or an action of trespass to try title, against the mortgagee lawfully in possession,^ nor his tenant," nor any one claiming in his right.'' He, of course, cannot do so until the mortgage is fully paid and satisfied ; ^ for the lawful ' Mann v. Falcon, 25 Texas, 271 ; see Hannay v. Thompson, 14 Texas, 142. 2 Hardwick v. Jones, 65 Mo. 54-60; Woods v. Hilderbrand, 46 Mo. 284; Bart- lett V. Borden, 13 Bush (Ky.), 45; Johnson v. Houston, 47 Mo. 227; Den d. Di- mon V. Dimon, 5 Halst. (N. J.) Law, 157 ; Emory v. Keighan, 88 111. 482 ; Oldham ■V. Pfleger, 84 111. 102. But see Meyer v. Campbell, 12 Mo. 603. 3 Peltz V. Clarke, 5 Peters, 480; see Collins v. Robinson, 33 Ala. 91 ; 2 Greenl. Ev. § 330. < Odell V. Montross, 68 N. Y. 499. 5 Conner v. Whitmore, 52 Me. 185; Hennesy v. Farrell, 20 Wis. 42; Gillett v. Eaton, 6 Wis. 30; Phyfe v. Riley, 15 Wend. (N. Y.) 248; Sherman v. Abbot, 18 Pick. (Mass.) 44S ; Pace v. Chadderdon, 4 Minn. 499. * Hennesy v. Farrell, 20 Wis. 42. ' Stark V. Brown, 12 Wis. 572. 8 Madison Ave. Bap. Church v. Oliver St. Bap. Church, 73 N. Y. 82 ; Sahler v. Signer, 44 Barb. (N. Y.) 606; Holt v. Rees, 44 111. 30; Martin v. Fridley, 23 Minn. 13; Roberts v. Sutherlin, 4 Oreg. 219; Wells v. Rice, 34 Ark. 346; Tryon i/. Munson, 77 Penn. St. 250, 262; Den d. Wright v. Wright, 2 Halst. (N. J.) Law, 175 ; Hannay v. Thompson, 14 Tex. 142. 212 MORTGAGEE AND MORTGAGOR. possession of the mortgagee carries with it the pght to liqui- date the mortgage debt from the rents and profits of the land, and to retain the possession until that purpose is ac- complished. But if the mortgagee's possession is obtained unlawfully, as where the mortgagee, without the mortga- gor's consent, secured the possession by an arrangement with the tenant of the mortgagor, whose term had expired,, the rule that he cannot be evicted after condition broken until the debt is paid does not apply.^ To authorize such retention of the possession, however, it is not necessary that it should have been given under the mortgage, or with a view to the liquidation of it out of the rents and profits. The true test of the right to retain the possession is — was it acquired rightfully and by the mortgagor's consent.^ § 341. Ejectment by mortgagor not maintainable until after accounting and application of rents. — Even though the mortgagee has received sufficient rents and profits to satisfy the mortgage, an action in the nature of ejectment cannot be sustained against him until an accounting has been had, and such rents and profits applied to the mort- gage debt, for the mortgagee takes the rents and profits in the quasi character of trustee or bailiff" of the mortgagor, and to be applied in equity as an equitable set-off to the amount due on the mortgage debt.^ The law does not make the application.* § 342. Rule in Michigan. — In Michigan, however, a mortgagor, at any time before his rights have been fore- closed, can recover possession by ejectment from a mort- gagee, who, without consent of the mortgagor, peaceably takes possession of the land."^ ! Russell V. Ely, 2 Black (U. S.), 575. 2 See Madison Ave. Bap. Ch. v. Oliver St. Bap. Ch. 73 N. Y. 82. 3 See Ruckman v. Astor, 9 Paige Ch. (N. Y.) 517. " Hubbell V. Moulson, 53 N. Y. 225 ; New England Jewelry Co. v. Merriam, 2 Allen (Mass.), 390. <■ Newton v. McKay, 30 Mich. 380 ; see Humphrey v. Hurd, 29 Mich. 44; 'see MORTGAGEE AND MORTGAGOR. 213 § 343. Mortgagee may purchase equity at execution sale. — A mortgagee in possession may purchase, for his own benefit, the title of the mortgagor on an execution sale against him in favor of a third party, and he may set up the title so acquired as a defense to an arCtion by the mortgagor or his grantee to redeem, for the relationship is not one of trust or confidence ; ^ and he may purchase the equity of re- demption, and thereby acquire an absolute title.^ § 344. Conveyance by mortgagor to mortgagee of entire estate — How regarded. — The mortgagor and mortgagee may, at any time after the creation of the mortgage, and be- fore foreclosure, make any agreement that they please con- cerning the estate, and the mortgagee may become the pur- chaser of the right of redemption. Such a transaction is, however, regarded with jealousy by courts of equity, and will be avoided for fraud, actual or constructive, or for any unconscionable advantage taken by the mortgagee in ob- taining the title. It will be sustained only when it is bona fide, and in all respects fair and for an adequate considera- tion.* In Odell V. Montross,* in the New York Court of Appeals, it appeared that the plaintiff executed to the de- fendant a deed of the premises, absolute on its face, but simply as security for the payment of money. Subsequent- ly defendant paid plaintiff" at his request the sum of fifty dollars and plaintiff signed#and delivered to defendant the following paper : Russell V. Ely, 2 Black (U. S.), 575. But see Mad. Ave. Bap. Ch. v. Oliver St. Bap. Ch. 73 N. Y. 82. ' Ten Eyck v. Craig, 62 N. Y. 406. « Green v. Butler, 26 Cal. 595 ; Gwinn v. Smith, 55 Ga. 145 ; Hinkley v. Wheel- "wright, 29 Md. 341. 3 Odell V. Montross, 68 N. Y. 499; Trull v. Skinner, 17 Pick. (Mass.) 213; Hyndman v. Hyndman, 19 Vt. 9 ; Patterson v. Yeaton, 47 Me. 308 ; Ford v. Ol- den, L. R. 3 Eq. Cases, 461 ; Russell v. Southard, 12 How. 139; Holdridge v. Gillespie, 2 Johns. Ch. (N. Y.) 30. ■" 68 N. Y. 499. 214 MORTGAGEE AND MORTGAGOR. "New York, Sept. 17, 1866. " Received from William Montross fifty dollars, in full satisfaction for all claims and demands whatsoever as to the conveyance of property, or otherwise, up to this date. "Thomas B. Odell." It was held that the deed was a mortgage, with all the incidents of such an instrument, and that the rights and obli- gations of the parties were the same as though the deed had been subject to a defeasance expressed in the body of the paper, or executed simultaneously with it. Furthermore, that the mortgagor's legal estate in fee could only be di- vested (otherwise than by way of estoppel) by some instru- ment valid under the statute of frauds, and which complied with the statute prescribing the mode and manner of con- veying lands. That this paper, ex propria vigore, did not have that eflFect, for it did not profess to release the right of redemption, nor to convey any title, interest, or estate in lands, and was not under seal. No agreement could be spelled out of the instrument which could be specifically performed, and it could not be aided and made a perfect contract to release or convey lands by parol proof. Though the contract was intended as a full settlement of the mort- gagor's claim upon the property, yet the mere payment of money did not entitle the purchaser to a specific perform-^ ance of a parol contract for the purchase of an interest in lands. Had the mortgagee incurred expense and changed his situation so that he could not be restored to the same position, it might have estopped the mortgagor from taking shelter under the statute of frauds, or alleging the insuffi- ciency of the written instrument. § 345. Mortgagor's remedy against mortgagee after condition broken. — The remedy of the mortgagor against the mortgagee in possession after breach of condition, ac- cording to some of the authorities, is in equity;^ and in ' Brobst V. Brock, lo Wall. 519-536; Hill v. Payson, 3 Mass. 559; Parsons w. Welles, 17 Mass. 419. MORTGAGEE AND MORTGAGOR. 215 Maine, New Hampshire, and Massachusetts, he cannot re- cover the possession from the mortgagee by a writ of entry, although he has tendered the whole amount due after de- fault. The tender, under such circumstances, nierely affords a foundation for a bill in equity.^ ' Parsons v. Welles, 17 Mass. 419 ; Rowell v. Mitchell, 68 Me. 21 ; Jewett v. Hamlin, 68 Me. 172 ; Wilson v. Ring, 40 Me. n6; Woods v. Woods, 66 Me. 206; Dyer v. Toothaker, 51 Me, 380 ; see Johnson v. Elliot, 26 N. H. 67 ; Brown v. Smith, 116 Mass. 108. CHAPTER XII. EJECTMENT BETWEEN LANDLORD AND TENANT. § 346. Ejectment prior to the introduction of summary proceeding statutes. 347. The remedy inadequate. 348. Summary proceeding statutes. 349. Title not involved in summary pro- ceedings. 350. What the landlord must prove in ejectment. 351. Estoppel against the tenant. 352. Reasons upon which the estoppel rests — Public policy. 353. Estoppel ceases upon redelivery of the possession. 354. Tenant cannot, by his own act, de- stroy the estoppel. 355. Fraud of the landlord. 356. When tenant may purchase superior title. 357. Acknowledgment of another's title — Attornment. § 358. Exceptions as to the estoppel. 359. In Massachusetts tenant cannot set up his wife's title. 360. Tenancy under mortgagor extin- guished by foreclosure. 361. Tenant in common may deny co- tenanf s title. 362. Forfeiture and waste. 363. Test of waste. 364. Waste by tenant at will. 365. Construction of covenant against waste. 366. Severance of conditions in a lease. 367. Construction of conditions. 368. Liberal construction by Lord Ten- terden. 369. Verbal disclaimer. 370. Ejectment for non-payment of rent. 371. Right to enforce forfeiture — How waived. § 346. Ejectment prior to the introduction of summary proceeding statutes. — Early in the present century eject- ment, in the States in which that form of remedy prevailed, constituted the only proceeding by which a landlord, en- titled to re-enter upon his lands, by reason of forfeiture, or expiration of the demised term, could recover the possession from a tenant. § 347. The remedy inadequate. — This intricate and dila- tory remedy was productive of the grossest abuse and in- justice to the landlord,^ and in the case of refractory and ir- responsible tenants, often proved an expensive and inade- quate method of compelling a surrender of the possession. The judgment for mesne profits constituted the landlord's only redress for the delay and loss of possession, and this remedy was often rendered worthless by reason of the ten- ant's insolvency. ' See Adams on Ejectment, 4th Am. ed. p. 187 [*i6i]. LANDLORD AND TENANT. 21 7 § 348. Summary proceeding statutes. — The unsatisfac- tory character of the remedy, in this class of cases, led to the enactment of the summary proceeding statutes, now so common, which furnished the landlord a convenient, prompt, and effectual substitute for ejectment, in many cases where the tenant, after forfeiture or expiration of the term, refused to yield up the possession. § 349. Title not involved in summ,ary proceedings. — It is foreign to the scope of this treatise to discuss remedies or proceedings in which the title to land is not the principal subject of contention, and as questions of title cannot be tried in summary proceedings, the principles governing that class of remedies will not be considered. Furthermore, the provisions of these statutes, and the principles and rules governing their interpretation, vary in the different States, and any attempt to treat of the general practice under them would be of doubtful utility. The subject of ejectment between landlord and tenant, which assumes so great a prominence in the early text- books, will be but briefly noticed, partly because, as already stated, summary proceedings have been generally substi- tuted in its stead, and for the additional reason that when this remedy is invoked, by a landlord, practically all the proof offered or required is such as will establish this con- ventional relationship, and when once established the ten- ant, as we shall presently see, is estopped from denying the landlord's title, so that in either case the controversy over the title is excluded. § 350. What the landlord must prove in ejectm,ent. — The landlord, in order to maintain ejectment against his tenant, must show either that the term has expired, according to the provisions of the lease, or that the tenancy has been actually terminated by forfeiture, and that the landlord has a present right to the immediate possession. The landlord ordinarily has no right of re-entry during the term, and his only practical redress for breach of the contract, or injuries 2l8 LANDLORD AND TENANT. to the property, is compensation in damages, unless there is an express clause in the agreement reserving the right of re-entry before the expiration of the term for condition broken.^ § 351. Estoppel against the tenant. — It is a fundamental principle, governing the relation of landlord and tenant, that in controversies between them, concerning the possession of the demised lands, the tenant is estopped from disputing or assailing the landlord's title,^ or from setting up an out- standing title against the landlord hostile to that under which he entered, or a title acquired during the existence of the tenancy.^ This principle is a rule of pleading as well as of evi- ' Johnson v. Gurley, 52 Texas, 222; Dennison v. Read, 3 Dana (Ky.), 586; Brown v. Bragg, 22 Ind. 122; Smith v. Blaisdell, 17 Vt. 199; Fox v. Brissac, 15 Cal. 223; Vanatta v. Brewer, 32 N. J. Eq. 268; see Van Rensselaer i*. Jewett, 2 N. Y. 141. As to the early feudal and common law doctrine concerning for- feiture of inferior estates, see DeLancey v. Ganong, 9 N. Y. 9-16, and the extract from Coke therein discussed ; see, also, Wigg v, Wigg, i Atk. 382 ; Doe v. Watt, I Man & R. 694; Fox v. Brissac, 15 Cal. 223. A forfeiture will not be favored or implied. Kentucky River Nav. Co. v. Commonwealth, 13 Bush (Ky.), 435. 2 6 Am. Law. Rev. i ; Doe d. Knight v. Smythe, 4 M. & S. 347 ; Coppinger V. Armstrong, 8 Brad. (111.) 210; Hosteller v. Hykas, 3 Br^wst. (Penn.) 162; Tompkins v. Snow, 63 Barb. (N. Y.) 525; Hawes v. Shaw, 100 Mass. 187; Bar- wick V. Thompson, 7 T. R. 488; Silvey v. Summer, 61 Mo. 253; Townsend v. Davis, Forrest, 120; Lucas v. Brooks, 18 Wall. 436; Stott v. Rutherford, 92 U. S. 107; Vernam v. Smith, 15 N. Y. 327; O'Halloran -v. Fitzgerald, 71 111. 53; James v. Belding, 33 Ark. 536 ; Donald v. McKinnon, 17 Fla. 746 ; Cook v. Cres- well, 44 Md. 581 ; Morrison v. Bassell, 26 Minn. 235 ; Love v. Law, 57 Miss. 596; Nolen V. Royston, 36 Ark. 561 ; Territl v. Cowenhoven, 79 N. Y. 400 ; Prevol v. Lawrence, 51 N. Y. 219 ; Davis v. Davis, 83 N. C. 71 ; Wilson v. James, 79 N. C. 349 ; Jones v. Dove, 7 Oregon, 467 ; Lyles v. Murphy, 38 Texas, 75 ; Hatch v. Bullock, 57 N. H. 1 5 ; Bowdish v. Dubuque, 38 Iowa, 341 ; Walden v. Bodley, 14 Peters, 156; Lamson v. Clarkson, 113 Mass. 348; Tewksbury w. Magraff, 33 Cal. 237; Pope V. Harkins, 16 Ala. 321 ; Clarke v. Clarke, 51 Ala. 498; Cody i/. Quarterman, 12 Ga. 386; Alwood v. Mansfield, 33 111. 452; Grant v. While, 42 Mo. 285 ; Richardson v. Harvey, 37 Ga. 224 ; Cooper v. Smith, 8 Watts (Penn.), 536; Blakeney v. Ferguson, 20 Ark. 547; Hawes w.Shaw, 100 Mass. 187; Long- fellow t/. Longfellow, 61 Me. 590; Jackson v. McLeod, 12 Johns. (N. Y.) 182; Jackson v. Harder, 4 lb. 202. - Pope V. Harkins, 16 Ala. 321 ; Jackson d. Collon v. Harper, 5 Wend. (N.Y.) 246; O'Halloran v. Fitzgerald, 71 111. 53; Galloway v. Ogle, 2 Binn. (Penn.) 468; Bertram v. Cook, 32 Mich. 518. LANDLORD AND TENANT. 2I9 dence/ and when the relationship is shown, applies to actions of assumpsit, covenant, debt, summary proceeding, and actions of forcible entry and unlawful detainer, as well as to ejectment, trespass to try title, and writs of entry.^ A party admitted to defend, in the tenant's place, is subject to the same rule/ and the estoppel applies to the heirs of the tenant, retaining the possession and claiming solely in the tenant's right*; nor can the tenant, after the landlord's death, hold adversely to his infant heir, by taking a grant to himself, or attorning to another/ The estoppel extends to all persons claiming under, or succeeding to the lessee,' and being founded on the deliv- ery of possession,' ceases only when the possession is sur- rendered. In a very recent case decided in the Supreme Court of California, it was held that a party who accepted a lease could not lawfully refuse to surrender possession of the de- mised premises, at the expiration of the term, upon the ground that a prior agreement existed, under which the lessee might have retained the possession, if he had not taken the lease. The prior agreements are presumed to be merged in the lease.® The tenant, however, is not precluded from denying his landlord's title, and setting up title in himself adversely to > Palmer v. Bowker, 106 Mass. 317. " Townsend v. Davis, Forrest, 120 ; Tompkins v. Snow, 63 Barb. (N. Y.) 525; Barwick v. Thompson, 7 T. R. 488 ; Hawes 7/. Shaw, 100 Mass. 187; Towne v. Butterfield, 97 Mass. 105 ; Silvey v. Summer, 61 Mo. 253 ; Jackson v. Hinman, 10 Johns. (N. Y.) 292 ; Allen v. Chatfield, 8 Minn. 435. For a history of the origin of the estoppel, see 6 Am. Law Rev. p. i. 3 Belfour v. Davis, 4 Dev. & Bat. (N. C.) Law, 300; Whissenhunt v. Jones, 80 N. C. 348 ; see Isler v. Foy, 66 N. C. 547. * Lewis V. Adams, 61 Ga. 559. = Williams v. McAliley, Cheves (S. C.) Law, 200. " Graham v. Moore, 4 S. & R. (Penn.) 467; Stagg v. Eureka Tanning Co. 56 Mo. 317; Blakeney v. Ferguson, 20 Ark. 547; Rose v. Davis, 11 Cal. 133; McCravey v Remson, 19 Ala. 430 ; Earle v. Hale, 31 Ark. 470; Jones v. Dove, 7 Oregon, 467 ; Cooper v. Smith, 8 Watts (Pa.), 536. ' Lamson v. Clarkson, 113 Mass. 348. « McCreary v. Marston, 56 Cal. 403. 220 LANDLORD AND TENANT. his landlord, as against a stranger. The reason upon which the estoppel depends is manifestly wanting, when a stranger, not in privity with the landlord, seeks to set it up, for estoppels must be mutual, and can only operate between parties and privies.^ § 352. Reasons upon which the 'estoppel rests — Public policy. — The estoppel rests upon considerations of public poHcy, the purpose of which, for obvious reasons, would be defeated if one who had been clothed with possession of land by another was allowed to controvert the title of the latter, without first restoring him to as good a position as he occupied before parting with the possession.^ The landlord can only be required to litigate title with his tenant upon the vantage ground of possession. If the tenant acquires a title, he must ordinarily surrender the possession and regain it by action.^ If the rule were otherwise no person would be safe in parting with the possession of lands, as he might be driven to the necessity of making out a complete chain of title be- fore he could regain the possession, or evict the tenant* If any defects existed in the chain of his title, or the muniments of title had been lost or destroyed, or the witnesses who were conversant with the facts affecting it had died, or were absent from the country, the owner would be practically pre- cluded from letting the property. It results from the appli- cation of this principle that, generally speaking, as we have said, proof of the relationship and expiration of the term only, and not proof of title, is required in ejectment between landlord and tenant. § 353. Estoppel ceases upon redelivery of the possession. — ' Cole V. Maxfield, 13 Minn. 235. ^Tewksbury v. Magraff, 33 Cal. 237-244; Glen v. Gibson, 9 Barb. (N. Y.) €38; Richardson 7/. Harvey, 37 Ga. 224; Rogers v. Boynton, 57 Ala. 501; Wil- son V. James, 79 N. C. 349. 3 Lowe V. Emerson, 48 111. 160. < Anderson ads. Darby, i N. & McC. (S. C.) Law, *368. LANDLORD AND TENANT. 221 The tenant, however, is estopped to deny only the title un- der which he entered, and therefore the rule does not pre- vent the tenant from buying up a title to be asserted after the termination of the tenancy and the redelivery of posses- sion of the land.^ The tenant of one holding under a tax deed cannot purchase the interest of a minor, having a right of redemption, and set it up against his lessor.^ § 354. Tenant cannot, by his own act, destroy the estoppel. — ^The tenant, by ceasing to pay rent to his landlord, and attorning to another, cannot so change his tenancy, or affect the relationship, as to enable him to dispute the landlord's title,^ nor can the tenant ordinarily, without defending the possession or giving notice to his landlord, treat himself as evicted, and attorn to another.* Where one claiming as land- lord to be entitled to the rents, acknowledges the right of another thereto, and the tenant, relying upon such acknowl- edgment, made payment to the latter, the party claiming the rent was held to be estopped from enforcing his claim against the tenant.^ And an attornment to a stranger may be operative as to the tenant, though void as against his lessor.* The attornment does not create a new tenancy, but is a continuation of the old tenancy under a new landlord. '^ §355- Fraud of the landlord. — The estoppel has been held not to apply in cases where the tenant was induced by force, fraud, or misrepresentation, to enter into the lease.® ' Williams v. Garrison, 29 Ga. 503 ; Nims v. Sherman, 43 Mich. 45. 2 Stout V. Merrill, 35 Iowa, 47. - Belfour v. Davis, 4 Dev. & Bat. (N. C.) Law, 300; Bertram v. Cook, 32 Mich. 518; Turner v. Thomas, 13 Bush (Ky.), 518, and cases cited; Leach v. Koenig, 55 Mo. 451; Simmons v. Robertson, 27 Ark. 50; Rogers v. Boynton, 57 Ala. 501 ; see Mills v. Hamilton, 49 Iowa, 105. ■• Williams v. McMichael, 64 Ga. 445 ; Lowe v. Emerson, 48 111. 160 ; see Tucker v. Whitehead, 58 Miss. 762 ; but see Merryman v. Bourne, 9 Wall, 592. 5 Winterink v. Maynard, 47 Iowa, 366. 6 Kenada v. Gardner, 3 Barb. (N. Y.) 589. ' Austin V. Ahearne, 61 N. Y. 6. 8 Schultz V. Arnot, 33 Mo. 172; Johnson v. Chely, 43 Cal. 300; Miller v. Bon- sadon, 9 Ala. 317; Mountnoy v. Collier, i El. & Bl. 630; Franklin v. Merida, 35 222 LANDLORD AND TENANT. The same rule applies where an attornment of the tenant is superinduced by the misrepresentations of the landlord,^ or the plaintiff has received rent from the defendant by mis- take, or under a false claim of title.* Hence, where, by the exhibition of a title founded in forgery, the party in posses- sion was induced to accept the lease, it was held that the facts might be shown ; * and the landlord's title may be dis- puted where it was acknowledged under a misapprehension by a party already in possession as the tenant of another.* It may be here observed that an agreement by a party in pos- session to abandon the premises at a certain day is not a lease, and does not estop him from controverting the title." But the tenant, in refusing to surrender possession of the demised premises, on the ground that his landlord falsely represented himself to be the owner of the property, must prove not only the false representation, but that he was in- duced, by the fraud, to accept the lease,* and must show some right under a superior title. And it is error to permit the de- fendant to prove that his signature to the lease was obtained by fraud or mistake, when no such facts are set up in the answer.'^ § 356. When tenant may purchase superior title — In Gallagher v. Bennett, the Supreme Court of Texas ^ carried the exception as to the fraud of the landlord to the extent of holding that if he practiced misrepresentation or fraud as to his title, and his estate, by reason of insolvency, was un- able to indemnify the tenant for rents wrongfully exacted, the tenant acting in good faith, under the advice of counsel. Cal. 558; Higgins v. Turner, 61 Mo. 249; Turpin v. Saunders, 32 Gratt. (Va.) 27- 33; Alderson v. Miller/ 15 Gratt. (Va.) 279. ■ Tison V. Yawn, 1 5 Ga. 491 ; Gallagher v. Bennett, 38 Texas, 291 ; Evans v. Bidwell, 76 Penn. St. 497 ; Jenckes v. Cook, 9 R. I. 520. "Anderson v. Smith, 63 111. 126; Schultz v. Arnot,33 Mo. 172. ' 3 Miller v. McBrier, 14 S.&R. (Penn.) 382. ■• Swift V. Dean, 1 1 Vt. 323 ; see Borland v. Box, 62 Ala. 87. « Miller v. McBrier, 14 S. & R. (Penn.) 382. " Camarillo v. Fenlon, 49 Cal. 202. ■ McCreary v. Marston, 56 Cal. 403. s 38 Texas 291. LANDLORD AND TENANT. 223 and from a well-founded fear of eviction, during the term, might purchase the superior title, and resist the landlord's action to recover the possession. § 357. Acknowledgment of another s title — Attornment. — A party in possession, who has acknowledged the title of another, is not, as a general rule, estopped from subsequently disclaiming holding under such title, if the original entry was not under the person whose title is acknowledged.^ And after judgment of eviction by title paramount the ten- ant may attorn to the successful party, and defeat the former landlord's claim for rent, by setting up the paramount title ; ^ but the tenant-assumes the burden of showing the superiority of the title in question.* § 358. Exceptions as to the estoppel — The tenant may also show that his landlord's pretended title was acquired in violation of law.* So no estoppel exists if the contract on which the so-called tenancy rests is void for usury.^ And if the tenant is compelled to purchase in an outstanding mortgage upon, or title to, the property, for his own safety, equity will protect his equitable title and his possession, until he has been reimbursed.* The tenant, it is clear, may show an outstanding title against the landlord where the latter's title has expired, or been extinguished since the re- ' Jackson v. Leek, 12 Wend. (N. Y.) 105 ; Franklin v. Merida, 35 Cal. 558; Alderson v. Miller, 15 Gratt. (Va.) 279 ; Washington v. Conrad, 2 Humph. (Tenn.) 562; but see, contra, Saunders v. Moore, 14 Bush (Ky.), 98; Prevot v. Lawrence, 51 N. Y. 219 ; Hall v. Butler, 10 Ad. & El. 204; Marlow v. Wiggins, 4 Ad. & El. (N. S.) 367. 2 Moflfat V. Strong, 9 Bos. (N. Y.) 57 ; Lunsford v. Turner, 5 J. J. Mar. (Ky.) 104 ; Foster v. Morris, 3 A. K. Mar. (Ky.) 609 ; Supervisors v. Harrington, 50 III. 232. 3 Merryman v. Bourne, 9 Wall. 592 ; see Douglas v. Fulda, 45 Cal. 592. < Satterlee v. Mathewson, 13 S. & R. (Penn.) 133; see Milton v. Haden, 32 Ala. 30. 5 Tribble v. Anderson, 63 Ga. 31. « Bates V. Conrow, 11 N. J. Eq. 137; see Gallagher x/. Bennett, 38 Texas, 291; Thrall v. Omaha Hotel Co. 5 Neb. 295. 224 LANDLORD AND TENANT. lation of landlord and tenant was created,^ for he does not thereby deny that the landlord had title at the time the lease was executed.^ So the tenant may show that he himself has acquired the title by voluntary alienation or purchase under execution sale ; for it is no more prejudicial to the landlord that the tenant should purchase or acquire the title than that it should pass into the hands of a stranger.^ The tenant may also show that the landlord's only title was an estate for the life of another which expired during the term* So it has been held that a tenant who is under no obligation to pay taxes may purchase the property at a tax sale, and resist the recovery of his former landlord for rent by virtue of an adverse title so acquired.® And a ten- ant entitled to homestead in certain lands, which have been sold under an execution against him, is not estopped from claiming the homestead by accepting a lease for the same lands from the purchaser at execution sale.^ The cases holding that the tenant may show the failure of the landlord's title subsequent to the entry are numerous.''^ 1 Jackson v. Rowland, 6 Wend. (N. Y.) 666; Randolph v. Carlton, 8 Ala. 6o6; McDevitt V. Sullivan, 8 Cal. 592 ; Wheelock v. Warschauer, 21 Cal. 309; Gregory V. Crab, 2 B. Mon. (Ky.) 234; Giles v. Ebsworth, 10 Md. 333 ; Wolf v. Johnson, 30 Miss. 513; Camp v. Camp, 5 Conn. 291 ; Wells v. Mason, 5 111. 84; Tilghman ■V. Little, 13 111. 239; Kinney v. Doe, 8 Blackf. (Ind.) 350; Pentz v. Kuester, 41 Mo. 447; Russell v. Allard, 18 N. H. 222; Horner v. Leeds, 25 N. J. L. 106; Hoagz/. Hoag, 35 N.Y. 469; Devacht v. Newsam, 3 Ohio, 57; Clarke v. Clarke, 51 Ala. 498. 2 Lamson v. Clarkson, 113 Mass. 348. 3 Casey v. Gregory, 13 B. Mon. (Ky.) 505; Texas Land Co. v. Tieman, 53 Texas, 619; Camley w. Stanfield, 10 Texas, 546 ; see Silvey 7/. Summer, 61 Mo. 253; Higgins V. Turner, 61 Mo. 249; Ryder v. Mansell, 66 Me. 167; Hetzel w. Barber, 69 N. Y. 1-15 ; Despard v. Walbridge, 15 N. Y. 374. '■ Lamson z-. Clarkson, 113 Mass. 348; Blake v. Foster, 8 T. R. 487. 5 Weichselbaum v. Curlett, 20 Kansas, 709. " Abbott V. Cromartie, 72 N. C. 292. ' Lancashire v. Mason, 75 N. C. 455 ; Grundin v. Carter, 99 Mass. 15 ; Den V. Ashmore, 22 N. J. L. 261 ; Dobson v. Culpepper, 23 Gratt. (Va.) 352 ; Jackson V. Davis, 5 Cow. (N. Y.) 123-135 ; Supervisors v. Harrington, 50 111. 232; Duff ■V. Wilson, 69 Penn. St. 316 ; England v. Slade, 4 T. R. 682 ; St. John v. Quitzow, 72 111. 334; Franklin v. Palmer, 50 111. 202; Armstrong 7/. Wheeler, 9 Cow. (N. Y.) 88 ; Burden v. Thayer, 3 Met. (Mass.) 76. LANDLORD AND TENANT. 225 So the tenant may show that the landlord's title has expired by effluxion of time,^ or that the plaintiff has parted with his title, and is no longer entitled to possession.*^ § 359. In Massachusetts tenant cannot set up his wife's title. — It seems that in Massachusetts a tenant cannot hold over, after the expiration of his term, under a claim of title to the premises in his wife,^ for he can derive no title from her by contract or grant.* § 360. Tenancy under mortgagor extinguished by fore- closure. — The interest of a tenant under a demise from a mortgagor is extinguished by a foreclosure sale, and though the tenant be not evicted, yet if he attorn to the purchaser, the right of the lessor to the future rents is extinguished. If the tenant voluntarily does that which the law would compel him to perform — ^yields up the possession to' the party entitled to it — this cannot be regarded as an act of disloyalty, or as being in any sense injurious to the rights of the landlord. The proceedings are tantamount to an actual eviction, and the tenant is not estopped to show that he has attorned to the holder of the paramount title. ^ But a dis- claimer by the tenant of his landlord's title will never be implied.® § 361. Tenant in common may deny co-tenani s title. — The relation of landlord and tenant stands on grounds en- tirely different from that of tenants in common ; and it has been held in Tennessee, that each tenant in common enters as owner, and holds possession for himself, and is not ' Presstman v. Silljacks, 52 Md. 647 ; see Claridge v. Mackenzie, 4 Man. & Gr. 143, per Tindal, Ch. J. ^ McGuffie V. Carter, 42 Mich. 497. " Miller v. Lang, 99 Mass. 13. * Ibid. See Thomson v. O'Sullivan, 6 Allen (Mass.), 303 ; Gay v. Kingsley, 1 1 Ibid. 345 ; see Love v. Law, 57 Miss. 596. ' Simers v. Saltus, 3 Denio (N. Y.), 214; Lancashire v. Mason, 75 N. C. 455; but see Balfour v. Davis, 4 Dev. & Bat. (N. C.) Law, 300. « Leport V. Todd, 3 Vroom (N. J.), 124. 15 226 LANDLORD AND TENANT. estopped, by the admission of the co-tenancy, from setting up a better title in himself or others.^ § 362. Forfeiture and waste. — Ejectment may be brought for breach of a covenant against waste, where the lease con- tains a provision for re-entry. In the case of the United States V. Bostwick,^ the Supreme Court of the United States held that, unless excluded by the operation of some express covenant or agreement, an implied obligation ex- isted on the part of the lessee so to use the property as not unnecessarily to injure it, or to treat the premises demised in such manner that no injury be done to the inheritance, so that the estate may revert to the lessor undeteriorated by the wilful or negligent conduct of the lessee. This implied obligation was declared to be a part of the contract itself; as much so as if incorporated into it by express language. It results from the relation of landlord and tenant which the contract creates,^ and is not a covenant to repair gener- ally, but so to use the property in a proper and tenant-like manner,* as to avoid the necessity for repair as far as possi- ble.^ The tenant is not bound to rebuild, if the buildings are burned down or otherwise destroyed by accident. But it is voluntary waste, and within the prohibition of the im- plied agreement, if, during the occupancy under the lease, ornamental trees are destroyed, fences and walls torn down, and the materials used for sidewalks, and the erection of building^, or removed from the property ; or where stones are quarried, and gravel dug, from a stone quarry and gravel-pit on the premises, and taken away.^ ' Washington v. Conrad, 2 Humph. (Tenn.) 562. See §§ 291, 292. 2 94 U. S. 53-65. See McGregor v. Brown, 10 N. Y. 114; Winship v. Pitts, 3 Paige Ch. (N. Y.) 259; Cole v. Greene, i Levinz, *309; see London v. Greyme, Cro. Jac. 181. 3 See Holford v. Dunnett, 7 M. & W. 347. ■< Nave V. Berry, 22 Ala. 382 ; see Cheetham v. Hampson, 4 T. R. 318. 5 Miller v. Shields, 55 Ind. 71 ; Horsefall v. Mather, Holt, 7-9; Brown v. Crump, I Marsh. 567. 6 United States v. Bostwick, 94 U. S. 53-69; Jackson d. Church v. Brownson, 7 Johns. (N. Y.) 227; see People v. Alberty, 11 Wend. (N. Y.) 162. LANDLORD AND TENANT. 22/ § 363. Test of waste. — Injury is not the test of waste, but disherison of him in remainder or reversion.^ The tenant is not Hable for the mere wear and tear of the prem- ises,^ and is under no obligation to make repairs of a sub- stantial and general nature.^ Waste, it may be added, can only be committed of the thing demised ; and where trees are excepted out of the demise no waste could be com- mitted of them, and consequently no forfeiture could be incurred by cutting them down.* § 364. Waste by tenant at will. — A tenant at will who commits voluntary waste, such as cutting timber, forfeits the term, for it is said that the injury amounts to a deter- mination of the will, and of his possession.® A condition in the lease not to sell or dispose of any wood or tim- ber from the demised premises, is valid, and a breach of it works a forfeiture of the estate which may be enforced in ejectment.® § 365. Construction of covenant against waste. — Eject- ment has beeA upheld, in the following cases : — by a lessor for breach of a covenant in the lease, against exercising the trade of a butcher on the premises, upon proof that the lessee sold raw meat thereon, although no beasts were slaughtered upon the demised lands ;'^ on a proviso for ' Livingston v. Reynolds, 26 Wend. (N. Y.) 115; Doe d. Darlington v. Bond, 5 B. & C. 855; see, especially, McGregors. Brown, 10 N. Y. 114. "Torriano v. Young, 6 C. & P. 8 ; Wise v. Metcalfe, 10 B. & C. 299; see Harder v. Harder, 26 Barb. (N. Y.) 409. s Horsefall v. Mather, Holt, 7; Johnson v. Dixon, i Daly (N. Y.), 178; Leach V. Thomas, 7 C. & P. 327. * Goodright v. Vivian, 8 East, 190; see Schermerhorn v. Buell, 4 Denio (N. Y.), 422. * PhiUips V. Covert, 7 Johns. (N. Y.) i; see, further, as to forfeiture for vi^aste, Suffern v. Townsend, 9 Johns. (N. Y.) 35 ; Cooper v. Stower, lb. 331 ; Erwin v. Olmsted, 7 Cowen (N. Y.), 229 ; Livingston v. Reynolds, 26 Wend. (N. Y.) 1 1 5. « Verplanck v. Wright, 23 Wend. (N. Y.) 5c56. ' Doe d. Gaskell v. Spry, i Barn. & Aid. 617; see Doe d. Davis v. Elsam, i Mood. & M. 189. 228 LANDLORD AND TENANT. re-entry for breach of a covenant not to use the demised premises for any trade or business whatever — the breach consisting in carrying on a school by an assignee of the lease ; ^ and for breach of a covenant to insure,^ and where the tenant broke a doorway in the demised premises into an adjoining house, this was held, by Lord Ellenborough, to be a breach of a covenant to repair.* § 366. Severance of conditions ilt a lease. — The condi- tions of a lease do not become severed by a severance of the occupation of the demised premises, and the payment of rent to the lessor by the respective occupants for the por- tion occupied by each, and if either the lessee, or an assignee of the lease, as to a portion of the demised premises, com- mits any act which, by the terms of the lease, creates a for- feiture of the estate, the forfeiture attaches to the whole of the premises embraced in the lease.* § 367. Construction of conditions. — It has been held by the New York Court of Appeals, that in all cases where an estate for years is granted on condition, and the lease declares that the estate shall cease and determine on the breach of the condition, without any clause of re-entry or other qualification, the estate will ipso facto cease as soon as the condition is broken^, but, if the lease contain a clause that, in case of non-performance, the landlord may re-enter, the lease is not void, but voidable only at the election of the landlord.® It is often said that the extent and meaning of a covenant or condition, and the fact of a breach, are mat- ' Doe d. Bish v. Keeling, i M. & S. 95. 2 Doe d. Flower v. Peck, i Barn.& Adol. 428 ; Doe d. Pitt v. Shewin, 3 Camp. 134; Reynolds v. Pitt, 2 Price, 212, note. 3 Doe d. Vickery v. Jackson, 2 Stark. 293. But see Doe v. Jones, 4 B. & Adol. 126. " Clarke v. Cummings, 5 Barb. (N. Y.) 339; see Eyton v. Jones, 21 L. T. N. S. 789. 5 Parmelee v. O. & S. R. R. Co. 6 N. Y. 74 ; see Morton v. Weir, 70 N. Y. 247. «■ Stuyvesant v. Davis, 9 Paige Ch. (N.Y.) 427; Collins v. Hasbrouck, 56 N. Y 157. LANDLORD AND TENANT. 229 ters strictissimi juris, and the plaintiff to defeat an estate of his own creation, by means of such a condition, must bring the defendant clearly within i'ts letter.^ A forfeiture is never favored or implied.* Thus, it has been held in eject- ment for breach of a condition, that the words " let and un- derlet," in the lease, cover a demise or underletting, and not an assignment of the whole interest, and the land- lord having proved only an assignment, was defeated by this strict and literal interpretation of the covenant.^ § 368. Liberal construction of Lord Tenterden. — It was held by Lord Tenterden, however, that provisoes of this sort should not be construed with the strictness of conditions at common law, as they constituted matters of contract be- tween the parties, and should be construed like any other contracts.* This rule of construction commends itself as sound and reasonable. The covenants and conditions should receive the construction which the ordinary and nat- ural meaning of the words employed justify, for such an in- terpretation obviously more clearly reflects the intention of the parties. The words strict or liberal, as applied to these interpretations, are often mere epithets ; and a depar- ture from Lord Tenterden's rule has, in considering many cases of forfeiture, led to palpable absurdities. § 369. Verbal disclaimer. — The mere verbal disclaimer, or parol denial, by a tenant for life, or years, of his land- lord's title, and a claim and assertion of ownership in fee, does not work a forfeiture of the term, nor will it authorize the landlord to maintain ejectment for the demised lands. This subject has been learnedly considered in the 'New ' Lynde v. Hough, 27 Barb. (N. Y.) 415, 423; Livingston v. Stickles, 8 Paige Ch. (N. Y.) 398; S. C. in error, 7 Hill (N. Y.), 253, per Nelson, Ch. J.; Jackson ■V. Harrison, 17 Johns. (N. Y.) 66; see Dermott v. Wallach, i Wall. 61. 2 Kentucky River Nav. Co. v. Commonwealth, 13 Bush (Ky.), 435. 3 Lynde v. Hough, 27 Barb. (N. Y.) 415, 423. < Doe d. Davis v. Elsam, i M. & M. 189. 230 LANDLORD AND TENANT. York Court of Appeals,^ and the conclusion reached that, even under the feudal syste.m, the many causes for which an inferior estate could be forfeited did not include a parol de- nial of the landlord's title, except in cases of a tenancy at will, or sufferance, or from year to year, in which a dis- claimer is evidence only of a cessation of the will, and super- sedes the necessity of service of notice to quit. The court expressed inability to find any case in which judgment had proceeded upon the distinct ground that a parol denial of the landlord's title worked a forfeiture of a term for years. If the doctrine was established that an estate for years could be forfeited by mere words, such interests in real estate, which are often of great value, would be dependent upon the uncertain memory of witnesses, and the title to valuable landed estates gained or lost, according to the preponder- ance of oral testimony, or the result of a nicely balanced case. This would be contrary to the policy of our law, in regard to interests in real estate, which has been to leave as little as possible to depend upon verbal testimony. § 370. Ejectment for non-payment of rent. — The rem- edy by ejectment to enforce the payment of rent is never allowed except where a right of re-entry for non-payment of rent is expressly stipulated for between the parties.* It was formerly held that, at common law, only the grantor of a lease in fee, and his heirs, could avail them- selves of the right of re-entry,^ but the condition of re-entry is now generally made by statute, or held by the courts to be assignable, and the right of re-entry may be enforced in : De Lancey v. Ganong, 9 N, Y. 9, and cases cited; see Graves v. Walls, 10 Ad. & El. 427. ' De Lancey v. Ganong, 9 N. Y. 25 ; Van Rensselaer v. Jewett, 2 lb. 141 ; 5 Denio (N. Y.), 121 ; Kenege v. Elliott, 9 V^atts (Penn.), 258; Tyler v. Heidorn, 46 Barb. (N. Y.) 439-454; Campbell v. Shipley, 41 Md. 81 ; Hosford v. Ballard, 39 N. Y. 147. 3 Tyler v. Heidorn, 46 Barb. N. Y. 439-454; NicoU v. N. Y. & E. R. R. Co. 12 N. Y. 121 ; Van Rensselaer v. Ball, 19 lb. 100-103. LANDLORD AND TENANT. 23 1 ejectment by the assignee of the rent,^ or by an heir for an undivided interest in the demised premises.^ The right to re-enter for breach of the conditions of a lease in fee may, as a general rule, be enforced by the legal representatives, grantee, or assignee of the lessor.^ § 371. Right to enforce forfeiture — How waived. — The right to maintain ejectment for forfeiture, arising upon breach of a covenant on the part of the lessee, may be waived, or lost, by acceptance of rent which accrued after knowledge on the part of the lessor of the act of forfeiture,* or by acceptance of an annuity non-payment of which con- stituted the claim of forfeiture,* or by any act constituting an acknowledgment of a subsisting tenancy.® This prin- ciple applies, whether the breach be for non-payment of taxes ; "^ failure to erect buildings ; ^ underletting ; ' cut- ting timber,^" or insolvency," and it has been said that an unqualified demand for rent after forfeiture,^^ or dilatori- ness on the part of the landlord, from which the tenant is justified in assuming that strict performance of the cove- 1 Van Rensselaer v. Slingerland, 26 N. Y. 580; Farley v. Craig, 6 Halst. (N. J.) Law, 262. 2 Cruger v. McLaury, 41 N. Y. 219. 3 Van Rensselaer v. Hays, 19 N. Y. 68; NicoU v. N. Y. & Erie Railway, 12 Barb. (N.Y.)46o. * Collins V. Hasbrouck, 56 N. Y. 157; Roe d. Gregson v. Harrison, 2 T. R. 425; Conger v. Duryee, 12 Weekly Dig. (N. Y.) 225; s. C. 24 Hun (N. Y.),6i7; see Jackson v. Sheldon, 5 Cow. (N. Y.) 448 ; Chalker v. Chalker, i Conn. 79 ; Ireland v. Nichols, 46 N. Y. 413; Amsby v. Woodward, 6 B. & C. 519; Mc- Glynn v. Moore, 25 Cal. 384 ; Gomber v. Hackett, 6 Wis. 323 ; Watson v. Fletcher, 49 111. 498. ' Chalker v. Chalker, i Conn. 79. 6 Doe d. Sheppard v. Allen, 3 Taunt. 78. ' Watson V. Fletcher, 49 111. 498. " McGlynn v. Moore, 25 Cal. 384. s Ireland v. Nichols, 46 N. Y. 413. '0 Gomber v. Hackett, 6 Wis. 323. " Doe V .Rees, 4 Bing. N. C. 384. >2 Doe d. Nash v. Birch, i M. & W. 402. 232 LANDLORD AND TENANT. nant will not be exacted,^ amounts to a waiver of the for- feiture, or may constitute a ground of relief in equity. The principles governing the relationship of landlord and tenant will be further discussed in the next chapter. 1 Thropp V. Field, 26 N. J. Eq. 82. As to necessity of demand of rent, see Hosford V. Ballard, 39 N. Y. 147 ; Van Rensselaer v. Jewett, 2 N. Y. 141 ; People ex rel. v. Dudley, 58 N. Y. 323 ; Prout v. Roby, 15 Wall. 471 ; Gage v. Bates, 40 Cal. 384. The right of re-entry for non-payment of rent must be enforced during the term, otherwise the forfeiture will be considered waived. Cheatham v. Plinke, I Tenn. Ch. 577; see Johns z-. Whitley, 3 Wils. 127, and a covenant not to assign without the landlord's consent, if waived once, is waived forever. Murray v. Har- way, 56 N. Y. 337 ; Chalker v. Chalker, i Conn. 79 ; see Dumper v. Syms, Cro. Eliz. 815. See further, as to waiver, Prindle v. Anderson, 19 Wend. (N. Y.) 391. Rent must have accrued, and been received after forfeiture, to constitute waiver. Jackson v. Allen, 3 Cow. (N. Y.) 220 ; Hunter v. Osterhoudt, 1 1 Barb. (N. Y.) 33. Mere receipt of rent without knowledge of the forfeiture, is not a waiver. Keeler v. Davis, 5 Duer (N. Y.), 507. CHAPTER XIII. NOTICE TO QUIT AND DEMAND OF POSSESSION. 372. 373- 374- 375- 378. 379- 380. 381, Notice to quit. When necessary. Privity of estate. Notice to quit necessary only in cases of tenancies. 376. Intruders. 377- Trespassers. Expiration of term by provisions of lease. Lease void by statute of frauds. Tenant holding over. Uncertain tenancies. 382. Tenancy from year to year. 383. Reasonable notice — Tenancy from year to year. 384. Tenant at vfill. 385. Tenant at sufferance. 386. Possession under a void homestead claim. 387. Disclaimer by tenant. 388. Disclaimer a question of fact. 389. Defense of adverse possession for- feits right to notice. When refusal to deliver possession not a disclaimer. Tenants in common — Demand of possession. 390. 391- 392. Tenant of tenants in common. 393. Landlord defending in tenant's place. 394. Vendor and vendee. 395. Obligee in bond for titles. 396. Vendee in possession under void contract. 397. Mortgagee against mortgagor. 398. Infant plaintiff. 399. Personal representatives. 400. Notice by tenant to landlord. 401. Form of the notice. 402. What notices held good. 403. Mistakes in notice. 404. Parol notice. 405. By whom notice should be given. 406. Receiver in chancery. 407. Agent of a corporation. 408. By joint tenants. 409. By tenants in common. 410. Who cannot give notice. 411. Waiver of right to notice. 412. Service of notice. 413. How served. 414. Service of notice — How proved. § 372. Notice to quit. — The subject of notice to quit and demand of possession, assumes much prominence in controversies over the possession of land, where the relation- ship of landlord and tenant is proved, or some express or implied contract or agreement as to the possession is shown between the parties. The importance of determining, in a given case, whether or not a demand of possession, or notice to quit, is requisite, should not be overlooked, for the failure to observe one of these prerequisites may defeat the plaint- iffs action, and preclude inquiry into the merits of the title. Attention to this subject is the more important, because parties sometinies enter into a contest with the intention of trying the title, and the defendant, when actually confronted 234 NOTICE TO QUIT. with a suit, having no substantial claim, or desiring to em- barrass the litigation, finds it convenient to retreat behind a claim of tenancy, or of occupation by the express or implied consent of the ovi^ner, and a failure to demand possession or to serve notice to quit. Every presumption will, of course, be indulged by the courts, that the defendant acquired the possession by right or consent of the owner, for the law will never presume that a man is a trespasser, or wrong- doer, and as a result subject him to costs and damages in an action at law. § 373- When necessary. — Generally speaking, notice to quit is necessary in cases where the occupant acquired the possession with the owner's assent, but for no definite term.^ The right is founded upon the theory that it would be un- reasonable that a man, who had expended time and money in cultivating lands, and making preparation for crops, while his estate was uncertain, should be turned oflF at a moment's warning.^ There is, however, no distinction between houses and lands, as regards the time of giving notice to quit, it being considered necessary that both should be governed by one rule.^ § 374. Privity of estate. — A party in possession, it is clear, is not entitled to notice to quit, unless there is some privity of contract or of estate between the parties.* And where the relation of landlord and tenant is not shown be- tween the parties,^ and the issue is one of title only, no de- mand or notice is requisite.'' This subject has been recently considered in the Supreme Court of New Jersey, in the 1 See Jackson v. Miller, 7 Cowen (N. Y.), 747; Gregg z/. Von Phul, i Wall. 274 ; Stedman v. Mcintosh, 4 Ired. (N. C.) Law, 291. 2 Bedford v. McElherron, 2 S. & R. (Penn.; 49; Witt v. Mayor, &c. 6 Robt. (N. Y.) 441. 3 Right V. Darby, i T. R. 1 59. " See Livingston v. Tanner, 14 N. Y. 64-66; Gregg v. Von Phul, i Wall. 274; Jackson v. Fuller, 4 Johns. (N. Y.) 215 ; Eberwine v. Cook, 74 Ind. 377. 5 Waters v. Butler, 4 Cr. C. C. 371. 6 Eysaman v. Eysaman, 24 Hun (N. Y.), 430 ; Wood v. Wood, 18 Hun (N. Y.), 351; Herrell v. Sizeland, 81 111. 457. NOTICE TO QUIT. 235 case of Steffens v. Earl/ and the court state the rule relative to notices to quit, as follows : " Where there is a lease for a certain period, the term determines without notice.^ In un- certain tenancies, reasonable notice was necessary, which reasonable notice had, from the time of Henry VIII, ac- cording to Lord Ellenborough, been six months.'^ This rule was applied to all uncertain tenancies in New Jersey, whether rent was or was not reserved.* * * * In cases of tenancies for periods running less than a year, the rule enunciated by the text-writers is, that the notice must be regulated by the letting, and must be equivalent to a period. How the rule arose is uncertain."® § 375. Noiice to quit necessary only in cases of tenancies. — In order to render service of notice to quit necessary, the party claiming it must show that he entered as a tenant of some kind of the lessor of the plaintiff. If he is not a ten- ant for years, or from year to year, or at will, or even by suf- ferance, there can be no pretense that a notice to quit, or de- mand of possession, is necessary before the action is brought.® A person in possession is not, as already shown, entitled to notice to quit, unless there existed privity either of contract, or of estate, between him and the plaintiff.'' It has been held in New York, that a tenant for the life of another, who continues in possession after the death of the cestui que vie, without the consent of the owner, is not a tenant at suffer- ance, but a trespasser, and hence not entitled to notice to quit.^ ' II Vroom (N. J.), 128. 2 Citing Cobb v. Stokes, 8 East, 358; Right v. Darby, i T. R. 159; Decker V. Adams, 7 Halsted (N. J.) Law, 99. 3 Citing Doe d. Strickland v. Spence, 6 East, 120. ■I Citing Den v. Drake, 2 Green (N. J.) Law, 523. Changed by statute in New Jersey to three months. See Rev. page 575. See Steffens v. Earl, supra ; Huffell v. Armitstead, 7 C. & P. 56 ; Towne v. Campbell, 3 C. B. 921. " Eaton V. George, 3 Jones (N. C.) Law, 385. ' Livingston v. Tanner, 14 N. Y. 64; Jackson v. Fuller, 4 Johns. (N. Y.) 215. See § 373. 8 Livingston v. Tanner, 14 N. Y. 64 ; see Horsey v. Horsey, 4 Harr. (Del.) 517. 236 NOTICE TO QUIT. § 376. Intruders. — Where the plaintiff had purchased the property under decree of foreclosure of a mortgage made by T., who had executed an unrecorded lease for life to R., it was held, R. having died, and his daughter, the defendant, having entered on the property, that she was to be consid- ered as a mere intruder, and therefore not entitled to notice to quit.^ Wood v. Wood^ was ejectment by a wife against her husband, for the possession of lands, the title to which was vested in the wife. The parties had taken possession of the lands under a deed to the wife, and had resided together thereon, until, by reason of the husband's improper conduct, the wife went off of the premises, the husband remaining. It was held that the possession taken under the deed was by virtue of the wife's title, the defendant being upon the prem- ises merely because he was her husband, and the head of the family ; that he was not in any way a tenant at will or at sufferance, because he never had any interest in the lands, nor any possession growing out of an interest,® nor acquired the possession by the consent of the plaintiff. The court compares the case to that of one who had, by a trespass, come into \h& pedis possessio of the lands, and was therefore not entitled to notice to quit. This analogy seems forced and unnecessary to the decision of the case. § 377. Trespassers. — It seems to be clearly established, that no proof of service of notice to quit is necessary in ejectment against a party who sets up no right to the pos- session.* The Supreme Court of California have held that it would be absurd to require either a demand of possession or notice to quit, in a case where the defendant was a mere naked trespasser or intruder.^ These cases proceed upon 1 Worthington's ^essee v. Etcheson, 5 Cr. C. C. 302. 2 83 N. Y. 575. 3 Citing Knowles v. Hull, 99 Mass. 562. < Meeker v. Place, 7 Blackf. (Ind.) 169. 5 Godwin v. Stebbins, 2 Cal. 103 ; see Eaton v. George, 3 Jones (N. C.) Law, 385 ; Murphy v. Williamson, 85 111. 149; Chicago, B. & Q. R.R. Co. v. Knox Col- lege, 34 111. 195. NOTICE TO QUIT. 237 the theory that as there is an entire want of privity and ab- sence of contract relationship, express or implied, between the parties, the reasons upon which the practice of giving the notice rests do not apply. § 378. Expiration of term by provisions of lease. — Where the term of a lease is to end on a day certain, there is no occasion for a notice to quit previous to bringing an action, because both of the parties are. apprised that unless they come to some fresh agreement, there is an end of the lease.' The contract itself gives sufficient notice.^ § 379. Lease void by statute of frauds. — The receipt of rent, and occupancy under a lease void by the statute of frauds, does not validate the lease, but the relationship en- ures as a tenancy from year to year,^ which must be termi- nated by a notice to quit, though resort may be had to the void lease to determine the rights and duties of the parties in all things consistent with a yearly tenancy. Where the occupancy is under a lease, void by the statute of frauds, and the rent is paid monthly, the relationship constitutes a tenancy from month to month, which is determinable only by a month's notice to quit.* § 380. Tenant holding over. — In Schuyler v. Smith,^ ' Cobb V. Stokes, 8 East, 358 ; Messenger v. Armstrong, i T. R. 54, per Lord Mansfield ; Right v. Darby, i T. R. 162; McCanna ■z'. Johnston, igPenn. St. 434; Roe V. Ward, i H. Blackst. 97 ; McCIure v. McClure, 74 Ind. 108. 2 Doe V. Stratton, 4 Bing. 446 ; Bedford v. McElherron, 2 S. & R. (Penn.) 49 ; see, especially, Den v. Adams, 7 Halsted (N. J.) Law, 99 ; Ellis v. Paige, 2 Pick. (Mass.) 71, and note reviewing cases ; Hendrick v. Cannon, 5 Texas, 248; Young V. Smith, 28 M0.65; Dorrell^'. Johnson, 17 Pick. (Mass.) 263; Stockwell v. Marks, 17 Me. 455 ; Gregg v. Von Phul, i Wall. 274; Allen v. Jaquish, 21 W^end. (N. Y.) 628; Rich V. Keyser, 54 Penn. St. 86. 3 Reeder v. Sayre, 70 N. Y. 180; Clayton v. Blakey, 8 T. R. 3; Doe v. Bell, 5 T. R. 471; Doe V. Terry, 4 Ad. & El. 274; see Doe v. Cockell, lb. 478; see Doe V. Amey, 12 Ad. & El. 476; Schuyler v. Leggett, 2 Cow. (N. Y.) 660; Louns- bery v. Snyder, 31 N. Y. 514; Edwards v. demons, 24 Wend. (N. Y.) 480. « Geiger v. Braun, 6 Daly (N. Y.), 506; People v. Darling, 47 (N. Y.) 666. 6 51 N. Y. 309. Conway z/. Starkweather, I Denio (N. Y.), 113; see Rowan V. Lytle, II Wend. (N. Y.) 616; Allen v. Jaquish, 21 Wend, (N. Y.) 628; Garner V. Hannah, 6Duer (N. Y.), 262-270; Livingston v. Tanner, 12 Barb. (N. Y.) 484. 238 NOTICE TO QUIT. the New York Court of Appeals held that where a tenant, for one or more years, holds over after the expiration of his term, the landlord may at his option treat him as a trespasser, or as a tenant for another year, upon the terms of the prior lease, so far as applicable, and that the right of the landlord to continue the tenancy is not affected by the fact that the tenant refused to renew the lease, and had notified the land- lord that he had hired other premises. It is not in the power of the tenant to throw off his character as such, or deny his tenancy ; nor has he the right to convert himself, at his op- tion, into a wrong-doer, any more than he could deny the landlord's title. To entitle a tenant who holds over a defi- nite term to notice, the holding over must be continued for such a length of time, after the expiration of the term, and under such circumstances, as to authorize the implication of assent, on the part of the landlord, to such continuance. § 381. Uncertain tenancies — It has been held in the Su- preme Court of New Jersey, that half a year's notice to quit is necessary in all cases of uncertain tenancy, whether under the name of tenancies from year to year, or tenancies at will. This rule, it was said, applies to all general and undefined tenancies, whether they originated simply by permission of the owner, or when the tenant has entered under a void lease, or has been let in pending a treaty for a purchase, or wherever no express agreement has been made between the parties as to the terms of the occupancy ; provided the en- try was a lawful one, or with the privity and consent of the owner. All such tenancies, whether created by grant, or contract, or arising by implication, are, so far at least as to en- title the tenant to half a year's notice to quit, constructively held to be tenancies from year to year.^ I Den V. Drake, 2 Green (N.J.) Law, 523, and cases cited ; see Ellis v. Paige, 2 Pick. (Mass.) 72, note. Changed by statute, in New Jersey, to three months. See Rev. p. 575. NOTICE TO QUIT. 239 § 382. Tenancy from year to year. — In Hall v. Myers,^ the Maryland Court of Appeals held, that in order to ter- minate a tenancy from year to year, notice should be given six months prior to the expiration of the tenancy. So, where the defendant has been allowed to occupy lands for several years, without any definite lease or specific contract as to the termination of the tenancy, he is a tenant from year to year, and entitled to notice to quit before the end of the year.^ Either party may determine a tenancy from year to year, at the end of any current year, by giving notice to quit half a year before the end of the year,^ and if the premises are taken " twelve months certain, and six months notice to quit afterwards," the tenancy may be determined by a six month's notice to quit, expiring at the end of the first year.* If the owner does any act, from which the jury may infer that he intended to ac- knowledge the party in possession as his tenant, a tenancy from year to year is created, and can be terminated only by a regular notice to quit. So, where the lessor has allowed the tenant to remain in possession seventeen years after the expiration of the lease, notice to quit is necessary before a recovery can be had in ejectment.* The same rule prevails where the tenant holds over by the permission of the landlord." And where a con- tract provided that the defendant was to occupy a house, and put it in repair, and in consideration thereof should enjoy the property, at a certain rent, until the repairs were reimbursed, this has been held to create a ' 43 Md.446. See Doe d. Clarke v. Smaridge, 7 Q. B. 957 ; Thomas v. Wright, 9 S. & R. (Penn.) 87; Stedman v. Mcintosh, 4 Ired. (N. C.) Law, 291. 2 Den d. Snowhill v. Snowhill, 3 Zab. (N. J.) 447 ; Jackson d. Livingston v. Bryan, i Johns. (N. Y.) 322;. see Hemphill v. Giles, 66 N. C. 512. 3 Doe d. Clarke v. Smaridge, 7 Q. B. 957. ■• Thompson v . Maberly, 2 Camp. 573. = Bedford w. McElherron, 2 S. & R.( Penn.) 49. « Doe V. Morse, i B. & Ad. 365 ; Doe d. Miller v. Noden, 2 Esp. 530; but see Williams v. Deriar, 31 Mo. 13. 240 NOTICE TO QUIT. tenancy from year to year, determinable only by a notice to quit.-' § 383. Reasonable notice — Tenancy from year to year. — In Boudette v. Pierce,^ it appeared that the defendant ob- tained permission of the plaintiff, who owned the locus in quo, to build a hovel and stable a colt upon the premises, the plaintiff, by way of compensation, to have the manure. Subsequently defendant enlarged the hovel, and moved his family into it with the plaintiflF's knowledge. The Court held that the defendant, by occupying the hovel as a dwelling, undoubtedly put an end to the contract, if the plaintiff had so elected, but that by acquiescence, and there- after receiving the stipulated compensation, plaintiff con- firmed the act. In April, plaintiff, without stating any time, requested defendant to remove the building, and va- cate the premises ; and on July 10, notified him to quit at once ; and on July 14 brought ejectment. It was held upon this state of facts, that the occupancy had become a tenancy from year to year, and that the notice was not reasonable. Where, however, a parol agreement provided for a lease for one month, and for each successive month, until the landlord should want the premises, whereupon the tenancy should expire, it was held by the New York Supreme Court that thirty days' notice was not necessary to terminate the tenancy.^ § 384. Tenant at will. — In a case which arose in Michi- gan, it was held, that a woman who had obtained a divorce from her husband, and with his consent kept possession of lands to which he held the legal title, was at least a tenant at will, and entitled to notice to quit, before she could be disturbed.* In a recent ejectment case in the New York Court of Appeals, it was decided that where a party entered 1 Thomas v. Wright, 9 S. & R. (Penn.) 87. 2 50 Vt. 212. See Hemphill v. Giles, 66 N. C. 512. - Peoples. Schackno, 48 Barb. (N. Y.) 551. ■" Wilson V. Merrill, 38 Mich. 707. NOTICE TO QUIT. 241 upon land for an indefinite period by the permission of the owner, even without the reservation of any rent, he was, by implication of law, a tenant at will, and, under the statutes of that State, entitled to one month's notice to quit.^ In a very recent case, decided in the Supreme Court of Maine, it appeared that the defendant, for several years prior to April I, 1877, had been occupying a wharf at an annual rent, pay- able quarterly, and on April i, 1877, the agreement was re- newed for another year, on the same terms, under which the defendant occupied, and paid rent up to January i, 1878. The court decided that, under the statutes of that State, this agreement created a tenancy at will, which could be termi- nated only by thirty days' notice in writing, to be given by one party to the other, or by mutual consent.'* Chief Justice Kent said, in the case of Phillips v. Covert,' decided in 18 10, that though a tenancy at will might be considered to be a tenancy from year to year, for the pur- pose of notice to quit, yet the tenant had no right to such notice, after he had determined the will by an act of volun- tary waste. The rule in England seems to be that, without a previous demand of possession, a tenant at will cannot be ousted in ejectment.* It was said by Kent, however, in 1804, in the case of Jackson v. Bradt,^ that if the defendant was strictly a tenant at will, no notice to quit was necessary. Where it "appeared that the defendants moved into the house of another, and resided with and took care of him, until he died, but never agreed to pay rent, nor was any definite term agreed upon, they were held, by the Supreme Court of Illinois, not to be tenants from year to year, or ' Lamed v. Hudson, 60 N. Y. 102; Post v. Post, 14 Barb. (N. Y.) 253; Burns V. Bryant, 31 N. Y. 453. 2 Thomas v. Sanford Steamship Co. 71 Me. 548; see Rollins v. Moody, 72 Me. 135. 3 7 Johns. (N. Y.) 4. See Jackson v. Wilsey, 9 Johns. (N. Y.) 267 ; see Jack- son V. Miller, 7 Cowen (N. Y.), 747 ; and especially Harris v. Frink, 49 N. Y. 24, 32. 33- ■• Right V. Beard, 13 East, 210. ' 2 Caine's Rep. (N. Y.) 169, 174. See Lamed v. Hudson, 60 N. Y. 102. 16 242 NOTICE TO QUIT. entitled to notice to quit, but mere tenants at will of the owner, and a demand of possession was considered sufficient to terminate the tenancy.^ § 385. Tenant at sufferance. — In a case recently reported in Massachusetts, it was decided that the owner of land, who forcibly entered thereon and ejected, without unnecessary force, a tenant at sufferance who had received reasonable notice to quit, was not liable to an action for an assault.** At common law a tenant at sufferance was not entitled to notice to quit,^ and where a tenant for years held over he became a tenant at sufferance, and was not entitled to notice to quit, for he stood in no privity to his landlord, and had no estate which he could transfer. But there is a distinction in the case of tenants holding over, between one entering- by act of the parties and one entering by act of the law. The former is a tenant at sufferance, the latter becomes merely an abator, intruder or trespasser.* In Michigan, however, a tenant at sufferance is entitled to notice to quit.* But a tenant who wrongfully holds over his term does not acquire any equities from a brief delay on the part of the landlord in proceeding against him, and is not entitled to notice to quit.*' § 386. Possession under a void homestead claim. — A party who gets possession of a homestead by foreclosure of a void mortgage is not entitled to notice to quit, as tenant at will, before being sued in ejectment, for the reason that the possession is not acquired by the consent of the person entitled to it.'' 1 Herrell v. Sizeland, 81 111. 457. 2 Loww. Elwell, 121 Mass. 309. 3 Reckhow v. Schanck, 43 N. Y. 448 ; Hauxhurst v. Lobree, 38 Cal. 563. ' Livingston v. Tanner, 14 N. Y. 64; 4 Kent's Com. pp. 116, 117; Jackson d. Van Cortlandt v. Parkhurst, 5 Johns. (N. Y.) 128 ; Jackson d. Anderson w. McLeod, 12 Johns. (N. Y.) 182; see Co. Litt. 57 S; Moore w. Lawder, i Stark. 308. 5 Kunzie v. Wixom, 39 Mich. 384. « Benfey v. Congdon, 40 Mich. 283. ' Sherrid v. Southwick, 43 Mich. 515. NOTICE TO QUIT. ^43 § 387. Disclaimer by tenant. — Notice to quit is not necessary in cases where the tenant commits any act which amounts to a disavowal, or disclaimer of the title of his lessor, or sets the landlord's title at defiance.^ The tenant by so doing becomes a trespasser ; Jiis possession is adverse, and the landlord may bring ejectment with the same effect as though the possession had originally been acquired by wrong.* And a disclaimer, made subsequent to the demise, may be considered in evidence to disprove the tenancy ; * and where the tenant conveys the land in fee simple it is a disclaimer of the tenancy which dispenses with the necessity of notice to quit.* These cases follow the doc- trine of Lord Mansfield in Doe v. Williams,^ to the effect that where the tenant's possession is adverse from the very nature of things no notice to quit is neces- sary. § 388. Disclaimer a question of fact. — The question as to whether or not particular expressions constitute a disclaihier or repudiation of the tenancy, is ordinarily a question of fact for the jury.^ But the mere payment of rent by a tenant to a third person, does not amount to a disclaimer of the title of the landlord so as to op- erate as a forfeiture of the lease,'' nor will the refusal to pay rent to a devisee claiming under a contested will, accompanied with a declaration that the tenant was ready to pay rent to any person entitled to receive it, ' Grubb I/. Grubb, 10 B. & C. 816; Doe d. Williams v. Pasquali, Peake, [*I96], 259; Van Winkle v. Hinckle, 21 Cal. 342; Doe Gregg V. Von Phul, i Wall. 274 ; Baker v. Gittings, 16 Ohio, 489 ; Burnett v. Caldwell, 9 Wall. 290; Prentice v. Wilson, 14 111. 91 ; Hotalingz/. Hotaling, 47 Barb. (N. Y.) 163; Wright v. Moore, 21 Wend. (N. Y.J 230 ; Candee v. Haywood, 34 Barb. (N. Y.) 349 ; Jackson v. Moncrief, 5 Wend. (N. Y.) 26 ; Dean v. Comstock, 32 III. 173; Moak V. Bryant, 51 Miss. 560; Pierce v. Tuttle, 53 Barb. (.N. Y.) 155; McClanahan t/. Barrow, 27 Miss. 664 ; but see Stackhouse v. Reynolds, 5 Blackf. (Ind.) 570; Twyman v. Hawley, 24Gratt. (Va.) 512. 2 McHan v. Stansell, 39 Ga. 197. 3 Gregg V. Von Phul, i Wall. 274. ■• McHan v. Stansell, 39 Ga. 197. ' Pierce v. Tuttle, 53 Barb. (N. Y.) 155. " McClane v. White, 5 Minn. 178. ' Right V. Beard, 13 East, 210; Newby i/. Jackson, i B. & C. 448. 248 NOTICE TO QUIT. has been followed in Virginia/ the reason assigned being that the vendor would rarely be subjected to any inconvenience by making the demand, while it is an act of simple justice to the vendee, who, having failed to pay the money, may desire to surrender the premises without incurring the costs of an action, or whose default may have been the result of inadvertence or misapprehension, and the demand would enable him to comply with the contract. § 395. Obligee in bond for titles. — If the obligee in a bond for titles fails to pay the purchase money, within the time specified, no demand of possession, or notice to quit is necessary to enable the obligor to maintain ejectment.'' Of course these formalities are unnecessary where the defend- ant's contract is with a stranger, between whom and the plaintiff no connection is shown in respect to the title.* In the case of Ross v. Van Aulen,* recently decided in the Supreme Court of New Jersey, it was held, that where the defendant was let into possession, under a contract to pur- chase, which he failed to carry out, he was not to be regarded as a tenant to the vendor in such a sense as to er title him to three months' notice to quit, but that he might be ejected after a demand of possession, unless the contract contained some provision to the contrary. § 396. Vendee in possession under void contract. — Where the defendant was in possession under a parol contract to purchase the lands, which was void by the statute of frauds, and refused to pay the purchase money, or to deliver up possession, it was held that he was in no sense a tenant so as to entitle him to demand notice to quit.^ ' In McClung ' Twyman v. Hawley, 24Gratt. (Va.) 512 ; Williamson v. Paxton, 18 Gratt. (Va.) 475-505- 2 Dayw. Solomon, 40 Ga. 32; McHan v. Stansell, 39 Ga. 197. 3 Petty V. Graham, 1 3 Ala. 568. « 13 Vroom (N. J.), 49- See Den v. Westbrook, 3 Green (N. J.) Law, 371 ; Van Valkenbergh v. Den, 3 Zab. (N. J.) 583 : Freeman v. Headley, 4 Vroom (N. J.), 523. 6 Chilton V. Niblett, 3 Humph. (Tenn.) 404; see Den v. Webster, 10 Yer. (Tenn.) 513. NOTICE TO QUIT. 249 V. Echols,^ it appeared that the defendant had acquired the possession under a contract to purchase, but subsequently procured a decree declaring the contract null and void, as being founded on a promise to pay confederate treasury notes. It was held that his subsequent possession was wrongful, and that he was not entitled to notice to quit prior to the institution of an action of ejectment. § 397. Mortgagee against mortgagor. — It has been said that before bringing ejectment, by a mortgagee against a mortgagor, notice to quit must be given, for the mortgagor occupies with the mortgagee's consent, and with the perfect understanding that he may use the premises as his own. His interest is much greater than that of the mortgagee, and in practice no tenant at will, for years, or even for life, exercises such unlimited dominion over the land as the mortgagor. No person who holds by another's consent, for an indefinite period, ought ever to be evicted by ejectment at the suit of such party without a previous notice to quit. This should especially be required in all cases of mortgages, because the mortgagor may not only surrender the possession of the land, but may protect himself against an action by payment of the money due.* But the general rule in such States as permit a mortgagee to invoke the remedy of ejectment is, that he may recover the possession of the lands, from the mortgagor, after default, or the day of payment has passed, without notice to quit, the mortgagor being considered as a tenant at sufferance only.^ The same rule applies in ejectment against the assignee of the mortgagor.* A purchaser of public lands who has ' 5 W. Va. 204. ' Jackson v. Laughhead, 2 Johns. (N. Y.) 75. 3 Wilson V. Hooper, 13 Vt. 653 ; Stedman v. Gassett, 18 Vt. 346; Fuller v. Wadsworth, 2 Ired. (N. C.) Law, 263 ; Jackson v. Warren, 32 111. 331 ; Thunder v. Belcher. 3 East, 449 ; Rockwell v. Bradley, 2 Conn, i ; Carroll v. Ballance, 26 111. 9, and cases cited ; but see Keech v. Hall, Douglas, 21 ; see § 333. ■■ Lyman v. Mower, 6 Vt. 345 ; Wilson v. Hooper, 13 Vt. 653 ; see Walcop V. McKinney, 10 Mo. 229; Pierce v. Brown, 24 Vt. 165. 250 NOTICE TO QUIT. made default in the payment of the purchase money, and has failed to redeem after a resale, may be evicted by the second purchaser without notice to quit.^ § 398. Infarit plaintiff. — Where an infant becomes en- titled to the reversion of an estate, leased from year to year, he cannot maintain ejectment against the tenant without giving the same notice to quit that would have been required had the original lessor been the plaintiff; and he cannot avoid a lease which is for his own benefit.^ § 399. Personal representatives. — If a tenant from year to year dies, his personal representatives are entitled to notice to quit,^ unless by the terms of the letting no interest is to vest in the personal representatives, in which case, of course, no notice is necessary* The lessee of a tenant for life is entitled to regular notice from the remainderman.^ § 400. Notice by tenant to landlord. — As the relation of landlord and tenant is mutual, the rules for the regulation of notices to quit, when given by tenants, are of course sim- ilar mutatis mutandis to those by which notices from land- lords are governed. They must be the same in form and substance, expire at the like periods of the year, are depend- ent upon like rules as to the time and mode of service, and may be waived by similar acts.* § 401. Form of the notice. — " Care should be taken," says Mr. Adams, '^ "that the words of the notice are clear and decisive, without ambiguity, or giving an alternative to the tenant ; for, although the courts will reluctantly listen to objections of this nature, yet, if the notice be really am- biguous, or optional, it will be sufficient to render it inef- ' Candee v. Haywood, 34 Barb. (N. Y.) 349 ; affi'd, 37 N. Y. 653. 'Maddon v. W^hite, 2 T. R. 159; see Miller v. Noden, 2 Esp. 530; see §§ 196, 198, 451- 3 Gulliver v. Burr, i W. Bla. 596 ; Doe v. Porter, 3 T. R. 13; Parker v. Con- stable, 3 Wils. 25. ■• Doe V. Smith, 6 East, 530. 5 Jordan v. Ward, i H. Bla. 97. 6 Adams on Eject. (4th Am. ed. 1854), 182, *I56; see Boynton v. Bodwell, 113 Mass. 531. ? Adams on Eject. (4th Am. ed. 1854), 164, *I33. NOTICE TO QUIT. 25 1 fectual, as far at least as the action of ejectment is con- cerned." But a notice directing the tenant to quit, " or I shall insist on double rent," was held, by Lord Mansfield, sufficient to support ejectment, the additional words only- proving the landlord's anxiety to get into possession, and being an emphatic way of showing to the tenant that he is in earnest, by informing him of the consequences if he holds over. His Lordship said, that had the notice contained the words, "or else that you agree to pay double rent" the eject- ment could not have been supported.^ A notice to quit will be held good if, upon the whole, it is intelligible, and so certain that the tenant cannot reasonably misunderstand it. An obvious mistake, in some part, will not invalidate it if it is otherwise so explicit that the party receiving it cannot be misled.* A misdescription of the premises, or a mis-state- ment of dates which cannot mislead, will not vitiate the no- tice; nor need it be directed to the person. Even if directed by a wrong name, yet if the tenant keeps it with- out objection the error is waived.^ § 402. What notices held good. — Thus, a notice describ- ing the lands as lying in an adjoining parish, has been held sufficient.* In Massachusetts a tenancy at will may be ter- minated by either party by a thirty days notice to quit.^ A notice served by a tenant was held to be defective and in- formal, in that it did not state the time when he would va- cate and deliver up the premises ; * but it was held that the landlord might waive the informality, and evidence tending to show that after service of the notice the landlord en- ' Doe d. Matthews v. Jackson, Doug. 175 ; see, further, Doe d. Lyster v. Gold- win, 2 Q. B. 142 ; Doe d. Matthewson v. Wrightman, 4 Esp. 5 ; Doe v. Archer, 14 East, 245. 2 Cook V. Creswell, 44 Md. 581. ' Doe d. Cox V. Roe, 4 Esp. 185 ; Doe d. Matthewson v. Wrightman, lb. 5 ; Doe V. Spiller, 6 Esp. 70; Doe d. Bedford v. Kightley, 7 T. R. 63. * Armstrong v. Mfilkinson, 12 Ad. & El. 743 ; S. C. 40 Eng. C. L. 368. * Genl. Stat. Mass. i860, c. 90, § 31. « Boynton v. Bodwell, 113 Mass. 531 ; Currier v. Barker, 2 Gray (Mass.), 224. 252 NOTICE TO QUIT. deavored to induce the tenant to remain, and offered to re- duce the rents and make improvements, and that upon the tenant's departure he received the keys, and at no time ob- jected to the sufficiency of the notice, was held sufficient to warrant a jury in finding a waiver. § 403. Mistakes in notice. — In Clark v. Keliher,^ the no- tice was addressed to John Clark, but his true name was Thomas B. Clark. The court held that the notice was suffi- cient and lawful, both in substance and in mode of service. There was no uncertainty as to the party for whom it was in- tended, or the tenement to which it applied, and there could have been no doubt but that it was meant for the family who occupied that tenement. The mistake in the christian name of the tenant was, therefore, of no importance. And where a tenant died and a notice to quit was served upon his widow, and there was no proof of the existence of per- sonal representatives, the notice was held sufficient.^ § 404. Parol notice.— Where a demise is by parol, notice to quit need not be in writing.' And it is not necessary to state to whom possession is to be delivered up.* Though a parol notice to quit may suffice, the general prac- tice of serving a written notice is much safer, the notice being more easily susceptible of proof § 405. By whom notice should be given. — The notice to quit must be given either by the landlord or his authorized agent,^ or by any person legally entitled to the reversion, as assignee, devisee, heir, or executor, or receiver with power to let. If it be doubtful in whom the legal estate is vested, all should join in the notice." The notice to quit given by 1 107 Mass. 406; Doe v. Spiller, 6 Esp. 70. 2 Rees V. Perrot, 4 C. & P. 230. 3 Doe d. Macartney v. Crick, 5 Esp. 196; Bird v. Defonvielle, 2 C. & K. 415 ; Roe V. Pierce, 2 Camp. 96; Timmins v. Rowlinson, 3 Burr. 1603. ■• Doe d. Bailey v. Foster, 3 C. B. 215. 5 Reeder v. Sayre, 70 N. Y. 180-188; Doe v. Browne, 8 East, 165. « Reeder v. Sayre, 70 N. Y. 180-188 ; see Doe d. Whayman v. Chaplin, 3 Taunt. 120; Doe d. Green v. Baker, 8 Taunt. 241. NOTICE TO QUIT. 253 an agent should purport to be given in the name of and on behalf of the principal,^ and must be such that the tenant may safely act on it at the time of receiving it ; hence, a notice by an unauthorized agent cannot be made good by an adoption or ratification of it, by the principal, after the proper time for giving notice has elapsed.^ Bringing an action of ejectment is not a sufficient recognition of such authority to entitle the plaintiff to recover, because the recognition should at all events be before the day of the de- mise laid in the declaration.' And a notice to quit given by an agent of an agent, is not sufficient w^ithout evidence of recognition by the plaintiff ; * but an agent to receive rent has power to determine a tenancy.^ § 406. Receiver in chancery. — A receiver in chancery, with power to let, is considered as the agent of the landlord sufficiently authorized to give a valid notice to quit,* though a mere receiver of rents, as such, has no authority to deter- mine a tenancy.'' § 407. Agent of a corporation. — The authority of the agent of a corporation to give notice to quit, to its tenants, need not be under seal,^ and it has been held that a notice given by a person acting as steward of a corporation is suffi- cient without evidence that he had authority under seal from the corporation for such purposes.' § 408. By joint tenants. — Notice to quit by one of sev- eral joint tenants, who have demised jointly from year to year, has been held to be good for his share only, and he ' Cole on Ejectment, p. 44. = Doe ^. Lyster z/. Goldwin, 2 Q. B. 143; Adams on Eject. (4th Am. ed. 1854), [*i27] 158. ' Doe V. W^alters, 10 B. & C. 626; see Right v. Cuthell, 5 East, 491. ^ Doe d Rhodes v. Robinson, 3 Bing. N. C. 677. " Doe d. Man vers v. Mizem, 2 Moo. & R. 56. " Wilkinson v. CoUey, 5 Burr. 2694; Doe d. Marsack v. Read, 14 East, 57-61. ' Doe V. Walters. 10 B. & C. 633. « Wolf z/. Goddard, 9 Watts (Penn.), 544. 9 Roe V. Pierce, 2 Camp. 96. 2 54 NOTICE TO QUIT. was allowed to recover on his separate demise ; * but the contrary doctrine was held in the King's Bench,^ and a no- tice signed by one of several joint tenants, on behalf of his companions, was adjudged sufficient ; and a notice to quit, signed by three of four trustees, who were joint landlords of a house under a deed of trust, puts an end to the relation of landlord and tenant between all the parties.^ § 409. By tenants in common. — A notice which required the defendant to quit the entire estate, has been held fatally defective where it appeared that the plaintiff's title was an. undivided interest; and the defendant was in possession as a lessee of the other tenant in common. The defendant could not comply with the notice without giving up his legal right to the enjoyment of an undivided portion of the estate which did not belong to the plaintiff. The notice was, therefore, one which the plaintiff had no legal right to give, and which the defendant was not bound to regard. It was not even effectual to terminate the right of the defend- ant to occupy the estate as lessee or tenant of the plaintiff.* § 410. Who cannot give notice. — A vendee, who has entered into a contract with the landlord for a purchase of the premises, but who has not obtained the legal title, can- not give a valid notice to quit ;^ and notice to quit is not necessary where the person holding the possession is a mere bailiff or servant to the owner.^ § 411. Waiver of right to notice. — The objection that notice to quit was necessary comes too late, if made for the first time in the appellate court ; it should be urged upon the trial at nisi prius.'' Acceptance of subsequently accru- ' Doe V. Chaplin, 3 Taunt. 120 ; see Good title v. Woodward, 3 B. & Aid. 689. 2 Doe V. Summersett, i B. & Adol. 135, 137; see Doe & Hughes, 7 M. & W. 139. 3 Alford V. Vickery, Car. & Marsh. 280. ' King V. Dickerman, 11 Gray (Mass.), 480 ; see § 300. ° Reeder v. Sayre, 70 N. Y. 180. " Jackson 2/. Sample, i Johns. Cases (N. Y.), 231. ' Castro V. Gill, 5 Cal. 40. NOTICE TO QUIT. 255 ing rent is a waiver of the notice to quit.-' Where eject- ment is brought by a landlord against a tenant, relying upon a disclaimer, any subsequent act of the landlord acknowl- edging the party as his tenant, such as distraining for rent, is a waiver of the disclaimer.^ Serving a second notice has been construed to be a waiver.^ The right to demand and notice may, of course, be waived by express stipulation in the lease.* And the tenant may, by agreement, waive the notice ; ® and where the service of the notice has been ad- mitted in the pleadings, it need not be proved on the trial.® § 412. Service of notice. — It has been held in Walker v. Sharpe,' upon an examination of the English cases, to be well settled in England, that delivery of a notice on the premises to the wife or agent of the tenant, or any other person occupying the same jointly with or under him, is a sufficient service. Notice to a corporation tenant should be addressed to it by name, and served upon its officers ; * and where a tenant dies, the notice may be served on the administrator, who pays the rent.* Where there are two tenants of premises held in common, notice to one is suffi- cient ; ^^ and where the defendant and his wife are absent from the commonwealth, service on the tenant's partner, at his place of business, is valid." § 413. How served. — It has been held in New York, 1 Prindle v. Anderson, 19 W^end. (N. Y.) 391 ; S. C. 23 lb. 616; Goodright v. Cordwent, 6 T. R. 219 ; see Collins v. Hasbrouck, 56 N. Y. 157. = Doe d. David v. Williams, 7 C. & P. 322. 3 See Doe v. Palmer, 16 East, 53-56. < McCanna v. Johnston, 19 Penn. St. 434; Hosford v. Ballard, 39 N. Y. 147 ; Byrane v. Rogers, 8 Minn. 281 ; Eichart v. Bargas, 12 B. Mon. (Ky.) 464 ; Doe d. Harris v. Masters, 2 B. & C. 490. -" Banks v. Carter, 7 Daly (N. Y.), 417. « Chandler z/. Kent, 8 Minn. 536. ' 103 Mass. 154. See Cookw. Creswell, 44 Md. 581. 8 Doe V. Woodman, 8 East, 228. 9 Prior V. Ongley, 10 C. B. 25. i» Doe d. Macartney v. Crick, 5 Esp. 196. " Walker z/. Sharpe, 103 Mass. 154. 256 NOTICE TO QUIT. that the notice in writing given under the statute,^ to termi- nate a tenancy at will or by sufferance, cannot be served by leaving it at the tenant's place of business (not being his residence) while he is absent therefrom, and that a tenancy from month to month, which, by special agreement can be terminated on a notice of thirty days, is in the nature of a tenancy at will, and the notice must be given in the manner prescribed by the statute.^ Where the tenant of an estate holden by the year, had a dwelling house at another place, a delivery of the notice to quit to his servant, at the dwell- ing house, is strong presumptive evidence that the master received the notice.® § 414. Service of notice — How proved. — A copy of a no- tice to quit is competent evidence,* and may be proved by the person who served it, and in case of neglect to take a copy, or preserve a counterpart, the contents of the notice may be proved by a witness, without notice to produce the original.^ And where the tenant being personally served with a notice to quit on a specified day, made no objection to the time, this was held to afford prima facie proof that the tenancy ended at the date specified in the notice.* > I R. S. N. Y. 745, §§ 7 and 8. » Banks v. Carter, 7 Daly (N. Y.), 417. 3 Jones d. Griffiths v. Marsh, 4 T. R. 464. ■- Eisenhart v. Slaymaker, 14 S. & R. (Penn.) 153. 5 See I Greenleafs Ev. vol. i, § 561 ; Jory v. Orchard, 2 B. &. P. 39-41 ; Doe V. Somerton, 7 Ad. & El. N. S. 58; Doe v. Dumford, 2 M. & S. 62; Doe v. Tur- ford, 3 B. & Ad. 890; Falknerz/. Beers, 2 Doug. (Mich.) 117. « Doe V. Biggs, 2 Taunt. 109 ; Doe v. Forster, 13 East, 405. CHAPTER XIV. ATTORNEY'S AUTHORITY TO PROCEED. I 415. Attorney not generally required to produce authority. 416. Rule more strict in action to recover land. 417. Proof of authority after issue joined. § 418. Authority of general agent to bring ejectment. 419. Authority by one or more of several co-tenants. 420. Outstanding title. 421. Hamilton v. Wright. § 415. Attorney not generally required to produce au- thority.— 1\\2it an appearance of an attorney at law for a party in an action, if no collusion is shown, may be recog- nized by the adverse party as authentic and valid, is a rule of practice almost universal in the administration of justice.^ And while the courts clearly possess the power ^ in the exer- cise of a sound discretion,* to compel an attorney to exhibit or prove his authority, yet, in the absence of circumstances indicative of fraud, the court will not ordinarily exercise this prerogative, as against a reputable and responsible attor- ney, in the preliminary stages of the action.* The presump- tion will ordinarily be indulged that the attorney, who is an officer of the court, has full authority to prosecute.^ ' Hamilton v. Wright, 37 N. Y. 502 ; s. C. 5 Trans. App. (N. Y.) i ; see Hal- lett V. Hastie, 35 Ala. 164. 2 Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer (N. Y.), 632 ; S. C. i Abb. Pr. (N. Y.) 193 ; Allen v. Green, i Bailey (S. C.) Law, 448 ; see Allen v. Bone, 4 Beav. 493. ' Commissioners of Excise, &c. v. Purdy, 22 How. Pr. (N. Y.) 506 ; S C. 36 Barb. (N. Y.) 266; S. C. 13 Abb. Pr. (N. Y.) 434; M' Alexander v. Wright, 3 Monroe (Ky.), 189 ; Gillespie, ex parte, 3 Yerg. (Tenn.) 325, - Republic of Mexico v. Arrangois, i Abb Pr. (N. Y.) 437 ; S. C. 5 Duer (N. Y.), 643 ; Denton v. Noyes, 6 Johns. (N. Y.) 296, per Chief Justice Kent ; Jackson V. Stewart, 6 Johns. (N. Y.) 34 ; Anon, i Salk. 86-88 ; Anon. 6 Mod. *i6 ; Cart- well V. Menifee, 2 Ark. 356; Hamilton v. Wright, 37 N. Y. 502 ; American Ins. Co. V. Oakley, 9 Paige Ch. (N. Y.) 496. " Esley V. People, 23 Kan. 510 ; Rogers v. Park, 4 Humph. (Tenn.) 480. 17 258 attorney's authority to proceed. § 416. Rule more strict in action to recover land. — But when the title or right of possession of land is in dispute a stricter rule has been applied, so cherished are the rights of the actual occupant of land in the eye of the law. In New York it is provided by statute that the defendant in an ac- tion to recover real property, or the possession of it, may demand at any time before answer, and, in a proper case, obtain, an order requiring the plaintiff's attorney to produce written evidence of his authority from the plaintiff, or his agent, to commence the action, or written recognition of his authority to do so.^ The court has no discretion, upon^uch an application being made to it, but is compelled to grant the order with a stay of proceedings in the action until the authority has been produced.* The practice requiring the attorney to produce his authority to prosecute actions in the nature of ejectment, prevails in several States. § 417. Proof of authority after issue joined. — It was held in Virginia, while the system of real actions prevailed, that where a writ of right was sued out, and the issue regu- larly joined upon the mere right, and the tenant subse- quently produced affidavits tending to show that the de- mandant died before the institution of the suit (the tenant having been ignorant of this fact until after the issue was joined), all proceedings should be stayed until the person who instituted the suit for his own benefit proved that the demandant was living when the writ issued.^ In ejectment in Pennsylvania the rule was recognized that a defendant could require the plaintiflF's attorney to file his warrant of attorney, in order that the defendant might learn by whose authority the suit had been instituted ; but it was decided that the application came too late if not made until after ^ N. Y. Code of Civil Procedure, §§ 1513, 1514 ; see Harris v. Mason, 10 Wend. (N. Y.) 568 ; see Turner i/. Davis, 2 Denio (N. Y.), 187. 2 McDermott v. Davison, i How. Pr. (N. Y.) 194 ; Howard v. Howard, 11 lb. 80; see Carpenter v. Allen, 13 Jones & S. (N. Y.) 322. 3 Howard v. Rawson, 2 Leigh. (Va.) 733 ; see Gynn v. Kirby, i Stra. 402. . ATTORNEY S AUTHORITY TO PROCEED. 259 pleading and putting the cause at issue.^ It may be here observed, that the rule permitting the defendant to demand proof that the prosecuting attorney was authorized by the plaintiff to bring the action, does not allow the defendant to compel the attorney for the plaintiff to testify as to whether or not, in bringing the ejectment for plaintiff, in his capacity as administrator, he was employed to maintain plaintiff's individual claim to the land. Such evidence is privileged under the rule governing confidential communications be- tween attorney and client.* § 418. Authority of general agent to bring ejectment. — It has been held in New York, that the general agent of a principal absent from the State, having power to manage the property and business of his principal, and to take and hold possession of and manage the locus in quo, is not au- thorized to employ an attorney to bring ejectment.^ § 419. Authority by one or more of several co-tenants. — An instrument executed by one of two joint or common owners of land, in the name of himself and his co-tenant, with the verbal consent of the latter, who is absent, request- ing the attorney to continue the ejectment, is sufficient.* So a power of attorney from four out of five" of the owners of the land, authorizing the commencement of the eject- ment, the fifth owner, a married woman, having signed the power without procuring her husband to join, has been held sufficient in Illinois.^ In an action of ejectment which arose in Tennessee, in which the name of R. was used as a lessor, without his authority, by co-plaintiffs claiming a joint inter- est in the land, on proof by defendants that R. was dead at the time the action was commenced, and that his name was ' Campbell v. Galbreath, 5 Watts (Penn.),423 ; Mercier v. Mercier, 2 Dall. 142. 2 Stephens v. Mattox, 37 Ga. 289. 3 See Howard v. Howard, 1 1 How. Pr. (N. Y.) 80. ■" Howard v. Howard, 11 How. Pr. (N. Y.) 80. But see § 1514 N. Y. Code of Civil Procedure. 5 Lockwood V. Mills, 39 111. 602. 26o attorney's authority to proceed. used without authority, the court refused to dismiss the ac- tion, but struck out his name and allowed the survivors to continue the cause.^ § 420. Outstanding title. — To authorize a claimant of the title in ejectment to use the name of a third party, some connection must be shown between his title and that of the person in whose name he sues ; and it must appear that the paramount outstanding title is not invoked to rob or mo- lest others, but for the protection of the claimant himself Though the claimant's attorney may have no authority to use the name of a party as lessor of the plaintiff in eject- ment, yet the court will not, for that reason, dismiss the ac- tion, unless it also clearly appear that the claimant himself is without such authority.* And where it is apparent to the court that such use is important for the vindication of the rights of the claimant, the name of a party may be used as lessor by the plaintiflF, or the action may be brought in his name, not only without his consent, but against his will, provided the party so using it furnishes sufficient indemnity against loss or damages.^ § 421. Hamilton v. Wright. — In the case of Hamilton V. Wright, in the New York Court of Appeals, it appeared that the pMntiffs Hamilton and Livingston had conveyed the premises in dispute to the plaintiff Gleason, while the defendant was in possession, holding adversely. Gleason was, of course, compelled to institute an ejectment in the name of his grantors, which he did without their knowledge or consent. Defendant prevailed in the action and obtained a judgment for costs against all the plaintiffs. The court held that the grantors were bound by the attorney's appear- ance, and were liable to defendant for the costs, notwith- standing the ejectment was prosecuted without their knowl- 1 Greer v. Smith, 7 Yerg. (Tenn.) 487. 2 Shanks v. White, 36 Ga. 432; Kinsey v. Sensbough, 17 lb. 540; Adams P. McDonald, 29 lb. 571 ; see § 190. 3 Shanks v. White, 36 Ga. 432 ; Fain v. Garthright, 5 Ga. 6. attorney's authority to proceed. 261 edge or sanction, and at the sole instance, and for the exclu- sive benefit of the grantee. The court further held that the defendant was not guilty of laches in failing to avail him- self of the statutory right of demanding evidence of the attorney's authority to institute the action.^ The grantors, by delivering a deed of the land, might be fairly presumed to consent that the grantee should avail himself of every legal means by which he could obtain possession of it. It has been said that a deed of lands held adversely operates as a power of attorney authorizing the grantee to employ the grantor's name as plaintiff in ejectment.'' > Hamilton v. Wright, 37 N. Y. 502 ; S. c. 5 Trans. App. (N. Y.) I ; Couch v. Turner, 17 Ga. 489. As to the effect of an attorney's appearance, see, further, Denton v. Noyes, 6 Johns. (N. Y.) 296 ; Taylor v. Trask, 7 Cow. (N. Y.) 249 ; Gaillard v. Smart, 6 Cow. (N. Y.) 385 ; Meacham v. Dudley, 6 Wend. (N. Y.) 514; Anon. I Keble, 89; Anon. I Salk. 86-88; McCullough v. Guetner, i Binney (Penn;), 214; Reinholdt v. Alberti, i Binney (Penn.), 469; Lorymer w. HoUister, 2 Stra. 693 ; AUeley v. CoUey, Cro. Jac. 695. See, also, Shepherd v. Orchard, 6 Mod. 40, and cases cited ; Gibson v. Bishop of Bath, Barnes, 239. = See § 190. CHAPTER XV. OF THE COMPLAINT. 422. The fictitious lease. 423. How set' forth in the declaration. 424. Demise, though a fiction, must be consistent. 425. Modern pleading. 426. Names of the parties. 427. Written pleadings required. 428. Pleadings, how construed. Pleadings in real actions. Declaration in a writ of entry in Maine. Modern declaration or complaint. Must allege possession by defend- ant. 433. Must allege wrongful or unlawful withholding of possession. 434. Plaintiff's seizin. 435. Allegations as to plaintiff's title. 436. Under claim of fee simple, life es- tate cannot be recovered. 437. Declaration on legal title will not support equitable recovery. 438. Nature of the interest claimed. 429. 430. 431- 432. Nature of estate — How set forth. Pleading an estate in fee simple. Particular estates. General allegation of ownership, seizin and possession — What may be proved under. Effect of setting forth specific chain of title. Muniments and chain of title not to be set forth. Evidence of title not to be pleaded. In California seizin must be averred. Precision in pleading. 448. Mortgagor against mortgagee. 449. Joint title. 450. Joinder of hostile claimants. 451. Ejectment by infant. 452. Declaration against several defend- ants holding different portions of same premises. 453. Co-tenants. 454. Damages for withholding posses- 439- 440. 441, 442, 443- 444. 445- 446. 447- § 422. The fictitious lease. — In tracing the history of ejectment, it has been shown that the parties were formerly imaginary or fictitious, and that the action was instituted by serving the declaration upon the tenant in possession, ac- companied by a notice, signed by Richard Roe, the casual ejector, advising the tenant in possession to appear and pro- cure himself to be made a party and defend the action.^ The declaration constituted the writ or process of the Court,^ and the service of the declaration and notice was considered to be the commencement of the action of eject- ment.^ ' See §§ 37, 38, 39. " Rex V. Unitt, Strange, 567. 3 Pindell v. Maydwell, 7 B. Mon. (Ky.) 314; Atwell v. McLure, 4 Jones (N. C.) Law, 371 ; Barron v. Abeel, 3 Johns. (N. Y.) 481. COMPLAINT. 263 § 423. How set forth in the declaration. — In the decla- ration John Doe declared, on a fictitious lease or demise of the premises in controversy, from A to himself for a term of years, and alleged that, during the existence or continu- ance of the term, he was ousted from possession by the casual ejector Richard Roe.^ When the tenant entered into the consent rule, and was substituted as defendant in the place of the casual ejector, it was necessary to file a new declaration against him, and if the court proceeded to trial and judgment without a new declaration, it was error which was not cured by the tenant pleading to the original decla- ration against Richard Roe, the casual ejector.^ § 424. Demise, though a fiction, must be consistent. — Though the demise, under the early practice, was fictitious, yet the plaintiff was required to count on a demise which, if real, would have supported the action ; ^ for the fictitious lease and ouster were tested by the same rules as if actually made and proved at the trial, and were required to be con- sistent with the plaintiff's legal rights, and within the scope of his legal powers.* But as the lease was entirely a fiction, invented for the purpose of obtaining a fair and expeditious trial of the title, the courts very properly exercised full discretion, and evinced much liberality in granting amend- ments, in matters of form, such as enlarging the term and changing the date of the demise.'' § 425. Modern pleading. — The use of fictitious or imag- inary parties, and the practice of declaring on a fictitious lease, is so nearly obsolete, that further discussion* of this ' See §§ 37, 38, 39. 2 Ayres v. McConnel, 2 Scam. (111.) 307; Harney v. Lambom, 2 Scam. (111.) 480; see Jackson v. Wood, 6 Cow. (N. Y.) 586. 3 Binney 2/. Chesapeake & Ohio Canal Co. 8 Peters, 214; Marston v. Butler, 3 Wend. (N. Y.) 154; see § 28. ■f Den V. McShane, i Green (N. J.) Law, 35. 5 Blackwell v. Fatten, 7 Cranch, 471 ; McDaniel v. Wailes, 4Cranch C. C. 201; Shattuck V. Tucker, N. Chip. (Vt.) 69 ; Walden v. Craig, 9 Wheat. 576 ; see § 53. 6 See §§ 27, 34, 37. 264 COMPLAINT. novel method of judicial procedure would prove of little practical importance, though the modern practice is still governed, to some extent, by the principles of pleading and practice established by courts of common law.^ The real parties in interest ^ now appear, by their proper names, as the nominal parties in the action, usually the claimant or party deforced being the plaintiff, and the party in posses- sion the defendant. § 426. Names of the parties. — By a name in law must be understood the full Christian name, as received in bap- tism, prefixed to the surname received from the parties' an- cestors. Initials, or middle names, are not ordinarily recog- nized in law, and the addition of senior or junior to a name is a mere matter of description, and forms no part of the name.* And where parties whose names are unknown, are sued by fictitious names, the record should so state.* § 427. Written pleadings required. — As controversies over titles to lands are, in most cases, restricted to courts of record, the universal practice is to require written pleadings. Oral pleadings were not tolerated in the system of real ac- tions, as practiced in Virginia, and ought not to be coun- tenanced.* The subject-matter of contention in actions to try title being practically indestructible and unchangeable, the highest considerations of public policy and convenience require that all statements or proofs affecting the title in such controversies be preserved upon the court records for > Greer v. Mezes, 24 How. 268; Kitchen v. Wilson, 80 N. C. 191. ' Hubbell V. Lerch, 62 Barb. (N. Y.) 295 ; affirmed, 58 N. Y. 237 ; Hogan v. Kurtz, 94 U. S. 773. 3 People V. Cook, 14 Barb. (N. Y.) 259 ; s. c. affi'd, 8 N. Y. 67; Van Voor- his V. Budd, 39 Barb. (N. Y.) 479; Blake v. Tucker, 12 Vt. 45 ; Petition of John Snook, 2 Hilt. (N. Y.) 566 ; Fleet v. Youngs, ii Wend. (N. Y.) 524; see Chap- man V. Phoenix Nat. Bank, 12 Weekly Dig. (N. Y.) 525 ; Franklin v. Talmadge, 5 Johns. (N. Y.) 84; Re.x v. Newman, i Ld. Raym. 562; McKay v. Speak, 8 Texas, 376; State V. Martin, 10 Mo. 391 ; Edmundston v. The State, 17 Ala 179. * Ford V. Doyle, 37 Cal. 346. ' Taylors v. Huston, 2 H. & M. (Va.) 161. COMPLAINT. 265 future inspection, instead of being left to the uncertain memories of witnesses. § 428. Pleadings, how construed. — Tiie general rule is, that doubtful phraseology in pleadings is to be taken most strongly against the pleader ; and any ambiguity, uncertainty, or omission in the pleadings must, therefore, be at the peril of the party in whose allegations it occurs.^ In Evans v. Womack,^ on the other hand, the Supreme Court of Texas has held that the petition in trespass to try title is not that sort of pleading which is required to be "certain to a cer- tain intent in every particular," as the rule was understood at common law; while under the practice in Iowa, the rule of the common law, that the allegations of the pleading are to be construed most strongly against the pleader does not ob- tain, the allegations being liberally construed with a view to substantial justice between the parties.® Uncertainty in the pleadings must generally be reached by motion and not by demurrer.* § 429. Pleadings in real actions. — In real actions the demandant was required to allege, and if traversed to prove, a seizin either in himself, or his ancestors through whom he claimed, and in general it was also necessary to aver that he was seized by taking the esplees or profits.* Seizin of some kind must be shown in the declaration in a writ of right, either by the constructive seizin in deed, or by the posses- '■ Hill V. Allison, 51 Texas, 390; Howard v. Gosset, 10 Q. B. 383; Ferriss v. North Am. Fire Ins. Co. i Hill (N. Y.), 71 ; Slocum v. Clark, 2 Hill (N. Y.), 475; see Stephen on Pleadings (8th Am. ed.), 378, Rule 1 1 ; Bac. Max. Reg. Ill ; Goldham v. Edwards, 18 C. B. 389-399; Triscony v. Orr, 49 Cal. 612; Herrington V. Santa Clara Co. 44 Cal. 496; Requa v. Guggenheim, 3 LanS. (N. Y.) 51; Winter v. Quarles, 43 Ala. 692 ; Stephens & C. T. Co. v. Central R. R. Co. 4 Vroom (N. J.), 229. ■ ' 48 Texas, 230. 3 Foster v. Elliott, 33 Iowa, 216. ^ Hampson v. Fall, 64 Ind. 382 ; see Cairo & F. R. R. Co. v. Parks 32 Ark. 131; Lorillard v. Clyde. 86 N. Y. 384. 'See Payne v. Treadwell, 5 Cal. 310; Roscoe on Actions relating to Real Property. 174; Dally w. King, 1 H. Bla. i; Stearns on Real Actions (ed. 1824), 153; see Plummer v. Walker, 24 Me. 14. 266 COMPLAINT. sion of the land, and the perception of the profits, or taking the esplees.^ § 430. Declaration in a writ of entry in Maine. — Under the practice in Maine four things are necessary in a declaration in a writ of entry. First. The premises must be clearly described. Secondly. The estate which the de- mandant claims in the premises must be stated, whether it be a fee simple, a fee tail, for life or for years ; and, if for life, then whether for the demandant's own life or that of another. Thirdly. An allegation that the demandant was seized of the estate claimed within twenty years. Fourthly. A disseizin by the tenant.- § 431. Modern declaration or complaint. — The requi- sites of the modern declaration, petition, or complaint in actions for the trial of title to lands, are almost uniformly a matter of statutory regulation. Though the requirements in some cases are essentially different in the several States, yet it is important to notice the essential allegations, which are of general and almost universal application. § 432. Must allege possession by defendant. — Actions in the nature of ejectment must, as we have seen,^ be insti- tuted against the occupant or party in possession of the lands,* and the declaration must generally allege that the de- fendant is in possession of the disputed property, for, if the plaintiflF is clothed with the possession, he cannot support ejectment which is a possessory action.^ It has been held in Illinois, that the allegations of the declaration should be ■ Dawson v. Watkins, 2 Rob. (Va.) 259; Dally v. King, i H. Bla. i; see Plummer v. Walker, 24 Me. 14. = Wyman v. Brown, 50 Me. 139. 3 See §§ 231-236. ' Hawkins w. Reichert, 28 Cal. 534; Wheelock^/. Warschauer, 21 Cal. 309 ; Gar- ner V. Marshall, 9 Cal. 268; Rodgers v. Bell, 53 Ga. 94; Lockwood v. Drake, I Mich. 14; Schuyler v. Marsh, 37 Barb. (N. Y.) 350; Child v Chappell, 9 N. Y. 246 ; Redfield v. Utica & S. R. R. Co. 25 Barb. (N. Y.) 54; Morris v. Beebe, 54 Ala. 300; Banyer v. Empie, 5 Hill (N. Y.), 48 ; Ward v. Parks, 72 N. C. 452. 5 Corley w. Pentz, 76 Penn. St. 57 ; Buchanan v. Streper, 12 Phila. (Penn.) 529; Cooper V. Smith, 9 S. & R. (Penn.) 26. COMPLAINT. 267 the same, whether the defendant is in the actual occupation or possession of the premises, or, the premises being unoc- cupied, is exercising acts of ownership thereon, or claiming title thereto, or an interest therein.^ In North Carolina, however, it has been decided to be sufficient to plead that the defendant is in possession of a part of the premises, with- out specifying the particular portion.* The objection that the complaint was defective in that it did not positively al- lege that the defendants were in possession, but merely stated that they withheld the land, has been held, in that State, to be cured by verdict.^ A declaration alleging that the plaintiff was in possession, and was ousted on the day of September, 1862, was held sufficient under the practice in Illinois, the objection not having been raised until after judgment, though the defect, it was said, might, undoubt- edly, have constituted good ground of special demurrer.* § 433. Must allege wrongful or unlawful withholding of possession. — The complaint or declaration should also contain an averment that the defendant wrongfully or un- lawfully withholds the possession of the premises claimed. Ejectment, as already stated, was originally an action of trespass,^ and the defendant or disseizor, under the modern practice, is regarded as a wrong-doer, and must be put in the wrong by the pleadings. Under the practice in New York a complaint, which does not set out affirmatively that the possession of the premises is unlawfully withheld from the claimant, is fatally defective.* The Supreme Court of Wis- consin has decided that, under the statute of that State, it is necessary in an action to recover real estate to allege, in the complaint, that the defendant " unlawfully withholds the possession " of the premises claimed, although the premises ■ Dickerson v. Hendryx, 88 111. 66; see Platto v. Jante, 35 Wis. 629. ' Johnson v. Nevill, 65 N. C. 677. ' Wiseman v. Penland, 79 N. C. 197. ' Parr v. Van Horn, 38 111. 226. s See § I. « Taylors. Crane, 15 How. Pr. (N. Y.) 358. 268 COMPLAINT. may not be actually occupied at the commencement of the action/ In the same State the statute requires that the complaint should specifically allege that the plaintiff is en- titled to the possession of the premises.^ § 434. Plaintiff's seizin. — In New York the plaintiff must allege, in the complaint in ejectment, that he is law- fully seized or possessed of a certain estate in the premises, describing them, or of some tangible interest therein ; that he is entitled to the immediate possession of the lands, and that the defendant unlawfully withholds the possession there- of from him.* If the complaint fails to state the nature or quality of the estate claimed by the plaintiff, it has been held in that State that this defect should be taken advan- tage of by demurrer. It does not follow, because the plead- ing is defective in some particulars, that no cause of action is made out by the facts stated, and, after a trial upon the merits, this objection cannot be taken by motion to dis- miss the complaint.* § 435. Allegations as to plaintiff ' s title. — The claimant must allege title in himself at the time of the commence- ment of the action, or at the time of the wrongful entry by defendant,^ and must, ordinarily, prove on the trial that he had title to the premises in dispute on the day named in the complaint or declaration.* An allegation that the plaintiff" claims" the premises "in fee simple absolute," is, under the practice in California, equivalent to a direct aver- ' Platto V. Jante, 35 Wis. 629 ; see Barclay v. Yeomans, 27 Wis. 682 ; Lee v. Simpson, 29 Wis. 338. 2 Barclay v. Yeomans, 27 Wis. 682. ' People V. Mayor, &c. 28 Barb. (N. Y.) 240; s. C. 17 How. Pr. (N. Y.) 56; Walter v. Lockwood, 23 Barb. (N. Y.) 228 ; see Sears v. Taylor, 4 Col. 38. As to the sufficiency of a complaint in ejectment for dower, see Ellicott v. Hosier, 7 N. Y. 201. < Clark V. Crego, 47 Barb. (N. Y.) 599. ' Armstrong v. Hinds, 8 Minn. 254. e Pitkin V. Yaw, 13 111. 251 ; Wood v. Morton, 11 111. 547; Holt v. Rees, 44 111. 30; Joy V. Berdell, 25 111. 542. COMPLAINT. 269 ment of such title in the plaintiff.^ In Steinback v. Fitz- patrick,^ in the Supreme Court of California, it was held that the plaintiff must either aver title or possession, and that the mere taking from the land of a portion of the herb- age growing thereon was not sufficient to give a right of possession that would support the action. §436. Under claim of fee simple, life estate cannot be recovered. — The statutes, in many of our States, require the plaintiff to state the nature of the estate claimed. Under a count claiming an estate in fee simple, the plaintiff cannot recover a life estate;^ and a real action in which the writ claims an estate in fee simple, cannot be maintained by proof of an estate in fee tail only.* § 437. Declaration on legal title will not support equi- table recovery. — It has been repeatedly decided that where the plaintiff declared upon a legal title he was not entitled to recover upon showing an equitable title. The equitable title if relied upon should be set forth in the pleadings ; and if the evidence shows that the plaintiff, who has declared upon a legal title, has only the equitable title, it is not re- garded as a variance, but as a failure of proof.* The rule requiring the plain tiff to plead an equitable title is obviously just and reasonable, because such titles are usually founded upon a complex state of facts often peculiarly within the claimant's knowledge, and which the opposing party is en- titled to have spread upon the records, for his information. As opposed to the cases just cited, however, it has been ' Marshall v. Shafter, 32 Cal. 176. = 12 Cal. 295. ' Forsyth v. Rowell, 59 Me. 131 ; Rawson v. Taylor, 57 Me. 343 ; Almond v. Bonnell, 76 111. 536; Lyon v. Kain, 36 III. 362; Breed v. Osborne, 113 Mass. 318; see Rupert v. Mark, 15 111. 540; but see Harrison v. Stevens, 12 Wend. (N. Y.) 170 ; Holmes v. Seely, 17 Wend. (N. Y.) 75. * Hamilton v. Wentworth, 58 Me. loi. * Sutton V. Aiken, 57 Ga. 416; Groves v. Marks, 32 Ind. 319; Jones v. Parker, 55 Ga. 12 ; Rowe v. Beckett, 30 Ind. 154; Seaton v. Son, 32 Cal. 481 ; Peck v. Newton, 46 Barb. (N. Y.) 173. 270 COMPLAINT. held in New York, that a plaintiff who had claimed in his complaint the ownership of the lands in fee simple, might prove title as mortgagee in possession by agreement with the mortgagor.^ § 438. Nature of the interest claimed. — In Harrison v. Stevens,^ Chief Justice Savage, in delivering the opinion of the New York Supreme Court, held that the plaintiff in ejectment was not bound to set forth in the complaint the nature of the estate, or the quantity of the interest claimed by him, unless required to do so by statute. But under the modern practice the statutes, which require the claimant to state the nature and extent of the interest sought to be re- covered in the lands in controversy in effect preclude a re- covery upon proof of a different interest, for evidence of a different interest or estate is inadmissible, as it would not tend to establish the issues raised by the pleadings. Thus it has been held in Wisconsin, that a complaint for an undi- vided interest in lands was properly dismissed when it ap- peared that the plaintiff's share was less t-han that claimed.' So it has been decided, that, upon a claim for an undivided share of lands, the plaintiff could not recover an undivided interest greater or less than the share claimed, nor could he recover the entire property. Neither could he, upon a claim of the whole property, have a judgment for an undivided part.* In Illinois it is clear that under a declaration claiming the whole estate, an undivided interest cannot be recovered.* While the courts generally possess power to grant amend- ments to remedy difficulties of this nature, yet the exercise 1 Chapman v. Del., L. & W. R. R. 3 Lansing (N.Y.), 261. 2J2 Wend. (N. Y.) 170. Baker v. Heirs of Chastang, 18 Ala. 417; Van Alstyne v. Spraker, 13 Wend. (N. Y.) 578; but see Holmes v. Seely, 17 Wend. (N. Y) 75- ' Riehl V. Bingenheimer, 28 Wis. 84-89. ■■ AUie V. Schmitz, 17 Wis. 169, Bresee v. Stiles, 22 Wis. 120; Eagan v. Delaney, i6 Cal. 85 ; see Holmes v. Seely, 17 Wend. (N. Y.) 75 ; Cole v. Irvine, 6 Hill (N. Y.), 634; Cook v. St. Paul's Church, 5 Hun(N. Y.), 293. 5 Murphy v. Orr, 32 111. 489; Clark v. Thompson, 47 111. 25; Hardin v. Kirk, 49 111. 153. COMPLAINT. 271 of this power is usually discretionary, and, even though the amendment is granted, terms are often imposed, and the cause delayed, so that the necessity of correctly stating the interest and estate of the claimant ought never to be over- looked. If the plaintiff declares on a particular estate or in- terest, the defendant is justified in preparing to disprove, at the trial, only the allegations of the complaint, and it would be unfair to the latter to grant amendments, at the trial, by which the plaintiff was permitted to introduce evidence of a different title or interest, unless it is clearly shown that the defendant could not possibly have been misled by the erro- neous pleading. The plaintiff may recover a part of the premises for which he declared,^ and the complaint in such a case may be amended so as to conform to the proofs.^ § 439. Nature of estate — How set forth. — As we have said, in many of our States the plaintiff must set forth the nature of his estate in the property claimed, and specify whether it is in fee, for life, or for years.* In a case in the Supreme Court of New Yoiic, the general rule is stated to be that the plaintiff must allege the nature of his claim. But it is not necessary to state it in detail, nor need the facts constituting the estate or interest claimed in the land be set forth, but the general form or character of the interest must be averred.* In other words, the plaintiff must allege that he is seized of some certain estate.^ In a case which arose in Alabama, it was said that the complaint should allege that the plaintiff was possessed of the lands in controversy, and that, after his right had accrued, the defendant entered thereon and unlaw- fully withheld and detained the premises. Otherwise the ' McArthur v. Porter, 6 Peters, 205. 2 Kellogg 7/. Kellogg, 6 Barb. (N. Y.) 116-131. 3 Thompson v. Wolf, 6 Oregon, 308 ; Walter v. Lockwood, 23 Barb. (N. Y.) 228 ; Bridges v. Cundiff, 45 Texas, 440. * Austin V. Schluyter, 7 Hun (N. Y.), 275; Ensign v. Sherman, 13 How. Pr. (N. Y.) 39; Walter v. Lockwood, 23 Barb. (N. Y.) 228; see Bridges v. Cundiff, 45 Texas, 440. * People V. The Mayor, &c. 28 Barb. (N.Y.) 248 ; Rawlings v. Bailey, 15 III. 178; see Rogers -u. Sinsheimer, 50 N. Y. 646. 272 COMPLAINT. complaint would be defective both under the statute of that State and at common law.^ § 440. Pleading an estate in fee simple. — It has been held in Tennessee, where the declaration averred an estate in fee in the plaintiflF, that the estate claimed was sufficiently- set forth, and that the pleader need not specify the claim or title under which defendant entered.^ And in Maine, under a statute which required the demandant to " set forth the estate he claims in the premises, whether in fee simple, fee tail, for life, or for years," it has been held sufficient to aver in a real action that he is seized in " fee," for the owner of a fee simple is frequently called the tenant in fee.^ An estate in fee simple may be pleaded in general terms without showing when or how the estate arose or was created.* § 441. Particular estates. — A general rule of pleading is that the commencement of particular estates must be shown. If a party sets up in his own favor an estate tail, an estate for life, a term for years, or a tenancy at will, he must show the derivation of that title, from its commencement ; that is, from the last seizin in fee simple.^ The distinction between pleading estates in fee simple and particular estates, origi- nates in the nature of the estates. A fee simple may be ac- quired by wrong, as by disseizin, or by causes involving matters of fact, as to which a jury are competent to judge, and which need not therefore be spread upon the records for the information of the court. Hence a general allega- tion of a seizin in fee simple is traversable. Particular es- tates, on the other hand, are carved out of a fee simple, and can be created only by contract, conveyance, or operation ! Bush V. Glover, 47 Ala. 167. 2 Smith V. Cox, 6 Heisk. (Tenn.) 462. 3 Jordan v. Record, 70 Me. 529 ; see 2 Bla. Com. 104-106; Stephens on Plead- ings, pp. 304, 305. 4 Silly z/. Dally, 12 Mod. 191; Parr -v. Van Horn 38 111. 226; Marshall ». Shafter, 32 Cal. 176. 6 See Stephen on Pleading, p. 307 ; Hendy v. Stephenson, 10 East, 60 ; Johns V. Whitley, 3 Wils. 72; Silly v. Dally, I2 Mod. 191. COMPLAINT. 273 of law ; hence, it is said, that a general allegation of seizin of a particular estate is defective, as it combines law and fact, and is not traversable.^ The strictness of this rule of pleading, however, has been much softened by the provisions of modern codes of procedure, which, in some States at least, permit a recovery in ejectment by a claimant vested with a particular estate, who has merely asserted ownership of such an estate, in the complaint, without tracing its origin.^ § 442. General allegation of ownership, seizin and pos- session. — What may be proved under. — In Bridges v. Cun- diff,* in the Supreme Court of Texas, the plaintiffs, in their pleadings, made no effort to set out the commencement or derivation of the title, but only averred, in general terms, their ownerslfip, and the legal seizin and possession. Un- der these averments, it was held to be competent for them to prove a grant of the premises to their ancestor, and that they were his heirs. It was not necessary to aver, in the petition, that they claimed by inheritance. A difTerent rule might apply if the plaintiff had undertaken to specifically set forth the title, and had failed to aver heirship. § 443. Effect of setting forth specific chain of title. — If the plaintiff sets out a specific chain of title, his evidence will be confined to the title as alleged,* and while it is not necessary to aver the evidences of the plaintiff's title, yet if these be alleged, the substantial elements of the title must be stated.^ In Hill v. Allison,® the plaintiff, in anticipation of defendant's answer, and in avoidance of his title, set forth a sheriff's deed under which he alleged the defendant claimed, and then sought to avoid the deed by averments ' Scilly V. Dalby, Comb. 476; S. C. 12 Mod. 191 ; S. C. 2 Salk. 562; especially Johns V. Whitley, 3 Wils. 65-72. 2 See §§439, 445. ' 45 Texas, 440. See Ufford v. Wells, 52 Texas, 612. ■* Turner v. Ferguson, 39 Texas, 505 ; see Custard v. Musgrove, 47 Texas, 217 ; Eagan v. Delaney, 16 Cal. 85 ; Rivers v. Foote, ii Texas, 670. ' Hughes V. Lane, 6 Texas, 289. « 51 Texas, 390. See Harlan v. Haynie, 9 Texas, 462. 18 2 74 COMPLAINT. that the property was, at the time of the levy and sale homestead. The answer was a plea of not guilty. It was held that the plaintiff arssumed the entire burden of the issue thus made and tendered by him. § 444. Muniments and chain of title not to be set forth. — In an action for the recovery of the possession of real prop- erty, it is not necessary for the plaintiff to set out his muni- . ments, these being merely part of his evidence. In the case of Pease v. Hannah,^ in Oregon, a motion was granted strik- ing out that portion of the complaint which set forth the plaintiff's chain of title. And where a deed, under which the plaintiff claimed title, was set out at length in the complaint, in an action for the recovery of real property in Indiana, the court held that the claimant was. not thereby relieved from the necessity of proving its delivery, and that it was improper practice, in pleading, to set out, in extenso, the deeds upon which the parties rely, on either side, to make out their titles.* As a general rule, the absence of material allegations in a com- plaint cannot be supplied by reference to exhibits.^ In Fitch V. Cornell,* it was held, that an exhibit was no part of a pleading in an action at law, and that a record or instru- ment should be stated in a pleading, either according to its tenor or legal effect. § 445. Evidence of title not to be pleaded. — In Colman V. Clements,^ it was held by the Supreme Court of Califor- nia, that the complainant who had averred ownership in general terms, was not required to set forth, in the plead- ings, the rules and customs of mining, upon which his title partly depended. The plaintiff is not bound to plead or 1 3 Oreg-on, 301. 2 Burkholder v. Casad, 47 Ind. 418 ; see Cairo & F. R. R. Co. v. Parks, 32 Ark. 131 ; see Hann. & St. J. R. R. Co. v. Knudson, 62 Mo. 569; Buck v. Fisch- er, 2 Col. 182. 3 Watkins v. Brunt, 53 Ind. 208 ; City of Los Angeles v. Signoret, 50 Cal. 298. ■• I Sawyer, 160. But see Montgomery v. Gorrell, 51 Ind. 309. 5 23 Cal. 245. COMPLAINT. 275 disclose the evidence of his title ; facts,^ and not the evidence of facts,^ must be stated ; ^ nor should he set forth the mesne conveyances through which the title is deraigned.* It is not proper, in any form of action, to plead the evidence by which a cause of action is to be established.^ § 446. In California seizin must be averred. — It has been held, in California, that none of the allegations peculiar to the old action of ejectment are necessary in an action to re- cover the possession of real property. The seizin is the fact to be alleged, and it is a pleadable and issuable fact, to be established by conveyances from a paramount source of title, or by evidence of prior possession. The right of possession follows the seizin, and need not be alleged.* § 447. Precision in pleading. — In McCarthy v. Yale,^ the Supreme Court of that State advert to the prevalent opinion, that a style of pleading in the action of ejectment should be adopted which would show with precision the right or title under which the plaintiff claims the possession, and the true position of the defendant, both with respect to the title and the possession. Conceding that the change might be preferable to the existing general system of plead- ing, as by adopting such a method of procedure the judgment roll would exhibit the issues, which were tried and determined, with more distinctness and certainty, the court held that the change, if desirable, must be effected by statute. The same objection, it may be observed, was urged against the action of ejectment in the early stages of its history, and one of the redeeming features of the intricate system of real actions was the fact that the nature of the writ and the judgment record revealed the precise issue involved.^ ' Hughes V. Lane, 6 Texas, 289. 2 Depuy V. Williams, 26 Cal. 309. 3 Coryell v. Cain, 16 Cal. 567 ; Bruck v. Tucker, 42 Cal. 346. < Coryell v. Cain, 16 Cal. 567. 6 Badeau v. Niles, 9 Abb. N. C. (N. Y.) 48. « Payne z/. Treadwell, 16 Cal. 220; see McCarthy v. Yale, 39 Cal. 585. ' 39 Cal. 585. « See § 42. 276 COMPLAINT. § 448. Mortgagor against mortgagee. — Holt v. Rees ^ was ejectment instituted by a mortgagor against a mort- gagee. The title, entry and ouster were laid in the declara- tion, May 3, 1865, while it appeared that the mortgage was not extinguished until August 22, 1865. The court held that on the day laid, the right of possession was not in the plaintiff, and that therefore the action could not be sup- ported. § 449. Joint title. — The title must be truly stated in the declaration. A joint demise can only be supported by showing a title in each to demise the whole. If one of the plaintiffs has no title,^ or the title is several,^ the action must fail ; and a joint demise by husband and wife, when the title was in the husband alone, cannot be maintained.* § 450. Joinder of hostile claimants. — In Hubbell v. Lerch,^ in the New York Court of Appeals, the principles regulating the joinder of plaintiffs in ejectment, claiming under titles hostile to each other, are discussed. The com- plaint was so framed that both plaintiffs united in stating that the plaintiff A. H. was seized in his own right of an estate in fee in the premises as grantee of the heirs at law of one H., deceased, who it was alleged had died seized of the lands. In a subsequent portion of the complaint, the same plaintiffs united in declaring that H., in his lifetime, conveyed the premises upon a valid trust to M. and S., of whom the other plaintiff, A. S. H., was the successor. The court decided that if the complaint was to be regard- ed as containing only one count it showed no right of ac- tion in either plaintiff". Each plaintiff, in the same breath, 1 44 111. 30. 2 Hoyle V. Stowe, 2 Dev. (N. C.) Law, 318; see Bryan v. Manning, 6 Jones (N.C.) Law, 334; Teal v. Terrell, 48 Texas, 491 ; Taylor v. Taylor, 3 A. K. Marsh. (Ky.) 19; Taylor w. Whiting, 4 Mon. (Ky.) 365; see contra, Miller 7/. Bledsoe, 61 Mo. 96; Tormey w. Pierce, 42 Cal. 335; see §§ 187-189. 3 Teal V. Terrell, 48 Texas, 491 ;*see §§ 187-189. " Tucker v. Vance, 2 A. K. Marsh. (Ky.) 458. ■' 58 N. Y. 239. See 62 Barb. (N. Y.) 295 ; see § 188. COMPLAINT. 277 Stated facts showing that he was and that he was not entitled to recover. If no answer had been interposed, the court would have been unable to determine which plaintiff was entitled to judgment. On the other hand, if the com- plaint was to be regarded as containing two counts, or state- ments of causes of action, it was equally defective. The practice in New York does not permit two persons, each of whom claims the whole of a piece of land by a title hostile to that of the other, to unite as plaintiffs in an action of ejectment against a third party in possession, and to set forth the title of each plaintiff in a separate count.' §451. Ejectment by infant. — In Voorhies z;. Voorhies^ it was held, in ejectment brought to recover possession of lands conveyed by plaintiff during his infancy, that he must disaffirm the deed prior to the action, and give notice of his intention not to be bound by it, and this act of disaffirmance must be averred in the complaint. § 452. Declaration against several defendants holding different portions of same premises. — One declaration in ejectment will lie against several defendants holding different portions of the same tract.' And where the defendants occupied separately the different stories of a building, it was held, in New York, that the action would lie against all the defendants, as being joint trespassers on the land, in using it to sustain and uphold the house, and for other uses necessary for the enjoyment of the house.* § 453. Co-tenants. — In ejectment between co-tenants, as already shown, the complaint should aver an actual ouster, ■ See St. John v. Pierce, 22 Barb. (N. Y.) 362 ; affi'd, 26 How. Pr. (N. Y.) 599; Hubbell V. Lerch, 62 Barb. (N. Y.) 295. 2 24 Barb. (N. Y.) 150-153. See §§ 196-198. 3 Needham v. Branson, 5 Ired. (N. C.) Law, 426 ; Marshall w.Wood, 5 Vt. 250; Stuart v. Coalter, 4 Rand. (Va.) 74; Camden v. Haskill, 3 Rand. (Va.) 462; White V. Pickering, 12 S & R. (Penn.) 435 ; sge §§ 238, 239, 240. " Pearce v. Ferris, 10 N. Y. 280 ; Pearce v. Colden, 8 Barb. (N. Y.)„522 ; see Davidson v. Barclay, 63 Penn. St. 406 ; Beard v. Federy, 3 Wall. 478 ; see §§ 238 239, 240. 278 COMPLAINT. or some act amounting to a total denial of the plaintiffs right of possession, for ouster must be shown to sustain ejectment between co-tenants.^ § 454. Damages for withholding possession. — The claims for mesne profits and damages for the withholding of the premises may properly be joined with the demand for posses- sion, and the jury, upon finding for the plaintiff", on the main issue, should give a verdict for damages up to the day of the trial.^ The claims for damages, and for mesne profits, as we shall presently see, are separate and distinct causes of action, which must be pleaded, and it is error to allow evidence of the value of the use and occupation where only damages are claimed in the complaint.^ - Edwards v. Bishop, 4 N. Y. 61; see Nicholson v. Caress, 76 Ind. 24; see § 276 and succeeding sections. 2 Vandevoort v. Gould, 36 N. Y. 639; see Livingston v. Tanner, 12 Barb. (N.Y.) 481 ; Holmes v. Davis, 21 lb. 265 ; S. C. on appeal, 19 N. Y. 488 ; Bell v. Medford, 57 Miss. 31 ; Lord v. Dearing, 24 Minn, no; Emrich v. Ireland, 55 Miss. 390; Bottorffz/. Wise, 53 Ind. 32; WoodhuU v. Rosenthal, 61 N. Y. 382; Beard v. Federy, 3 Wall. 478. 3 Lamed v. Hudson, 57 N. Y. 151. CHAPTER XVI. HOW THE LANDS ARE TO BE DESCRIBED. 455. Descriptions under the early prac- tice. 456. Exainples. 457. Modern practice. 458. General and particular descriptions. 45g. Johnson v. Nevill. § 460. Property described by street num- bers. 461. Description by reputed name. 462. Sections of townships. 463. Defective description. 464. Amendment of description. § 455. Descriptions under the early practice. — Under the practice, as established in the early action of ejectment, a general and imperfect description in the declaration of the lands sued for was sufficient. It is true that when the action was originally adapted to its new uses the same cer- tainty of description was, according to some of the cases, held to be requisite, as in a pmcipe quod reddat} But the strict rules prevailing in real actions, regulating the pleading and the manner of describing the lands, if ever fully en- forced, were soon relaxed in ejectment, and no greater cer- tainty of statement was required than in an ordinary action of trespass. In this respect the peculiarities of a personal action clung to ejectment after it had been transformed and adopted as a remedy for trying titles. The practice pre- vailed, however, for a considerable time of requiring a descrip- tion sufficiently specific and definite to enable the sheriff to find the premises recovered, and deliver the possession by consulting the writ solely, and without any suggestion or information from the lessor of the plaintiff, as to the sit- uation or boundaries of the lands.^ This strict method of procedure, however, was soon relaxed.' In Connor v. 1 Macduncoh v. Stafford, 2 Rolle, 166 ; see Adams on Ejectment (4th Am. «d.), p. *26. 2 See Bindover v. Sindercombe, 2 Ld. Rayra. 1470, and cases. 3 See Connor v. West, 5 Burr. 2672 ; Cottingham v. King, i Burr. 623-630 ; St. John V. Commyn, Yelv. 117. 28o DESCRIPTION. West/ Lord Mansfield explains the reason of the change as follows : "A prcscipe in a real action requires exactness and precision ; but an ejectment is a fictitious action, contrived for ease, dispatch, and saving expense ; and has, of later times, been taken with more latitude than formerly. And though it has been often said, ' that the descriptions ought to be so certain that the sheriff may be able to know, with^ out any information from the plaintiff, what he is to give possession of;' yet, in truth and fact, the sheriff delivers possession at the shewing of the plaintiff, and at the peril of the plaintiff; who is, at his peril, to take possession of no more than he is entitled to." § 456. Examples. — Some of the descriptions inserted in the declaration, under the early practice, were vague and imperfect in the extreme, and are curiosities in procedure. Mr. Adams ^ has made a collection of these descriptions in his treatise. Thus ejectment has been maintained for "five acres of alder carr" in Norfolk ; alder carr, in that county, signifying land covered with alders. So, also, in Suffolk for a beast gate ; and in Yorkshire for cattle gates ; and for so many acres of bog, or of mountain ; ^ for a messuage or tenement called the Black Swan;* for corn mills, with- out stating whether wind or water mills,^ and for a stable or cottage.^ So, a declaration in ejectment for a place called a passage room, has been held sufficient,'' and for a room and a chamber in the second story ;^ and for "part of a house in A;"' and for a certain place called a vestry;^* > 5 Burr. 2672. See Johnson v. Nevill, 65 N. C. 677. 2 Adams on Ejectment (4th Am. ed.), p. 27. - Barnes v. Peterson, 2 Stran. 1063 ; Bennington v. Goodtitle, 2 Stran. 1084, - Burbury v. Yeomans, I Sid. 295. ' Fitzgerald v. Marshall, i Mod. 90. « Hill V. Giles, Cro. Eliz. 818 ; Lady Dacres' Case, i Lev. 58 ; Royston v. Eccleston, Cro. Jac. 654 ; s. c. Palm. 337. ' Bindover v. Sindercombe, 2 Ld. Raym. 1470. » 3 Leon, 210. 9 Sullivane v. Seagrave, 2 Stran. 695 ; Rawson v. Maynard, Cro. Eliz. 286. >" Hutchinson v. Puller, 3 Lev. 95. DESCRIPTION. 281 and for ten acres of underwood;^ and for " one hundred acres of g'orse and furze ;" ^ and for " fifty acres of moore and marsh ;"^ and for "ten acres of pease ;"* and for a manor or moiety of a manor generally, without any mention of the number of acres.® § 457. Modern practice. — The method of describing the lands in the pleadings and process in modern actions in the nature of ejectment, is regulated, in some of our States, by statute, which of course controls. The general requisites of a sufficient description of lands are so obviously apparent that most of the numerous mistakes and miscarriages of ac- tions, to be found in the reports, resulting from imperfect descriptions of the locus in quo in the pleadings, must be at- tributed to the carelessness of pleaders. The requirements as to correctly pleading the geographical position of the lands will be noticed in discussing the subject of venue.® The general rule is that the country or State and the county in which the lands are situated, should be stated in the pleadings, and in most cases the town or city, or section or subdivision of the county, should be added. These allega- tions are often held to be jurisdictional, actions for the trial of title to land being local in their nature, and should not be overlooked by the pleader."' § 458. General and particular descriptions. — In Inge V. Garrett,^ in the Supreme Court of Indiana, it appeared that the complaint contained a general, followed by a spe- cific, description of the lands. The particular description did not, as it professed to, contain a more definite description of the same lands mentioned in the general description. } Warren v. Wakeley, 2 Rolle, 482. ' Fitzgerald v. Marshall, i Mod. 90. * Connor v. West, 5 Burr. 2672. ■" Odingsal v. Jackson, i Brown C. & G. 149. 5 Warden's Case, Hetley, 146 ; Cole v. Aylptt, Litt. 299^301 ; Hems v. Stroud, Latch, 61. « See Chapter XVII. ' See Leary v. Langsdale, 35 Ind. 74*. « 38 Ind. 96. 282 DESCRIPTION. The court held that if these descriptions were intended to apply to the same land, and were contained in a deed, the rule that words of particular description will control more general terms of description, when both cannot stand to- gether, would require the court to adopt the more particu- lar and reject the general description.^ The same rule, it was held, should be applied to a pleading. Hence a deed which did not contain the particular description set forth in complaint, was held to be properly rejected on the trial. And where the declaration contains a general description, the court will on motion order the plaintiff to furnish a more particular and detailed description of the lands.^ § 459. Johnson v. Nevill. — The Supreme Court of North Carolina remarked, in Johnson v. Nevill,^ that par- ticularity of description admitted of many degrees, and its sufficiency depended upon the objects to be answered by it. That in ejectment there can be but two objects : First. To enlighten the defendant as to what land is claimed. Second- ly. To enable the sheriff to determine from the execution itself of what premises he is to put the plaintiff in posses- sion. The court further remark that though these reasons seem plausible, yet "their weight is much diminished by the reflection, that however particular and definite (short of a photograph) a description of an object may be, it always re- quires some evidence outside of the written description to enable a stranger to apply it to the parcel intended ; so that even in such a case, the* sheriff is obliged either to satisfy himself of the identity of the land, by witnesses, or to act on the representations of the plaintiff. It has, therefore, been the modern practice for the plaintiff, at his peril, to point out the land recovered, to the sheriff, who puts him in pos- 1 See Gano v. Aldridge, 27 Ind. 294; Moore v. Griffin, 9 Shep. (Me.) 350. 2 Phillips V. Phillips, i Zab. (N. J.) 436; Goodright v. Rich, 7 T. R. 332, and note; Doe d. Roberts v. Roe, 13 M. & W. 691; Doe d. Winnall v. Broad, 2 Man. & G. 523; Johnsoii v. Nevill, 65 N. C. 677. 3 65 N. C. 677. DESCRIPTION. 283 session accordingly. Such a practice sometimes produces inconvenience, as when the plaintiff seeks to obtain posses- sion of more or other land than he has recovered. But, in such a case, the court will always interfere and restrict the action of the sheriff under the writ, to the land to which the plaintiff proved title on the trial. It was found by experi- ence that the contrary course of requiring a precise and minute description of the land, in the declaration, was at- tended with inconveniences vastly greater. If a description be minute, it must be proved with exactness, or else the minuteness only misleads. Under such a rule, there is con- stant danger that a plaintiff may lose his cause from a vari- ance in minute particulars, not entering into the merits, and the delay and expense of trials is greatly aggravated. To avoid these evils, the constant tendency of modern opinion has been to reduce the certainty required in pleading within the more moderate limits which experience has shown to be reasonable and convenient." ^ § 460. Property described by street numbers. — A decla- ration in ejectment "for the premises situated No. 136 South Third street, in the city of Philadelphia," is sufficient in a city having a known system of street numbers regulated by municipal laws, recognized in the transaction of general business, and acted upon by every one.*^ A description by metes and bounds is required in ejectment only so far as is necessary to identify the property with certainty.^ And a declaration in ejectment for property " lying between Water street and the river Monongahela, with the appurtenances, situate and being in the city of Pittsburgh," has been sus- .tained, as being sufficiently specific, by the Supreme Court of the United States.* § 46 1 . Description by reputed name, — A description in a ' See Seward v. Jackson, 8 Cow. (N. Y.) 427; Clark v. Clark, 7 Vt. 190. 2 Flanigen 7/. City of Philadelphia, 51 Penn. St. 491. 3 Doll V. Feller, 16 Cal. 432. * Barclay v. Howell, 6 Peters, 498. 284 DESCRIPTION. will of " all my lands on both sides of Haw river in Chat- ham County, and all the mills and appurtenances and im- provements thereto, said property being known as the McClenahan Mills," has been held sufficiently definite to constitute color of title, provided the jury found that the tract of land was well known throughout the county by the name used in the will/ So designating land as "The Home Place," " The Lynn Place," and " The Leonard Gree- son Place," have been held sufficient descriptions if the property was well known by that name.^ The name of a place may serve to identify it to the apprehension of more persons than a description by coterminous lands and water- courses, and with equal certainty. For example ■' Mount Vernon, the late residence of General Washington," is better known by that name than by a description of it as situate on the Potomac river, and adjoining the lands of A., B. and C. Indeed the name of a place frequently overrules a mistaken description.^ A count in a writ of right demand- ing " a certain tenement, consisting of the one stone house with the appurtenances," was held to be a demand for the land on which the house stands, and sufficiently certain.* And in a declaration in trespass to try title, although advan- tageous, it is not necessary to describe a close by its abut- tals ; " a certain plantation, close and tract of land " has been held to be a sufficient description.^ § 462. Sections of townships. — Proof of the number of the section, and the township, range, and meridian, is suffi- cient to sustain a verdict, where the declaration counts for lands by the number of the government surveys.* A com- - Henley v. Wilson, 81 N. C. 405. 2 Smith V. Low, 2 Ired. (N. C.) Law, 457. 3 See Proctor v. Pool, 4 Dev. (N. C.) Law, 370; see, further, Ritter v. Barrett, 4 Dev. & Bat. (N. C.) Law, 133; Kitchen v. Herring, 7 Ired. Eq. (N. C.) 190; Fouke V. Kemp's Lessee, 5 Harr. & Johns. (Md.) 135; Lahiffe v. Hunter, Har- per (S. C.) Law, 184. * Snapp V. Spengler, 2 Leigh (Va.), i ; see Beverley v. Fogg, i Call (Va.), 484. « Broughton v. Broughton, 4 Rich. (S. C.) Law, 491. « Dart V. Hercules, 34 111. 395; see, further, Sims v. Thompson, 30 Ala. 158; DESCRIPTION. 285 plaint in ejectment for a " part of the southwest quarter of section — , township nineteen, range four west, containing one hundred and fourteen and sixty-five hundredths acres," has been held, by the Supreme Court of Indiana, to be bad. The court remarks, " A judgment, founded on such a com- plaint, would hardly authorize the issuing of a writ which would justify the officer in putting the plaintiff" in posses- sion of any particular- property."^ § 463. Defective description. — In Budd v. Bingham,^ in the Supreme Court of New York, the following descrip- tion : " Northwardly, by lands of said plaintiff"; eastwardly, by lands of said plaintiff; southwardly, by lands of said defendaat ; and westwardly, by lands of said plaintiff," was held to embrace nothing whatever, or rather to describe only a straight line ; because, assuming that which the com- plaint asserts to be true, the lands of the plaintiff and the de- fendant join upon a line running east and west ; hence, there can be no intermediate territory as the lines unite, and are blended into one line. It was further held that, as the complaint omitted to describe any premises whatever, there was nothing which could be made definite and certain by amendment, or by a bill of particulars. § 464. Amendment of description. — A misdescription in the writ may be amended,® and a new description filed, but the amendment, where it includes new lands, will not relate back to the commencement of the action, so as to affect rights the defendant might have acquired under the statute of limitations. The rights, of the defendant are the same as though the writ had issued at the date of the amend- ment* It seems to have been held in Maine, on a writ of entry, that an amendment embracing a diff"erent piece of Rayburn v. Elrod, 43 Ala. 700; Heifner v. Porter, 12 Ala. 470; Pickett v. Doe, 13 Miss. 470. 1 Jolly V. Ghering, 40 Ind. 139. m8 Barb. (N. Y.) 494. ' Leeds v. Lockwood, 84 Penn. St. 70; Sample v. Robb, 16 Penn. St. 305. < Kaul V. Lawrence, 73 Penn. St. 410; Trego v. Lewis, 58 Penn. St. 463; Kille V. Ege, 82 Penn. St. 102. 2 86 DESCRIPTION. land from that described in the declaration, was inadmissi- ble as setting forth a new cause of action. If, however, the amendment merely furnished a more particular and certain description of the land originally sued for, the court said that it would be unobjectionable.^ But in trespass to try title in Texas, the plaintiff may, by an amended petition, describe land of different location, and by a chain of title other than that set forth and relied upon in the original pe- tition.^ A complaint in ejectment in New York described the premises as " situate in the village of Forrestville, etc., viz., the store-room of the said defendants, which at and previous to said time had been occupied by said defendants as a bil- liard saloon, and situate in said village and adjoining the Mor- rison House in said Forrestville, together with the cellar un- der said store, being the cellar and first floor of the building of the defendants, adjoining the Morrison House in the vil- lage of Forrestville in said county, together with the right to use the back yard of the lot upon which said building stands, in common with the defendants." At the trial the defend- ants moved, after a jury had been impaneled, to dismiss the complaint, on the ground that it contained no description of any land. The motion was denied, and an exception taken ; later in the trial, and after an accurate description of the premises claimed had been given in evidence, the court allowed the plaintiff to amend the complaint by inserting the correct description in it. It was held on appeal that, conceding the description was originally uncertain and de- fective, the court was at liberty to proceed with the trial, and to allow the amendment, in the exercise of its judicial discretion, and that this discretion was not the subject of review.^ The complaint in ejectment, or in a real action, may be amended, even after the evidence is closed, to cor- rect a misdescription of the land in controversy.^ ri ' Wyman v. Kilgore, 47 Maine, 184. 2 Hunter v. Morse, 49 Texas, 219 ; see Beard v. Federy, 3 Wall. 478. ' Olendorf z/. Cook, i Lansing (N. Y.), 37. - Russell V. Erwin's Adm'r, 38 Ala. 44; Bird v. Decker, 64 Maine, 550. CHAPTER XVII. VENUE.— LOCAL AND TRANSITORY ACTIONS. 465. Actions affecting realty are local. 466. Residence of the parties immaterial. 467. Local actions not maintainable in foreign jurisdictions. 468. Ejectment for lands lying in several counties. 469. Questions as to venue. — How raised. 470. Distinctions betvifeen actions local by nature and actions local by statute. § 471. Change of venue. 472. Practice in Nevf York. 473. Changes in territorial limits of counties. 474. Changes in channel of a stream di- viding counties. 475. Venue in federal courts. § 465. Actions affecting realty are local. — Actions for the recovery of real property, or for the determination of an interest therein, are local, and must be instituted in the county in which the premises are situated ; ^ and conflicting titles and rights to the possession of lands must be deter- mined by the courts of the State wherein the lands lie.* The distinction between transitory and local actions, in no way depends upon the difference between equitable and common law jurisdiction ; and whether the relief is sought at common law or in chancery, the question of jurisdiction equally applies.^ Lord Mansfield stated, in 1774, that eject- ' Draper v. Kirkland, I Head (Tenn.), 2; Blake v. Freeman, 13 Me. 130; Bellas V. Houtz, 8 Watts (Penn.), 373 ; Doulson v. Matthews, 4 T. R. 503 ; Mayor, &c. v. Ewart, 2 W. Bla. 1070; Mayor of London v. Cole, 7 T. R. 587, 588 ; Mersey, &c. Nav. Co. v. Douglas, 2 East, 498, 499 ; Livingston v. Jeffer- son, I Brock C. C. 203; Roach v. Damron, 2 Humph. (Tenn.) 425; Graves V. McKeon, 2 Denio (N. Y.), 639 ; Warren v. Webb, i Taunt. 379 ; Northern Ind. R, R. Co. V. Mich. Cent. R. R. Co. 15 How. 233; see Putnam v. Bond, 102 Mass. 370; Loeb v. Mathis, 37 Ind. 306; Hamer v. Raymond, 5 Taunt. 789; Watts V. Kinney, 6 Hill (N. Y.), 82; Atlantic, &c. Tel. Co. v. Baltimore, &c. r! R. Co. 14 J. & S. (N. Y.) 377. ' Clopton V, B6oker, 27 Ark. 482 ; see McGoon v. Scales, 9 Wall. 23 ; Story on Conflict of Laws, § 543; Burbank v. Payne, 17 La. Ann. 15 ; American Union Telegraph Co. v. Middleton, 80 N. Y. 408; Watts' Adm'r v. Kinney, 23 Wend. (N. Y.) 484. 3 Atlantic, &c. Tel. Co. v. Baltimore, &c. R. R. Co. 14 J. & S. (N. Y.) 377; 288 VENUE. ment was a local action, and in its nature a proceeding in rem, in which possession was to be delivered by the sheriff of the county, and that, therefore, the judgment could have no effect if the action was not laid in the county in which the lands were situated/ The same rule prevailed in the system of real actions,^ and is still generally applicable to mixed actions, waste, quare impeditf trespass,* case for nuis- ances,^ and all actions for injuries to real property.* In Casey v. Adams,'' Chief Justice Waite, in delivering the opinion of the United States Supreme Court, said : "Local People V. Central R. R. Co. 42 N. Y. 283 ; Northern Ind. R. R. Co. v. Michigan Cent. R. R. Co. 1 5 How. 233. : Mostyn v. Fabrigas, Cowp. 161-176; see Goodtitle v. Lammiman, 2 Campb. 274; Mayor of London v. Cole, 7 T. R. 588; Casey v. Adams, 102 U. S. 66. 2 Booth on Real Actions, p. i. 3 Gould's Pleadings, p. 105. - American Union Tel. Co. v. Middleton, 80 N. Y. 408. 5 Warren v. Webb, i Taunt. 379 ; see Miss. & Mo. R. R. Co. v. Ward, 2 Black. 485. 6 Jacks V. Moore, 33 Ark. 371. As to the distinction between local and transi- tory actions, see Webb v. Goddard, 46 Me. 505 ; Mason, v. Warner, 31 Mo. 508; Kenwood v. Cheeseman, 3 S. & R. (Penn.) 500-503 ; Livingston v. Jefferson, i Brock C. C. 203, per Chief Justice Marshall ; Casey v. Adams, 102 U. S. 66 ; Ver- mont & Mass. R. R. Co. v. Orcutt, 16 Gray (Mass.), 116. An action to procure a decree declaring a deed a mortgage, and for an accounting, has been held, in New York, to be a local action triable exclusively in the county where the property was situated. Bush v. Treadwell, 1 1 Abb. Pr. N. S. (N. Y.) 27 ; see Leland v. Hathorne, 9 Abb. Pr. N. S. 97 ; S. C. on appeal, 42 N. Y. 547 ; but see Ely v. Lowenstein, No. 2, 9 Abb. Pr. N. S. (N. Y.) 42. And an action brought to compel the con- veyance of a farm to the plaintiff, on the ground that the title to it was held in trust for him by the defendant, has been held, under the New York Code, to be an action for the recovery of real property, and for the determination of an estate, right, or interest therein, which must be tried in the county where the land was situated. Ring w. McCoun, 3 Sandford (N. Y.), 524; affi'd, 10 N. Y. 268; see Newton z/. Bronson, 13 N. Y. 587. So an action to restrain the erection of a bridge over a highway, to connect buildings of the defendant standing on op» posite sides of the highway, the plaintiff claiming that the erection would injure his property by cutting off the view and light and air, is local and not transitory, under the practice in New York, and must be tried in the county where the real property is situated. Leland v. Hathorne, 42 N. Y. 547. But in West Virginia, a suit by a grantor of a deed, absolute on its face, to have it declared a mortgage, may be brought in the county where the grantee resides, though the lands lie in another county. Lawrence v. Du Bois, l6 W. Va. 443. ' 102 U. S. 66. VENUE. 289 actions are in the nature of suits in rem, and are to be pros- ecuted where the thing on which they are founded is sit- uated." The court further said, that the distinction between local and transitory actions was as old as the actions them- selves, and that no one had ever supposed that laws which prescribed generally the place where a party could be sued, included actions which were local in their character, either by statute or at common law, unless the statute so declared. § 466. Residence of the parties immaterial. — In Missis- sippi, ejectment and trespass quare clausum f regit, have been declared to be the only actions which could be brought in a county in which the defendant did not reside, and was not found.^ It is unnecessary, in an action of ejectment, to state the residences of the parties, as the situation of the premises, and not the residences of the litigants, determines the county in which the action must be brought* § 467. Local actions not m.aintainable in foreign jurisdic- tions. — No action will lie in one State or country, to try the title or recover possession of lands lying in another country. Courts ordinarily have no jurisdiction of local actions arising within the borders of a foreign State. Judgments rendered in such cases would be nugatory, for the process of the courts could not be enforced beyond the territorial limits of the State.^ In Leary v. Langsdale,* decided by the Supreme Court of Indiana, it was held, that a complaint in ejectment was fatally defective which did not disclose the county or State in which the lands were situated, and that the defect was not cured by answer. § 468. Ejectment for lands lying in several counties. — The rule at common law was that only lands lying within ' Elder v. Hilzheim, 35 Miss. 231. 2 Doll V. Feller, 16 Cal. 432. - Mostyn v. Fabrigas, Cowp. 176 ; Bac. Abr. Actions Local, &c. A (a) ; see Clopton V. Booker, 27 Ark. 482; Burbank w. Payne, 17 La. Ann. 15; American Union Tel. Co. v. Middleton, 80 N. Y. 408 ; Howe v. Willson, i Denio (N. Y.), 181 ; Watts' Adm'rs v. Kinney, 23 Wend. (N. Y.) 484. " 35 Ind. 74- 19 290 VENUE. the county in which the ejectment was instituted could be recovered by the judgment;^ and when the lands were situated within the borders of several counties it was neces- sary to make several entries, and bring as many 'ejectments,* for the recovery in one county did not extend to another.' This inconvenient practice has been practically abrogated by statute in this country. Thus, in Tennessee, when the lands are situated within the limits of more than one county, an ejectment for the entire tract may be brought in either county.* § 469. Questions as to venue. — How raised. — In a case which arose in New York, it was held that when the action was local in its nature, and the venue was untrue on the face of the complaint, the defendant could demur.^ But the ab- sence of an allegation that the land is located within the limits of the county in which the action is brought, is not a ground of demurrer if the property is described as being in a town which is within the borders of the county, as the court will take judicial notice of towns created by law.* It has been held in Maine, that when an action, local in its nature, is commenced in the wrong county, the defendant is not obliged to plead that fact in abatement. If the objection appear on the record, it may be raised by demurrer. Other- wise the defendant may avail himself of it at the trial under 1 Hord V. Walker, 5 Litt. (Ky.) 23 ; see Bellas v. Houtz, 8 Watts (Penn.), 373- 2 Co. Litt. 252 b., and see 35 Hen. VI, 30. 3 Sowder v. McMillan's Heirs, 4 Dana (Ky,), 456. •■ Session Acts of Tennessee, 1847-48, p. 280. In King v. Portis, 81 N.C. 382, in the Supreme Court of North Carolina, it was held that a foreclosure sale of lands lying in two counties, under a mortgage recorded in only one, passed title to the land in both counties, as against a purchaser under a judgment docketed, subsequent to the foreclosure proceedings, in the county in which the mortgage was not registered. See Barrett v. Watts, 13 S. C. 441. « Vermilya v. Beatty, 6 Barb. (N. Y.) 429. « Martin v. Martin, 51 Me. 366 ; Goodwin v. Appleton, 22 Me. 453; Ham v. Ham, 39 Me. 263; State v. Jackson, 39 Me. 291; Vanderwerker z/. People, 5 Wend. (N. Y.) 530 ; see St. Louis, J. & C. R. R. Co. v. Thomas, 47 111. 116. VENUE. 291 the general issue.^ In an action of ejectment, which arose in Tennessee, the court decided that the venue must be proved ; but it was held that if the title papers covering the land in controversy showed that the premises lay in the county in which the action was brought, oral examination of witnesses, or direct proof as to that fact, was unnecessary.^ Nor is it competent for the defendant, merely with a view to defeat jurisdiction, on the principle that the action is local, to show that de jure the line of the county ought to be located in a different place from that in which it is ac- tually established and known.^ § 470. Distinction between actions local by nature and actions local by statute. — Actions necessarily local differ from actions naturally transitory, but required by statute to be brought in a particular county, in respect to questions of jurisdiction, for when the objection raised is that the court had no jurisdiction over the subject matter, or the parties, to issue the process, the proceeding is void.* But matters merely of form in practice, which do not affect the sub- stantial merits of the controversy, nor the regular and fair administration of justice, are held to be waived if not ex- cepted to at an early stage of the cause.^ The Supreme Court of Texas decided, in an action of trespass to try title, that a plea to the jurisdiction of the court, based on the ground that the lands in controversy lay without the limits of the county, came too late after a plea to the merits." § 471. Change of Venue. — It has been decided in the ' Hathorne v. Haines, i Greenl. (Me.) *239 ; i Tidd. Pr. 369 ; see Thrale v. Cornwall, i Wils. 165 ; Bruckshaw v. Hopkins, Cowp. 409, 410 ; Santler v. Heard, 2 W. Bla. 1633. 2 Gorham ■z/. Jones, 11 Humph. (Tenn.) 353. 3 Hathorne v. Haines, i Greenl. (Me.) *239. ■" Elder v. D wight Mfg. Co. 4 Gray (Mass.), 201. = Webb V. Goddard, 46 Me. 505 ; Richardson v. Welcome, 6 Cush. (Mass.) 331 ; Demuth v. Cutler, 50 Me. 298. « Ryan v. Jackson, 11 Texas, 391 ; see Heath v. Whidden, 29 Me. 108. 292 VENUE. same State, that great prejudice in the community against the title furnished no ground for a change of venue in an action of forcible entry and detainer, for the title could not be litigated in a proceeding of that character ; ^ and, in an action of trespass to try title, it was held that the fact that the judge had given an opinion in regard to the validity of the title in controversy was not a sufficient reason to sustain an order changing the venue ; ^ nor is the fact that parties to the suit are influential citizens of the county a sufficient ground for ordering a change of venue in ejectment.^ In Illinois, if a party in his application for a change of venue conforms strictly with the requirements of the statute,* the granting of the change of venue is not considered discre- tionary, but a matter of absolute right.' This doctrine was extended to an action of ejectment.^ The statute, however, allows the court to impose terms and conditions upon the granting of the order, and where the plaintiffs proved that some of the defendants were non-residents, and the others had no property within the jurisdiction of the court, and plaintiffs were being subjected to a large annual loss, by being deprived of the possession, it was held to be a proper exercise of discretion to require the defendant, as a con- dition of granting the change of venue, to furnish a bond as security for the rents in the event of the plaintifTs success.'^ § 472. Practice in New York. — It has been held by the New York Court of Appeals, that, under the practice in that State, a judge has no power to adjourn the trial of a local action to another county.^ But the statute of that 1 Warren v. Kelly, 17 Texas, 544. ' Houston & T. Rwy. Co. v. Ryan, 44 Texas, 426. 3 Phipps V. Mansfield, 62 Ga. 209. ' R. S. Illinois, p. 4094, § 11. 6 Knickerbocker Ins. Co. v. Tolman, 80 111. 106. « Mapes V. Scott, 94 111. 379. ' Mapes V. Scott, 94 111. 379. 8 Birming-ham Iron Foundry 2;. Hatfield, 43 N. Y. 224; Gould v. Bennett, 59 N. Y. 124. VENUE. 293 State, requiring that actions for the recovery of any interest in realty must be tried in the county where the land lies, was held not to apply to a suit brought to compel the specific performance of a contract to convey land without the jurisdiction of the State.^ In Meldrum v. Sarvis,^ de- cided in 1793, in the New Jersey Supreme Court, the power of the court to change the venue in ejectment for proper cause is asserted, but in the later case of Deacon v. Shreve,* it was held that, under the statutes of that State, the court could not change the venue in a local action from the county where the land was situated. This latter case conforms to the current of modern authority, and accords with the general legislative policy of this country. It may be here remarked, that the Supreme Court of the United States decided, in Cook v. Burnley,* that an exception to a refusal to grant a change of venue was not available for review on a writ of error to that court. § 473. Changes in territorial limits of counties. — If, in consequence of a legislative change of boundaries; the land in dispute is transferred from one county to another, pend- ing an action of ejectment, the venue should be altered, and the record transmitted to the new county, in order that the plaintiff, if successful, may have a writ of habere facias pos- sessionem issued to the sheriff of the county in which the land lies. Otherwise a new action would be necessary.® And where, after ejectment brought and before trial, the land in controversy was by legislative act transferred to a different county, the court held that it was thereby deprived of all jurisdiction over the subject matter of the litigation. The cause having meanwhile gone to trial, and resulted in a verdict for plaintiff, an injunction was granted against > Newton v. Bronson, 13 N. Y. 587. = Coxe Rep. (N. J.) 203. 5 23 N. J. L. 204. ^ II Wall. 659. « Murdock V. Little, 18 Ga. 719; stQ,contra, Blake v. Freeman, 13 Maine, 130. 294 VENUE. the sheriff to restrain eviction thereunder.^ On the other hand, where the land in dispute had been included in an- other county, after a decree had been rendered in chancery, it was held in Indiana that a bill to revive the decree should be brought in the county which contained the records. The jurisdiction of the Court of Chancery having once attached, it was retained until the court fully and finally acted upon the subject matter before it.^ In Maine, where, during the pendency of a real action, the town in which the land lay was set off to another county, it was held that the action must proceed and be tried in the county in which it was commenced.* And in Wisconsin it has been decided that where the action was commenced in the proper county, but, while it was pending, the lands were set oflFinto another coun- ty, the court did not thereby lose jurisdiction. In that State the venue in ejectment may be changed by consent, or for cause shown, to a county other than that in which the lands are situated, so that the jurisdiction of the court is not en- tirely dependent upon the locus of the real estate.* It is competent for a legislature, in order to avoid the confusion which would arise from the shifting of causes from one county to another, to provide, in establishing a new county, that pending actions of ejectment shall not be disturbed, even as to lands falling within the limits of the new county.^ § 474- Change of channel of a stream dividing counties. — Where a stream, which is the boundary of a county or State, alters its channel by a gradual wearing of its banks, the division line shifts with the channel ; but if its course is changed by violent or visible alterations, as by making a : Kelly V. Tate, 43 Ga. 535. •^ Arnold v. Styles, 2 Blackf. (Ind.) 391. 3 Blake v. Freeman, 13 Maine, 130. ■< Cornell University v. Wisconsin Central R. R. Co. 49 Wis. 158. = Jackson v. Dains, 2 Cowen (N. Y.), 526. VENUE. 295 "cut off," the abandoned channel continues to be the boundary.^ § 475. Venue in federal courts. — In the federal courts, whenever the subject matter is local, and lies beyond the limits of the district, no jurisdiction attaches to the Circuit Court sitting within that district. An action of ejectment cannot be maintained in a district other than that in which the land is located ; nor can an action of trespass quare clausum /regit be prosecuted where the act complained of was not committed in the district. These actions being local in their character, must be prosecuted where the pro- cess of the court can reach the locus in quo? > Collins V. The State, 3 Texas Ct. of App. 323; see Holbrook v. Moore, 4 Neb. 437 ; Missouri v. Kentucky, 1 1 Wall. 395. 2 Northern Ind. R. R. Co. v. Michigan Cent. R. R. Co. 1 5 How. 233 ; S. C. 5 McL. 444; Livingstone. Jefferson, i Brock, 203; see Foot v. Edwards, 3 Blatch. C. C. 310. So a bill to abate a nuisance is local, and can only be brought in the district where the nuisance is located. Mississippi & Mo. R. R. Co. v. Ward, 2 Black, 485. CHAPTER XVIII. OF THE PLEA OR ANSWER. 476. The general issue. 477. Evidence admissible under general issue. 478. Denial of plaintiffs title under mod- em practice. 479. Effect of plea of general issue on question of possession. 480. Disclaimer and denial inconsis- tent. 481. Special plea and general denial. 482. Pleading statute of limitations. 483. Practice in Texas. 484. General issue in trespass to real property. § 485. Equitable defenses and affirmative relief. _ ' 486. Equitable defenses must be pleaded. 487. Elements of an equitable defense. 488. Defendant need not become an actor. 489. Counter-claim or set-off. 490. Title admitted by answer. 491. Tax title. 492. Pleading a special title. 493. Reply to affirmative defense. 494. Demurrer to ansveer. 495 . Supplemental answer or plea puis darrein continuance. § 476. The general issue. — Under the early practice the general issue in ejectment was " not guilty ; " ^ and after the entry of the plea no objection could be taken to the declaration, or to the indorsement on the writ.^ This plea afforded the defendant a substantial advantage, and was a dangerous one to the claimant, who, though vested with a meritorious title, was liable to be surprised and defeated by a defense that could not reasonably have been anticipated, for which he was wholly unprepared at the trial, and which might have been avoided or disproved had the real issue been disclosed by the pleadings, or brought to the claim- ant's notice. Some of the authorities held that "not guilty " was the only proper plea in the action.^ It is cer- tain that a most liberal tendency existed, and still prevails in the courts and in modern, legislation, to favor this plea, ; Kirkland v. Thompson, 51 Penn. St. 216; Gallagher v. McNutt, 3 S. & R. (Penn.) 409; Zeigler v. Fisher's Heirs, 3 Penn. St. 365; see Lea v. Slatterly, 7 Baxter (Tenn.), 235 ; Dorsey on Ejectment, p. 25 ; Gosser v. Hickenlooper, 81* Penn. St. 281. 2 See James v. Tail, 8 Porter (Ala.), 476. 3 See Bernard v. Elder, 50 Miss. 336; Adams on Ejectment (4th Am. ed.), 302; Tegarden v. Carpenter, 36 Miss. 404; Gallagher v. McNutt, 3 S. & R. (Penn.) 409; Bratton v. Mitchell, 5 Watts (Penn.), 69. ANSWER. 297 and to admit evidence of available legal defenses of almost every class or nature under it. § 477. Evidence admissible tinder general issue. — Thus, in actions to recover real property in Indiana, all defenses may be given in evidence without special plea;^ and in California, after pleading the general issue, the defendant need not set up title in himself.^ In Pennsylvania, cover- ture, or any other available defense, may be given in evi- dence under it;^ so in Illinois, may a defense of home- stead right, for a special plea of homestead right has no proper place in ejectment as practiced in that State.* Under the general issue, or a general denial, the defendant, if not a mere trespasser or intruder, may show title out of the plaintiff, at the commencement of the action, without even connecting himself with such outstanding title in any way." This principle is founded upon the fundamental rule that in ejectment the plaintiff must recover solely upon the strength of his own title, and that he fails in proving his case if the title is shown to be outstanding in another. § 478. Denial of plaintiff's title under modern practice. . — It is ordinarily sufficient, under the modern practice, to deny generally the title set forth in the declaration or pe- tition, and under such a denial the defendant may prove any facts tending to establish that the plaintiflF is not vested with the title or right of possession ; ® but a mere denial of possession, and of unlawful withholding of the premises claimed, accompanied by an allegation that there has been no demand of possession, does not put the plaintiff's title in ■ Poffenberger v. Blackstone, 57 Ind. 288 ; Dale v. Frisbie, 59 Ind. 530; Wood- ruff i-. Garnor, 20 Ind. 174; Tracy z/. Kelley, 52 Ind. 535. « Bruck V. Tucker, 42 Cal. 346. ' Black V. Tricker, 52 Penn. St. 436. * Johnson v. Adleman, 35 111. 265 ; see Patterson v. Kreig, 29 111. 514. 5 Raynor v. Timerson, 46 Barb. (N. Y.)5i8-526; Gillett v. Stanley, i Hill (N. Y.), 121; Schauberw. Jackson, 2 Wend. (N. Y.) 13-48; Styles v. Gray, 10 Tex. 503; Kinney w Vinson, 32 Tex. 125. « Wicks V. Smith, 18 Kan. 508. 298 ANSWER. issue, nor raise the question of adverse possession. To question the plaintiff's title, in such a case, the defendant must set up title in himself or out of the plaintiff.^ § 479. Effect of plea of general issue on question of pos- session. — The authorities are not entirely uniform as to whether the plea of the general issue in ejectment admits or puts in issue the question of the defendant's possession. The general rule, according to many of the cases, is, that the defendant, by interposing this plea, admits himself to be in possession of the whole of the lands claimed in the writ or declaration ■,'^ and that if he desires to dispute or controvert the question of possession, the proper method to accom- plish that result is by special plea, in order to avoid this ad- mission of possession.^ So, under the practice in Massa- chusetts, on a writ of entry, the tenant who pleads the gen- eral issue only is estopped to deny that he was in possession of the premises, and claiming a freehold therein ;* and in a real action in Maine the defendant admits himself to be in possession of the entire premises unless he files a disclaimer as to the whole or some part thereof.'' In North Carohna, if the defendant in ejectment intends to disavow possession, it has been held that he should not enter any defense.* § 480. Disclaimer and denial inconsistent. — Under the practice in Alabama, the plea of "not guilty," and a denial of the possession of the premises sued for, were held to be incompatible defenses, for the former plea was regarded as equivalent to the consent rule, which required the deifendant '- Ford V. Sampson, 30 Barb. (N. Y.) 183; s. C. 17 How. Pr. (N. Y.) 447; see Wade V. Doyle, 17 Fla. 522 ; Sharp v. Daugney, 33 Cal. 505. 2 Ulsh v. Strode, 13 Penn. St. 433; Hill v. Hill, 43 Penn. St. 521. 3 Bernard v. Elder, 50 Miss. 336 ; Gumming v. Butler, 6 Ga. 88 ; Stevens v. Griffith, 3 Vt. 448; Mooberry v. Marye, 2 Munf. (Va.) 453. Contra, Stroud z*. Springfield, 28 Tex. 649. J Swan V. Stephens, 99 Mass. 7; Higbee v. Rice, 5 Mass. 344; Washington Bank v. Brown, 2 Mete. (Mass.) 293; Devens v. Bower, 6 Gray (Mass.), 126. ° Blake v. Dennett, 49 Me. 102. 5 McClennan v. McCleod, 75 N. C. 64; see Thomas v. Orrell, 5 Ired. (N. C.) Law, 569; Judges/. Houston, 12 Ired. (N. C.) Law, 108. ANSWER. 299 to admit the fictitious averments as to lease, entry and ouster.^ In that State, in an action in the nature of ejectment, an answer, " disclaiming all right, interest or possession in the premises sued for, at or since the com- mencement of the action," has been held tantamount to a plea denying possession, and which the court could not dis- regard by rendering judgment nil dicit for the plaintiff.^ § 481. Special plea and general denial. — Under the practice in Texas, a general denial is not abandoned, de- feated or qualified by subsequent special pleas of confession and avoidance, and it has been held by the Supreme Court of that State, to be error to sustain exceptions to the entire answer if a general denial had been filed and not expressly withdrawn.* § 482. Pleading statute of limitations. — The question as to whether or not it is necessary to plead the statute of limitations in actions in the nature of ejectment, to entitle the defendant to introduce evidence in support of a title so acquired, or to protect the possession, is regulated by statute in many of the States. In the famous case of Taylor V. Horde,* Lord Mansfield said : " Ejectment is a possessory remedy, and only competent where the lessor of the plaintiff may enter ; therefore it is always necessary for the plaintiff to shew that his lessor had a right to enter, by proving a pos- session within twenty years, or accounting for the want of it, under some of the exceptions allowed by the statute. Twen- ty years adverse possession is a positive title to the defend- ant ; it is not a bar to the action or remedy of the plaintiff, only ; but takes away his right of possession. Every plaintiflF in ejectment must shew a right of possession, as well as of ' Bernstein z/. Humes, 60 Ala. 582; King v. Kent, 29 Ala. 542; Clarke v. Clarke, 51 Ala. 498; Sledge v. Swift, 51 Ala. 386. " Morris v. Beebe, 54 Ala. 300 3 Hurt V. Blackburn, 20 Texas, 601 ; but see Custard v. Musgrove, 47 Texas, 217. ■• I Burr. 119. 300 ANSWER. property ; and therefore the defendant need not plead the statute." In Wisconsin, the statute of limitations, if relied upon as a defense in ejectment, must be pleaded;^ and it has been held not to be error, but matter resting entirely in the sound discretion of the court, to allow a defendant to amend his pleadings so as to set up the statute of limitations.^ In Mississippi, it has been decided, under the Pleading Act of 1850, that the defendant could set up the statute of limita- tions by special plea, although at common law a special plea was not allowed, as the defense could be made under the plea of not guilty. The court held further that it was error to sustain a demurrer to a special plea, merely because the defendant could prove the same defense under the general issue, which had been originally pleaded.^ It is difficult, however, to see how the defendant could have been prejudiced or affected by sustaining the demurrer,* or what good purpose could be subserved by encumbering the record with useless pleas. In an action, in the nature of a writ of right, in Mississippi, the defendant is not required to plead the statute of limitations, and where the seizin is denied, the demandant is bound to prove it within the time prescribed. The defense is allowable under the general denial of seizin in the answer. '^ In Alabama, adverse possession may be given in evidence, under the plea of the. general issue ; " so in Illinois evidence to establish title by the stat- ute of limitations is admissible under this plea.'' It has been held, in the Supreme Court of North Carolina, that it is not necessary to plead the statute in order to authorize the introduction of proof that title to the land was out of the plaintiflF by adverse possession, and vested in some third 1 Lawrence v. Kenney, 32 Wis. 281 ; Orton v. Noonan, 25 Wis. 672. 2 Meade v. Lawe, 32 Wis. 261 ; Fogarty v. Horrigan, 28 Wis. 142 ; Eldred v. The Oconto Co. 30 Wis. 206; see Ferguson v. Miles, 3 Gilm. (111.) 358. 3 Tegarden v. Carpenter, 36" Miss. 404. * Poffenberger v. Blackstone, 57 Ind. 288 ; Johnson v. Adleman, 35 111. 265. ° Ellis V. Murray, 28 Miss. 129. •^ Lay's Ex'r v. Lawson's Adm'r, 23 Ala. 377. " Stubblefield v. Borders, 92 111. 279; see Wicks v. Smith, 18 Kan. 508. ANSWER. 301 party. The reason given is that thef inquiry in ejectment is intended to ascertain whether or not the plaintiff has title to the land claimed ; hot whether the defendant has no title.^ So in Hogan v. Kurtz,^ in the Supreme Court of the United States, the rule is recognized that proof of title by adverse possession is admissible under the general issue. It has been held in Florida that a plea in ejectment, which averred that neither the plaintiffs nor those under whom they claimed title were seized or possessed of the premises within seven years prior to the commencement of the action, or before the accruing of the right of action, was bad, because it did not set forth facts showing that during the same period the defendant had been in adverse possession.* A mere squatter claiming no title, or a person in pos- session in subordination to the legal title, cannot acquire the title by adverse possession simply because there has been no actual entry or actual possession by the owner during the statutory period.* On the other hand, title by adverse possession cannot be shown under a general denial, under the practice in California,'' and in that State an answer in ejectment, setting forth that the defendant was, at the commencement of the action, and had been for more than five years prior thereto, the owner of, and seized in fee, and entitled to the possession of the demanded premises, has been held not to constitute a plea of the statute of limitations." In New York, adverse possession must be pleaded, and evidence of a title so acquired cannot be given under the general issue. ''^ In partition, where the ' Freeman v. Sprague, 82 N. C. 366 ; Davis v. McArthur, 78 N. C. 357. 2 94 U. S. 773. Steams on Real Actions, 241 ; see McConnel v. Reed, 4 Scam. (111.) 124; Wade v. Doyle, 17 Fla. 522; Zeigler v. Fisher' 3 Penn. St. 367. ' Wade V. Doyle, 17 Fla. 522. 4 Sharp z/. Daugney, 33 Cal. 505; Neddy 7/. The State,- 8 Yerg. (Tenn.) 249; see Stevens v. Hauser, 39 N. Y. 302. = McCreery v. Duane, 52 Cal. 262. 8 McCreery v. Sawyer, 52 Cal. 257. ' Dezengreuel v. Dezengreuel, 12 Weekly Dig. (N. Y.) 286; Butler v. Mason, 16 How. Pr. (N. Y.) 546; see Sands v. St. John, 36 Barb. (N. Y.) 628. 302 ANSWER. complaint showed a tenancy in common between the parties, a paragraph in the answer not denying the tenancy in common, but averring fifteen years sole, exclusive and undisputed possession, " under claim and color of title, openly, notoriously, continuously, and adversely to any other claim or title whatsoever," was held not to constitute a good defense to the cause of action set forth in the com- plaint. The averments of the answer were construed to mean that the defendant, as tenant in comrnon, was holding for the benefit of the co-tenancy adversely to all other persons. An allegation of actual ouster, or its equivalent, was held to be necessary to show an adverse holding to the co-tenant.^ § 483. Practice in Texas. — Under the practice in Texas, a plea of "not guilty" in trespass to try title, lets in all de- fenses except the statute of limitations ; ^ and by interposing this plea the defendant is not regarded as admitting any- thing. The plea puts in issue not only the title of the plaintiff, but also, contrary to the usual practice, the question of the possession of the defendant, and imposes upon the plaintiff the necessity of proving the defendant's possession and everything requisite to sustain the plaintiff's right of action.** The defendant may even show, under a plea of " not guilty," that his deed to the plaintiff, upon which the latter relies to support the action, although absolute on its face, was, in fact, a mortgage ; a special plea is not neces- sary.* In Johnson v. Byler,^ in the Supreme Court of Texas, it was held to be settled doctrine that under the plea of the general issue in trespass to try title, either a legal or 1 Nicholson v. Caress, 76 Ind. 24; see Sanford v. Tucker, 54 Ind. 219; Bowen v. Preston, 48 Ind. 367 ; Nelson v. Davis, 35 Ind. 478 ; Jenkins v. Dalton, 27 Ind. 78. See Chapter IX. ' Dalby v. Booth, 16 Texas, 563. 3 Stroud V. Springfield, 28 Texas, 649. ■< Mann v. Falcon, 25 Texas, 271. 5 38 Texas, 606, 610; Herrington v. Williams, 31 Texas, 448; Ragsdale w. Gohlke, 36 Texas, 286. ANSWER. 303 equitable defense, which amounted to an estoppel, could be introduced without being specially pleaded. But issues which involve affirmative equitable relief, must be specially pleaded, and the facts set forth in accordance with equitable principles and accompanied by an appropriate prayer for relief.^ § 484. General issue in trespass to real property. — In trespass to real property, a freehold or mere possessory right in the defendant may be given in evidence under the gen- eral issue, though it is often advisable to plead liberum tene- mentum? § 485. Equitable defenses and affirmative relief. — As ejectment is an action at law, a recovery under the former practice could only be had upon the legal title to the land. The holder of an equitable title could neither support the action nor set up his equitable title, as a basis of affirmative relief, or to defeat a recovery based upon the legal title.^ The rights of the holder of the equitable title could only be asserted and established in equity. Injunctions were fre- quently granted to restrain ejectment by the holder of the legal title during the pendency of the proceedings in equity upon the equitable title. The modern innovations in sys- tems and forms of judicial procedure, especially the blend- ing of legal and equitable jurisdictions, have wrought radical and highly important change in the nature and uses of the statutory action of ejectment for the trial of controverted titles. The defendant may in' many of our States interpose equitable as well as legal titles or defenses ; * and when ' Williams v. Barnett, 52 Texas, 130; Catlin v. Bennatt, 47 Texas, 165; Ayres •V. Duprey, 27 Texas, 604 ; Rippetoe v. Dwyer, 49 Texas, 498 ; Powers v. Arm- strong, 36 0. S. 357. 2 Cooley V. O'Connor, 12 Wall. 391-399; Monumoi Beach v. Rogers, i Mass. 160. 3 See Neave v. Avery, 16 C. B. 328. * Newsome v. Williams, 27 Ark. 632 ; Pope v. Cole, 64 Barb. (N. Y.) 406; Smith V. Tome, 68 Penn. St. 158; Dewey v. Hoag, 15 Barb. (N. Y.) 365; Phillips •V. Gorham, 17 N. Y. 270; Bates v. Rosekrans, 23 How. Pr. (N. Y.) 103; McCau- 304 ANSWER. equitable defenses are set up against legal titles, the same rule and measure of justice is to be applied as if the pro- ceeding was in equity.^ § 486. Equitable defenses must be pleaded. — As a general rule equitable defenses must be distinctly pleaded and proved.^ In New York, when the action is based upon the alleged legal title of the plaintiff to the premises in con- troversy, it is competent for the defendant to show that he is the equitable owner, and entitled in equity to a convey- ance of the premises, or to other appropriate relief The same facts which would formerly have entitled a defendant to be relieved in equity, may be set up in his answer as a full defense.^ § 487. Elements of an equitable defense. — It has been held, however, in that State,* that if a recovery in ejectment is resisted by an equitable counter-claim in the nature of a cross bill, the answer must contain all the elements of a complaint, or bill in chancery, and must ask affirmative re- lief ;* that the defendant must become an actor in respect to his claim, and that the judgment must be for the plaintiff that he recover the land, or for the defendant that the ley V. Fulton, 44 Cal. 355 ; Neill v. Keese, 5 Texas, 22 ; Allison v. Elder, 45 Ga. 17; Elder z'. Allison, 45 -Ga. 13; Herrington ^z. Williams, 31 Texas, 448; Bartlett V. Judd, 21 N. Y. 200; Pearsall v. Mayers, 64 N. C. 549; Webster v. Bond, 9 Hun (N. Y.), 437; Jones v. Manly, 58 Mo. 559. ■ Sower V. Weaver, 78 Penn. St. 443. = McCauley w. Fulton, 44 Cal. 355; Cadiz t/. Majors, 33 Cal. 288; Millhollin V. Jones, 7 Ind. 715 ; Powers v. Armstrong, 36 O. S. 357 ; Kentfield v. Hayes, 57 Cal. 409. 3 Crary v. Goodman, 12 N. Y. 266; Phillips v. Gorham, 17 N. Y. 270; Stone V. Sprague, 20 Barb. (N. Y.) 509 ; Hopjpough v. Struble, 60 N. Y. 430 ; Lament V. Cheshire, 65 N. Y. 42 ; Cavalli v. Allen, 57 N. Y. 508 ; Traphagen v. Trapha- gen, 40 Barb. (N. Y.) 537; Thurman v. Anderson, 30 Barb. (N. Y.) 621. i Dewey v. Hoag, 15 Barb. (N. Y.) 365 ; Lombard v. Cowham, 34 Wis. 486; Follett V. Heath, 1 5 Wis. 601 ; Conger v. Parker, 29 Ind. 380 ; Hicks v. Sheppard, 4 Lans. (N. Y.) 335 ; but see Webster v. Bond, 9 Hun (N. Y.), 437 ; Cramer v. Benton, 60 Barb. (N. Y.) 216 ; Stone v. Sprague, 20 Barb. (N. Y.) 509 ; Bates v. Rosekrans, 23 How. Pr. (N. Y.) 98-103. 6 See Conger v. Parker, 29 Ind. 380 ; Lombard v. Cowham, 34 Wis. 486, 492 ; Duont V. Davis, 35 Wis. 634. ANSWER. 305 plaintiff convey to him on such terms as the court shall ad- judge. The court held that if an equitable defense were allowed simply as a defense in an action of ejectment, the effect might be to keep the legal title and possession forever separate. So in California, where the answer presents an equitable defense, it must contain all the essential averments of a bill in equity.^ The defendant becomes an actor with respect to the matters alleged by him, and his defense must be of such a character as may be ripened by a decree of the court into a legal right to the premises, or as will estop the prosecution of the ejectment by the plaintiff. Under the practice of that State, the equitable defense is first passed . upon by the court, and, until it is disposed of, the assertion of the legal remedy is in effect stayed. It will not be avail- able unless specially pleaded.^ Upon the adjudication by the court as to the right to the relief sought by the answer, the necessity of proceeding further with the action at law depends.^ § 488. Defendant need not become an actor. — On the other hand, in Hoppough v. Striible,* in the New York Court of Appeals, it was decided that in an ejectment the defendant could set up as a defense the fact that the land in question was intended to be conveyed to him by a deed from plaintiff, but, by a mistake in the description, was not included. No reformation of the deed was considered necessary, because the same facts which would entitle the defendant to a reformation, would establish his equitable ' Kentfield v. Hayes, 57 Cal. 409. ^ Cadiz V. Majors, 33 Cal. 288 ; Hartley v. Brown, 51 Cal. 465 ; see Carman v. Johnson, 20 Mo. 108; Murray z/. Walker, 31 N. Y. 399; Safford v. Hynds, 39 Barb. (N. Y.) 625. ' Estrada z'. Murphy, 19 Cal. 248-272; Lestrade w. Barth, 19 Cal. 660; Blum V. Robertson, 24 Cal. 127; Downer v. Smith, 24 Cal. 114; Bruck v. Tucker, 42 Cal. 346-352. *6o N. Y. 430. See Crary v Goodman, 12 N. Y. 266; Bates v. Rosekrans, 23 How. Pr. (N. Y.) 98, 105 ; affi'd 37 N. Y. 409; see Ferguson v. Crawford, 70 N. Y. 253 ; Mandeville v. Reynolds, 68 N. Y. 528 ; but see Haire v. Baker, 5 N. Y. 357 ; Harris v. Vinyard, 42 Mo. 568 ; State v. Meagher, 44 Mo. 356. 20 306 ANSWER. right to the possession, and constitute a defense as effectual as the legal title. In Cramer v. Benton,' affirmed in the New York Court of Appeals, on the opinion of the court below,^ in which the defense to an action of ejectment pro- ceeded upon the ground that the language and legal efiFect of the deed differed essentially from the intention of the parties, it was held that a case must be presented which would induce a court of equity to interpose, and reform the defective instrument, but that it was not absolutely neces- sary in such a case that a judgment reforming the instru- ment should be pronounced if the defendant was content to waive, or did not demand, such full relief. The cases in which defendants setting up equitable defenses in ejectment, rely upon the possession which their equitable rights confer, and do not become actors, or claim a formal judgment in their favor, are rare, for a litigant will be prompted by self interest to strengthen and perfect his title, and, if expedient or necessary, to acquire the legal title, and will eagerly avail himself of a formal adjudication or finding of the court in his favor. But an important obstacle to a complete adjudication of an equitable defense in an action at law must not be over- looked. A person bringing an action at law cannot gen- erally be compelled to sue any person, except such as he may elect to prosecute. Equitable defenses frequently re- quire the presence of additional parties in the action, with- out whose presence an affirmative judgment, which would be res adjudicata upon the parties in interest, could not be rendered,^ and the plaintiff may refuse to bring them before the court. By interposing an equitable defense, the defend- ant does not convert the legal action into an equitable one, nor change the plaintiff's right to have his legal rights determined in a legal forum, nor can he ordinarily be forced 1 60 Barb. (N. Y.) 216. 2 56 N. Y. 638. See Webster t/. Bond, 9 Hun (N. Y.), 437. 3 Cramer v. Benton. 4 Lans. (N. Y.) 291 ; s. C. 60 Barb. (N. Y.) 216; Call v. Chase, 21 Wis. 511. ANSWER. 307 to bring in the additional parties.^ A vendee in possession, under a contract to purchase the land, may, as we have seen, defend ejectment by his vendor, by pleading that he has fully performed the contract, or can compel a specific performance? In Harris v. Vinyard, in the Supreme Court of Missouri, the defendant set up as a defense his purchase of the land under a contract with the plaintiff's deceased father. It was held that, if the answer was true, it was sufficient to defeat the action, but that the defendant would not, by reason of a decision of the issues in his favor, be entitled to a decree, vesting the title in himself, as against the heirs, and that portion of the answer, praying for a decree of title in himself, was stricken out.^ In Minnesota, the defendant may, by answer, set up his equities, so far, at least, as they relate to the right of posses- sion, and the ejectment is the proper action in which to litigate them. To prevail against the plaintiff''s legal right to the possession in ejectment, the equities pleaded as a defense must be such that, under the former practice, a court of equity would, upon a bill filed, setting up the facts, have enjoined the legal owner from proceeding at law.* § 489. Counter-claim, or set-off. — A widow's claim for dower of real estate is not subject to a set-off" for dam- ages, nor for money due, nor for the receipt of rents and profits of the whole of the land in which she claims dower, nor can such set-off" be interposed as a counter-claim under the practice in New York when she claims no damages.^ § 490. Title admitted by answer. — In Pryor v. Madigan,^ ' Webster v. Bond, 9 Hun (N. Y.), 437. 2 Pierce v. Tuttle, 53 Barb. (N. Y.) 155 ; Richards v. Elwell, 48 Penn. St. 361 ; Young V. Montgomery, 28 Mo. 604; Cavalli v. Allen, 57 N. Y. 508; Love w. Watkins, 40 Cal. 547; Tibeau z/. Tibeau, 19 Mo. 78; 6 Am. Rep. 624; see § 322. ' Harris v. Vinyard, 42 Mo. 568. ■■ Williams v. Murphy, 21 Minn. 534. » Bogardus v. Parker, 7 How. Pr. (N. Y.) 303; see Elliott v. Gibbons, 31 N. Y. 67. li 51 Cal. 178. 308 ANSWER. in the Supreme Court of California, it appeared that the complaint in ejectment contained the usual averments that at a specified time prior to the commencement of the action, the claimant owned the premises in fee, and whilst so the owner, and in possession, was ousted by the defend- ants, who had ever since withheld the possession. The answer admitted the defendants' possession, and averred that the defendants " claim the fee," and then proceeded to de- raign title under an administrator's sale. The administrator's sale was adjudged void. It was held that the averment that the defendants " claim the fee," merely meant that they had acquired the title at the administrator's sale, and that it was not a denial of the plaintiff's title, except as predicated upon that fact ; and the administrator's sale having been held void, the plaintiff's title was adjudged to be admitted by the answer. § 491. Tax title. — When the defendant, in an action of ejectment for dower under the practice in New York, sets up a tax deed, the answer should contain averments of the various matters necessary to be proved, in order to establish the validity of the conveyance. If the facts are not pleaded the defendant cannot give evidence to support them, and the answer is bad on demurrer.^ § 492. Pleading a special title. — It has been held in Texas, that where the defendant in trespass to try title, filed a special plea claiming title in himself, and setting it out specially, he should be confined in his defense to the title so pleaded, and the plea of not guilty, if also interposed, was held to be thereby waived.^ By pleading specially, the defendant gives notice of his defenses, and the plaintiff has the right to assume that the defendant will rely on none other, and ought not to be required to come prepared with evidence to meet other defenses than those which the ! NicoU V. Fash, 59 Barb. (N. Y.) 275; Blackwell on Tax Titles, [*5oi] 579. 2 Custard v. Musgrove, 47 Texas, 217; Shields v. Hunt, 45 Texas, 424; Rivers "v. Foote, 1 1 Texas, 670. ANSWER. 309 pleadings disclose ; ^ and he may plead specially though his defenses were equally available under the plea of not guilty.^ So in Kansas, the defendant may state his defenses specifically, and his answer is then governed by the ordinary rules of pleading. The pleadings must determine the rele- vancy of the evidence offered ; for, even though unverified, they are professional statements, by counsel, of the claims of their clients, and the matters which they intend to prove.^ In Oregon, if the defendant desires to claim title, or to avail himself of title in another, he must plead it specifically, and disclose its nature,* and when the defendant sets up title to an undivided interest, he must specify what share or interest he owns.^ It has been held in California, that an answer setting up title to only a portion of the demanded premises, must particularly describe the part to which title is claimed, and failing to do so, no evidence will be admitted under such a pleading.* In New York, it has been held that a defendant .is concluded by his answer setting up a certain chain of title from disputing the validity of the same title when asserted by the plaintiff.^ § 493. Reply to affirmative defense. — Under the practice in Minnesota the allegations in an answer in ejectment that defendant entered under an official deed, had no notice of any defects invalidating the deed, and had made improve- ments and paid taxes, are not admitted by failure to reply.^ In Texas a plaintiff, relying upon an exception in his favor to the running of the statute of limitations, pleaded by the de- fendant, must specially plead the exception by way of repli- ' Shields v. Hunt, 45 Texas, 424. ° HoUingsworth v. Holshousen, 17 Texas, 41 ; YbxxAv. Turner, 9 Texas, 385. » Wicks V. Smith, 18 Kan. 508. •> Stark V. Starr, i Sawyer, 1 5 ; Fitch v. Cornell, i Sawyer, 1 56 ; Phillippi v. Thompson, 8 Oregon, 428 ; Hall v. Austin, i Deady, 104. "Pease v. Hannah, 3 Oregon, 301. ' Anderson v. Fisk, 36 Cal. 6,25. ' Henderson v. Scott, 12 Week. Dig. (N. Y.) 363. ' Reed v. Newton, 22 Minn. 541. 3IO ANSWER. cation. This scientific and very exacting rule of pleading is not, however, of universal application.^ § 494. Demurrer to answer. — In ejectment, in Kansas, an answer, which averred a contract of sale by plaintiff and a surrender of possession thereunder to defendant, but did not recite the contract, nor disclose the terms of sale, nor allege performance, was held to be defective, but the de- fects were held to be of such character that they should have been reached by motion, and not by demurrer, and a demurrer to the answer was overruled.^ § 495. Sttpplemenial answer or plea puis darrein con- tinuance. — The rights of litigants are usually determined with reference to the state of facts existing at the com- mencerhent of the litigation, and, ordinarily, evidence of matters which transpired during the pendency of the action cannot be introduced upon the trial.^ As transfers of the title to the land in controversy, or changes in the relation of the parties, frequently occur pendente lite, the question of how such matters may be made available becomes im- portant. This object is accomplished by applying to the court for leave to file amended or supplemental pleadings setting forth the new facts, and presenting the additional issues, or by the common law plea puis darrein contin- i4ance. If the practice were otherwise, the utmost confusion and uncertainty would result, for evidence could be intro- duced not tending to support the issues raised, and relating to matters not in the contemplation of the parties when the pleadings were framed. It seems to be a clearly settled practice not to allow a defendant to put in evidence a title acquired pending the action, unless his pleadings have been amended by averments showing that the title was ac- ' Hughes V. Lane, 25 Texas, 356. 2 Stringf allow v. Alderson, 12 Kan. 112; see Lorillard v. Clyde, 86 N. Y. 384. 3 Mills V. Graves, 44 111. 50; Jackson v. Leggett, 7 Wend. (N. Y.) 377; Wood V. McGuire, 2i Ga. 576. ANSWER. 3 I I quired since the commencement of the action ; ^ or by sup- plemental answer in the nature of a plea puis darrein con- tinuance} Thus, it has been held in Michigan, that a deed from the plaintiff to the defendant's wife, conveying the dis- puted premises, after the commencement of the ejectment, is not admissible in evidence as a defense, without a special notice in the nature of a plea puis darrein continuance? But a mere agreement entered into by the plaintiff to sell the land in dispute, but which provided that no conveyance should be made until after the suit was determined, is not a divesting of the plaintiff's title, and constitutes no defense to his recovery.* .In a real action judgment must be rendered upon the title as it existed at the date of the writ. The tenant cannot set up a title acquired by a deed made to him, without the demandant's concurrence, since the com- mencement of the action.' In a number of cases it has been held, however, that a plea puis darrein continuance in ejectment setting up that the plaintiflF had entered upon the lands described in the declaration, and still retained the pos- session, was bad, and constituted no bar to the further main- tenance of the action.^ If the defendant had offered to fully surrender the possession, pay the costs, and enter into a stipulation as to mesne profits, the court might direct a stay of proceedings, or a discontinuance.' 1 Reily v. Lancaster, 39 Cal. 354; McMinn -v. O'Connor, 27 Cal. 238; Mc- Lane v. Bovee, 35 Wis. 27; Moss v. Shear, 30 Cal. 472; Anon. Salk. 260; Doe v. Brewer, 4 M. & S. 300; Jackson v. Demont, 9 Johns. (N. Y.) 55; Jackson v. Ramsay, 3 Cow. (N. Y.) 75 ; Moore v. Hawkins, Yelv. 181 ; Simmons v. Brown, 7 R. I. 427. '^ Hardy v. Johnson, i Wall. 371-374 ; see Thompson v. Red, 2 Jones (N. C.) Law, 412. ' Jenney ^'. Potts, 41 Mich. 52; see Buell v. Irwin, 24 Mich. 149. < Maus V. Montgomery, 1 1 S. & R. (Penn.) 329. * Hooper v. Bridgewater, 102 Mass. 512; Andrews v. Hooper, 13 Mass. 472; Hallw. Bell, 6 Met. (Mass.) 431 ; Curtis tj. Francis, 9 Cush. (Mass.) 427. « Tyler v. Canaday, 2 Barb. (N. Y.) 160; Price v. Sanderson, 3 Harr. (N. J.) 426; McChesney v. Wainwright, 5 Ham. (Ohio), 452; Venner v. Underwood, i Root (Conn.), 73. But see Thompson v. Red, 2 Jones (N. C.) Law, 412. ' Tyler v. Canaday, 2 Barb. (N. Y.) (60; Jackson v. Stiles, 3 Wend. (N. Y.) 429. CHAPTER XIX. OF THE VERDICT. 4g6. Questions of fact to be tried by jury. 497. Requirements of the verdict. ' 498, Verdicts liberally construed. 499. References in verdict. 500. Verdict must specify the nature of the estate. § 501. Verdicts held sufficient 502. Verdicts held insufficient. 503. Roberti v. Atwater. 504. Verdict between tenants in common. 505. Misjoinder cured by verdict. § 496. Questions of fact to be tried by jury. — When questions of fact are involved, in ejectment, the issues are almost uniformly submitted to a jury, under proper instruc- tions from the court, for the reason that litigants ordinarily have a constitutional right to a trial by jury of questions of fact. The disinclination of the courts to adjudicate upon conflicting facts, and their purpose to give full effect to the right of trial by jury, is evidenced by the common practice of framing issues of fact in equity cases, to be sent out to a jury for determination. This practice is very common in suits in equity which draw the title to land in question. § 497. Requirements of the verdict. — The general form of the verdict or finding in ejectment, is usually prescribed by statute, or by the rules or established practice of the courts. The requirements as . to the verdict vary in the several States, and no uniform test can be furnished. One general rule applicable to the subject is that the courts will more readily set aside a verdict in ejectment upon a ques- tion of location than upon an ordinary question of fact.^ It becomes important to keep this principle in view, for un- certainty as to the lands intended to be affected, and the insufficiency of the description, constitute favorite grounds for attacking verdicts in ejectment. While the early prac- 1 Mathews v. Horlbeck, i Rich (S. C.) Law, 382 ; Bank v. Bobo, 14 Rich. (S. C.) Law, 51. VERDICT. 313 tice prevailed, it was commonly held that the verdict could relate only to the lands described in the consent rule.^ Under the modern practice, the verdict must be limited to the lands claimed in the declaration, and must correspond with the evidence,* and be limited to the lands to which the plaintiff proved title.^ The verdict must comprehend the whole issue, otherwise the judgment founded upon it will be reversed* Thus, where the jury found for all the plaint- iffs but one, whom they failed to mention, the verdict was held to be defective, because it was impossible to tell whether they intended to find for or against him."* The rule, as stated by Professor Stearns, is, that if the substance of the issue is found for the demandant, he will be entitled to judgment, though all the circumstances are not found/ § 498. Verdicts liberally construed. — It was held in Turberville v. Long,'' an early case in Virginia, that the statute oi jeofails extended to writs of right, and there- fore, if the verdict and judgment were substantially right, though not in the words of the law, they should not be disturbed. The verdict found "that the demandant hath more right to demand the land in the count and plea men- tioned than the tenant hath to hold." Tucker, J., said : ." Verdicts are held to be subject to the power of the court, so as to mould them according to the true intent and mean- ing of the jury, where that can be found responsive to the issue joined. The jury have found the plaintiff had more right to demand than the tenant to hold the lands. The court have said he had mor^e right to have 'them as he de- mandeth them. One seems to be an irresistible consequence > See Mrhite v. Den d. Woodruff, 4 Zab. (N. J.) 753. •> Hughes V. Holliday, 3 G. Gr. (la.) 30. ' City of East St. Louis v. Hackett, 85 111. 382. 1 Patterson v. United States, 2 Wheat. 222 ; Miller v. Trets, i Ld. Raym. 324- 5 Wood V. McGuire, 17 Ga. 361. * Stearns on Real Actions, p. 243. ' 3 H. & M. (Va.) 309. 314 VERDICT. of the other." In M'Murray v. Oneal,^ decided in 1798, a verdict in ejectment, " for the plaintiff one cent damage" was extended by the court, and made to read, " We of the jury find for the plaintiff the lands in the declaration men- tioned, and one cent damage." It must be conceded, how- ever, that this latter case carries the principle regulating the extension of verdicts to an extreme, if not a dangerous limit. Where the verdict rendered is so utterly lacking in essential facts, as in this case, the safer and more prudent practice would be to set it aside. In a case before the Maryland Court of Appeals, it appeared that the jury found a verdict " for the plaintiff", and assessed the damages at one cent." The court held that the plain meaning and import of this verdict was that the defendants were guilty of the trespass and ejectment complained of in the declaration, and that the jury assessed the damages resulting therefrom to the plaintiff" to be one cent.^ § 499. References in verdict. — It seems clearly estab- lished, where no statute controls, that the certainty of the verdict may be established by a reference in it to monu- ments on the ground, or to recorded deeds, or diagrams filed of record, or to warrants of survey, or to identified agreements. This practice, the Supreme Court of Pennsyl- . vania said, had been too often recognized to be any longer called in question. Strong, J., said : " Perhaps it would have been better had it never been so held. A record should be complete in itself, and as a court may mould a verdict, not changing its substance, there is, no difficulty in having the record complete, by assisting the jury to incorporate formally into their verdict that whicli practically becomes a part of it by being made the object of a reference." ^ So it has been held that a verdict in trespass to try title may be aided by a reference embodied in it to the description in the plat ' I Call. (Va.) 246. See Kershner v. Kershner, 36 Md. 309-336. = Kershner v. Kershner, 36 Md. 309-336. - Miller v. Casselberry, 47 Penn. St. 376. VERDICT. 315 or declaration. Hence, where the jury found for "the land on which the defendant lives," it was held sufficiently defi- nite to enable the plaintiff to take possession.^ § 500. Verdict must specify the nature of the estate. — In some of our States the verdict must specify the nature of the estate found,^ and if the verdict fails so to do, it may be treated as a nullity and a new trial ordered.'' Under the practice in Illinois, if the jury omit to specify the estate found they are sent back to further consider the verdict. The courts of that State have no power to supply the want of such a finding. Such action, if attempted by the courts, would be regarded as constituting an encroachment upon the province of the jury, for the defect is considered not as a matter of form, but an omission of an essential fact. Hence a verdict "for plaintiff" was held, in that State, not to be a verdict upon which a judgment could be based, the nature of the estate found not being specified.* On the other hand, in Hawley v. Twyman,^ an ejectment case on appeal before the Court of Appeals of Virginia, it appeared that the declaration set forth that the plaintiff had title, in fee simple, to the land which was described as to quantity, and bounda- ries, and coterminous owners. The issue was " not guilty." The verdict was as follows : "We, the jury, upon the issue joined, find that the defendant is guilty in manner and form as the plaintiff in his declaration hath complained." The court held that though the verdict did not expressly find an estate in fee in the plaintiff, as required by statute, yet the verdict was sufficient, though informal. § 501. Verdicts held sufficient. — Where the jury found that "the old hedge row, &c.," was the dividing line be- ' Manning v. Dove, 10 Rich. (S. C.) Law, 395. = Van Fossen v. Pearson, 4 Sneed (Tenn.), 362. ' Rivier v. Pugh, 7 Heisk. (Tenn.) 715; Rogers v. Sinsheimer, 50 N.Y. 646 ; see Goodtitlez'. Alker, i Burr. 133. < Longz/. Linn, 71 111. 152; see Rawlings v. Bailey, 15 111. 178. 5 24 Gratt. (Va.) 516. 3l6 VERDICT. tween the parties, the verdict was held sufficiently certain ; ^ and low water-mark is a boundary sufficiently certain in a judgment in a real action to enable the sheriff to execute the judgment by an habere facias!^ And a verdict for the use and benefit of a house and store-room has been held to be a verdict for them, as they are capable of delivery of posses- sion under an habere facias? Under the practicd in Califor- nia, a finding that " the defendant has a good and perfect title to the demanded premises," will support a judgment in his favor, whether it is to be regarded as a finding of fact or conclusion of law.* In ejectment in Alabama, where the premises are described with particularity in the complaint, and defendant pleads not guilty without any disclaimer as to a part of the premises, a verdict of a jury finding the issues for the plaintiff is a verdict for the entire premises, and is sufficient. Under the practice of that State it is only necessary, when the jury find for the plaintiff less than the quantity of land sued for, to describe in the verdict the part of the premises recovered.'' The fact that a small piece of ground is included in the verdict, of which defendant is not in possession, cannot prejudice the defendant if he makes no claim to it, and a motion in arrest of judgment, based on that ground, will be overruled. It could only be important as to the question of damages and mesne profits, and in this case the damages assessed by the jury were only nom- inal." In trespass to try title, in Alabama, a verdict not finding, as required by statute, that " the land belonged to the plaintiff at the commencement of the action," but only that " the land belongs to the plaintiff," was held sufficient, under the prevailing liberal rules of intendment, to support a judg- 1 Hopkins v. Myers, Harper (S. C), 37, *57. 2 Adams v. Frothingham, 3 Mass. 352. 3 Miller v. Casselberry, 47 Penn. St. 376. ^ Frazier v. Crowell, 52 Cal. 399. '" Chapman v. Holding, 60 Ala. 522. « Adm'rs of Russell v. Maloney, 39 Vt. 579; see Coleman v. Doe d. Hender- son, 2 Scam. (111.) 251. VERDICT. Z^7 ment in favor of plaintiff for damages and costs, and to authorize the court t,o award a writ habere facias posses- sionem} A finding by the jury "for the defendant ten acres, forty-eight perches, the meadow on the west side of the creek, and find for the plaintiff the balance," has been held sufficiently certain.^ Where the writ described the premises as " a tract of land in Jackson township, contain- ing 185 acres or thereabouts, bounded by lands of M. J. and v.," a verdict " for the farm as it stands in the writ," was held good.* Where the description in the writ of ejectment was for a certain limestone quarry, containing about three acres, and bounded on two sides by adjoining owners, a verdict for the quarry, describing the two boundaries, was said to be sufficient.* An award in ejectment, showing a plain mis- take in fact in misdescribing the premises, should be sent back to the referees for correction, so as to make the award certain and consistent.^ § 502. Verdicts held insufficient. — A verdict in eject- ment for a certain number of acres, " part of the premises in the declaration mentioned," is too uncertain to warrant a judgment u'pon it,* and a verdict " for the plaintiff for one hundred and fifty acres, part of the land claimed in the writ, and not guilty as to the residue," is bad for uncertainty.'' A verdict " for one half of the survey, according to draft filed in the case, the land to be laid off according to quantity and quality, reserving to defendant as much of the improve- ment as practicable," &c., has been held void for uncer- tainty, in Pennsylvania.^ So a verdict " for 2 acres, 28^^ perches, with 6 cents damages," is incurably bad, it being a > Stephens v. Westwood, 25 Ala. 716. ' Tryon v. Carlin, 5 W^atts (Penn), 371. 3 Emig V. Deihl, 76 Penn. St 359. •■ Clement v. Youngman, 40 Penn. St. 341. " Kidd V. Emmett, 72 Penn. St. 1 50. « Gregory v. Jacksons, 6 Mun. (Va.) 25. ' Stewart v. Speer, 5 Watts (Penn.), 79 ; see White v. Haperaan, 43 Mich. 267. 8 Martin v. Martin, 17 S. & R. (Penn.) 431. 3l8 VERDICT. part of the lot for which the action was brought.^ So " the middle of a stone wall " is too indefinite a starting point for the boundary of a town lot, as fixed by a verdict. It was said that while the courts favored verdicts, such essential un- certainty could not be tolerated.^ A verdict in ejectment, finding " that the defendant should have the third part of the 41 acres and 32 perches, and, if any overplus, it goes to the plaintiff," has been held to be too uncertain, and that the court could not cure it by appointing a surveyor to ascertain and designate the rights of the parties, and render- ing judgment thereon.^ And where an ejectment was brought for the whole tract, and verdict was given for 20 acres on the lower or south end of the tract, it was held to be void for uncertainty. The verdict in this case was also rendered for the land in severalty, though it was owned in common. It was held that the verdict should have been for an undivided interest.* § 503. Roberti v. Atwater. — In a case which arose in Connecticut, the verdict was as follows : " In this case the jury find the issue for the plaintiffs, and therefore find for them to recover of the defendant the seizin and peaceable possession of the premises described in the declaration, and one dollar damages ; and that the defendant have until June I, 1875, to remove the barn." The court held that the whole verdict was vitiated by the last clause, and said, " It is clear that the jury believed that they were authorized to name a day in the future, prior to which the defendant might enter upon the plaintiffs' land, without their consent, and remove the barn. It is to be presumed that this belief entered into and produced the verdict, and that the jury would not have agreed to any portion of it as actually rendered unless this condition had been embodied in it. - Borough of Harrisburg v. Crangle, 3 W. & S. (Penn.) 460. 2 Hagey v. Detweiler, 35 Penn. St. 409. 3 Smith V. Jenks, lo S. & R. (Penn.) 153. 1 Nolan V. Sweeny, 80 Penn. St. 77. VERDICT. 319 To strike off the condition, and allow the remnant to stand, is for this court to make and record a verdict which the jurors refused to render. They practically declared them- selves unable to agree upon one within legal limits, and we cannot perfect that which they left thus imperfect." ^ § 504. Verdict between tenants in common. — And in eject- ment between tenants in common, if the jury return a spec- ial verdict, actual ouster must be found therein to entitle the plaintiff to judgment.^ As we have already shown, the ouster is a question of fact which must be found by the jury. Even a special verdict, finding a specific demand by the plaintiff to be let into possession, followed by a refusal on the part of the occupying co-tenant to comply with the demand, will not warrant a judgment in ejectment between co-tenants. Actual ouster must be found by the jury.^ § 505. Misjoinder cured by verdict. — In an early case in England, it was held that where an action of ejectment and an action of assault and battery were joined in the same writ, and, after verdict, it was moved, in arrest of judgment, that the practice was . without precedent, the misjoinder was cured by verdict.* The cases cited in dis- cussing the subject of the description in the pleadings, are applicable to the verdict, though it is usually sufficient to insert a much shorter description in the latter. The courts frequently assist the jury in putting the verdict in proper form, by interrogating them as to their real intention, and suggesting the appropriate method of giving expression to it ; or by calling their attention to informalities or elements of uncertainty in the verdict as tendered, and sending them back to further consider it. For this reason, errors in the form of verdicts are of infrequent occurrence. ' Roberti v. Atwater, 42 Conn. 266. 2 Taylor v. Hill, 10 Leigh (Va.), 457 ; see Pierce v. Wanett, 10 Ired. (N. C). Law, 446 ; Barnitz v. Casey, 7 Cranch, 456. 3 See §1 277-283 ; Carpentier v. Mendenhall, 28 Cal. 484. ■• Bird V. Snell, Hob. 249 ; see Dalston v. Janson, 5 Mod. 90. CHAPTER XX. OF THE JUDGMENT. § 506. Judgments in personal actions con- clusive. 507. ) Test as to the conclusiveness of a 508. ) judgment. 509. Judgment in real actions. 510. Revievif of the origin of ejectment. 511. ) Judgment in ejectment not con- 512. ) elusive. 513. Reasons for the inconclusiveness of the judgment. 514. Kimmel v. Benna and Camp v. For- rest discussed. 515. ) Abolition of fictions ordinarily 516. f renders judgment conclusive. 517. Conflict of the cases. ^ I Kimmel v. Benna criticised. 519- i 520. Judgment not a source of title. 521. Judgment operates as an estoppel. 522. Distinction between realty and per- sonalty. 523. Parol evidence admissible to shov^ the exact title adjudicated. 524. Result of the cases. 525. Judgment must conform to com- plaint and verdict. 526. Judgment for land subject to ease- ment, servitude or public use. 527. Recital of incorporeal heredita-. ments. 528. Relief incident to interference with property in possession. 529. Judgment in ejectment in New York. 530. Judgment by default. 531. Judgment by consent binding. 532. Judgment by confession. 533. Judgment in California. 534. Judgment in Vermont. 535. Judgment in Illinois must specify particular estate. 536. Vendor and Vendee. ^^Z' [• Landlord and tenant. 539. Avoidance of the estoppel. 540. Government ofhcials. 541. After acquired title. 542. Foreign judgment. 543. Form of judgment in Texas. 544. In California. 545. Judgment for possession and dam- ages. § 506. yudgments in personal actions conclusive. — The legal effect of the judgment in ejectment has been briefly adverted to in the opening chapter of this treatise.^ The importance of this branch of our subject however, and the absence of harmony in the authorities, and in the legislative policy in the several States, regulating its effect, render nec- essary a more extended and detailed statement and discus- sion of the rights which are established and secured by the adjudication. The general and familiar rule in personal actions is that a litigant shall not be twice vexed for the same cause, and that allegations of record, upon which issue has been taken and found, are conclusive upon the parties ' See §§ 41, 42, 43, 44, 47. JUDGMENT. 321 and their privies, according to the tenor of the findings, so as to estop the parties from again litigating the facts and issues once so tried and determined.^ Stated in another form the rule is, that the judgment of a court of competent jurisdiction, directly upon the point in issue considered as a plea, is a bar and as evidence is conclusive, between the same parties upon the same matter directly in question, in another action or court.^ §507. Test as to the conclusiveness of a judgment. — If the evidence which will sustain the second action would have authorized a recovery in the first action, under the al- legations of the complaint, the first judgment is an absolute bar to a recovery in the second action.* This is the usual and most simple test. It is not sufficient that the transac- tions involved in and giving rise to the two actions are the same ; the causes of action must be identical to the extent that the same evidence will support both actions. The forms of the actions may be different and the causes of ac- tion still the same ; that is, the same evidence may be avail- able to support either action.* The judgment is equally conclusive upon the parties in a second action depending ' Ferrer's Case, 6 Rep. (3 Coke), 7; see Stowell v. Chamberlain, 60 N. Y. 272; Sturdy v. Jackaway, 4 Wall. 174; Cromwell v. County of Sac, 94 U. S. 351; Bendemagle v. Cocks, 19 Wend. (N. Y.) 207 ; Arnold v. Arnold, 17 Pick. (Mass.) 4; Steinbach v. Relief Fire Ins. Co. 77 N. Y. 498; South Ala. R. Co. v. Henlein, 56 Ala. 368; Perry v. Dickerson, 85 N. Y. 345; see Castrique v. Imrie, 7 Jurist (N. S.), 1076. 2 Stowell V. Chamberlain, 60 N. Y. 272 ; Barrs v. Jackson, i Y. & C. N. R. 585; Bigelow V. Winsor, i Gray (Mass.), 299; Bagot v. Williams, 3 B. & C. 235; Nelson !<. Couch, 15 C. B. (N. 5.) 99; Smith i-. Herastreet, 54 N. Y. 644; Blair v. Bartlett, 75 N. Y. 150; Gates v Preston, 41 N. Y. 113; White v. Coatsworth, 6 N. Y. 137; Duchess of Kingston's Case, 20 Howell's St. Tr. 538; Toles v. Gardner, 1 1 Week. Dig. (N. Y.) 395 ; Masten v. Olcott, 24 Hun (N. Y.), 587 ; East N. Y. & J. R. Co. v. Elmore, 53 N. Y. 624. 3 Steinbach v. ReHef Fire Ins. Co. 77 N. Y. 498; Stowell v. Chamberlain, 60 N. Y. 272. 4 Rice V. King, 7 Johns. (N. Y.) 20 ; Miller v. Manice, 6 Hill (N. Y.), 1 14 ; Martin ■V. Kennedy, 2 B. & P. 69 ; especially Stowell v. Chamberlain, 60 N. Y. 272 ; Daw- ley z/. Brown, 79 N. Y. 390; see Kelsey v. Ward, 16 Abb. Pr. (N. Y.) 98-103; affi'd, 38 N. Y. 83; Cannon v. Brame, 45 Ala. 262 ; Taylor v. Castle, 42 Cal. 367.^ 21 322 JUDGMENT. upon the same questions involved in the first action, al- though the subject-matter of the second action may be dif- ferent.^ A judgment for the defendant, in an action of trover, may bar an action of indebitatus assumpsit for the value of the same goods, but to constitute a bar it must ap- pear that the question of property was passed upon in the first action.* A difference in the form of the action will not prevent the application of the estoppel;^ nor is the estoppel avoided by the fact that the first judgment was rendered upon erroneous grounds.* § 508. The courts have even gone so far, in giving full effect to the binding force of a judgment, as to hold that the judgment is an estoppel, not only as to the matters which were actually determined, but as to every other matter which the parties might, with reasonable diligence, have lit- igated and had decided in the former action, either as mat- ter of claim or of defense.^ The estoppel is not confined to the judgment, but extends to all facts involved in it as nec- essary steps, or the ground-work, upon which it must have been founded. It is allowable to reason back from a judg- ment to the basis on which it stands, " upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion." * In Doak v. 1 Castle V. Noyes, 14 N. Y. 329; Doty v. Brown, 4 N. Y. 71. 2 Hitchin v. Campbell, 2 W. Bla. 779 ; S. C. 3 Wils. 240; Id. 304; Union R. R. & T. Co. V. Traube, 59 Mo. 355-362; Agnew v. McElroy, 10 S. & M. (Miss.) 555- 3 See Stowell v. Chamberlain, 60 N. Y. 272 ; Ware v. Percival, 61 Me. 391 ; Steinbach v. Relief Fire Ins. Co. -]"] N. Y. 498 ; Washburn v. Great Western Ins. Co. 114 Mass. 175. < Morgan v. Plumb, 9 Wend. (N. Y.) 287 ; Steinbach v. Relief Fire Ins. Co. 77 N. Y. 498. 5 Bruen v. Hone, 2 Barb. (N. Y.) 586; Le Guen v. Govemeur, 3 Johns. Cas. (N. Y.) 605 ; Jordan v. Van Epps, 85 N. Y. 427 ; Chamberlain v. Gaillard, 26 Ala. 504; Stafford v. Clark, 2 Bing. 382; Miller z/. Covert, i Wend. (N. Y.) 487; Rob- erts z/.Heim, 27 Ala. 678; Bloomer ^. Sturges, 58 N.Y. 176; Clemens z/. Clemens, 37 N. Y. 74; Marriot v. Hampton, 7 T. R. 269; see Foster v. Evans, 51 Mo. 39. 6 Burlen v. Shannon, 99 Mass. 200-203 I Reg- 'Z'- Hartington, 4 El. & Bl. ^94; Gilbert v. Thompson, 9 Cush. (Mass.) 349;; Dickinson v. Hayes, 31 Conn. 417; see Packet Co. v. Sickles, 5 Wall. 580. JUDGMENT. 323 Wiswell,^ in the Supreme Court of Maine, it appeared that after a demandant had recovered a judgment in a real ac- tion, and had taken possession under it, the tenant brought assumpsit for the value of buildings erected by him upon the premises, claiming that they constituted personal prop- erty, and that the demandant having taken possession of them was bound to repay their value. The court decided, however, that, as the action for the land was brought direct- ly against the tenant, it was his duty to have defended and protected, in that action, all his rights connected with the land. Whether or not he had set up, in the real action, by betterment claim or otherwise, his right to the buildings, did not appear, but the court held it was of no importance, because the judgment in the real action, with the possession taken under it, constituted a bar to the action of assumpsit. The rule as to finality applies not only to judgments ren- dered after an actual litigation upon the merits of the matter in controversy, but also to judgments rendered upon default, or by confession.^ It is to be observed, however, that only a final judgment, one which has definitely and conclusively decided the issues, and fixed the rights involved, can be used in another action as a bar, or as conclusive evidence,^ and an interlocutory order has been held, in New York, not to be such a judgment.* § 509. Judgment in real actions. — We have already shown ^ that in the system of real actions writs of different degree prevailed. A judgment rendered upon an inferior writ was not an estoppel upon a writ of a higher degree or nature, because the superior writ established rights additional ' 33 Me. 355. - Brown v. Mayor, &c. 66 N. Y. 390; Gates v. Preston, 41 N. Y. 113; New- ton V. Hook, 48 N. Y. 676; Bradford v. Bradford, 5 Conn. 127. ' Webb V. Buckelew, 82 N. Y. 555 ; Brinkley v. Brinkley, 50 N. Y. 202 ; Whit- aker v. Bramson, 2 Paine's C. C. 209; Holt v. Miers, 9 C. & P. 191 ; Baugh v. Baugh, 4 Bibb. (Ky.) 556; McLane v. Spence, 11 Ala. 172; Thompson v. Mylne, 4 La. Ann, 206. < Webb V. Buckelew, 82 N. Y. 555. * See Chapter II. 324 JUDGMENT. to those acquired under or conferred by an inferior writ.^ A judgment upon a writ of right,- the highest and most important of the real writs, was final and conclusive, be- cause no other writ could confer any additional or greater rights.^ By selecting a writ of a lower rank, the demand- ant under this system w^s enabled to secure more than one trial of his title. Lord EUenborough, in the leading case of Outram v. Morewood,* after discussing the different species of actions affecting lands and chattels real, uses this signifi- cant language : " A judgment, therefore, in each species of action, is final only for its own purpose and object, and no further. The judgment in trespass affirms a right of posses- sion to be, as between the plaintiff and defendant, in the plaintiff" at the time of the trespass committed. In the real action, it affirms a right to the freehold of the land to be in the demandant at the time of the writ brought. Each species of judgment, from one in an action of trespass to one upon a writ of right, is equally conclusive upon its own sub- ject matter, by way of bar to future litigation, for the thing thereby decided. Only the matter of the one judgment is in its nature, and according to its class and degree in the order of actions, more conclusive upon the general right of property in the land than the other. What, therefore, Lord Coke says, that in personal actions concerning debts, goods, and effects (by way of distinction from other actions), a recovery in one action is a bar to another, is not true of personal actions alone, but is equally and universally true as to all actions whatsoever, quoad their subject matter."^ § 510. Review of the origin of ejectment. — Before con- sidering the effect of the judgment in ejectment, a brief review of the origin of the action will facilitate the discus- sion. Ejectment, as we have seen, was originally a writ of 1 See §§ 66, 67. 2 See § 69. 3 See Outram v. Morewood, 3 East, 358; S. C. 5 T. R. 121 ; Stearns on Real Actions ; Booth on Real Actions ; Jacl^son on Real Actions. ^ 3 East, 346. See Stevens v. Hughes, 31 Penn. St. 381. 5 See § 67. JUDGMENT. 325 trespass brought by a tenant for years to recover compensa- tion for damages resulting from eviction from the demised premises during the continuance of his term.^ The money judgment for damages, proved, in many cases, an inadequate redress, so the practice of awarding the lessee a wrrit of pos- session sprung up.^ This was followed by the introduction of imaginary parties,* declaring on a fictitious lease, and the consent rule,* by which the party desiring to protect the pos- session was forced to admit a lease in order to facilitate the trial of the title in cases where no tenancy or lease in fact existed. When the claimant recovered judgment in the ac- tion, and was placed in possession by the sheriflF, he was said to be seized "according to his right." ^ " This," says Mr. Adams,® " is effected by another fiction. It is a rule of law, that when a man having a title to an estate comes into possession of it by lawful means, he shall be in possession according to his title ; and, therefore, when possession is once given by the sheriff, the possession and title are said to unite, and the plaintiff's lessor holds the lands according to the nature of his interest in them." The party thus clothed with the possession, if he had a fee simple, became thereby seized in fee simple ; if he had a chattel interest, he was in as a termor ; and if he had no title, his possession was that of a trespasser,^ except that he was not liable in trespass for the entry. The judgment did not award, and the claimant did not recover the seizin of the land, as in a real action. The only relief given as regards the land itself was the writ of possession. § 511. Judgment in ejectment not conclusive. — The re- cord or judgment in the action did not disclose the title claimed by the parties ; and unlike a real action, an inspec- ' See §§ I, 23, 24, 25, 27. 2 See § 23. s See § 37. ■■ See § 36. * See Minke v. McNamee, 30 Md. 294; see § 41. " Adams on Ejectment (4th Am. ed.), p. 391. 'Taylor v. Horde, i Burr. 114; see Long v. Neville, 29 Cal. 131; Man v. Drexel, 2 Penn. St. 202; Jackson v. Dieffendorf, 3 Johns. (N. Y.) 270; see §§ 41, 42. 43, 44- 326 JUDGMENT. tion of it would not reveal the character of the estate or in- terest adjudicated ; for no particular estate or interest was claimed in the writ or awarded by matter of record by the court. Indeed the declaration negatived the ownership of the freehold by the plaintiffs.^ The judgment, it is true, clothed the successful claimant with the possession of the land, which was an important acquisition, but it went no further. It did not, in form, declare or establish the title, or protect or continue the possession so awarded. The record afforded no evidence of the claimant's right to the posses- sion as established upon the trial, and was not a bar or a matter of estoppel as to the same title or between the same parties.^ § 512. When we consider the solid reasons upon which the practice of holding the judgment in personal actions or on a writ of right, the highest real writ conclusive upon parties and privies, is based, it becomes important to consider more fully the causes which rendered the judgment in eject- ment inconclusive as a muniment of title, or evidence of the right of posssession, and of no avail as a protection against further vexatious litigation over the same title. The incon- clusiveness of the judgment, as we have seen, constituted the basis of Lord Coke's lament over the disuse of real actions.' In New England, too, this imperfection in the remedy was appreciated, and it was largely instrumental in inducing the ■ Stevens v. Hughes, 31 Penn. St. 381. = Strother v. Lucas, 12 Peters, 410; Jones v. De Graffenreid, 60 Ala. 145; Shaw V. Lindsey, 60 Ala. 344; Camp v. Forrest, 13 Ala. 114; White v. Kyle, i S. & R. (Penn.) 515 ; Doe v. Harlow, 12 Ad. & E. 40; Bailey u. Fairplay, 6 Binn. (Penn.) 450; Eldridge z/. Hill, 2 Johns. Ch. (N. Y.) 281; Kimmel v. Benna, 70 Mo. 52; Taylor v. Horde, i Burr. 114; Jackson v. Dieffendorf, 3 Johns. (N. Y.) 270 ; Botts V. Shields, 3 Litt. (Ky.) 36 ; Holmes v. City of Carondelet, 38 Mo. 552; Smith V. Sherwood, 4 Conn. 276; Bradford v. Bradford, 5 Conn. 132; Chap- man V. Armistead, 4 Munf. (Va.) 382; Hopkins v. McLaren, 4 Cow. (N. Y.) 667 ; Jackson v. Tuttle, 9 Cow. (N. Y.) 233 ; Pollard v. Baylors, 6 Munf. (Va.) 433 ; Hawkin's Lessee v. Hayes, 3 Harr. (Del.) 489 ; Rice v. Auditor General, 30 Mich. 12 ; Moran v. Jessup, 15 U. C. Q. B. 612 ; see Sherman v. Dilley, 3 Nev. 21 ; Cagger v. Lansing, 64 N. Y. 417. .3 See § 45. JUDGMENT, 327 colonists to attempt the experiment of reforming and re- storing the worn out system of real writs.^ § 513. Reasons for the inconclusiveness of the judgment. — One reason, as we have seen, why the judgment was not conclusive, was that nothing remained of record to reveal the title that had been adjudicated. The changes in the rules of evidence which enable a party to show, by parol testimony, what matters were actually litigated in an action without regard to the judgment record, or the issues dis- closed by the pleadings, are of comparatively modern origin? Besides this, there was no privity between the successive fictitious plaintiflFs, and each successive ejectment was based upon a new lease and a fresh trespass. The right of prop- erty, too, might be in one person, the right of possession in a second, and the actual possession in a third ; hence a judgment for the possession did not of necessity conclude the title. In Smith v. Sherwood,^ in the Supreme Court of Errors of Connecticut, it was held that a former judgment for the defendant, in an action of disseizin on the issue of no wrong or disseizin, was not an estoppel as to the plaint- iff's' title, as the judgment might have been rendered upon the ground that the defendant was not in possession, or had occupied by the consent or license of the plaintiff, or on other grounds not involving the question of title. § 514. Kimmel v. Benna and Camp v. Forrest discussed. — The action is now divested of fictitious parties, and the practice of declaring on a fictitious lease is practically obso- lete ; * but it is not clearly settled that these important changes in the practice and form of the action, render the judgment conclusive upon the parties or the title. In Kimmel v. Benna,^ the Supreme Court of Missouri say : *' It is a mistaken assumption that the sole reason for the ancient rule in regard to the want of finality of judgments ' See § 74. 2 See § 523. " 4 Conn. 276. See Oetgen v. Ross, 54 111. 79. 4 See §55. 5 1o Mo. 52. 328 JUDGMENT. in ejectment was the employment of fictitious parties in the proceeding. A judgment in ejectment confers no title upon the party in whose favor it is given." The court then quotes from Mr. Adams/ who says : "That the judgment can never be final, and that it is always in the power of the party fail- ing, whether claimant or defendant, to bring a new action f and continue. " This reason is just as applicable since the abolishment of lease, entry and ouster as before."^ In Camp V. Forrest,^ in the Supreme Court of Alabama, the question of the conclusiveness of a judgment, in an action of trespass to try title, where the issue was made in the name of the real parties in interest, was considered. The court observes that a judgment in ejectment confers no title upon the party in whose favor it is given, and is not evi- dence in a subsequent action between the same parties, and adverts to the fact that the peculiar character of the record renders it impossible to plead a former recovery in bar of a second ejectment, because it can never be made to appear that the second ejectment is on the same title as the first. The court says, further : " Although such may be the con- dition of the record, yet the inconclusiveness of the judg- ment does not rest on the form, of the declaration and con- sequent proceedings, but upon the effect of the verdict and judgment. These entitle the lessor of the plaintiff to the possession of the lands, but do not give him any title thereto, except such as he previously had." The decision, however, was not rested upon these grounds, but upon the peculiar wording of the statute of Alabama, abrogating the fictions which provided, among other things, that, " the laws now in force in relation to the action of ejectment, except in so far as relates to fictitious proceedings therein, shall be ap- plied to the action of trespass to try titles." The court held ' Adams on Ejectment (4th Am. ed.), p. 420. 2 See Carter v. Scaggs, 38 Mo. 302 ; Holmes v. City of Carondelet, 38 M0.551 ; Slevin v. Brown, 32 Mo. 176 ; Foster v. Evans, 51 Mo. 39 ; Gibson v. Chouteau. 50 Mo. 85. 3 13 Alabama, 114. JUDGMENT. 329 that, under the wording of this statute, no greater effect could be given to the judgment in the new action than in the action which was superseded, and that the language was too general and unlimited to restrict it to what might trans- pire up to the rendition of the judgment, and to hold that the judgment itself was decisive of the question of title. § 515. Abolition of fictions ordinarily renders judg- ment conclusive. — The effect of the judgment in ejectment in cases where the real parties in interest appeared as the nominal parties in the action as rival claimants of the title, has been before the Supreme Court of the United States several times, and the conclusions of that court cannot be reconciled with the cases in the Supreme Court of Missouri, and the case of Camp v. Forrest, in Alabama, which we have just noticed. In Miles v. Caldwell,^ Mr. Justice Mil- ler, delivering the opinion of the Supreme Court, refers to the common law rule, that the verdict and judgment in ac- tions of ejectment have not that conclusive effect between the parties which judgments have in other actions, either in courts of law or equity, and continues : " It must be con- ceded that such is the general doctrine on the subject, as ap- plicable to cases tried under the common law form of the action of ejectment. One reason why the verdict cannot be made conclusive in those cases is obviously due to the fictitious character of the action. If a question is tried and determined between John Doe, plaintiff, and A. B., who comes in and is substituted defendant in place of Richard Roe, the casual ejector, it is plain that A. B. cannot plead the verdict and judgment in bar of another suit brought by John Den against Richard Fen, though the demise may be laid from the same lessor, for there is no privity between John Doe and John Den. Hence, technically, an estoppel could not be successfully pleaded so long as a new fictitious plaintiff could be used. It was this difficulty of enforcing at law the estoppel of former verdicts and judgments in ' ' 2 Wall. 35. 330 JUDGMENT. ejectment, that induced courts of equity (which, unrestrained by the technicality, could look past the nominal parties to the real ones) to interfere, after a sufficient number of trials had taken place, to determine fairly the validity of the title, and by injunction, directed to the unsuccessful litigant, com- pel him to cease from harassing his opponent by useless litigation. There was, perhaps, another reason why the En- glish common law refused to concede to the action of eject- ment, which is a personal action, that conclusive effect which it gave to all other actions, namely, the peculiar re- spect, almost sanctity, which the feudal system attached to the tenure by which real estate was held. So peculiarly sacred was the title to land with our ancestors, that they were not willing that the claim to it should, like all other claims, be settled forever by one trial in an ordinary per- sonal action, but permitted the unsuccessful party to have other opportunity of establishing his title. They, however, did concede to those solemn actions the writ of right and the writ of assize, the same force as estoppels, which they did to personal actions in other cases." The principles of this case were followed in the same court in the later case of Sturdy v. Jackaway,^ in which Mr. Justice Grier, delivering the opinion of the court, said : " As the title of the freehold was never formally and directly in issue by the pleadings, but only a trespass committed by John Doe or Richard Roe, in forcibly expelling him from a term of years, no ver- dict between these parties for the supposed trespass could be pleaded in bar to another action of trespass by Thomas Troublesome or Timothy Peaceable. It was in this way that the doctrine crept in that a verdict and judgment were conclusive only as regards personalty. Afterwards, when this fictitious scaffolding was demolished in many States, and the parties made their issue in their own names — where there could be no difficulty as to the estoppel — the idea of a difference between rights to real property and personalty I 4 Wall. 174-176. JUDGMENT. 331 Still continued in many States to linger, and a single ver- dict and judgment in ejectment was not considered conclu- sive. In such States provision was usually made by statute for a second trial." § 516. In Blanchard v. Brown, ^ Mr. Justice Davis, de- livering the opinion of the same court in an ejectment case on review from the State of Illinois, said : " The common law form of the action of ejectment does not prevail in Illinois. There the action is without fictions, and is be- tween the real parties in interest, and for the possession of a specific estate, and damages for its detention. On account of the fictitious character of the common law action of ejectment, a judgment was not a complete bar, as in other actions."^ In Marshall v. Shafter,® the Su- preme Court of California use this language : " No suf- ficient reason, in our opinion, is given why the matters that have once been judicially determined in the action of ejectment, may be again drawn in question between the same parties, when they could not in an action of another character. In ejectment, as in other actions, the parties rely strictly upon their rights in the matter in litigation. No argument can be drawn from the fact that the judgment is not that the plaintiff recover the title, but only the possession, for a similar result accrues in the action of replevin, though the title to the personal property is confessedly in issue. In trespass to lands, whatever may be the form of the issues, the recovery is only of damages, and yet, as in Outram v. Morewood,* the losing party is estopped in another action from averring contrary to the title as found in the former suit." ^ So in Doyle v. Hallam,*' the Supreme Court of 1 3 Wall. 245. See Hogan v. Kurtz, 94 U. S. 775. " See Spence v. McGowan, 53 Texas, 30-35. ' 32 Cal. 176-198. See Amesti v. Castro, 49 Cal. 325. * 3 East, 346. ' See cases cited in note, Duchess of Kingston's Case, 2 Smith's Leading Cases, 784. " 21 Minn. 515. See Sherman v. Dilley, 3 Nev. 21-25. 332 JUDGMENT. Minnesota, after citing some of the authorities which we have been discussing, declare that as the fictions accompany- ing the common law action of ejectment have no existence in the practice of that State, the inconclusiveness which attached to judgments in ejectment, on account of those fictions, is no longer admitted. In Stevens v. Hughes,^ the Supreme Court of Pennsylvania declared that : "The incon- clusiveness of a verdict and judgment in ejectment, is due to the form of the action, not to the character of the subject matter of the controversy. The apparent exception no- where else exists. That there is no charm about land, as land, which relieves it from the operation of the general rule that a judgment between the same parties, or their privies, directly upon the same matter, is the end of controversy ; that it is an estoppel against future litigation of the same ques- tion, is evident from the fact, that a fine, a common recovery, a simple judgment in a writ of right, and indeed judgments in any real action, have always been held to be conclusive." § 5 1 7. Conflict of the cases. — The conflict in the authori- ties as to the effect of a judgment in ejectment, as an estoppel upon new actions, which bring in question the same title, is perhaps not deserving of as extended notice as the subject would call for if the statutes in most of our States did not specifically establish and define the rights of the parties, and the effect to be given to the adjudication. But changes and repeals of the statute law in several States, removing the statutory estoppel upon the judgments, have brought the subject into some prominence. It is probably now an open question in South Carolina as to whether or not a judgment in an action for the possession of land and trial of the title is conclusive. Even where the statutes defining the effect of the judgment prevail the language employed is sometimes ambiguous, and capable of a double construction, so that frequently it becomes important, and often necessary, to fully comprehend the effect of the judg- ' 31 Penn. St. 381-385. JUDGMENT. 333 ment, without regard to the provisions of the statute, in cases where the issue is made between the real parties in interest. Little need be said in support of the considera- tions upon which the principle of law making judgments conclusive rests. The highest reasons of public policy re- quire that contentions, whether over the title to realty or personalty, should be promptly and irrevocably settled, other- wise the uncertainty as to ownership will be attended with waste, disuse or destruction of the subject matter of con- tention, whether it be realty or personalty. § 518. Kimmel V. Benna criticised. — Even in Kimmel v. Benna,^ the most recent of the cases holding that the judg- ment in ejectment was not conclusive in cases where no fic- tions were employed, it is practically conceded that the incon- clusiveness of the judgment was in part due to the peculiari- ties of the fictions. The court remark (p. 65) : " It is a mistaken assumption that the sole reason for the ancient rule in regard to the want of finality of judgments in eject- ments was the employment of fictitious parties in the pro- ceeding." We have seen already, especially in the cases of Sturdy v. Jackaway,^ Blanchard v. Brown,^ and Miles v. Caldwell,* in the Supreme Court of the United States, and Stevens v. Hughes,^ in the Supreme Court of Pennsylvania, that the want of finality is rested in some of the authorities very largely, and in others wholly, upon the fictitious and peculiar form of the action. It must be conceded that legislative acts, abolishing the fictions in actions of ejectment, do not abolish the action as such, nor convert it into a writ of right, and though changes of this character are usually held to place the final judgment in ejectment on the same footing as judgments in other actions, yet it still remains an action of ejectment, and falls under the rule of limitation applicable to that action.* But what are the reasons for ' 70 Mo. 52-65. = 4 Wall. 174. 3 3 Wall. 245, "2 Wall. 35. 5 31 Penn. St. 381-385. See Cromwell v. County of Sac, 94 U. S. 351-354- « Hogan V. Kurtz, 94 U. S. 773-775. 334 JUDGMENT. holding that the judgment is inconclusive other than the fictitious form of the action, and the use of imaginary- parties, which technically prevented the application of the estoppel ? § 519. The Supreme Court of Missouri, in Kimmel v. Benna,^ remark further : "A judgment in ejectment confers no title upon the party in whose favor it is given. ' It is, there- fore, manifest,' observes Mr. Adams,^ ' that the judgment can never be final, and that it is always in the power of the party failing, whether claimant or defendant, to bring a new ac- tion.' This reason is just as applicable since the abolish- ment of lease, entry and ouster as before." The latter re- mark is a mere assertion of the opinion of the court, without fact or argument to support it. It begs the question and states the conclusion without explaining the reason or assign- ing any cause why the rule should be as applicable since as before the change. The quotation from Mr. Adams' excel- lent work is given without reference to what precedes and follows the sentence quoted ; and it must not be forgotten that his treatise was written while the fictions were in full force, and before the practice of making the issue in the name of the real parties in interest had been introduced or its ef- fect considered. It is true that he says, "a judgment in ejectment confers no title upon the party in whose favor it is given," and then adds, "it is not evidence in a subse. quent action even between the same parties," because the structure of the record "renders it impossible to plead a former recovery in bar of a second ejectment, for the plaintiff in the suit is only a fictitious person, and as the demise, term, &c., may be laid many different ways, it cannot be made to appear that the second ejectment is brought upon the same title as the first." ^ § 520. Judgment not a source of title. — But a judgment ' 70 Mo. p. 65. ° Adams on Ejectment (4th Am. ed.), p. 420. 3 Adams on Ejectment (4th Am. ed.), p. 420. JUDGMENT. 335 in an action of ejectment, or any action, does not possess the force of a patent, or statutory or other grant. The court is not a source of title, and is possessed of no title that it can confer or bestow. Its function is merely to investigate and declare the legal status and effect of the titles which the rival claimants exhibit, and with which they are invested. The judgment record does not create the title, but merely shows that it had been proved, and its sufficiency judicially determined.^ True, the judgment in ejectment does not award the seizin of the land, but only the possession, to the successful party. The possession being thus lawfully acquired however, the party clothed with it, as we have seen,^ becomes lawfully seized according to his estate or in- terest in the land, so that the result of a judgment in a real action is attained, except that no available record, muni- ment, or evidence of the title, or estate, upon which the re- covery was had, is made or preserved. In Mahoney v. Middleton,^ the Supreme Court of California says : "A judgment in ejectment does not transfer to the successful party, the title of the adverse party, but if presented in the proper mode, whenever such adverse title is drawn in issue, it shuts out all proof of such adverse title. Its effect bears a closer resemblance to an extinguishment than a transfer of the adverse title. The judgment awards the possession to the prevailing party, because he had title at the com- mencement of the action, and because the losing party had no title, or not such title as would authorize him to with- hold the possession ; but it neither directly nor indirectly transfers the title." § 521. jfudgment operates as an estoppel. — It is not a question as to what title has been conferred upon the suc- cessful litigant by the judgment, but whether or not the 'See, especially, Cagger v. Lansing, 64 N.Y. 417-424; Mahoney v. Middleton, 41 Cal. 41 ; Long v. Neville, 29 Cal. 131 ; Currier v. Esty, 116 Mass. 577. »See§§5io, 513. ^l Cal. 41-53. 336 JUDGMENT. judgment is an estoppel upon the parties who have thus made the issue in their own names, exhibited their titles, and had their day in court. It would, as vfe have seen, be an estoppel in contentions over the title to personalty, and the judgment in the latter class of actions does not usually, in terms or in form, confer the title upon the prevailing party. Is there any inherent difference between realty and personalty which ought to prevent the application of the estoppel, or any consideration of public policy calling for the promulgation of a different rule ? § 522. Distinction between realty and personalty. — The Supreme Court of Pennsylvania, as already shown, has de- clared that there is no charm about land, as land, which relieves it from the operation of the general and salutary rule that a judgment between the same parties, or their privies, directly upon the same matter, is an end of the controversy, and an estoppel against future litigation of the same question.^ This sweeping declaration, we concede, must be accepted with some caution, for, at least in Eng- land, many vast estates are held for which no title can be shown other than that conferred by long continued posses- sion. A peculiar sanctity derived from the old feudal sys- tem attached to this right of possession,* and the courts evinced a strong disinclination to hold that so important a right should be lost or maintained upon the result of a single conflict. But in our modern practice the facilities for correcting errors or omissions occurring at the trial, by motion for a new trial, or by appeal, are so ample that any scheme for increasing the number of methods by which the binding force of an adjudication is avoided ought prop- erly to be discouraged. It must be remembered that the plaintiflF's lessor in the early action of ejectment was com- pelled to prove a superior title in himself, or a right of im- mediate possession, and entry, against the defendant. The ' Stevens v. Hughes, 31 Penn. St. 381, 385 ; see § 516. " Miles V. Caldwell, 2 Wall. 35. JUDGMENT. 337 writ of possession was awarded upon the strength of the right to the possession of the land. § 523. Parol evidence admissible to show the exact title adjudicated. — The record itself contained no recital of the title, or rights established, but a fundamental rule of evidence has grown up under which the nature of the title in dispute, decided in the action, may be shown by parol, and thus brought within the estoppel of the judgment. This principle has been expressly applied to judgments in ejectment,^ as well as other actions,^ and is distinctly recognized by the Supreme Court of Missouri in Kimmel V. Benna.^ Not only is the doctrine of Kimmel v. Benna repugnant to the authorities in the Federal courts and in the other States, but the prior decisions of the same court cannot be reconciled with it, for in Foster v. Evans* the court remarks : " In regard to the effect of a judgment in ejectment, it may be remembered that it is not a bar to an- other suit, or to defenses set up in a subsequent suit, unless the titles and defenses are precisely the same as they were in the first suit." The case of Foster v. Evans embodies the general and true rule. § 524, Result of the cases. — The correct principles de- ducible from the authorities seem to be as follows : First. The inconclusiveness of the judgment in ejectment under the early practice is attributable to the fictitious form of the action. Second. There is no inherent difference be- tween rights to realty and to personalty which renders nec- ' Briggs V. Wells, 12 Barb. (N.Y.) 567 ; Treftz v. Pitts, 74 Penn. St. 343 ; Daw- ley V. Brown, 79 N. Y. 398 ; Barger v. Hobbs, 67 111. 592 ; Sherman v. Dilley, 3 Nev. 21 ; Hasten v. Olcott, 24 Hun (N. Y.), 587. ' Johnson v. Albany and Susquehanna R. R. Co. 5 Lansing (N. Y.), 222-226 ; Lawrence v. Hunt, 10 Wend. (N. Y.) 80; Young v. Rummell, 2 Hill (N.Y.), 478; McKnight v. Dunlop, 4 Barb. (N. Y.) 36; Beebe v. Elliott, 4 Barb. (N. Y.) 457; Wood V. Jackson, 8 Wend. (N.Y.) 9; Packet Co. v. Sickles, 5 Wall. 580; Strauss •V. Meertief, 64 Ala. 299. '70 Mo. 65. ■•51 Mo. 39, 40 (decided in 1872). 33 338 JUDGMENT. essary the application of a different rule exempting the former from the effect of the usual estoppel incident to a judgment. Third. The overwhelming weight of authority is in favor of holding the judgment conclusive in ejectment, as in other actions where the issue is made in the names of the real par- ties in interest. Fourth. The cases holding the judgment inconclusive, where the issue is so made, are not supported by precedent, or by considerations of public policy, or the application of any sound technical rules or general principles of law. § 525. yudgment must conform to complaint and ver- dict. — The judgment in ejectment should of course follow and conform to the verdict in designating the extent of the interest recovered,^ and must be rendered for the premises described in the complaint,^ and must follow the com- plaint in respect to the description of the lands, and as to the plaintiff's estate or interest in the premises.^ Where the verdict was for more land than the plaintiff proved title to, a judgment in ejectment was reversed by the Supreme Court of Illinois, and the court refused to correct or reform the verdict, or to render judgment for the portion of the property to which the plaintiff proved title.* This some- what harsh ruling, however, must not be taken as establish- ing the uniform practice, for appellate tribunals, under the modern practice, frequently reform, reduce, or correct ver- dicts or judgments so as to render substantial justice be- tween the parties. § 526. Judgment for land subject to easement, servitude or public ^i-^.— Where land is subject to an easement, servi- tude or public use, it has been shown that the owner of the fee or dominant estate may recover it in ejectment subject 1 Meraman v. Caldwell, 8 B. Mon. (Ky.) 32-35 ; see § 497. = Bentley v. Brownson, i Scam. (111.) 240. ^ Allie V. Schmitz, 17 Wis. 169; Orton v. Noonan, 18 Wis. 447; see Holmes ■V. Seely, 17 Wend. (N. Y.) 75. 1 City of East St. Louis v. Hackett, 85 111. 382. JUDGMENT. -335 to such servitude or use.^ And where the plaintiff's title is subject to an easement, such as the support of a party wall, the judgment will give him possession subject to the ease- ment, and, under the practice in New York, should define the nature and extent of the claimant's interest.^ So a judg- ment may be rendered for land subject to a homestead right.® § 527. Recital of incorporeal hereditaments. — It has been shown that ejectment is not a proper remedy to recover or test the right to incorporeal hereditaments. The recitals concerning incorporeal hereditaments in a judgment in ejectment have been held by the Supreme Court of Michigan, however, to be merely nugatory, and not to affect the va- lidity of the judgment for the land f but the rule must not be overlooked that when the ejectment is successfully prose- cuted for lands, the rights, liberties and privileges appur- tenant to the land are recovered therewith.^ § 528. Relief incident to interference with property in possession. — It is clear that a complaint alleging seizin, and right of possession in the plaintiff, followed by averments of a wrongful entry and possession by the defendant, and con- cluding with a demand for possession and damages, is a simple action of ejectment, and a plaintiff in a complaint of this nature, under the practice in New York, is not entitled to a judgment restraining an unlawful interference with a right incident to property in possession, such as projecting a cornice over the plaintiff's premises." The title to land may, however, in certain cases, be established in equity, and 'Tillmes v. Marsh, 67 Penn. St. 507; Good title v. Alker, i Burr. 133; Re- formed Church V. Schoolcraft, 65 N.Y. 134; Ayer v. Phillips, 69 Me. 50; Doe A. The Queen v. Archbishop of York, 14 Ad. & El. N. S. 81 ; see §§ 130-132. 2 Rogers v. Sinsheimer, 50 N. Y. 646; see Goodtitle v. Alker, i BUrr. 133. 3 Castle V. Palmer, 6 Allen (Mass.), 401 ; Stebbins v. Miller, 12 Allen (Mass.), 591 ; Swan v. Stephens, 99 Mass. 7 ; Letchford v. Cary, 52 Miss. 791 ; see § 141. ■< Taylor t/. Gladwin, 40 Mich. 232; see § 102 and note; see Provident Insti- tution V. Burnham, 128 Mass. 458. s Crocker w. Fothergill, 2 B. & Aid. 652-661. e Vrooman v. Jackson, 6 Hun (N. Y.), 326 ; see Aiken v. Benedict, 39 Barb. (N. Y.)4oo; see §§156, 157. 340 JUDGMENT. the defendant restrained from interfering with the posses- sion.^ § 529. Judgment in ejectment in New York. — In New York the action of ejectment tests and settles not only the right to the possession, but the title under which the right exists, whether in fee, for life, or for years.^ § 530- Judgment by default. — In that State it has been provided by statute,^ that a judgment by default in eject- ment shall not be considered conclusive upon the title against persons claiming under the defendant, unless the judgment has been for three years docketed in the office of the clerk of the court in which it was rendered. The Court of Appeals of that State,* in construing these provisions, held that the "judgment book" required to be kept by the statute,^ was a separate and distinct book from the " docket book," which the statute also provided should be kept,' and that an entry or record in the judgmeVit book was not suf- ficient to render the judgment an estoppel, unless it was also entered in the docket book.'^ § 531. Judgment by consent binding. — In the Supreme Court of Nevada, it has been decided, where an action of ejectment for a mining interest was dismissed upon the written stipulation of the respective attorneys, conditioned that each party should pay his own costs and that the plaintiff should be released from liability on an undertaking furnished to procure a restraining order, and a judgment 'Broieatedt v. South Side R. R. Co. 55 N. Y. 220; Coming v. Troy Iron and Nail Factory, 40 N. Y. 191. = Cagger v. Lansing, 64 N. Y. 417; (below) 4 Hun (N. Y.), 812; Dawley v. Brown, 79 N. Y. 390; Sheridan v. Andrews, 49 N. Y. 478; Sheridan v. Linden, 81 N. Y. 182; Beebe v. Elliott, 4 Barb. (N. Y.) 457; Sheridan v. Andrews, 3 Lans. (N. Y.) 129. 3 2 R. S. (N. Y.) 309, § 38. * Sheridan v. Andrews, 49 N. Y. 478. 5 N. Y. Code Civ. Proc. § 1236. » N. Y. Code Civ. Proc. § 1245. ■> Sheridan v. Linden, 81 N. Y. 182; see Ryerss v. Rippey, 25 Wend. (N. Y.) 432. JUDGMENT. 341 was entered accordingly, that such judgment of dismissal was a bar as to the identical title or cause of action involved in the former action.^ § 532- Judgment by confession. — The authorities are not uniforrn as to the effect of a judgment by confession in ejectment ; and in Botts v. Shields,^ in Kentucky, it was held that it was no more conclusive than a judgment based on a verdict of a jury. On the other hand, it has been held in Pennsylvania that a judgment by confession in ejectment is to be treated as a solemn judicial confession of want of title ; a total and unconditional surrender of the field in controversy, and as such conclusive forever on the defendant and all his privies.* § 533. Judgment in California. — In California the rule and practice is firmly established of holding the judgment conclusive, upon parties and their privies, as to the same title. But in Amesti v. Castro,* it was held that the claimant of an inchoate Mexican grant, who had instituted proceedings to secure a confirmation of the grant by the United States courts, had not the same title, within the meaning of this rule, that he acquired after the grant had been confirmed, surveyed and patented, and hence was not estopped, after the issuance of the patent, by a judgment in ejectment, rendered against him before the confirmation of the grant, and the issuance of the patent. § 534- Judgment in Vermont. — Under the practice in Vermont, ejectment partakes of the nature of a real action, and a judgment upon the merits is conclusive of the title between the parties ; and greater certainty of description is ' Phillpotts V. Blasdel, lo Nev. 19; citing Merritt v. Campbell, 47 Cal. 542; Bank of the Commonwealth v. Hopkins, 2 Dana (Ky.), 395 ; Jarboe v. Smith, 10 B. Men. (Ky.) 257. ^ 3 Litt. (Ky.) 32. ' Secrist V. Zimmerman, 55 Penn. St. 446. '49 Cal. 325; citing Waterman v. Smith, 13 Cal. 417,418; Merryman v Bourne, 9 Wall. 592. 342 JUDGMENT. therefore necessary than would be required in ejectment at common law, where the action was possessory merely, and the judgment not conclusive of the title.^ § 535- Judgment in Illinois must specify particular estate — Under the practice in Illinois, the finding and judg- ment must specify the particular estate in the premises to which the plaintiff is entitled;^ and it is provided by statute in many of our States, that the verdict or finding should specify the nature of the estate or interest recovered.' § 53^- Vendor and Vendee. — The Supreme Court of Illi- nois has decided that a judgment in ejectment by default, against a vendee in possession under an executory contract of sale, is not conclusive upon the rights of the vendor, even though he had notice of the pendency of the action, and that the court will not allow it to be set up in an action of eject- ment subsequently brought by the vendor for the same property.* § 537. Landlord and tenant. — The customary practice is to make the tenant, or party in possession, defendant in ejectment.® As to him, a judgment rendered in the action is, of course, binding and conclusive under the modern prac- tice ; but a different question is presented as to the effect of the judgment upon the landlord of the defendant. The general rule is that a judgment against a tenant* is not con- clusive against his landlord, who was not made a party to the action, and is not named in the record or judgment ; for judgments are ordinarily conclusive only upon the parties named therein, and those claiming under them ; but the 1 Davis V. Judge, 44 Vt. 500-506; see Marvin v. Dennison, i Blatch. C.C. 159; Edwards v. Roys, 18 Vt. 473. 2 Koon V. Nichols, 63 111. 163; see Lillianskyoldt v. Goss, 2 Utah, 292; see § 500. 3 See Rogers v. Sinsheimer, 50 N. Y. 646-649. ■• Cadwallader v. Harris, 76 111. 370 ; see Ryerss v. Rippey, 25 Wend. (N. Y.) 432 ; see Chap. X. = See Finnegan v. Carraher, 47 N. Y. 493; see §§ 231, 432. « See Oetgen v. Ross, 47 111. 142; Lowe v. Emerson, 48 111. 160. JUDGMENT. 343 landlord cannot properly be said to claim under his tenant, the converse of this proposition being the fact. In a recent case in the Supreme Court of New York/ it was held that a judgment in ejectment recovered against a tenant in pos- session of the lands, was not binding upon his landlord, although the tenant notified the landlord of the pendency of the action, and the latter refused to defend the action. Under the practice in New York the landlord may be joined as a party defendant with the tenant,^ and, of course, the judgment would then constitute an estoppel against him ; but if the claimant omits to join the landlord, and the latter refuses to appear or to defend the action, the judgment un- der the practice in New York only concludes the tenant, and those claiming under him, since the commencement of the action, and is not evidence against the landlord.^ A judgment against the tenant is, of course, not binding upon his landlord, if the tenant failed to notify him of the pen- dency of the action, and allowed judgment to be entered by default, and attorned to the defendants, and let them into possession.* In Alabama, on the other hand, if, pending an action of ejectment, the landlord, who is not made a party defendant, receives the possession from the tenant, who alone is made defendant, the landlord may be turned out under the writ of possession.^ If, however, the landlord under- takes the defense of the action in the tenant's name, and is unsuccessful, the court will ordinarily require him to pay the plaintiffs costs upon a return of an execution unsatisfied against the defendant of record." ' Bennett v. Leach, 25 Hun (N. Y.), 178. 2 See Fosgate v. Herkimer Mfg. Co. 12 N. Y. 580. = Bennett v. Leach, 25 Hun (N. Y.), 178; s. C. 13 Weekly Dig. (N. Y.) 96; Ainslie v. Mayor, &c. i Barb. (N. Y.) 168; Thompson v. Clark, 4 Hun (N. Y.), 164; Leland v. Tousey, 6 Hill (N. Y.), 328 ; Sheridan v. Andrews, 49 N. Y. 484; see Finnegan v. Carraher, 47 N. Y. 493 ; Ryerss v. Rippey, 25 Wend. (N. Y.) 432; Boles V. Smith, 5 Sneed (Tenn.), 105 ; Brush z/. Cook, Brayton (Vt.), 89; Kent V. Lasley, 48 Wis. 257. •■ Lum V. Reed, 53 Miss. 73. ° Smith V. Gayle, 58 Ala. 600. « Finnegan v. Carraher, 47 N.Y. 493 ; Farmers' L. & T. Co. v. Kursch, J N. Y. 344 JUDGMENT. § 53§. In California, a landlord is not concluded by a judgment in ejectment against the tenant, unless he had no- tice of the pendency of the action, and an opportunity to defend in the name of the tenant ; ^ nor does a judgment in that State, in favor of the plaintiff in an action of ejectment, against his tenant, determine the question of title, or the right of possession, as between the plaintiff and a third per- son, whom the tenant collusively placed in possession of the premises after the action was instituted.^ In that State, however, if the landlord, in an action of ejectment against a tenant, assumes charge of the defense, and puts his title in issue, the judgment rendered binds him, by way of estoppel, with the same effect as though he had been made a party defendant ; ® and after the tenant has permitted the landlord to appear and defend in the tenant's name, the tenant cannot interfere with any of the subsequent proceed- ings to the prejudice of the landlord;* and in Texas, where a judgment is recovered against a tenant without notice to the landlord, the latter may procure the judgment to be set aside, and be admitted to defend the suit.* § 539. Avoidance of the estoppel. — The estoppel may, of course, be avoided by proof that the defendant, by reason of some lease or license which temporarily defeated the right of possession, could not assert his title in the former suit. In such case the right of possession may be said to have accrued since the former action.^ §540. Government officials. — A judgment in ejectment against an agent of the government negatives all presump- 558; Jackson v. Van Antwerp, i Wend. (N. Y.) 295; see Miller v. Adsit, 18 Wend. (N. Y.) 674. ' Chant V. Reynolds, 49 Cal. 213. 2 Calderwood v. Brooks, 45 Cal. 519. 3 Valentine v. Mahoney, 37 Cal. 389 ; Russell v. Mallon, 38 Cal. 259. ■< Valentine v. Mahoney, 37 Cal. 389; Kellogg v. Forsyth, 24 How. 186. See §§ 264-266. * 5 Hough V. Hammond, 36 Texas, 657. » Sherman v. Dilley, 3 Nev. 21 ; Chase v. Irvin, 87 Penn. St. 286. JUDGMENT. 345 tion of privity of contract in the nature of an implied lease between the owners of the premises and the government, and will defeat an action for the implied rent during the government's prior occupancy.^ The judgment against a government agent is not conclusive against the government.^ § 541. After-acquired title. — The judgment in eject- ment is conclusive only upon the title established in the ac- tion,^ and only between the parties or their privies, and for the same land ;* or where the title and defenses are precisely alike.* It seems to be clearly settled that a defeated plaint- iff or litigant may bring a new action, upon an after-acquired title, with the same effect as a stranger in whom such title might have been vested, and the former judgment will be no bar to the second action,^ for the judgment has no bind- ing effect as to a subsequently acquired title, because the merits of the new title were not in issue.^ 542. Foreign judgment. — It has been held in the Su- preme Court of Texas, that the records, judgments, and pro- ceedings in one State can, in no particular, affect or pass the title to land situated in another State. When courts of equity have jurisdiction of the person they may compel a party to convey lands beyond their jurisdiction, but in all such cases it is the act of the party and not the judgment or decree of the court which affects the title.^ As we have ' Langford v. United States, 12 Ct. of CI. 338. 2 See § 245. 3 Dawley v. Brown, 79 N. Y. 398 ; Bank v. Bridges, 1 1 Rich, (S. C.) Law, 87 ; Sherman v. Dilley, 3 Nev. 21. ■• Chase v. Irvin, 87 Penn. St. 286. » Foster v. Evans, 5 1 Mo. 39. 8 Merryman v. Bourne, 9 Wall. 592 ; Barrows v. Kindred, 4 Wall. 399 ; Sher- man V. Dilley, 3 Nev. 21. ' McLane v. Bovee, 35 Wis. 27 ; Whitney v. Nelson, 33 Wis. 365 ; Montgom- ery V. Whiting, 40 Cal. 294; Mann v. Rogers, 35 Cal. 316; Reed ^z. Calder- wood, 32 Cal. 109; Mahoney v. Van Winkle, 33 Cal. 448; Emerson v. Sansome, 41 Cal. 552; Burt v. Sternburgh, 4 Cow. (N. Y.) 559; Doe v. Bather, 12 Ad. & El. N. S. 941 ; Haigh v. Paris, 16 M. & W. 145. 8 Paschal v. Acklin, 27 Texas, 173. As to the conclusiveness of foreign judg- 346 JUDGMENT. seen, actions for the trial of title to land are local, and can- not be maintained in foreign jurisdictions.^ Ejectment is in the nature of a proceeding in rem? Thus, in Cragin v. Lovell,^ in the New York Court of Appeals, it appeared that the action was brought in New York for damages for breach of a contract to convey land outside the limits of the State. The defendant set up as a counter-claim waste com- mitted by the plaintiff while in possession of the plantation in question, which was located in Louisiana. Plaintiff de- murred to the counter-claim, and the court held that the demurrer was well taken, as actions for injuries to real estate must be brought in the forum rei sitce,^ and this rule pro- hibited the defendant from alleging as a counter-claim dam- ages sustained by waste committed upon land outside of the State. § 543. Form of judgment in Texas. — Under the prac- tice in Texas, where the defendant pleads not guilty and asserts title in himself, a general verdict for the defendant only authorizes a general judgment for the defendant, and a judgment decreeing title to defendant and cancelling plaint- iflTs claim as a cloud, was held to be erroneous.^ § 544. In California. — In California the plain tiflfcan- not ask that he be adjudged the owner, and put in posses- sion, and that the defendant be enjoined from claiming title to the land recovered. He must rely upon his judgment as a bar.*. The principles governing the practice by which ments, see Pennoyer v. Neff, 95 U. S. 714; Boswell v. Otis, 9 How. 336; Hark- ness V. Hyde, 98 U. S. 476. 1 See Chap. XVII, especially §§ 465-467. See Newton v. Bronson, 13 N. Y. 587. = Casey v. Adams, 102 U. S. 66. 3 14 Weekly Dig. (N. Y.) 204. * See Story on Conflict of Laws, § 554; Watts v. Kinney, 23 Wend. (N. Y.) 485 ; Watts V. Kinney, 6 Hill (N. Y.), 82 ; American Union Tel. Co. v. Middle- ton, 80 N. Y. 408 ; De Courcy v. Stewart, 20 Hun (N. Y.), 561. '• Johnson v. Newman, 35 Texas, 166; see Pixley v. R6ckwell, i Sheldon (N. Y.), 267. See § 1 54. - Doyle V. Franklin, 40 Cal. 106. JUDGMENT. 347 . affirmative relief may be sought by answer have already been considered.^ 545. Judgment for possession and damages. — Where the jury rendered a general verdict for the plaintiff in an action of ejectment without assessing damages, it was held that, under the practice in Arkansas, the court had no power to render a judgment for possession and damages.* 1 See §§ 485, 487, 488. 2 Cannon v. Davies, 33 Ark. 56; see Lamed v. Hudson, 57 N. Y. 151 ; Cam- arillo V. Fenlon, 49 Cal. 202. See § 454. CHAPTER XXI. WRIT OF POSSESSION. § 546. Origin of the writ. 547. Its purpose. 548. Habere facias seisinam. 549. Peaceable possession without a writ. 550. Form and contents of the writ. 551. Return-day of the writ. 552. Alias writs. 553. Witbeck v. Van Rensselaer dis- cussed. 554. Plaintiff taking possession at his peril. 555. Manner of executing the writ. 556. When execution considered com- plete. 557. Removal of personal property. 558. Parties who may be evicted. 559. Removal of wife under writ against her husband. 560. Johnson v. Fullerton criticised. 561. Burden upon the officer to excuse non-execution of the writ. § 562. Parties concluded by the judgment must be evicted. 563. Possession to be given of fixtures and improvements. 564. Interference by the court before execution. 565. Mandamus or order to ofiScer to execute writ — Indemnity. 566. Officer's duties defined. 567. Officer cannot file counter affidavit of party in possession to excuse execution of writ. 568. Injunction improper in order for restitution. 569. Landlord and tenant. 570. Co-tenant. 571. Land subject to easement. 572. Inaccessible lands. 573. Writ issued on behalf of heirs. 574. Separate judgments. 575. Restitution. § 546. Origin of the writ. — Precisely how the practice originated of awarding a writ of habere facias possessionem in ejectione firmce is involved in obscurity. The plaintiff in ejectione fii'mcB, as already shown,^ at first recovered com- pensation in damages only, as in any other action of trespass, but this limited relief often afforded inadequate redress by reason of the defendant's insolvency. The courts therefore following, it is said, in the footsteps of courts of equity, by a species of judicial legislation, engrafted upon the remedy a judgment for the recovery of the term of which the claimant had been ousted, and issued a writ of habere facias possessionem, directing the sheriff to place the claimant in the quiet and peaceable possession of the lands. § 547. Its purpose. — The writ oi habere facias possessionem. ' Ante, \ 23. WRIT OF POSSESSION. 349 or its statutory substitutes, under the modern practice com- monly called writs of possession, constitute the basis and evidence of the sheriff's or marshal's authority for perform- ing a task which, in many instances, involves delicate ques- tions of official liability to the interested parties. It is the ultimate process by which the successful litigant secures the fruits of his victory, and through which the judgment is made practically effectual by the actual personal expulsion of the defeated party, and the removal of his goods and personal property from the lands. It is, therefore, obvious that a clear understanding of the nature and provisions of this writ, and of the rights and liabilities of the parties in connection with it, and especially a statement or specifica- tion of the duties and responsibilities of the sheriff or marshal governing the method of executing or enforc- ing it, is of paramount importance, both to the litigants and the officer. § 548. Habere facias seisinam. — Before further con- sidering this writ, we will briefly notice the nature of the final writ in the system of real actions. Upon the ren- dition of a judgment upon a real writ, process of execu- tion issued, which was denominated a writ habere facias seisinam, from the command to the sheriff, embodied in the writ, that he cause the demandant to have a seizin of the tenements recovered.^ " This writ,"" says Professor Stearns,^ " being executed by the sheriffs delivering seizin of the tenements recovered to the demandant, and the writ being returned, and filed with the clerk of the court from whence it issued, the title of the defendant is now fully established by the highest sanction which the law can give." It will be noticed that this writ revested the lost seizin in the demand- ant while the writ habere facias possessionem, the nature and 'Steams on Real Actions, pp. 15,245,388; Pilford's Case, 10 Rep. 116 (5 Coke, 460) ; Jackson on Real Actions, p. 193. "^ Stearns on Real Actions, p. 388. 350 WRIT OF POSSESSION. uses of which we are about to discuss, merely conferred the possession upon the plaintiff. § 549. Peaceable possession without a writ. — The suc- cessful plaintiff in ejectment may, of course at his election if opportunity presents itself, take peaceable possession of the lands in controversy without the aid of the sheriff, and without procuring a writ of possession to be issued.^ The defeated party, in some cases, surrenders the possession voluntarily, and in others the lands are unoccupied, or the defendant may havp only had technical possession.* In such cases the necessity of entering by virtue of the writ, or any court process, is obviated. The judgment is a complete protection to the plaintiff against an action of trespass for entering and taking possession of the land under such circumstances:^ It has been held in New York, that if the plaintiff could himself take possession, he might authorize the sheriff as his agent to do so, which would seem to indicate that the sheriff is not entirely re- stricted to the writ as a justification for removing a party from the lands.* There would seem to be no greater pro- priety in suing out a writ of possession in cases where a peaceful entry on the land in controversy could be effected, and complete possession gained without the assistance of a writ or a sheriff, than in instituting the action of ejectment for land the possession ©f which was not withheld. So in an early case in Massachusetts,* on a writ of right, the court said : " That a man, who has a judgment for possession, may enter without a writ, is common learning." It is hardly pru- • Taylor v. Horde, i Burr. 60-88 ; Caldwell v. Walters, 22 Penn. St. 378 ; Anon. 2 Sid. 155, 156; Witbeck v. Van Rensselaer, 64 N. Y. 27-31 ; Hinton». McNeil, 5 Ohio, 509. 2 Craft V'. Yeaney, 66 Penn. St. 210; Roe v. Dawson, 3 Wils. 49. 3 People V. Cooper, 20 Hun (N. Y.), 486; Jackson v. Haviland, 13 Johns. (N. Y.) 229-234; Witbeck v. Van Rensselaer, 64 N. Y. 27-31 ; Doe v. Bluck, 3 Campb.447 ; Smith v. Hornback, 3 A. K. Marsh. (Ky.) 392 ; Hinton v. McNeil, 5 Ohio, 509; Craft v. Yeaney, 66 Penn. St. 210; Caldwell v. Walters, 22 Penn. St. 380; Creighton v. Proctor, 12 Cush. (Mass.) 433, 436. ■" People V. Cooper, 20 Hun (N. Y.), 486-491. 5 McNeil V. Bright, 4 Mass. 282-300 ; see Farwell v. Rogers, 99 Mass. 33-35. WRIT OF POSSESSION. 351 dent to adopt the practice of taking possession without pro- cess, after judgment, where a probability of opposition on the part of the defendant exists. The presence of the sheriff may be necessary to preserve the peace. Thus, in Doe d. Stephens v. Lord,^ the court said : " It ought not to go forth that a party having obtained judgment in eject- ment may enter without a writ of possession, unless by con- sent of the person holding." In that case, it appeared that a successful plaintiff' in ejectment had sued out a writ of pos- session in 1834, which was never executed. In 1837 a second writ of possession was issued, and the possession ob- tained under it. The second writ was subsequently set aside for irregularity. The court held that the plaintiff" could not be allowed to retain the possession, because it had been acquired with an appearance and color of author- ity from the court, to which he was not entitled. The pos- session had been gained under a void writ. The case is scarcely an authority upon the question of the plaintiff"'s right to take peaceable possession without process, though it is sometimes cited as holding adversely to the exercise of that right. § 550. Form and contents of the writ. — The writ must follow the terms of the verdict* and judgment,^ and is usual- ly addressed to the sheriff" of the county in which the prem- ises in controversy are located,* and commands him to de- liver the possession of the land, describing it, to the party entitled to it. It is no objection to the validity of the writ that the names of the officers to whom it was directed were inserted by interlineation after the writ had been sealed and placed in the officer's hand.® § 551. Return-day of the writ. — Usually there is no necessity for making the writ returnable except where a ' 7 Ad. & El. 610-614; see Wood v. Coghill, 7 Mon. (Ky.) 601. ^ Martin v. Martin, 17 S. & R. (Penn.) 431 ; see §§ 497-525. 3 Roscoe on Real Actions, 609; Orton v. Noonan, 18 Wis. 447 ; see § 497. ■" Roscoe on Real Actions, 608. * The King v. Harris, 2 Leach C. C. 929. 352 WRIT OF POSSESSION. rule of the court, or statutory regulation on the subject exists, and therefore the sheriff, while he has the writ, may remove the defendant, or his privies, from the land as often as he, or they, intrude upon it.^ In some States the writ merely directs the officer to deliver possession, " with- out delay,"'* and it is not always essential that any return- day should be named in it,^ and the writ cannot be avoided for mere irregularities and erroneous recitals in its form.* It has been held in Kentucky, that a joint writ, issued upon separate judgments, is irregular, and the writ was quashed, and a restitution awarded.** A command to return the writ within a given time has been considered, in New York, to be directory merely, and it was held in the Court of Ap- peals of that State, that a writ of possession could be law- fully executed after the return-day specified in the writ. The judgment, it was said, bound the land of which the writ directed possession to be delivered, and the office of the writ was simply to carry the judgment into effect with ref- erence to that particular piece of land.^ The court below, in the same case, decided that, in the absence of any evi- dence on the subject, the presumption would be indulged that the sheriff began the execution of the writ or process within the sixty days prescribed by the writ.'^ In United States V. Slaymaker,* however, it was held that a writ of possession could not be legally executed after the day on which it was made returnable, as it then became functus officio. In Dent v. Simmons,* the Court of Appeals of Kentucky decided, that where a judgment in ejectment had ' See Witbeck v. Van Rensselaer, 64 N. Y. 27-31 ; Crocker on Sheriffs, §575- 2 See People v. Cooper, 20 Hun (N. Y.), 486-489. ' Jackson v. Hawley, 11 Wend. (N. Y.) 182. ■" Franklin v. Merida, 50 Cal. 289. 6 Lowry v. Jenkins, 3 Bibb. (Ky.) 315. « Witbeck v. Van Rensselaer, 64 N. Y. 27-31. ' Witbeck v. Van Rensselaer, below, 2 Hun (N. Y.), 55. 8 4 Wash.C.C. 169. See Gardiner v. Schuylkill Bridge Co. 2 Binn. (Penn.) 450. 9 7 J- J. Marsh. (Ky.) 42. See Smith v. Homback, 3 A. K. Marsh. (Ky.) 392. WRIT OF POSSESSION. 353 been fully executed on a habere facias, by the eviction of the tenant in possession and giving actual possession to the plaintiff, and the writ returned executed, and the defend- ant in ejectment afterwards re-entered, the proper remedy for restitution was by a warrant for forcible entry, and that an alias writ of possession was erroneous. Both of these cases are referred to by the New York Court of Appeals in Witbeck v. Van Rensselaer,^ and in so far as they conflict with the rule established by that case, to the effect that the writ can be executed after the return-day, are not followed. Dent V. Simmons, usually cited in connection with United States V. Slaymaker, was distinguished from Witbeck v. Van Rensselaer on the point as to the execution of the writ after the return-day, on the ground that it appeared, in Dent v. Simmons, that the writ had been returned and filed as a court record, and was, of course, no longer in the hands of the sheriff for execution. The theory upon which Dent v. Simmons, and similar cases, are decided is, that the execu- tion of the writ is tantamount to a satisfaction of the judg- ment, and that two satisfactions cannot be had of the same judgment.* It must be conceded, however, that this prin- ciple cannot, from the very nature of things, be applied to actions for the recovery of the possession of land. If the writ can be issued and executed but once it is idle to hold that the judgment is binding and conclusive, for, if the de- fendant again entered upon the lands there would be no method at the disposal of the plaintiff, by which the judg- ment could be made practically effectual and the defendant again dispossessed. § 552. Alias writs. — Under the practice in New York, when, in ejectment, a writ habere facias possessionem has been executed by putting the defendant out of possession and the plaintiff, after maintaining the possession four or five days, is dispossessed by a person claiming under defendant's title, > 64 N. Y. 27-31. 2 Dent V. Simmons, 7 J. J. Marsh. (Ky.) 42 ; see Romero v. Munos, I New Mex. 314. 33 354 WRIT OF POSSESSION. an alias writ is awarded, although the return-day of the first writ has not arrived/ and if the sheriff deliver posses- sion to the plaintiff on an alias writ, and before its actual return the defendant regains possession, the plaintiff may have a pluries writ.^ § 5 5 3- Witbeck v. Van Rensselaer discussed. — The practice intended to be established by the New York Court of Appeals, in Witbeck v. Van Rensselaer, is certainly a more simple and effectual form of redress than that sug- gested by the cases holding that after the writ has been once executed and returned, or the return-day has passed, the power of the court to further enforce its mandate, or to protect and secure to the successful litigant the fruits of the judgment is exhausted. The latter doctrine renders the entire redress afforded by the judgment in ejectment transi- tory and unsatisfactory. The court is bound in good con- science to maintain and continue the party in the posses- sion of the lands to which it has adjudged him to be en- titled. Otherwise, the defeated party might constantly undo the action of the court, and practically nullify its man- date. It is not a sufficient answer to say that the plaintiff" in the ejectment action can procure a warrant of forcible entry if the defendant re-enters. Invoking this further remedy entails additional inconvenience and expense, and, furthermore, the possession may have been regained by the defendant, under such circumstances as not to render him amenable to the provisions of the statutes regulating forci- ble entries.® If the plaintiff was unable to proceed under these statutes, his only redress would be to institute an- other ejectment. The judgment in ejectment, as we have seen, is now generally declared by statute, or held by the courts, to be conclusive upon the parties. Under these cir- ' Jackson v. Hawley, ii Wend. (N. Y.) 182 ; see Batchelder v. Moore, 42 Cal. 412; People V. Dwinelle, 29 Cal. 632. 2 Van Rensselaer v. Witbeck, 2 Lans. (N. Y.) 498. 3 See Romero v. Munos, i New Mexico, 314. WRIT OF POSSESSION. 355 cumstances it seems unreasonable to refuse to issue process to render its binding force practically effectual.^ § 554. Plaintiff taking possession at his peril. — At com- mon law, in ejectment, when the declaration, verdict, and judgment described the property in general terms, the plaintiff might take possession of the lands at his peril, sub- ject to be put right by the court if he took more or other lands than those which constituted the subject-matter of the controversy.^ The propriety, however, of arming a claim- ant with court process, and furnishing him an officer em- powered to take possession of any lands which the claim- ant's caprice or cupidity might prompt him to point out, was open to the most serious objections. This practice was not universal, and was not followed in Alabama, at least while trespass to try title prevailed in that State. The prac- tice there required that the verdict and writ should describe with reasonable certainty the lands intended to be covered thereby.^ § 555. Manner of executing the writ. — In executing the writ of possession, where an adverse possession is held, it is the duty of the officer, first, to turn out the occupants ;* then to take possession in the name of the law, and afterwards to deliver the vacant possession to the plaintiff in the eject- ment.^ When the writ is issued to the sheriff, he is held to possess all the power necessary to accomplish its complete enforcement ; and where admission to a house is denied, he may break open the doors or windows, and use all the ■ See §§ 43, 44, 524, and Chapter XX. 2 Jackson v. Rathbone, 3 Cowen (N. Y.), 291 ; Doe v. Wilson, 2 Starkie, 477; Cottingham v. King, i Burr. 629; Shaw v. Bayard, 4 Penn. St. 257; Johnson v. NeviU, 65 N. C. 677; Ex-parte Reynolds, I Cai. (N.Y.) 499; Bayard v. Colfax, 4 Wash. C. C. 38-43; Camden v. Haskill, 3 Rand. (Va.) 462-465 ; Den v. Johnson, 7 Halst. (N. J.) Law, 275 ; Fassit v. Richard, 2 Harr. (Del.) 289. See §§ 455-459- = Bennet v. Morris, 9 Porter (Ala.), 171; see, also, Hildreth v. Thompson, 16 Mass, 191. < Johnson v. Mcllwain, Rice (S. C.) Law, 368. " United States v. Lowry, 2 Wash, C. C. 169; Ex-parte Black, 2 Bailey (S. C.) Law, 8. 356 WRIT OF POSSESSION. force that may be needed to overcome any resistance to the enforcement of the process.^ If there is a house on the premises, the writ must be executed by putting the tenant out of the house and the plaintiff into it.^ And in contem- plation of law, a delivery of the possession to the plaintiffs agent is equivalent to a delivery to the plaintiff in person.^ § 556. When execution considered complete. — The case of Kingsdale v. Mann * is usually cited as an authority for the proposition that the execution of the writ of possession is not completed until the sheriff or his bailiffs have delivered full possession to the plaintiff, and have left the premises. No such proposition, however, was actually or necessarily involved in the case, for it appeared that possession was actually delivered by the officers at nine o'clock in the morning, and toward six o'clock at night of the same day the plaintiff was forcibly dispossessed. The court expressed doubt as to whether, after so many hours had elapsed, the act of the defendant in dispossessing the plaintiff could be regarded as an interference with or disturbance of the execu- tion, and merely granted a rule to show cause why an attachment should not issue. This leads us to the discus- sion of the question as to what may be considered a deliv- ery of possession or complete execution of the writ. It is undoubtedly the duty of the sheriflF, if required so to do, to remove from the premises all the personal property belong- ing to the defendant found thereon. But, in a recent case before the New York Court of Appeals, that tribunal de- clared that no authorities had been cited to the court tend- ing to show that the omission so to do vitiated the execu- ' Adams on Ejectment (4th Am. ed.), p. [*342] 412; Crocker on Sheriffs, § 573 ; Howe v. Butterfield, 4 Cush/(Mass.) 302 ; Semayne's Case, 5 Rep. 91, (b) (3 Coke, 188); Keith v. Johnson, i Dana (Ky.), 605. 2 Den d. Smallwood v. Bilderback, i Harr. (N. J.) 497. = People V. Cooper, 20 Hun (N. Y), 486-491 ; Kercheval v. Ambler, 4 Dana (Ky.), 166; Hig-ginbotham v. Higginbotham, 10 B. IVIon. (Ky.) 370; Smith v. White, 5 Dana (Ky.), 376 ; Witbeck v. Van Rensselaer, 64 N. Y. 27. * I Salk. 321 ; S. C. 6 Mod. 27; see Farnsworth v. Fowler, i Swan (Tenn.), I. WRIT OF POSSESSION. 357 tion of the writ when possession of the land had been actu- ally and in fact delivered/ § 557. Removal of personal property. — People v. Cooper,* in the New York Supreme Court, is an important and in- teresting case concerning the rights and duties of the sheriflf as to the removal of goods and personal property found upon the premises. It appeared that on May 18, 1874, at 10 A. M., a writ of possession was issued to the sheriff on a judgment in ejectment, in which one Fountain was plaintiff and one Scudder was defendant. The sheriff thereupon went to the house with' one Arnot, the assignee of the plaintiff's rights under the judgment, and demanded the im- mediate possession from Scudder, refused his request for de- lay, and proceeded at once to carry out the furniture and took the door keys and put them in his pocket. At i p. m. of the same day the sheriff was served with an order staying all pro- ceedings upon the judgment and the writ. He thereupon stopped the further removal of the goods from the house, told a person in the house that she had better go out, as he was about to lock up the house, and having locked the doors went away, leaving a deputy sheriflf in possession. Upon an appeal from an order adjudging the sheriflf guilty of contempt for violating the stay of proceedings, it was held that the sheriff could take possession as Arnot's agent ; that when served with the order staying all further proceed- ings Arnot was already, by virtue of what had transpired, in possession of the premises ; that the sheriflf was not required to turn out Arnot and reinstate Scudder in possession, and that his failure so to do did not render him guilty of a contempt. § 558. Parties who may be evicted. — It is the duty of the sheriff to remove not only the defendant named in the writ and hia family, employees, and servants, but also all ' Witbeck v. Van Rensselaer, 64 N. Y. 27-32 ; People v. Cooper, 20 Hun (N. Y.), 486-491. » 20 Hun (N. Y.), 486. 358 WRIT OF POSSESSION. persons who may have entered upon the land pending the action, whether as trespassers or claiming to hold the pos- session in the right of the defendant, or under the title which was adjudicated in the action.^ § 559. Removal of wife tinder writ against her hus- band. — It has been even held in Pennsylvania, that this rule justifies the sheriff, while executing the writ, in removing the wife of the defendant from the lands, though she put forth a claim of independent title in herself The court de- cided that a judgment against the head of the family was a judgment against his family and servants, and against all tenants under him, who had entered since the action was instituted, otherwise it was considered that the judgment would be valueless, for if one member of the family could retain the possession, he or she might cover the possession of all the others. The court say further that it was the husband's duty to defend the possession of the family, and failing so to do the family must go out with him, "just as a tenant with his family must go out who fails to give his landlord notice, or to defend under his title, though this title may be perfect."^ The court concede that the title of the wife cannot be affected by the judgment against her husband alone, but only her possession. The opinion seems to be rested largely upon considerations of public policy, and the dangers and uncertainty likely to result to a plaintiff from permitting a member of a family to evade the effect of the writ of possession issued against the head of the family. § 560. Johnson v. Fullerton criticised. — This case, how- ever, cannot be supported on principle nor reconciled with established precedents. Title to land is but another name ! Hickman v. Dale, 7 Yerg. (Tenn.) 149 ; Wallen v. Huff, 3 Sneed (Tenn.), 82; McCreery v. Everding, 54 Cal. 166; Higginbotham v. Higginbotham, 10 B, Mon. (Ky.) 372 ; Johnson v. Fullerton, 44 Penn. St. 466 ; Wattson v. Dowling, 26 Cal. 124; Satterleez/. Bliss, 36 Cal. 489; Long v. Morton, 2 A. K. Marsh. (Ky.) 39; Hanson v. Armstrong, 22 111. 442 ; Jackson v. Tuttle, 9 Cow. (N. Y.) 233 ; How- ard V. Kennedy, 4 Ala. 592 ; Mayne v. Jones, 34 Cal. 483. ' Johnson v. Fullerton, 44 Penn. St. 466. WRIT OF POSSESSION. 359 for the right by which the possession of land is protected and maintained. The possession is its most essential and important attribute. The party vested with the title and possession, can only be deprived of it against his will by a judgment duly rendered, by a court of competent jurisdic- tion, to which he is a party, and which is binding and con- clusive upon him. The proposition that a party vested with the title to land, and enjoying the possession which such ownership confers, must forfeit that possession solely because he or she is so unfortunate as to be related to, or a member of, the family of another person, who has been ad- judged to be without title, can hardly be regarded as sound. The court said, in the case above cited, that it was the duty of the head of the family to defend the family's possession by setting up the title of the wife. But is the wife to be prejudiced by the breach of duty of the husband in failing so to do, and is she to forfeit her possession in obedience to a judgment rendered without notice to her, and upon a title under which she does not claim or hold ? The court said : " The title of the wife cannot be affected by a judgment against her husband alone, but only her possession." This statement is clearly erroneous. If the wife is deforced of the possession, she will be compelled to become a plaintiff in ejectment, and thereby lose the vantage ground which the possession conferred. She will be forced to recover upon the strength of her own title, which it may be difficult or impossible to prove, and to become an actor, and assume the burden of a litigation, which, but for the loss of the pos- session, would have been cast upon her opponent. Her title is clearly affected, abridged and impaired by her expulsion xmder the writ to this extent at least ; she can no longer hold the land as against all the world except the true owner. Her adversary has, by virtue of a judgment, to which she was not a party, and rendered upon a different title, usurped her position, and, by gaining the possession, acquired the important and substantial rights and advantages which the possession confers, and which belonged to her. 360 WRIT OF POSSESSION. The conclusion sought to be established in this case by the analogy as to evicting a tenant, under a judgment, where his landlord, who had no notice of the suit, may have a perfect title, is most unsatisfactory. No such relationship exists be- tween husband and wife, or the head of a family and its members. Furthermore, the tenant in the case stated is made a party to the ejectment, and was bound by the judg- ment, which is, of course, an entirely different state of facts. In the case which we have been considering, the analogy applies to the husband, and not to the wife. The broad dis- tinction between being plaintiff and defendant in ejectment has been noticed in different portions of this treatise, and the advantages which the latter possesses over the former have been so frequently discussed that further reference to the subject is unnecessary. These principles have been re- cognized in the Supreme Court of California, in Tevis v. Hicks,^ where it was held that a wife who claimed in her own right, and as her separate property, an interest in the lands in controversy, could not be ejected or removed under a writ against her husband. § 561. Burden upon the officer to excuse non-execution of the writ. — There being ordinarily no exception on the face of the writ, as to the parties to be removed under it, if the sheriff fails to obey its command, his excuse is affirmative matter, and the burden rests upon him to show that the parties whose possession he has refused to disturb, are not bound or affected by the judgment.^ § 562. Parties concluded by the judgment must be evicted. — The doctrine seems to be generally established that persons who were not made parties to the ejectment, and were in possession before it was instituted, or who claim under titles distinct and independent from or paramount to the title litigated in the ejectment, cannot'be evicted under the writ. The safest test is, are the parties whom it is proposed to 1 38 Cal. 234. 2 Leese v. Clark, 29 Cal. 664. WRIT OF POSSESSION. 36 1 remove bound or concluded by the judgment, or do they claim under parties concluded by it, or in subordination to the title adjudicated in the action?^ If so they must be evicted. Of course, prima facie, all parties entering after suit brought acquire the possession in subordination to the defendant.^ But the facts may be show^n, and the rule vsrill exempt the party from eviction if he comes into possession after the action is commenced, provided he does not come in under a party to the suit, but by virtue of an adverse and paramount title. His most effective remedy, if evicted, is not to apply to open the judgment, but to get a w^rit of res- titution,^ or to apply to the court to be excepted from the operation of the writ of possession. § 563. Possession to be given of fixtures and improve- ments. — The sheriff should also place the plaintiflF in posses- sion of all the fixtures * and improvements upon the prem- ises ; that is to say, the disseizor, when obliged by law to yield the possession, must surrender the land in its improved state ;° .and, as between the successful plaintiff in an action of ejectment and the evicted defendant, the crops growing- upon the land are a part of the realty, and belong to the plaintiff.* ' Powell V. Lawson, 49 Ga. 290 ; Calderwood v. Pyser, 31 Cal. 333; Garrison V. Savignac, 25 Mo. 47-53; Goerges v. Hufschmidt, 44 Mo. 179; Tevis v. Ellis, 25 Cal. 515; South Beach Land Ass'n v. Christy, 41 Cal. 501 ; Rogers v. Parish, 35 Cal. 127; Ford z/. Doyle, 37 Cal. 346; Clark v. Parkinson, 10 Allen (Mass.), 133; Howard v. Kennedy, 4 Ala. 592; Smith's Lessee v. Trabue's Heirs, i McL. 87; Jones z/. Burget, 38 Tex. 396; Kelly t/. Fritz, 11 Heisk. (Tenn.) 7; Fogarty V. Sparks, 22 Cal. 143 ; see Terrell v. Allison, 21 Wall. 289; Howard v. Railway Co. 1 01 U. S. 837-849. 2 Hall V. Dexter, 3 Sawyer, 434 ; Leese v. Clark, 29 Cal. 664. 3 Smith V. Pretty, 22 Wis. 655 ; Hall v. Dexter, 3 Sawyer, 434 ; Gelpeke v. M. & H. R. R. Co. 1 1 Wis. 462 ; McChord's Heirs v. McClintock, 5 Litt, (Ky.) 304 ; Raw V. Stevenson, 24 Pitts. L. J. (Pa.) 145. ■■ McMinn v. Mayes, 4 Cal. 209. » Russell V. Blake, 2 Pick. (Mass.) 507. 6 Altes V. Hinckler, 36 111. 275 ; Lane v. King, 8 Wend. (N. Y.) 584 ; Gillett V. Balcom, 6 Barb. (N. Y.) 370; McLean v. Bovee, 24 Wis. 295; Hodgson w. Gascoigne, 5 B. & Aid. 88 ; Doe d. Upton v. Witherwick, 3 Bing. 1 1 ; Crotty v. Collins, 13 111. 567; Brothers v. Hurdle, 10 Ired. (N. C.) Law, 490; Strode i/. Swim, I A. K. Marsh. (Ky.) 271 ; Adams on Ejectment (4th Am. ed.), [*347] 4i6. 362 WRIT OF POSSESSION. § 564. Interference by the cotirt before execution. — The court will also, when necessary, interfere in a proper case before the execution of the writ, and restrain the claimant from taking possession of more land than he is entitled to recover.^ Thus where the lessor had declared for lands held under two separate titles, and by a mistake of the judge upon the law of the case the verdict was given for the plaintiff upon both titles, when it should have been entered for the defendant as to the lands comprised in one of them, the court confined the execution to the lands to which the lessor had proved a valid title. § 565. Mandamus or order to officer to execute writ — Indemnity. — If the sheriff refuses to execute the writ, the plaintiff may procure an order in the action requiring him to do so,^ or he may procure a peremptory mandamus against the sheriff.^ The sheriff may, of course, demand a bond of indemnity before removing a party who claims that he is not bound by the judgment, if a reasonable doubt exists on the subject.* § 566. Officer's duties defined. — The duties of the officer with regard to the execution of the writ have been carefully considered and defined by Mr. Justice Field, of the United States Supreme Court, sitting at circuit, in a comparatively recent case. After stating the general rule that a judgment in ejectment binds, as to the title, only parties to the action and those claiming under them, the court said : " Persons entering after suit by title existing previously adverse to ' Doe d. Forster v. Wandlass, 7 T. R. 118, in notzs; see Brookes d. Mence v. Baldwyn, Barnes, 468 ; Wallen v. Huff, 3 Sneed (Tenn.), 82 ; Blair v. Pathkiller, 5 Yerg. (Tenn.) 230 ; see Jackson v. Rathbone, 3 Cow. (N. Y.) 291 ; Leese v. Clark, 29 Cal. 664 ; Roe d. Blair v. Street, 2 Ad. & El. 329 ; Adams on Ejectment (4th ed.), p. 412 [*342]. 2 Jackson v. Rathbone, 3 Cow. (N. Y.) 291 ; Leese v. Clark, 29 Cal. 664. 3 Fremont I/, Crippen, 10 Cal. 211; Moses on Mandamus, p. 59; FogartyJ/. Sparks, 22 Cal. 143. ^ ■> Adams on Ejectment (4th Am. ed ), [*342j 412 ; Gilbert on Ejectment, no; Crocker on Sheriffs, § 572 ; Long v. Neville, 36 Cal. 455 ; Dupont v. Ervin, 2 Brev. (S. C.) Law, [*4oo] 79 ; Hall v. Dexter, 3 Sawyer, 434. WRIT OF POSSESSION. 363 that of the parties, stand in a different position. Their title is in no'respect affected by the judgment. But the deter- mination of the question, whether parties thus entering into possession have such antedating title, is not left to the judg- ment of the marshal. He is not clothed with any judicial power to pass upon the rights of parties found upon the premises other than the defendant. The most that he can do, when such a party claims to have a title anterior to the suit, is to require from the plaintiff a bond of indemnity, or give a reasonable time for the party to apply to the court for a modification of the writ, so as to exclude him from its operation. Upon such application the court may stay the enforcement of the writ, or except the applicant from its operation, until the rights of the parties can be properly de- termined. But when a sufficient bond of indemnity is ten- dered, and no different order is made in the manner indicated, the duty of the marshal will only be discharged by placing the plaintiff in possession, as directed, and this implies a re- moval of all occupants."^ § 567. Officer cannot file counter-affidavit of party in possession to excuse execution of writ. — A curious state of facts growing out of the execution of a writ of possession was presented in a case in Georgia. The defendant in ejectment after judgment abandoned the possession of the premises, and a day or two after he left, one L. went into possession. A writ of possession having issued on the judgment, the sheriff went upon the land to execute the writ, and found L. in possession, who furnished him an affidavit setting forth that she did not hold under any of the parties to the action. The sheriff received and filed the affidavit with his return, and did not execute the writ. The court held that there was no provision of law authorizing the sheriff to receive the counter-affidavit of L. to the writ of possession, as she was not a party to the action, and no issue could be created 1 Hall V. Dexter, 3 Sawyer, 434. 364 WRIT OF POSSESSION. to be tried by returning the papers to the court in the man- ner indicated.^ § 568. Injunction improper in order for restitution. — In Dawley v, Brown,^ in the New York Supreme Court, it appeared that the plaintiff had been put into possession of certain lands by virtue of a writ issued on a judgment in ejectment. The judgment was subsequently set aside and an order for the restoration of the possession granted to the defendant. This order contained an injunction clause re- straining the plaintiff from entering upon or interfering with the possession of the lands, and restraining him from cultivating or otherwise using or occupying them. The court decided that the portions of the order which at- tempted to restrain the plaintiff were not only irregular, but utterly void ; that the only appropriate redress was the order for the restoration of the possession, and that when the possession was regained the defendant could maintain an appropriate action against the plaintiff for any illegal en- try or interference with the possession. § 569. Landlord and tenant. — According to some of the cases, the landlord who receives the possession from his ten- ant pending the ejectment, will be bound by a recovery against the tenant, at least so far as to entitle the plaintiff to evict him under the writ,' and this rule has been extended to include the landlord's widow and heirs who entered sub-, sequent to the commencement of the suit.* But in Oetgen V. Ross,^ however, in which judgment had been rendered against a tenant, and the landlord had reassumed possession, the Supreme Court of Illinois, in the exercise of a species of equitable jurisdiction, stayed the enforcement of the writ and permitted the landlord to come in and try the case 1 Powell V. Lawson, 49 Ga. 290. ■" 43 How. Pr. (N. Y.) 22, See People v. Cooper, 20 Hun (N. Y.), 486-489. 3 Hanson v. Armstrong, 22 111. 442; Sampson v. Ohleyer, 22 Cal. 200; Smith V. Gayle, 58 Ala. 600; Rodgers v. Bell, 53 Ga. 94. < Wallen v. Huff, 3 Sneed (Tenn.), 82. »47 111. 142. WRIT OF POSSESSION. - 365 upon its merits, the landlord representing that the tenant had not informed him of the pendency of the action. § 570. Co-tenant. — Where an ejectment is brought by a stranger against one of two persons in joint possession of the land, it not appearing that either claimed under the other, the judgment will bind only the defendant, and the other party cannot be expelled by the writ of possession.^ And where the plaintiff recovers in ejectment an undivided part of a house and lot it is the duty of the sheriff to put the plaintiff in actual possession with the defendant.^ Thus, where the defendants were two out of eight of the lessors heirs, it was held that the writ of possession should not issue to put the defendants out, but to put the other heirs in possession with them, as in the case of tenants in common.^ This subject has been considered at length in discussing the special subject of ejectment between tenants in common. § 571. Land subject to easement. — The owner of the fee of a public highway over which the public have an ease- ment or right to travel, who has recovered in ejectment the lands within the limits of the highway against a person who has appropriated the same to a purpose not authorized by the easement, is entitled to have the possession delivered to him by the sheriflF, subject to the use or easement.* The writ should follow the judgment in this respect, and this subject has already been incidentally considered in discussing the interests which will support ejectment and the judgment.^ § 572. Inaccessible lands. — As shown in a former chapter, it is no obstacle to a recovery in ejectment that the land in controversy is inaccessible at the time of trial, so that the • Stokes V. Morrow, 54 Ga. 597. 2 Ash V. McGill, 6 Whart. (Penn.) 391 ; Withrow v. Biggerstaff, 82 N. C. 82; Ewald w. Corbett, 32 Cal. 499; Tevis v. Hicks, 38 Cal. 234; Dupont v. Ervin, 2 Brev. (S. C.) [*4oo], 79. 3 Wilson V. Hall, 13 Ired. (N. C.) Law, 489. < Reformed Church v. Schoolcraft, 65 N. Y. 134. ^ See §§ 130-132, 526. 366 WRIT OF POSSESSION. sheriff cannot deliver possession.^ Nor does the fact that the land is covered with water necessarily prevent the sheriff from delivering possession.^ § 573- Writ iss2ied on behalf of heirs. — In Pennsylvania it has been held that where a plaintiff dies after recovering a judgment in an ejectment, his heirs can have execution thereon without a re-trial of the original controversy. Only a release of the judgment or a conveyance to the defend- ant would be pleadable to a scire facias? In New York it has been held, under the former practice, that if one of two plaintiffs dies after judgment, execution may issue in their joint names without a scire facias.^ § 574. Separate judgments. — Where two plaintiffs ob- tained separate judgments in ejectment at the same term of the court, against the same defendant, and one plaintiff evicted the defendant by habere facias, and immediately leased to him the land recovered, and he entered under the lease, it was held that he might be afterward lawfully evicted by habere facias upon the other judgment. Had the first plaintiflF retained the possession, or leased to a stranger, neither he nor his tenant could have been turned out by a judgment to which neither was a party.^ § 575. Restittition. — A writ, or an order for restitution, will be granted in cases where the sheriff has delivered pos- session of lands not embraced in the writ, or has evicted parties who were not legally subject to the operation of the writ or bound by the judgment," or where the judgment in • Woodhull V. Rosenthal, 61 N. Y. 382; see § 127. 5 Perrine v. Bergen, 14 N. J. L. 355. 3 Weaver v. Wible, 72 Penn. St. 469; see Howell v. Eldridge, 21 Wend. (N. Y.) 678; Penn v. Klyne, Pet. C. C. 446. 1 Howell V. Eldridge, 21 Wend. (N. Y.) 678. '- Kercheval v. Ambler, 4 Dana (Ky.), 169. 6 City of Natchez v. Vandervelde, 31 Miss. 706; Smith v. Pretty, 22 Wis. 655; South B. L. A. V. Christy, 41 Cal. 501 ; Shaw v. Bayard, 4 Penn. St. 257; Blair V. Pathkiller, 5 Yerg. (Tenn.) 230; Jackson v. Stiles, 5 Cow. (N. Y.) 418; Roscoe on Real Actions, p. 610. WRIT OF POSSESSION. 367 ejectment has been reversed on appeal/ or vacated for irregularity,^ or a party has been turned out by mistake.^ The party moving for a writ, or order of restitution, must make out a clear case, free from ambiguity,* and restitution will be denied to a party who has been removed from pos- session, if he is without color of right to the possession.^ In New York, since the adoption of the Code, when a reg- ular judgment is entered awarding the plaintiff the posses- sion of real property, and execution has issued putting him in actual possession, on setting aside the judgment and exe- cution the proper remedy of the defendant, to compel resto- ration of the property, is to apply to the special term of the court for an order to show cause why possession should not be restored to him, and an order granted on the hearing of the order to show cause is sufficient authority to restore the possession to the defendant. Disobedience of such an order may be punished as for a contempt. But, as we have seen, the order cannot properly contain an injunction clause restraining the plaintiff from using the premises.* In Penn- sylvania it has been held that where a habere facias is set aside, in consequence of an agreement of the parties after judgment, an award of restitution is a matter of course, and this may be enforced either by attachment or writ of resti- tution,^ and in New York where the plaintiff takes posses- sion of more land than he has recovered, or is entitled to, the court will grant a writ of restitution, or, in a doubtful case, award a feigned issue.^ 1 Breading v. Blocher, 29 Penn. St. 347 ; Polack v. Shafer, 46 Cal. 270. ^ Dawley v. Brown, 43 How. Pr. (N. Y.) 17 ; Lowry v. Jenkins, 3 Bibb (Ky.), 314- 3 Ex-parte Reynolds, i Cai. (N. Y.) 500. 4 California, &c., Min. Co. v. Redington, 50 Cal. 160; see Franklin v. Merida, 50 Cal. 289. 5 McQuade z'. Emmons, 38 N. J. L. 397. e Dawley v. Brown, 43 How. Pr. (N. Y.) 22. 'Greer 7/. McClelland, i Phila. (Penn.) 128. s Ostrander v. Hasbrouck, 5 Johns. (N. Y.) 366 ; Jackson v. Stiles, 5 Cow. (N. Y.) 418. CHAPTER XXII. STATUTORY NEW TRIALS, OR SECOND ACTIONS TO TRY TITLE. Actions to determine conflicting claiAs to real property. Actions between landlord and ten- ant. Forcible entry statutes. Actions of trespass, specific per- formance, and to set aside convey- " ances not within the statutes. Common law new trials not counted. What title investigated on second trial. Conditions of procuring the order. Practice in New York. Sacia v. O'Connor. Strangers to the record not entitled to new trial. \ Practice in various States. New trial waived by stipulation. Pendency of writ of error or ap- peal. Second action must be instituted in same court. Statutes controlling in Federal courts. ) Repeal of the statutes recom- ) mended. § 576. Early practice as to new trials in ejectment. — The principle was asserted in some of the early cases, that the court would not award a new trial in an action of eject- ment, for the reason that the judgment was not conclusive ;^ but Lord Mansfield decided in the case of Goodtitle v. Clayton, in 1 768, that the fact that the action was an eject- ment constituted no reason against granting a new trial, for, though the judgment was not an estoppel, and a second ejectment might be instituted, yet a change of possession would be effected under the first judgment, by which the defeated party would suffer.^ ' Argent v. Darrell, 2 Salk. 648; s. C. i Ld. Raymd. 514; Fenwick v. Gros- venor, 2 Salk. 650. 2 Goodtitle v. Clayton, 4 Burr. 2224, 2225, 576. Early practice as to new trials in ejectment. § 592. 577- New trials at common law. 593- 578. Origin of statutory new trials. 579- Reason for granting statutory new 394- trial to plaintiff. 595- 580. Statutes in effect restrictive of com- mon law rights. 581. Statutory and common law new 596. trials independent. 597- 582. Abuses under the statutes. 583. Successful plaintiff not allowed to 598. discontinue ejectment to avoid 599- second trial. 600. 584. How the statutes are interpreted. 601. 585. Actions to which the statutes ap- ply. 602. 586. Suits to quiet title. 603. 587. Defeated defendant cannot become 604. plaintiff in second action. 605. 588. Effect of entry of erroneous judg- ment. 606. 589. Statutes not applicable to equitable actions. 607. 590. Granting new trials in equity in analogy to the statutes. 608. 591. Disputed boundaries. 609. NEW TRIALS. 369 § 577- N^'^ trials at common law. — It is clearly settled that the defeated party in ejectment, as in other civil ac- tions, is entitled to any number of new trials for sufficient legal cause, such as erroneous rulings of the court in the ad- mission or exclusion of evidence, a misdirection in the charge, a finding of the jury contrary to or against the weight of the evidence, or other similar errors.^ Indeed, the rules governing applications for new trials in other civil cases, are not so rigidly enforced in actions to try title to land, and a new trial is frequently ordered in the latter class of cases for reasons which would ordinarily be considered manifestly insufficient? A new trial will not, however, be granted in these actions to enable a defeated party to set up an outstanding title with which he has no connection, for such a defense is stricti juris, and will not be favored ;^ and a third trial will rarely be allowed on an application at com- mon law after the moving party has availed himself of the privilege of a second new trial under the statutes which we are about to consider,* and will be denied if the purpose is to enable the party to introduce cumulative evidence.^ § 578. Origin of statutory new trials. — In many of our States a more certain and effective method of procuring a rehearing than the common law application for a new or second trial, peculiar to actions for the trial of title to land, is given by statute to the plaintiff, or the defeated party. The policy of the law in allowing new or second trials, as a matter of right, in actions to try titles to land, owes its origin to the peculiar sanctity which, in feudal ' Emmons v. Bishop, 14 111. 1 52 ; Taylor v. Sutton, 1 5 Ga. 103 ; Baze v. Arper, 6 Minn. 220; Clayton v. School District, 20 Kansas, 256. 'Jackson v. Dickenson, 15 Johns. (N. Y.) 309; Jackson v. Laird, 8 lb. 489; Clayton v. Yarrington, 33 Barb. (N. Y.) 144; Newell v. Sanford, 10 Iowa, 396; White V. Poorman, 24 lb. 108. 3 Peck V. Carmichael, 9 Yerg. (Tenn.) 325. •I Frost ads. Brown, 2 Bay. (S. C.) 133; Phyfe v. Masterson, 45 Superior Ct. (N. Y.) 338; Wright v. Milbank, 9 Bosw. (N. Y.) 672. " Lafiin v. Herrington, 17 III. 399. 34 370 NEW TRIALS. times, attached to the tenure of real property. Our ances- tors were unwilling that claims of title to land should, like other claims, be settled forever by one trial, in an ordinary personal action, but, as is shown elsewhere, inclined to afford the unsuccessful party another opportunity of estab- lishing his title.^ § 579. Reason for granting statutory new trial to plaintiff. — The statutory right to a second trial is given in some States only to a defeated plaintiff upon the theory that the burden of proving a superior title rests with him, and he should be afforded an opportunity to supply any de- fects in his claim of title as first exhibited, and especially to avoid or overcome the defendant's title of the evidence in support of which he may have been ignorant in the first in- stance.^ The wisdom of a system of practice which enables a plaintiff to employ the process of the court to obtain knowledge of his adversary's title, as a means of preparing for a second trial, may certainly be questioned. § 580. Statutes in effect restrictive of common law rights. — The judgment in ejectment, for reasons already discussed,' was not conclusive, and fresh ejectments could be instituted until a court of equity intervened by injunction. These statutes, generally speaking, are, therefore, in effect restrict- ive of the common law rights of the defeated party in eject- ment ; usually, by their provisions, a given number of trials is made conclusive upon the parties and the title, and the necessity for a perpetual injunction against new eject- ments is superseded. The statutes, though necessarily some- what varied in details as to matters of practice, are substan- tially alike in the several States in which they prevail. § 581. Statutory a7id common law new trials independent. — It is clear that these statutes furnish a remedy additional ■ See Miles v. Caldwell, 2 Wallace (U. S.), 35-41 ; Spence v. McGowan, 53 Texas, 30-35 ; see § 42. 2 Spence v. McGowan, 53 Texas, 30-35. 3 See Chapter XX. NEW TRIALS. 37I to and independent of the ordinary new trials at common law/ though in some cases in which the defeated party was pursuing the ordinary rights of a litigant, the application for a new trial at common law has been treated by the courts as superfluous, the statutory right to a new trial being available.** § 582. Abuses under the statutes. — Despite the wise purpose intended to be subserved by the law-making power, statutory new trials are frequently resorted to by unscrupulous claimants as instruments of vexatious delay and oppression. An honest litigant, after a tedious and expensive trial, and a careful examination and adjudication of the title upon the merits, suddenly finds his judgment vacated, and the fruits of a hard fought contest ap- parently sacrificed, for no error, omission, or mistake con- tained in the record, or occurring at the trial. Hence the books are prolific of expedients for thwarting the operation of these statutes. Judge Foster, in delivering the opinion of the New York Court of Appeals in the case of Shum- way V. Shumway,* says : " It was not very uncommon for a party, claiming the title to land and the right of possession, and who desired to avoid the delays consequent upon the statutory right to new trials in an action of ejectment, to bring his action in trespass, and so establish his right upon a single trial, and recover his damages for the trespass ; and when judgment was perfected, if the defendant did not yield the possession, to bring his action of ejectment, on the trial of which, the record of judgment in the action of trespass would be conclusive evidence of his right, and render hope- less any attempt to obtain a new trial." § 583. Successful plaintiff not allowed to discontinue ejectment to avoid second trial. — In Carleton v. Darcy,* a 1 Laflin v. Herrington, 17 111. 399. 2 Walker w. Armour, 22 111. 658; see Frost ads. Brown, 2 Bay (S. C), 133. '' 42 N. Y. 143. See Hasten v. Olcott, 24 Hun (N. Y.), 587. •• 75 N. Y. 375; s. C, below, 11 J. & S. (N. Y.) 373. 372 NEW TRIALS. plaintiff who had succeeded in an ejectment was put into possession under the judgment. The defendant paid the costs, and took a new trial. The plaintiflF, still retaining- possession of the lands, applied to the court for permission to discontinue the action. The application was denied, the court holding that the plaintiflF could not retain the sub- stantial fruits of the action, and force upon the defendant the burden of showing a valid title, but rather that it would require the plaintiff to pursue the action until a definite and final result was reached, settling positively the rights of pos- session of the lands in dispute, so long as the defendant de- sired to avail himself of the further litigation which the law aflForded him. § 584. How the statutes are interpreted. — In Illinois it has been held that the statutes should receive a liberal construction,^ and the courts of that State have decided that the important rights granted thereby, were not lost by reason of the failure of the moving party to pay an award of one cent damages, given on the first trial, as the law would not regard such trifles.^ In Texas, the statute per- mitting a second suit, was declared to be an exception to an almost universal rule founded on the wisest public policy, and the court said that it should be strictly construed, and confined to actions for the trial of title proper, which came within the mischief intended to be obviated.^ We shall presently show that these statutes have practically out- lived their usefulness, and the wisdom of applying a rule of construction to them which tends to favor new trials is very questionable. They should at most receive only an ordinary and natural construction, neither strict nor liberal. Any attempt to restrict the operation of the statutes by applying to them the rules of interpretation governing penal statutes would be of doubtful utility. 1 Chamberlin v. McCarty, 63 111. 262. 2 Myers v. Phillips, 68 111. 269. 3 Spence v. McGowan, 53 Texas, 30-36; but see Magee v. Chadoin, 44 Texas, 488-496. NEW TRIALS. 373 § 585. Actions to which the statutes apply. — Where the complaint, in addition to the usual averments, stated facts in relation to the assessment of damages, and also contained averments sufficient to warrant an application for a receiver, and supplemented the ordinary prayer by asking for an in- junction, accounting, and receiver, the suit was held to be ejectment, and the defeated plaintiff was allowed a new trial under the statute.^ In a very recent case which arose in Kansas, it was decided that the right to a second trial was not taken away by the addition to the petition of a claim for mesne profits, and that this important privilege was not affected by the fact that an equitable defense was set forth in the answer. The court held that, as the plaintiff had commenced an action in form for the recovery of real prop- erty, the statutory rights incident to actions of that class were in no way prejudiced by the character of the defense interposed.^ So the plaintiff was held to be entitled to bring the second action, though the judgment in the first contained a superfluous provision that the defendant be quieted in the possession of the lands.^ Where the judg- ment for defendant in terms attempted to remove a cloud from defendant's title, his pleadings being purely defensive, the form, though inappropriate, was held not to operate so as to prevent the plaintiff from maintaining his second suit.* The plaintiff has been held to be entitled to a second action, though the judgment in the first was rendered on demurrer and not on a verdict, the court holding that a judgment on demurrer was res adjudicata as much as a judgment on a verdict. In the one case the judgment is given for lack of sufficient facts alleged, and in the other case for lack of sufficient facts proved.^ But in Michigan the statutes were 1 Bucher v. Carroll, 19 Hun (N. Y.), 618. " Cheesebrough v. Parker, 25 Kan. 566. ' Houston & T. C. R. R. Co. v. McGehee, 49 Texas, 481. < Blessing 7/. Edmonson, 49 Texas, 333; see Cheesebrough v. Parker, 25 Kan. 566. * Edgar v. Galveston City Co. 46 Texas, 42 1 . 374 NEW TRIALS. interpreted to cover the case of an actual trial, and not sim- ply of a nonsuit.^ The second suit may be brought as well where the defense interposed in the first suit was the statute of limitations as in other cases.^ § 586*. Suits to quiet title. — In Indiana, a new trial may be demanded and obtained as a matter of right in suits for quieting title to land, with the same effect as in actions for the recovery of the possession.* § 587. Defeated defendant cannot become plaintiff in second action. — In a case which arose in South Carolina, it was held that the defendant in an action of trespass to try title could not, after a recovery against him, in turn become plaintiff and maintain a second action to try the title to the same lands.* § 588. Effect of entry of erroneous judgment. — A judg- ment in ejectment, entered by defendant's attorney, errone- ously recited that the verdict was for defendant, instead of stating that plaintiff's complaint was dismissed. Nearly three years subsequently plaintiff moved to vacate the judg- ment, and for a new trial, as a matter of right under the statute. Defendant opposed the motion, and produced the minutes of the trial, showing that the complaint was dis- missed. A new trial was granted, the court holding that the judgment could not be impugned, or changed from a final judgment upon the merits, for the temporary purpose of defeating the motion. The court left undecided the ques- tion as to whether or not a judgment entered upon an order dismissing a complaint was to be regarded as one rendered " upon the decision of a Single judge upon the facts " within > People V. St. Clair Circuit Judge, 37 Mich. 131. 2 Ward V. Drouthett, 44 Texas, 365. 3 Shuman v. Gavin, 15 Ind. 93; Galletley v. Williams, 15 Ind, 468; Wills v. Dillinger, 17 Ind 253; Shucraft v. Davidson, 19 Ind. 98; Zimmerman ■z'. March- land, 23 Ind. 474; Truitt v. Truitt, 37 Ind. 514. But see Russell v. Nelson, 32 Iowa, 215; Blackford v. Loveridge, 10 Kan. loi. "Thomas I/. Geiger, 2 N. & McC. J. (S. C.) Law, 528; see Brownsville v. Cavazos, 100 U. S. 138. NEW TRIALS. 375 the meaning of the statute allowing second trials as a matter of right in such cases.^ It has been held in Texas, that an omission to indorse on the petition a recital that the action was brought to try the title, could not control the nature of the suit when it necessarily involved the plaintiff's title, and if the second suit was not brought within a year, the judgment rendered in the former suit would be res ad- judicata? § 589. Statutes not applicable to equitable actions. — In an action which arose in New York, it appeared that the plaintiffs, as executors, had successfully prosecuted an action to set aside a deed made by the testator, on the ground that it was procured by fraud and undue influence. The judg- ment contained a finding that the plaintiffs were entitled to the possession of the lands. Defendant moved for a new trial under the statute, claiming that the action determined the title to real property within the meaning of the statute, and urging that the course of the plaintiffs, in bringing a suit in equity instead of an action at law, should not be allowed to deprive the defendant of the statutory new trial. The court held, however, that the statute granting new trials as a matter of right, had never been extended so as to include equitable actions, though such actions frequently determined not only the right of possession, but the whole title to the premises, and denied the motion for a new trial.^ § 590. Granting new trials in equity in analogy to the statutes. — But in analogy with these statutes a tendency exists to grant new trials in equitable actions, which in effect determine the title to land, upon grounds which ordi- narily would be deemed wholly insufficient,* and this prin- ciple has been extended even to cases in which the verdict ' Towle -v. Dewitt, 7 Hun (N. Y.), 93. ' Dangerfield v. Paschal, 20 Texas, 536. 3 Shumway v. Shumway, 42 N. Y. 143 ; see Somerville v. Donaldson, 26 Minn. 75. * Clayton v. Yarrington, 33 Barb. (N. Y.) 144. 376 NEW TRIALS. was satisfactory to the court.^ Daniels ^ says, that in order that titles may not be divested or defeated by a single ver- dict, the court will frequently direct new trials of issues, even in eases in which the issue has been properly tried and the verdict is satisfactory upon the evidence, the practice of the court being adverse to bind the inheritance where there has been but one trial at law. But the rule granting a new trial in equity actions in analogy to the statutory right of the defeated party in ejectment, has been held not to apply to an action brought by an heir-at-law against the widow of his deceased father, to have the marriage declared void by reason of the lunacy of the father at the time of the mar- riage, as the judgment therein sustaining the marriage would not defeat the plaintiff's right as heir, but at most merely suspended his possession of a portion of the estate for the life of the widow.^ § 591. Disputed boundaries. — In Texas it has been held that a second action of trespass to try title cannot be brought if the issue is one of boundary simply, though nom- inally in form an action to try title, and the defense of res adjudicata was declared to be available as a plea to the second action in like manner as though the action had been in form, as well as in fact, an equitable proceeding for the settlement of the disputed boundary.* § 592. Actions to determine conjlicting claims to real property. — It has been held in Kansas, that the statutes did not apply to an action brought by a party in possession to determine conflicting claims to real property,^ and this doc- trine was maintairied in New York^ until a second trial was conferred by statute.'^ In a proceeding of this character, in ' Stevens v. Church, 8 Phila. (Penn.;) 642; see White v. Wilson, 13 Ves. 88. ' 2 Daniels' Ch. Pr. [124. 3 Banker v. Banker, 4 Hun (N. Y.), 259. " Bird V. Montgomery, 34 Texas, 713; see Spence v. McGowan, 53 lb. 30-33. •' Northup V. Romary, 6 Kan. 240 ; see Swartzel v. Rogers, 3 Kan. 374. « Malin v. Rose, 12 Wend. (N. Y.) 258. ' New York Code of Civil Procedure, § 1646. NEW TRIALS. 2)11 Minnesota, in which the defendant answered, denying the lawfulness of plaintiff's possession and demanding judgment for possession and mesne profits, the proceeding was held to be a cross action in the nature of ejectment, and a new trial was demanded as a matter of right under the statutes allowing a second trial to the defeated party in an action to recover real property.^ Practically the same doctrine has been maintained in Texas.^ § 593. Actions between landlord and tenant. — The statutes have been held, in Michigan, not to be applicable to ejectments between landlord and tenant for non-payment of rent, for the reason that in such actions the title could not be disputed.® A similar interpretation was placed upon the statute in New York, in Christie v. Bloomingdale,* but the doctrine of this case was disapproved in the later case of Reed v. Loucks,^ at special term. The new Code of that State has exempted actions of ejectment founded upon an allegation of rent in arrear, from the operation of the statutes.^ In New York these statutes do not embrace controversies submitted without action by the agreement of the parties to a general term of the court ; '^ and they are not applicable to ejectments commenced prior to the enactment of the statutes.^ § 594. Forcible entry statutes. — In Minnesota a novel practice (chiefly statutory) has grown up of making use of the statutory proceedings of forcible entry and unlawful de- tainer for the trial of the title to the land in controversy. As in such cases the proceeding is, in effect, an action for the recovery of real property in the nature of ejectment, a ' Eastman v. Linn, 20 Minn. 433; see Laws of Minnesota, 1867, ch. 72, § 2. ' Magee v. Chadoin, 44 Tex. 488-496. ' Whitaker v. McClung, 14 Minn. 170. " 18 How. Pr. (N. Y.) 12. ' 61 How. Pr. (N. Y.) 434. «§ 1528 N.Y. Code Civ. Proc. ' Lang V. Ropke, i Duer (N. Y.), 701 ; S. C. 10 N. Y. Leg. Obs. 70. « Jackson d. Palmer v. Coe, 5 Wend. (N. Y.) loi. 378 NEW TRIALS. second trial is allowed as a matter of right under the statute providing for new trials in actions for the recovery of real property.^ § 595. Actions of trespass, specific performance, and to set aside conveyances not within the statutes. — The statutes in New York have no application to trespass quare clausum fregit, though it is strictly a legal action, and involves the title and right of possession ; ^ nor in Kansas to actions of partition.^ The statutes are not applicable to actions to compel a specific performance of a contract to convey real estate,* or to actions to set aside conveyances as fraudu- lent.^ In New York, an application for a second trial, as a matter of right, was denied in a proceeding brought under the laws of 1853, ch. 238, § 2, to test the validity of an ap- parent devise of real estate.^ A new trial, it is clear, cannot be given by legislative enactment where the right has once lapsed and the judgment has become final between the parties.'' § 596. Common law new trials not counted. — It has been held in Michigan, in the case of Oilman v. Judge of Wayne Circuit,^ that it was the intention of the statute to grant a new trial as a matter of right only in cases in which a judg- ment had been regularly and properly obtained. Hence, if the judgment had been procured wrongfully or illegally, by error of law or of fact, it was not a valid judgment, but was subject to reversal by the appellate court, and when so re- versed, the case stood in the same position as though no ■ Ferguson v. Kumler, 25 Minn. 183. 2 Shumway v. Shumway, 42 N. Y. 143. 3 Swartzel v. Rogers, 3 Kan. 374. '- Blackford v. Loveridge, 10 Kan. 101 ; see Main v. Payne, 17 Kan. 608; Ban- ner V. Benner, 10 Ind. 256 ; Allen v. Davison, 16 Ind. 416 ; Walker v. Cox, 25 Ind. 271 ; Truitt v. Truitt, 37 Ind. 514. s Somerville v. Donaldson, 26 Minn. 75; Shumway v. Shumway, i Lansing (N. Y.), 474; affi'd, 42 N. Y. 143 ; Perry v. Ensley, 10 Ind. 378. « Marvin v. Marvin, 1 1 Abb. Pr. N. S. (N. Y.) 102. ' Sydnor v. Palmer, 32 Wis. 406 ; see Jackson d. Palmer v. Coe, 5 Wend. (N. Y.) loi. 8 21 Mich. 372. NEW TRIALS. 379 such judgment had ever been rendered. The statute was not needed to get rid of a judgment of this character. Hence it was held that a new trial granted by the court, re- versing the judgment for error, was not to be counted as one of the new trials provided by the statute. § 597- What title investigated on second trial. — It ap- peared in an action of trespass to try title, which arose in Texas, that the plaintiffs were defeated in the first action, and acquired a new title before bringing the second action. The defendant objected to the introduction of evidence tending to establish the new title upon the theory that the second action was a continuation of the first, and conse- quently a recovery could not be had upon a title acquired after the institution of the action.^ The court did not, how- ever, accept this view, but followed the case of Barrows v. Kindred,^ in the Supreme Court of the United States, which maintains the doctrine that a defeated plaintiff in eject- ment may subsequently purchase a new and distinct title, and acquire the same right to assert it without prejudice from the former action as would have accompanied the title into the hands of a stranger. It was held, however, in the case of Menifee v. Hamilton,^ in which the judgment ren- dered on the first trial was reversed on appeal, and a new trial ordered, that it was error to permit an amendment of the defendant's pleading so as to count upon a new and dif- ferent title from that set up on the former trial, otherwise it was urged there would be no end to the litigation ; for as often as the judgment was reversed in the appellate court, the parties could go on acquiring new muniments of title, and presenting new issues of law and fact, thus effectually abrogating the rule giving but two actions of trespass to try title to the same party, and for the same subject matter. In Pennsylvania it is held, however, that the defendant may on the second trial repudiate the defense interposed at ' Connolly v. Hammond, 51 Texas, 635. ■' 4 Wall. (U. S.) 399. (U. S.) 399. 3 32 Texas, 495- 380 NEW TRIALS. the first trial, and defeat the plaintiff's recovery on other grounds.^ § 598. Conditions of procuring the order. — Payment of costs is generally made a condition precedent to granting a new trial,^ and the entry of the order is absolutely without effect, unless the costs, and in some States the damages, awarded by the first trial are paid,^ though, as we have seen, it has been held in Illinois that the statutory remedy is not lost by failure to pay an award of one cent damages, it being the policy of the law not to regard such trifles.* Where the costs were paid and the motion for a new trial granted within the year, but no formal order entered, the moving party's right to the new trial was nevertheless declared complete ; ^ and the order is effectual, even though a judgment has not been entered upon the verdict* Payment of the costs and damages in national bank notes to the clerk of the court has been held to be a good payment in Michigan.'' In Brownsville v. Cavazos.^in the Supreme Court of the United States, on appeal from the United States Circuit Court for the Eastern District of Texas, it appeared that the defend- ant in that suit had been defeated as plaintiff in an action of trespass to try title, and that under the statute of that State (since abrogated) a judgment against a plaintiff in an action for the possession of real property was made conclu- sive, unless he commenced a second action for the property within a year, which in this case he had neglected to do. In answer to this objection, however, it was urged that be- fore the year elapsed, and within ten days after the suit was ! Rice V. Bixler, i W. & S. (Penn.) 445. 2 Oetgen v. Ross, 36 111, 335 ; see Davidson & Lamprey, 16 Minn. 445; Shaw V. McMaren, 2 Hill (N. Y.), 417. 3 Golden z/. Snellen, 54 Ind. 282; Oetgen v. Ross, 36 111. 335; Dennison i*. Genesee Circuit Judge, 37 Mich. 281. ■ Myers v. Phillips, 68 111. 269. - Rountree v. Talbot, 89 111. 246. « Delano v. Bennett, 61 111. 83. ' Dennison v. Genesee Circuit Judge, 37 Mich. 281. •< too U.S. 138. NEW TRIALS. 38 1 dismissed, the defendant in the first action brought suit against the plaintiff in that action, in which all their rights were again brought into litigation. The court held that the statute allowing the defeated plaintiff one year within which to re-litigate the title, did not preclude him or his grantees from setting up his or their chain of title, if within the re- quired period a similar suit respecting the same land was commenced against the plaintiff or his grantees by the former defendant. The object of allowing a second litiga- tion of the same title, and of requiring such litigation to be speedily instituted, was equally accomplished. § 599. Practice in New York. — -In New York, one new trial is granted to the defeated party as a matter of right upon the payment of the costs and all damages awarded upon the first trial, other than for rents and profits, or for use and occupation,^ and a second new trial may be had in the discretion of the court, in cases where justice will be pro- moted, and the rights of the parties more satisfactorily ascertained and established, but only two new trials can be granted under the statute. The courts of that State do not ordinarily exercise this discretion to award a second new trial under the statute, but incline to remit the appli- cant to the ordinary rights of a defeated suitor by appeal.*^ It has been decided that the Code of Procedure of that State has not abrogated the former practice of making an order before judgment, directing that when the judgment is perfected it be thereupon vacated upon payment of costs, and a new trial granted without further order of the court.* Under the former statute of that State, the courts held that it was essential to this form of relief that there should have > Burrows v. Miller, 5 How. Pr. (N. Y.) 51; New York Code of Civil Pro- cedure, § 1525. 2 Brown v. Crim, i Denio (N. Y.), 665 ; Bellinger v. Martindale, 8 How. Pr. (N. Y.) 113; Harris 7;. Waite, 54 lb. 113; Wright v. Milbank, 9 Bos. (N. Y.) 672-677; Phyfe V. Masterson, 13 J. & S. (N. Y.) 338. 3 Po.st V. Moran, 61 How. Pr. (N. Y.) 122; see Cooke v. Passage, 4 How. Pr. (N. Y.)36o; s. C. 3 Code R. 88. 382 NEW TRIALS. been a trial by jury, and a verdict rendered, upon which judgment was entered,^ though a verdict subject to the opin- ion of the court at general term, was regarded as bringing the application within the statute.^ The statute is now ex- tended to judgments in actions for the trial of title rendered upon the decision of a single judge, or the report of a referee.* The application for the first new trial must be made within three years from the entry of the first judg- ment,* and not three years from the affirmance of the judg- ment in the court of last resort," and an order, allowing a new trial under the statute, was held, under the former practice of that State, not to be appealable to the Court of Appeals.^ § 600. Sacia v. O'Connor. — In Sacia v. O'Connor,' an «i application was made on behalf of the defendant, and a party claiming to be his landlord, for a new trial as a matter of right. It was shown that when the action was ready for trial the defendant, who was the tenant in possession, with- drew his answer, and the judgment was rendered by con- sent. The application in question was made by an attor- ney other than the attorney of record, and who had not been substituted in the action, and the interest of the land- lord was strongly controverted in plaintiffs affidavits. The application was denied in the court below with leave to renew. The Court of Appeals held, that as the motion was on behalf of a party whose interest in the premises was doubtful, and by an attorney who was not shown to have had any authority, and the judgment had been rendered by consent, it was very doubtful whether a case within the 1 Chautauqua Co. Bk. w. White, 23 N. Y. 347; Holmes v. Davis, 21 Barb. (N. Y.) 265; Langz/. Ropke, i Duer (N. Y.), 701. 2 Phyfe V. Masterson, 13 J. & S. (N. Y.) 338. 3 Bucher v. Carroll, 19 Hun (N. Y.), 618; N. Y. Code of Civil Procedure, chapter XIV, art. i. ■" N. Y. Code of Civil Procedure, § 1525. 5 Chautauqua Co. Bk. v. White, 23 N. Y. 347. e Evans v. Millard, 16 N.Y. 619. ' 79 N.Y. 260. NEW TRIALS. 383 Statute had been made out, and the moving party not having availed himself of the leave given to renew, the order should be affirmed. A subsequent application was made in this action for a statutory new trial in the court below. It appeared that issue had been joined in the action, and the cause regularly called for trial, and the defendant failing to appear, an inquest had been taken, and judgment entered for the plaintiff. A statutory new trial was granted, the court holding that this was not a judgment rendered by default within the meaning of the statute, an answer having been interposed, and the plaintiff thereby compelled to proceed regularly to verdict and judgment, which he did by taking an inquest in open court. A judgment by default was defined to be a judgment rendered for want of a plea or answer.* § 601. Strangers to the record not entitled to new trial. — In Forsyth v. Van Winkle,^ in the United States Circuit Court for the, District of Indiana, it has been held that only a party concluded by the judgment, or his heirs, assignees or representatives, was entitled, under the statute of Indiana, to have the judgment vacated and a new trial granted as a matter of right. The statutes will not be in- terpreted to include strangers to the record. § 602. Practice in various States. — In Minnesota the defeated party may have a second trial as of course, by de- manding the same in writing within six months after notice of the entry of the judgment* In Texas, before the aboli- tion of the statute, it was necessary to bring the second action within one year from the entry of the judgment in the first action, and not one year frorn the dismissal of an appeal,* and the right was given to the plaintiff only,^ and ' Sacia v. O'Connor, 11 Weekly Dig-. (N. Y.) 440; see 2 N. Y. R. S. p. 309, §§ 36-38. ^ 9 Fed. Rep. 247. 3 Davidson z/. Lamprey, 16 Minn. 445. * Martin v. Wayman, 38 Texas, 649. ' Fisk V. Miller, 20 Texas, 572 ; Lewis v. San Antonio, 26 lb. 316. 384 NEW TRIALS. not to the defendant, though he set up and relied upon title.^ The party first invoking the action of the court upon the controversy was alone authorized to bring the second action, and this right it was said did not depend upon the mere designation of the parties to the action as plaintiflfs or defendants, but upon the relations which they bore to the case.^ Under the practice in Ohio, it has been held that after two judgments in favor of defendant, the second trial having been granted as a matter of right under the statute, the plaintiff had no right of appeal.^ And in the same State, in estimating the number of new trials to which a party is entitled on appeal in the District Court, it was decided that no notice would be taken of the number or result of the trials in the court below.* In Wisconsin the statute is in- terpreted so as to grant but one new trial as a matter of right, and not one new trial to each party.® In Illinois a conditional order vacating the judgment, and granting a new trial upon payment of costs, followed by payment of the costs within one year, is sufficient.*^ In that State each party is entitled to a new trial, as a matter of right,'' but as the right is itself a matter of grace and favor, it must be in- sisted upon within the time specified.^ In Pennsylvania, a second ejectment may be brought by the successful party before he has attempted to take possession under the first verdict.® It seems difficult to conceive of any greater legal absurdity. = Fisk V. Miller, 20 Texas, 572; Lewis v. San Antonio, 26 lb. 316; see, also, Magee v. Chadoin, 44 Texas, 488. 2 Magee v. Chadoin, 44 Texas, 488-496. 3 Smith V. Anderson, 20 Ohio St. 76; S. & C. Stat. (Ohio), 1157, sec. 294. ■■ City of Marietta v. Emerson, 5 Ohio St. 288. 5 Boland v. Gillett, 44 Wis. 329 ; see Oilman v. Judge Wayne Circuit, 21 Mich. 372; Wright V. Milbank, 9 Bosw. (N. Y.) 677; Bellinger z/. Martindale, 8 How. Pr. (N. Y.) 113; Brown v. Crim, i Denio (N. Y.), 665. '- Rountree v. Talbot, 89 111. 246 ; see Myers v. Phillips, 68 111. 269 ; Becker V. Sauter, 89 111. 596 ; but see Delano v. Bennett, 6i 111. 83. ' Chamberlin v. McCarty, 63 111. 263. 8 Emmons v. Bishop, 14 111. 152. ° Ross V. Pleasants, 19 Penn. St. 157. NEW TRIALS. 385 It has been held in Pennsylvania, under a statute which provided that where two verdicts were given in succession for the plaintiff or defendant no new ejectment could be brought, that one verdict and one award of arbitrators in favor of the same party was not a bar to another ejectment.^ And in a case which arose in Tennessee, the court held, that when the complainant's title was both legal and equitable, a trial in ejectment, which could be renewed, was no bar to the assertion of complainant's claim in equity any more than it would be a bar to the prosecution of a new ejectment.^ But one verdict for the plaintiff in ejectment and a dis- claimer, filed by the defendant in a second action, are equivalent, under the statute in Pennsylvania, to two ver- dicts for plaintiflF, and end the controversy.^ § 603. Under the practice in Kansas, if the defeated party applies for a new trial at common law, for errors oc- curring at the trial, and has made no demand for a second trial as of course under the statute, it is too late for him to insist, for the first time in the appellate court, that he was entitled to a new trial as a matter of right.* In Michigan the time for taking a new trial, under the statute, only dates from the day when the first judgment is perfected.® In a case which arose in South Carolina, while the statute allow- ing the plaintiff to bring a second action within two years after the termination of the first action was in force, it ap- peared that shortly after the termination of the first action, in defendant's favor, he abandoned the possession of the land. The defeated plaintiff, finding the land unoccupied, took possession, and the question subsequently presented was, whether or not she was barred of her title to the land by reason of her failure to bring a second action within two years from the termination of the first action. The court ' Ives V. Leet, 14 S. & R. (Penn.) 301. 2 Winchester v. Cleaves, 3 Hayw. (Tenn.) 213. 3 Crea v. Hertzler, 8 Phila. (Penn.) 644. ■" Anderson v. Kent, .14 Kan. 207. ' O'Blinskie v. Judge Kent Co. 34 Mich. 62. 35 386 NEW TRIALS. held that the obvious intent of the statute was to quiet pos- session, and to take away the right of one out of possession, claiming to be the owner of land against a party in posses- sion, after one trial or one decision, unless the second action was brought within two years. The plaintiff in the first ac- tion could not maintain ejectment or trespass to try title, the substitute for it, because she was in possession herself, nor could she bring trespass quare clansum f regit, iox her possession was not disturbed.-^ § 604. New trial waived by stipulation. — In the case of Ladd V. Hildebrant,^ it appeared that the defendant, as a condition of procuring a continuance of the cause, had stip- ulated to waive his right to a new trial if a verdict was ren- dered against him. Having been defeated, he applied for a new trial, urging that the stipulation was invalid, having been entered into prior to the trial, and before it was known whether the defendant would need or had a right to apply for it. The application was denied, the court holding that full effect should be given to the stipulation, and that a party might waive the statutory remedy as a future contin- gent right. § 605. Pendency of writ of error or appeal. — The pendency of a writ of error does not preclude the court be- low from granting a statutory new trial, and if the year within which to make the application under the statute ex- pires pending an appeal from the judgment rendered on the first trial, the right to a new trial, as a matter of course, is lost* Nor does the granting of the new trial operate to discon- tinue the writ of error pending at the time, brought by the party thus taking a new trial. The appellate court retains jurisdiction to decide the case on the record.* ' Henderson v. Kenner, i Rich. (S. C.) Law, 474. 2 27 Wis. 135. 3 Gibson v. Manly, 15 111. 140; see Chautauqua Co. Bank v. White, 23 N. Y. 347 ; Martin v. Wayman, 38 Texas, 649 ; see O'Blinskie v. Judge Kent Co. 34 Mich. 62. ■• Rees V. City of Chicago, 40 111. 107. NEW TRIALS. 387 § 606. Second action must be instituted in same court. — A defeated plaintiff in ejectment, in Michigan, vacated the judgment and took a new trial under the statute and brought the second action in the United States courts. The court held that plaintiff's course was a fraud upon the law ; having set aside the bar to another action he did so under an obligation to pursue the remedy under the statute, and was not at liberty to resort to the United States court.^ § 607. Statutes controlling in Federal courts. — In Hiller V. Shattuck,^ a question arose involving the construction of the acts of Congress,^ and the rules of the Federal courts adopting the practice of the State courts in Federal tribunals, and the determination of the eflfect to be given in an eject- ment pending in the United States Circuit Court to a State statute granting a new trial as a matter of right. It was urged against the. motion for a new trial, that it was a stat- utory right and not a matter of practice, and, therefore, not covered by the acts of Congress or the rules of the Federal courts, but the court said that because it was a matter of right it was binding upon the Federal tribunal, and, except as to the mode of enforcement, was independent of the Fed- eral statutes and rules ; that local laws, constituting rules of property and especially respecting titles to land, are binding rules of decision in the Federal courts,* and that State statutes, defining the effect of a judgment in ejectment upon the title in controversy and permitting new trials, are " laws ' Fraser v. Weller, 6 McL. 1 1 ; see, also, Cunningham v. City of Milwaukee, 13 Wis. 120. ^ 5 Chicago Legal News, 289; s. C. i Flippin, 272; see Sturdy v. Jackaway, 4 Wall. 174; Cady z/. Phenix Fire Ins. Co. 18 Int. Rev. Rec. 30; see Forsyth v. Van Winkle, 9 Fed. Rep. 247. 5 17 Stat, at Large, Ch. 179, Act of June i, 1872. ' Polkz/. Wendal, 9Cranch, 87; Shipp v. Miller, 2 Wheat. 316-325; Gardner V. Collins, 2 Peters, 58; Green v, Neal, 6 lb. 291 ; Thatcher •z'. Powell, 6 Wheaton, 119; Shelby J/. Guy, 11 lb. 361-367; Jackson w. Chew, 12 lb. 153. 388 NEW TRIALS. respecting titles to land," conclusive alike in State and Fed- eral courts and constituting a rule of property.^ § 608. Repeal of the statutes recommended. — The strong disinclination of the courts to interfere with or deprive the defendant of the possession of real property, pending the trial of the title, will be presently noticed.^ Irresponsible and unscrupulous defendants eagerly avail themselves of this regard for possessory rights, and not satisfied with pil- fering the rents and profits accruing during the pendency of the first action, hasten to pay the costs, vacate the judg- ment, and continue their depredations pending the second trial. The unfortunate owner of the title, who has been de- prived of the possession, is, in many cases, under the exist- ing practice, virtually deprived of redress, for the delays and embarrassments by which the proceedings are hampered are so numerous, the advantages of the possessor so important, and the expense of the litigation so great, that unless the locus in quo is of considerable value, the plaintiff, though ultimately successful, may be ruined by an action decided in his favor. Under the early practice, as has been shown, judgments in ejectment were not conclusive, and fresh ejectments could be brought upon new fictitious leases. After a sufficient number of trials a perpetual injunction was obtained against further ejectments. The statutes, making the judgment in ejectment conclusive after a given number of trials, were regarded as an important legal reform ; but when we consider that in several States the defeated party is afforded three and in others five years, within which to elect to take a second trial, and being defeated upon the second trial is, in some States, given two additional years within which to invoke the discretion of the court to grant a third 1 See Blanchard v. Brown, 3 Wall. 245-249 ; Sturdy v. Jackaway, 4 Wall. 174; Barrows v. Kindred, lb. 399 ; Miles v. Caldwell, 2 lb. 35-44. See further, as to practice in Federal courts under the act of 1872, Butler v. Young, 5 Chicago Legal News, 146; Republic Ins. Co. v. Williams, lb. 97. 2 See Chapter XXIII. NEW TRIALS. 389 trial, the question cannot but suggest itself whether a fur- ther curtailment of the remedy might not be beneficial. In- deed, a sufficient number of trials might have been had within a shorter space of time to warrant a perpetual injunc- tion under the early practice. It must be remembered that these statutes were not enacted to furnish relief against judgments erroneously rendered, as such judgments can be avoided by appeal, or application at common law for a new trial.^ § 609. It has been stated that it is not to be inferred that every action relating to real property is within the pro- visions of these statutes. The almost uniform tendency of the decisions is to confine the operation of the statutes to actions at law for the recovery of the possession and trial of the title, either technically in the form of ejectment, or the statutory substitutes for that remedy. Equitable actions, or proceedings, are held not to be within their provisions. Keeping in view the fact that transfers of real property cannot usually be effected by parol, and that titles are, in most cases, spread upon the public records, it is not easy to discover any controlling or sufficient cause for this result. It is certainly more difficult to prepare and try equitable actions than actions at law, and there exists no well- founded reason for extending the statute to actions at law and excluding suits in equity, for the latter frequently settle the whole title, and the result in equitable actions is mani- festly more uncertain. In any case, if the defeated party, having suffered no wrong by reason of errors occurring at the first trial, is afforded the great privilege of a new pre- sentation of his case, he should be compelled to make the election so to do forthwith. Otherwise, the title remains unsettled ; is clouded for purposes of sale, and the possessor does not dare to permanently improve the property, lest he may ultimately lose it. The statute in Texas, which granted Gilman v. Judge of Wayne Co. 2i Mich. 372. 390 NEW TRIALS. a second trial as a matter of right to the plaintiff, has re- cently been repealed,^ and the Supreme Court of that State, commenting upon the change, remarks, that as real estate is now the subject of transfer with almost the same facility as personal property, the reasons for the practice of granting statutory new trials in such actions no longer exist. A careful study of the operation of these statutes as evidenced in the reports of many recent ejectment cases, some of which will be presently noticed, cannot fail to con- firm the growing conviction that the right to statutory new trials should be either very greatly curtailed or entirely abolished.^ ' Spence v. M'Gowan, 53 Tex. 30-36. 2 See § 632. CHAPTER XXIII. PROVISIONAL REMEDIES AND ANCILLARY RELIEF IN ACTIONS TO TRY TITLE. i 6l0. Provisional remedies. 6il. Provisional relief at common law. 612. Forms of provisional relief. 613. Appointment of receiver. 614. Policy of the courts in New York. 615. In New York receiver not appointed before judgment. 616. When receiver will be appointed. 617. When receiver will not be appoint- ed in Georgia. 618. In Illinois — Mapes o. Scott criti- cised, ^ig. Receiver after judgment. 620. Defendant's right to move for re- ceiver. 621. Receiver to prevent waste. § 622. 623. 624. 625. 626. 627. 628. 629. 630. 631. 632. Injunctions against trespass or waste pending ejectment. Practice in North Carolina. Injunction to restrain trespass in the nature of waste. Failure to prosecute ejectment for- feits right to injunction. Jurisdiction to grant injunction. Storm V. Mann. Practice in Pennsylvania. Injunction by mortgagee against mortgagor. Executions against the person, and orders of arrest. Tendency of the modern cases. Hardships incident to withholding provisional relief. §610. Provisional remedies. — Occasions often arise, pending actions for the trial of title to land, where more speedy redress becomes necessary than is afforded by final judgment and writ of possession. The party in possession may be unscrupulous, improvident, or insolvent, and de- sirous of profiting by his occupancy of the land at the ex- pense of the inheritance. Cases of this character, in which prompt relief is of vital importance to the party out of pos- session, occur so frequently, that the propriety of consider- ing the principles and cases affecting provisional remedies, and applications for ancillary relief pending the delays inci- dent to the trial of the title, is apparent, §611. Provisional relief at common law. — In ejectment at common law, the law courts, not having equitable or chancery jurisdiction, were pow^erless to afford provisional relief, which could be obtained only by bill in chancery. This necessitated two actions— one to establish the title, the other to preserve and protect the property from waste 392 PROVISIONAL REMEDIES. or destruction pending the litigation. In States in which legal and equitable jurisdictions are blended, this cumber- some method of procedure is now practically abrogated, and provisional relief may, in certain cases, be had in the action to try the title. §612. Forms of provisional relief. — The usual and most effectual provisional relief is either by the appoint- ment of a receiv-er to take possession of the property and preserve the rents, or by granting an injunction to restrain waste, or kindred injury, to the property in dispute. The principles which govern courts of equity in passing upon applications by bill in equity for provisional relief pending the ejectment, control the policy of the courts when the re- lief is sought in the action itself. § 613. Appointment of receiver. — The general rule is, that the appointment of a receiver pendente lite, rests in the sound discretion of the court, ^ and is usually granted only at the instance of a party having an acknowledged interest or strong presumption of title.^ There must be reasonable probability of the plaintiff's success, and the subject-matter of the suit must be in danger.* § 614. Policy of the courts in New York. — The courts of New York have shown great reluctance to interfere with the use and enjoyment of lands by the possessor before judgment in ejectment. In Ireland v. Nichols,* a much criticised case which arose in the New York Superior Court, a receiver was appointed, but in Thompson v. Sher- rard,^ in the Supreme Court, it was held that the action of ejectment and for mesne profits was brought against the ' Verplank v. Caines, i Johns. Ch. (N. Y.) 57 ; Owen v. Homan, 4 H. L. Cas. 997-1032; Frisbee v. Timanus, 12 Fla. 300; Collier v. Sapp, 49 Ga. 93; Lenox w. Notrebe, Hempstead's C. C. 225. 2 Chase's Case, i Bland's Ch. (Md.) 206-213; Vause v. Woods, 46 Miss. 120; Mays V. Rose, Freem. (Miss.) Ch. 718; Stitwell v. Williams, 6 Madd. 49. 3 Bainbrigge v. Baddeley, 3 Macn. & G. 413-419. < 37 How. Pr. (N. Y.) 222; s. C. I Sweeny (N. Y.), 208. " 35 Barb. (N. Y.) 593. See Guernsey v. Powers, 9 Hun (N. Y.), 78. PROVISIONAL REMEDIES. 393 defendants as trespassers, for the wrongful withholding of the possession, and that it was irregular and improper to appoint a receiver to receive damages to be recovered in an action of trespass. In the case of People v. The Mayor/ the New York Supreme Court said, that when the landlord alone was sued in ejectment, having let the property to tenants and was himself irresponsible, there could be no objection to the appointment of a receiver of the rents. The absurdity of seeking to remove the occupant because his possession was unlawful, and, at the same time, accept- ing rent as for a lawful occupation, is thus avoided. The appointment of a receiver of the rents and profits amounts to a complete ouster of the defendant, wresting from him the subject-matter of the litigation without trial or judg- ment. Though the appointment does not operate as an immediate transfer, yet, if the plaintiff succeeds, it is a trans- fer by relation from the time of the entry of the receiver. Proof of an apparently good title in plaintiff to the prem- ises in question, is not sufficient unless some equitable ground is made to appear, entitling the plaintiff to the rents and profits as such, or it is shown that their sequestration is essential to his protection. § 615. In New York receiver not appointed before judg- ment. — In the later cases of Burdell v. BurdelP and Guern- sey V. Powers,^ however, it has been expressly held by the Supreme Court of New York, that a receiver will not be appointed in ejectment before judgment. The cases follow Thompson v. Sherrard and overrule Ireland v. Nichols, while no reference is made to People v. The Mayor. In New York, a receiver will not be appointed pendente lite in ejectment against one in possession under a contract of sale.* 1 People V. The Mayor, &c. 10 Abb. Pr. (N. Y.) in. 2 54 How. Pr. (N. Y.) 91 (decided in 1877). 3 See Guernsey v. Powers, 9 Hun (N. Y.), 78 ; see Mitchell v. Barnes, 22 Hun (N. Y.), 194, and dissenting opinion of Lamed, P. J. ■■ Guernsey v. Powers, 9 Hun (N. Y.), .78. 394 PROVISIONAL REMEDIES. § 6x6. When receiver will be appointed. — As against the legal title, the uniform rule is that the court will interpose with reluctance, and only in cases of fraud clearly proved and danger to the property.^ A receiver will be appointed only in cases of such destructive and malicious waste by the defendant as would indicate his total want of confidence in his own claim, such as stripping the land of timber or pull- ing down the buildings ; * or when there is actual danger of a total loss of the rents, and the defendant is irresponsible.' Unless some equitable principle is shown by which the Court of Chancery can " affect the conscience of the defend- ant," it will not interfere to deprive one occupying the lands of his possession at the instance of a person claiming a mere legal title.* § 6 1 7. When receiver will not be appointed in Georgia. — During the pendency of an action of ejectment, in Geor- gia, the plaintiff filed a bill in equity alleging that the de- fendant was insolvent, and asking that a quantity of corn and some bags of cotton, raised upon the land, and then in defendant's custody, be impounded ; that the defendant be enjoined from interfering therewith, and that a receiver thereof be appointed to hold the same to await the result of the ejectment. The application was denied, the court hold- ing that the claimant of the title had no lien upon the crops above other creditors.^ It has been held, however, in the same State, that a count for mesne profits in an action of ejectment, was a claim for money which entitled the plaint- iff to process of garnishment.^ ' Vause V. Woods, 46 Miss. 120; Lloyd v. Passingham, 16 Ves. Jr. 59. 2 Talbot V. Scott, 4 Kay & John. 96-126; Haigh v. Jaggar, 2 CoUyer, 231. 'Payne v. Atterbury, Harr. Ch. (Mich.) 414; Ireland v. Nichols, i Sweeny (N. Y.), 208; S. C. 37 How. Pr. (N. Y.) 222; Rogers v. Marshall, 6 Abb. Pr. N. S. (N. Y.) 457. < Talbot V. Scott, 4 Kay & John. 96 ; Lenox v. Notrebe, Hempst. C. C. 225; Vause V. Woods, 46 Miss. 120; Mapes v. Scott, 4 Brad. (111.) 268; Carroww. Ferrior, L. R. 3 Ch. Ap. 719; Cofer zr. Echerson, 6 Iowa, 502. 5 Walker v. Zorn, 50 Ga. 370. 6 Walker v. Zorn, 56 Ga. 35. PROVISIONAL REMEDIES. 395 § 618. In Illinois. — Mapes v. Scott criticised. — The case of Mapes v. Scott/ in the Appellate court of Illinois, fur- nishes some excellent illustrations of the glaring imperfec- tions not uncommon in the system of remedies for the pro- tection and recovery of real property. The plaintiff having successfully prosecuted an ejectment, the defendant vacated the judgment and took a statutory new trial. The second trial also resulted in plaintiff's favor, but the judgment was reversed on appeal for error at the trial. The ejectment case was on the calendar awaiting a third trial, the defend- ant having obtained a continuance, when the bill in question was filed, praying for the appointment of a receiver to care for and rent the property, and retain the profits subject to the order of the court. Defendants had paid no rent or taxes, had failed to keep the premises in repair, or insured against fire, had no legal or equitable title thereto, and were insolvent. The court characterized the plaintiff's claim as being a purely legal one, not connected with any equities which would justify the intervention of a court of equity, and affirmed the principle heretofore stated, that a court of equity will not interfere by the appointment of a receiver to take the property from the party in possession, on the appli- cation of a party out of possession claiming a dry legal title only, but will remit him to his remedies at law. § 619. Receiver after judgment. — In Florida, in the case of Frisbee v. Timanus,^ it appeared that the plaintiff had re- covered a verdict and judgment in ejectment. The United States Circuit Court, at the instance of defendant, improvi- dently issued a writ of certiorari, in obedience to which the record in ejectment was certified by the State court to the United States Circuit Court, and the State court, out of comity and to avoid any conflict, suspended the enforcement of its judgment. This bill was filed, alleging that the certio- rari proceedings were not warranted by law, and were an in- 1 4 Brad. (111.) 268. •■ 12 Fla. 300. 396 PROVISIONAL REMEDIES. vention and contrivance to perpetuate the litigation and de- prive the plaintiff of the fruits of his judgment, that the prop- erty was becoming dilapidated, no repairs were being made, and defendants had reduced the rent in order to get advance payments from the tenants, and were wholly irresponsible. These circumstances were considered sufficient to justify the appointment of a receiver, pending the proceedings to estab- lish the title. In Georgia,^ an action was brought for a balance of purchase money, and under the Relief Act of 1868, the jury rendered a verdict returning the land to the plaintiff upon his paying the defendant a sum of money. The defendant carried the case to the Supreme Court and obtained a super- sedeas, by filing an affidavit of his inability to give security, and then withdrew the writ of error whereby the judgment below was affirmed. Upon these facts, together with proof that plaintiff had paid taxes to prevent a sale, and that de- fendant had received rents and profits of the land to a large amount, an injunction was granted and a receiver appointed, the object being to offset the rents against the amount which the verdict directed should be paid by the plaintiff to the defendant. § 620. Defendant's right to move for receiver. — It has been held in a very recent and curious case in North Caro- lina,^ where the plaintiff sued in forma pauperis to recover land, and during the pendency of the action took possession of a part of it, that it was proper to appoint a receiver on defendant's application to take control of the usurped prem- ises and secure the rents and profits. §621. Receiver to prevent waste. — In California, after verdict and judgment in plaintifi"'s favor, in ejectment for lands which contained valuable mineral springs, the court, on petition of the plaintiff setting forth that the defendant was in possession, and was receiving large sums of money ' Collier v. Sapp, 49 Ga. 93. 2 Horton v. White, 84 N. C. 297 ; see More v. Massini, 32 Cal. 590. PROVISIONAL REMEDIES. 397 from the sale of the waters, and was wholly insolvent and threatened waste, appointed a receiver pending an appeal and motion for a new trial.^ The appointment of a receiver, in that State, is a proceeding in the action to recover the land auxiliary to that action and a part of it.^ § 622. Injunctions against trespass or waste pending ejectment. — Provisional or ancillary relief by injunction is regarded with greater favor by the courts than applications for the appointment of a receiver, for this remedy does not change or disturb the possession. The propriety of grant- ing injunctions to restrain trespass, waste, or kirtdred injuries pending the action to try the title, and recover possession of the land, is quite generally recognized. In some of our States, where legal and equitable jurisdictions are united, this species of relief may be had in the action itself, while in other States a bill in equity is resorted to, the practice being substantially the same as on applications for a re- ceiver. Indeed, both forms of relief are frequently sought on the same application. The principles and practice controlling applications for injunctions against waste, or irreparable injuries to real property, are here discussed, of course, only in so far as that jurisdiction is exercised as ancillary to and in aid of actions at law affecting the title or possession. In Riemer v. Johnke, in the Supreme Court of Wisconsin, where it appeared that the greater portion of the value of the land consisted in timber, an injunction was granted pending an ejectment restraining the defendant. ' Whitney v. Buckman, 26 Cal. 447. = Ibid. Adams v. Woods, 21 Cal. 165. Hlawacek v. Bohman, 51 Wis. 92, was an action to obtain specific performance of a contract to convey land. The title was contested, and both litigants were in possession, interfering with each other in harvesting the crops raised by each respectively, and threatening each other with assaults and forcible resistance. The court held that this was a proper case for the appointment of a receiver, as it would save both parties their full rights, and prevent waste and the expense and trouble of threatened and reason- ably expected litigation arising from frequent conflicts over the possession pend- ing the suit. See, also, Finch v. Houghton, 19 Wis. 150. 398 PROVISIONAL REMEDIES. who was insolvent, from chopping down, removing or de- stroying the timber growing upon the land.^ Where, how- ever, the plaintiff, after obtaining an injunction, proceeded to cut down the timber himself, the injunction was dissolved. It was declared to be the purpose of the injunction to pre- serve the property in controversy so that the prevailing party might enjoy it unimpaired after the termination of the litigation, but the court would not allow the plaintiff to restrain his adversary and then to seize and appropriate to his own use the most valuable portion of the property in controversy before his right thereto had been adjudicated.^ An injunction will not be granted at the suit of a mort- gagee, to prevent the removal from the mortgaged premises of timber trees cut down in waste of the security before the service of the injunction, unless proof of fraud or insolvency is furnished and there is no redress at law or in equity.' In Wisconsin an injunction to prevent waste during the pen- dency of an action for the recovery of land, may be granted in the action itself.* § 623. Practice in North Carolina. — The general rule in North Carolina is, that the plaintiff may have an injunc- tion or other appropriate order to protect the property from waste and injury by an insolvent defendant during the pen- dency of the ejectment;® but an injunction will not lie restraining the defendant from enjoying the fruits of his possession when it does not appear that the plaintiff, if suc- cessful in establishing his title, would lose the fruits of his recovery.^ The courts of that State have undoubted juris- diction in the course of the action, where the locus in quo is claimed by both parties, to take care of the property until the question of the title can be tried and settled, if the acts > Riemer v. Johnke, 37 Wis. 258; see Neale v. Cripps, 4 Kay & J. 472. ■' Haight V. Lucia, 36 Wis. 355; see Horton v. White, 84 N. C. 297. 3 Bank of Chenango ■z/. Cox, n C. E. Green (N. J.), 452. " Gillett V. Treganza, 13 Wis. 472; Riemer v. Johnke, 37 Wis. 258. * Jones V. Boyd, 80 N. C. i^ii-idi. 8 Baldwin v. York, 71 N. C. 463. PROVISIONAL REMEDIES. 399 threatened are of such a character as to work an irreparable injury, but the defendant in possession will not be enjoined from making that use of the land to which it is best adapted, such as cutting timber and turpentine trees for building and fencing purposes, if the plaintiff fails to show that the de- fendant is insolvent.-' § 624. Injunction to restrain trespass in the nature of waste. — In California, the plaintiff, without any allegation of insolvency, may seek, in addition to the recovery of the premises, an injunction restraining the commission of tres- pass in the nature of waste, such as cutting, destroying, and removing growing timber pending the action, but the grounds of equitable interposition should be stated in the complaint distinct from the allegations upon which the judgment at law is sought.** It has been held in England, that courts of equity have no jurisdiction to interfere in case of permissive waste by a life tenant.^ § 625. Failure to prosecute ejectment forfeits right to injunction. — An injunction to prevent waste will not be continued pending an action of ejectment, if the complain- ant's title is denied, especially if he has been negligent in bringing to trial the action at law.* An injunction to pre- vent injury or waste will usually be granted only when the complainant has established or is seeking to establish his title at law. The remedy is not designed to supersede the jurisdiction of courts of law over the legal title, but rather to aid that jurisdiction so far as it is defective.^ Nor will the defendant be restrained from using the land in the ordi- nary course of agriculture, or from clearing timber and erect- ing buildings for that purpose.® ' McCormick v. Nixon, 83 N. C. 113. = Natoma Water & Mining Co. v. Clarkin, 14 Cal. 544. ' Powys V. Blagrave, i Kay, 495. * Higgins V. Woodward, Hopkins' Ch. (N. Y.) 342. ' Bogey V. Shute, 4 Jones' Eq. (N. C.) 174. « Thompson v. Williams, i Jones' Eq. (N. C.) 176; see McCormick v. Nixon, 8jN. C. 113. 400 PROVISIONAL REMEDIES. § 626. Jurisdiction, to grant injunction. — In Haigh v. Jaggar^ the court said, that even though the defendant was in complete possession of the estate by title adverse to others who claim it against him, and no privity existed be- tween the parties, and the party in possession swears that his title is valid or that the claim of his adversary is un- founded, that state of things did not prevent a court of equity from interfering before ji^dgment at law to restrain the party in possession from committing waste. The later and much quoted case of Talbot v. Scott,^ establishes the doctrine that the court will not interfere by injunction ex- cept to restrain malicious and destructive waste. Where the complaint alleged that plaintiff was the owner and en- titled to the possession of certain land, that the defendants were insolvent and unable to respond in damages, and had threatened to destroy the improvements on the premises, the allegations were held sufficient to support an order en- joining defendants from removing the improvements or committing waste.^ It has been said that a court of equity will rarely interpose by injunction to restrain the working of mines until the right is established at law.* An injunc- tion to restrain a threatened injury to real property in the nature of waste may be granted in California, although the plaintiif is in possession.® § 627. Storm V. Mann. — An injunction to stay waste pending an ejectment, was denied by Chancellor Kent in Storm V. Mann,^ a case in which the defendant had been in, possession a long time, and had joined issue in the eject- 1 2 CoUyer's Rep. 231. 2 4 Kay & Johns. 96, reviewing the English cases. 3 Meadow Valley Mining Co. v. Dodds, 6 Nevada, 261. " N. J. Zinc Co. V. N. J. Franklinite Co. 2 Beas. (N. J.) 322-350; but see Mer- ced Mining Co. v. Fremont, 7 Cal. 321 ; Wade's American Mining Law, p. 234. 5 More 2/. Massini, 32 Cal. 590. « 4 Johns. Ch. (N. Y.) 21. See Field v. Jackson, 2 Dickens, 599; Pillsworth v, Hopton, 6 Vesey, 51 ; see Lansing v. North River Steamboat Co., 7 Johns. Ch. (N. Y.) 163. PROVISIONAL REMEDIES. 40I ment, which had not yet been tried. The decision is based on the general principle that where the right is in doubt equity will not interfere. The rule in Storm v. Mann is, perhaps, too broadly stated, but the case as reported does not show that the defendant was insolvent, or that the waste which he was committing constituted an irreparable injury to the premises. This case is followed in Nevitt v. Gilles- pie.^ The case of Pillsworth v. Hopton,^ is referred to by Kent in Storm v. Mann, as authority for the proposition that if the complainant in his bill to restrain waste, states an adverse claim of title in the defendant, he states himself out of court. This extraordinary proposition, however, is not countenanced in the modern cases. The jurisdiction to re- strain trespass, or waste which will constitute an irreparable injury to the land, has been greatly enlarged, and now ex- tends to cases in which the title is sharply contested, and the right is in doubt.^ § 628. Practice in Pennsylvania. — In Clark's Appeal,* the owner of a hotel sought an injunction to restrain the re- moval of a cooking-range and carving-table fastened to the hotel floor. The injunction was denied on the ground that the table and range were articles of convenience, but not of necessity, and the injury resulting from their removal would not be irreparable, while the redress at law was adequate. Witmer's Appeal,^ where an injunction was granted, was cited, but the court said that it was a different case, i. e., of dismantling a steam saw-mill by detaching and removing the boilers therefrom. Nor was it like the cases of waste in destroying timber or taking away minerals from land. > 2 Miss. 108. 26 Ves. Jr. 51. 3 Spear v. Cutter, 5 Barb. (N. Y.) 486, and cases cited ; see United States v. Gear, 3 How.(U. S.) 120; Poor v. Carleton, 3 Sum. 77; United States v. Parrott, I McAl. 271. * 62 Penn. St. 447. °4S Penn. St. 455. 36 402 PROVISIONAL REMEDIES. No amount of money could replace the timber and minerals removed. § 629. Injunction by mortgagee against mortgagor. — A mortgagee may proceed by bill in chancery against a mortgagor, who is impairing the security by committing waste,^ and a mortgagor, in possession, may be restrained from committing waste after decree of foreclosure, but be- fore it has been executed.- § 630. Executions against the person, and orders of arrest. — It was established under the early code practice in New York that, in an action to recover the possession of real property, and for the rents and profits, the defendant could not be imprisoned,^ and upon the failure of the plaint- iff to recover, in an action of this character, execution would not issue against his body for the costs,* and an order of arrest would not be granted upon a complaint for the re- covery of real property.^ But in the later case of Welch v. Winterburn,^ an order of arrest was upheld in a statutory action of trespass, brought to recover damages for a forcible ejectment and detainer. These decisions, however, rest largely upon the construction and interpretation of stat- utes of that State rather than upon the inherent princi- ples governing the common law action of ejectment. Ejectment was originally based upon the idea of a trespass, an ejectio firmcs. which was alleged in the pleading to 1 Coker v. Whitlock, 54 Ala. 180; Burden v. Stein, 27 Ala. 104; Nelson v. Pinegar, 30 111. 481 ; Capner v. Fleraington M. Co. 2 Green's Ch. (N.J.) 467; Bunker v. Locke, 15 Wis. 635; Cooper v. Davis, 15 Conn. 556; Vanderslice v. Knapp, 20 Kan. 647; see Van Pelt v. McGraw, 4 N. Y. no; Byrom v. Chapin, H3 Mass. 308 ; Salmon v. Clagett, 3 Bland (Md.), 180. 2 Malone v. Marriott, 64 Ala. 486 ; Harris v. Bannon, 78 Ky. 568. 3 Fullerton v. Fitzgerald, 1 8 Barb. (N. Y.) 441 ; see Fassett v. Tallmadge, 23 How. Pr. (N. Y.) 244. < Merritt v. Carpenter, 33 How. Pr. (N. Y.) 428; s. C. 3 Keyes (N. Y.), 142. 6 Brush V. Mullen, 12 Abb. Pr. (N. Y.) 242 ; Griswold ■v. Sweet, 49 How. Pr. (N. Y.) 171. 6 14 Hun (N. Y.), 518. See 2 N. Y. R. S. p. 338 ; Bruce v. Kelly, 5 Hun (N. Y.), 229. PROVISIONAL REMEDIES. 4O3 have been committed vi et armis. This early characteristic necessarily still clings to the remedy. The defendant must be put in the wrong by the pleadings, and must be shown, at the trial, to. have disseized the plaintiff, and to have un- lawfully withheld the possession of the lands from him. Upon principle there seems to be no controlling reason why the provisional relief, and final process against the per- son, usually given in actions for torts, should not be granted in remedies in the nature of ejectment. The policy of modern legislation, however, seems to be otherwise, and the cases reveal a singular absence of any purpose on the part of the courts to extend either provisional or final relief of this character to suitors in ejectment. In Rowland v. Need- ham,^ nevertheless, it was held by the Supreme Court of Wisconsin, that ejectment was an action ex delicto, and that the wrongful receipt by the tenant of the mesne profits, or the wrongful withholding of the possession from the lawful owner, had always been regarded as a tort, for which, by the common law, an action of trespass might be maintained. The constitution of that State provides that no person shall be imprisoned for debt arising out of, or founded upon, con- tract, express or implied. It was held that, as the judgment for damages was unconnected with any CQntract obligation, and the detention of the possession and the receipt of the profits was a wrong, it was entitled to be redressed as such, and an execution might properly issue against the body of the defendant upon a judgment rendered for dam- ages for withholding the possession of the land. §631. Tendency of the modern cases. — An examination of the cases and principles governing provisional relief, in actions to recover realty, cannot but confirm the conviction that this branch of relief is, in many of our States, inad- equate, imperfect, and susceptible of 'gross abuse. The right of possession of land is regarded as peculiarly sacred in England, where many vast estates are held without pre- 1 10 Wis. 495. 404 PROVISIONAL REMEDIES. tense of title other than that of possession. Inviolability of possession of realty was a prominent characteristic of the feudal system. This is the source of the strong disinclina- tion, pervading many of the cases, to disturb the possessor of lands before final adverse adjudication of the title. Pro- visional relief is not encouraged because the subject-matter of contention is immovable, practically indestructible, and, unlike personalty, cannot be spirited away. Objections are also urged against a premature and partial inspection and adjudication of the conflicting titles, based upon ex parte statements and affidavits. The defendant, if successful, will, it is true, be restored to the possession, but the improve- ments, or growing crops, may have needed his attention ; any business which he was prosecuting on the property may have been dissipated by the interruption, and kindred losses may have been entailed, for which restoration to the posses- sion furnishes no adequate compensation or redress. § 632. Hardships incident to withholding provisional re- lief. — Still, provisional relief has been withheld in many cases entailing the grossest hardships and loss upon parties out of possession. Conceding that the possessor has important ad- vantages, the courts, in passing upon applications for these remedies, should consider more fully the question of the source from which the possession was derived, how long it has been enjoyed, and whether acquired honestly or by in- direction, fraud, or force. Trespassers, intruders, and squat- ters, or parties who have acquired the possession by vio- lence, or deceit, should not be permitted to avail themselves of their own wrong, and to shield their possession by invok- ing a principle of law devised for the protection oi bona fide occupants. If the defendant has been clothed with the pos- session by the plaintiff", that feature should exert an impor- tant influence in granting provisional relief. Proof of in- solvency of the defendant, which bears so important a part in applications for relief of this kind, is not always a true test ; for the injuries inflicted are often damnum absque injuria. PROVISIONAL REMEDIES. 405 In Mapes v. Scott,^ the parties in possession had been twice defeated in the ejectment, were wholly insolvent, and the premises in dispute, to which they had no legal or equitable title, were rapidly going to waste. The record conceded that the defendants were without title, and yet, in the teeth of this strong showing, the application for a receiver was overruled. That the cases in New York are almost uni- form in holding that a receiver cannot be appointed in eject- ment before judgment, is very remarkable, and scarcely creditable to the jurisprudence of that State. Litigations over titles are necessarily protracted, and a system of pro- cedure which permits unscrupulous and irresponsible pos- sessors of land to enjoy the profits, and waste the subject- matter of contention, in practical defiance of the courts, and the owners, should be corrected. I 4 Brad. (111.) 268. CHAPTER XXIV. TWO ACTIONS PENDING FOR THE SAME LAND.— CONSOLIDA- TION OF EJECTMENTS.— JOINDER OF LEGAL AND EQUITA- BLE ACTIONS.— MISJOINDER OF ACTIONS. § 633. Two actions for same cause. 634. Early practice. 635. Same title involved i|i both actions. 636. How the objection is raised. 637. Ejectments and suits in equity. 638. Consolidation of ejectments. 639. Joinder of legal and equitable ac- tions. § 640. Misjoinder of actions. 641. Ejectment and trespass quart clau- sum f regit. 642. Ejectment and claim for purchase money. 643. Ejectment and claim for damages. 644. Young V. Young. 645. Lis pendens. § 633. Two actions for same cause. — It may be stated as a general rule, that a suitor will not be permitted to main- tain more than one action against the same defendant for the same cause. The pendency of the former action may be pleaded in abatement of the second action, and consti- tutes a complete answer to it.^ This rule is, of course, ap- plicable to all actions in the nature of ejectment, in the modern procedure, though the practice as to the correct method of raising the objection is not uniform. § 634. Early practice. — In the case of Thrustout v. Troublesome,^ decided in 1 738, it appeared that, during the pendency of an action of ejectment, the plaintiff brought a second action for the same land on the same title. The court granted a stay of proceedings in the second action until the first action was discontinued and the costs paid, and remarked that the reason for staying proceedings in one ejectment when another was pending, was because the first ejectment could not be pleaded in bar of the second action. § 635. Same title involved in both actions. — In Dawley 1 Harrington v. Libby, 6 Daly (N. Y.), 259; Wentworth v. Barnum, 10 Johns. (N. Y.) 238; Bendernagle z/. Cocks, 19 Wend. (N. Y.) 207; Dawley i/. Brown, 65 Barb. (N. Y.) 107. 2 Andrews Rep. *ic,%. See Doe v. Bather, 12 Ad. & El. (N. S.) 941. JOINDER OF ACTIONS. 407 V. Brown,^ an ejectment case, the New York Court of Ap- peals said : "To sustain a plea of a former action pending, * * * it must appear to the court that the first action is for the same cause as the second. This requirement is strictly enforced. It is not enough that the property in controversy in both actions is the same."^ The material point of inquiry in such cases is whether or not the same title is involved in both actions.^ As elsewhere shown, a plaintiff may acquire a new and distihct title, and having done so, may assert it, without prejudice from a former ac- tion, with the same effect which would have accompanied such title into the hands of a stranger, because, as the newly acquired title was not investigated in the prior litigation, it cannot be concluded or affected by it.* This principle has been fully recognized in California in the case of Vance v. dinger ,^ in which the Supreme Court of that State said that a plaintiff might have two actions pending at the same time, to recover the same land, if the second action was brought upon a different title from the first, or was founded upon a title acquired subsequent to the commencement of the first action. § 636. How the objection is raised. — In Ritter v. Worth,* in the New York Court of Appeals, it appeared that the plaintiflTs claimed as heirs at law of R, and that the defend- ant set up in his answer the pendency of a former action, brought by the plaintiffs, together with the widow of R., to recover possession of a portion of the same lands. The court held that proof of the pendency of the former action abated the second action as to the land embraced therein, leaving the second action to proceed as to the balance of the land, and that the fact that the widow was joined as a 1 79 N. Y. 390. See S. C. 65 Barb. (N. Y.) 107; S. C. 9 Hun (N. Y.), 461. 2 Citing Stowell v. Chamberlain, 60 N. Y. 272. 3 See Doe v. Bather, 12 Add. & El. (N. S.) 941 ; Haigh v. Paris, 16 M. & W. 145; Doe V. Gustard, 5 Scott N. R. 818. * Barrows v. Kindred, 4 Wall. 399 ; Dawley v. Brown, 79 N. Y. 390. <■ 27 Cal. 358. « 58 N. Y. 627. 408 JOINDER OF ACTIONS. co-plaintifF in the former action was no obstacle to the re- covery by the other plaintiffs of their interests in the lands. In Williamson v. Paxton,^ it was held iri the Court of Ap- peals of Virginia, that where an action at law and a suit in equity were pending for the same cause of action, at the same time, the proper method of making the objection was by a rule in the chancery suit to put the plaintiff to his election between the two suits. In Singer v. Scott," in the Supreme Court of Georgia, it was held that the pendency of the first action might be pleaded in abatement of the second action, and that this plea could not be evaded by dismissing the first suit after the plea had been filed ; and in Williams v. Rawlins,^ in the same State, the proper prac- tice was held to be to interpose a plea of aliter lis pendens, and a motion to compel the plaintiff to elect which action he would prosecute. § 637. Ejectments and suits in equity. — In Quinn v. Quinn,* in the Supreme Court of Wisconsin, it appeared that the defendant had, prior to the commencement of the ejectment, brought a suit in equity against the plaintiff to assert an equitable title to the premises. The court decided that the pendency of the suit in equity was not a bar to the ejectment ; that the proper remedy of the defendant was by answer in the ejectment action, setting up the pendency of the suit in equity, followed by an application for a stay of proceedings until the equity suit was heard and tried, or that the defendant might set up and prove the equitable de- fense, leaving that suit to be discontinued. And in Michi- gan it was decided that a bill to quiet title would lie, even where an action of ejectment was pending concerning the same land, if the judgment in the latter action would leave the title im.perfect, and open to disputes, and the record of complainant would not be prima facie better than the op- 18 Gratt. (Va.) 475. 2 44 Ga. 659. 3 33 Ga. 1 17. 27 Wis. 168. See Wilson v. Jarvis, 19 Wis. 601. JOINDER OF ACTIONS. 4O9 posing title.^ Relief in equity will not be denied where the decision at law cannot cover the entire controversy. It has been held by the Supreme Court of Pennsylvania, that a plaintiff in partition may, during the pendency of that ac- tion, maintain ejectment for a moiety of the same lands, as the action of partition did not affect the title, but operated merely upon the lines of division.^ § 638. Consolidation of ejectments. — The practice as to consolidation of ejectments seems to have been unsettled during the early stages of the remedy. In Smith v. Crabb * it appeared that ten ejectments were instituted on the same demise for as many houses in the occupation of ten persons. Apphcation was made to the court to consolidate the decla- rations, accompanied by a suggestion that the title was the same in all the actions. The court refused to grant the re- quest, for the reason that the lessor might have sued the de- fendants at different times, and the consolidation would oblige him "to go on against all, when perhaps he might be ready in some of them only." This objection, however, seems to be answered by the fact that the application was based upon the theory that the title was the same in all the actions. In Grimstone v. Burgers,* however, a motion to consolidate sixteen ejectments was granted, and in Doe d. Pultney v. Freeman,® where it appeared that thirty-seven ejectments, depending on the same title, had been brought against the occupants of as many houses, Lord Kenyon said it was a scandalous proceeding, and ordered that the actions be stayed to abide the event of a special verdict in one of them. So in Jackson v. Schauber," the New "- Eaton V. Trowbridge, 38 Mich. 454. ° Ross V. Pleasants, 19 Penn. St. 157. 3 2 Strange, 1149. See Medlicot v. Bruester, 2 Keb. 524. < Barnes' Notes of Cases, 176. See Roe d. Burlton v. Roe, 7 T. R. 477. ' See 2 Sell. Pr. p. 144 ; see Den v. Kimble, 4 Halst. (N. J.) Law, 335 ; Adams on Eject. (4th Am. ed.) p. 291 [*262] ; Hardin v. Kirk, 49 111. 153. * 4 Cowen (N. Y.), 78. See Law v Jackson, 2 Wend. (N. Y.) 210. In New York actions to foreclose mortgages will not be consolidated. Bech v. Ruggles, 6 Abb. N. C. (N. Y.) 69; Kipp v. Delamater, 58 How. Pr. (N. Y.) 183. 4IO JOINDER OF ACTIONS. York Supreme Court, in a per curiam opinion, said, that where a number of ejectments were brought, and all de- pended upon the same title, and the questions to be litigated and the evidence were the same in the several actions, it was competent for either party to make an application to the court for an order that only one of the causes be carried down to trial, the plaintiff not to be prejudiced by his omission to try the others, and directing that in a clear case all the actions abide the event of the cause to be tried. The practice of consolidating ejectments often results in hardships and inconveniences to litigants, which outweigh the reasons upon which the practice is founded. It frequently leads to confusion and injustice in ascertaining and adjusting the damages and mesne profits, and concerning the rights of the parties to costs, and to the control of the litigation, and, unless a plain case of the mul- tiplication of vexatious litigations is presented, the power should not be exercised. § ^39- yoinder of legal and equitable actions. — Under the practice in New York, an equitable cause of action to remove, as a cloud upon plaintiff's title, a deed given by mistake by a third party to the defendant, under which the latter had fraudulently obtained the possession by conniv- ance with the plaintiff's tenant, and a claim to recover the possession of the premises, may be united in the same com- plaint, and asserted in the same action.^ So in Phillips v. Gorham,^ it was held that the plaintiff, in an action to re- cover specific real property, could attack a deed, under which the defendants claimed title, upon grounds cognizable in a court of chancery. In Laub v. Buckmiller,*' the New York Court of Appeals considered it to be settled law that legal and equitable relief might be had in one action, and ' Lattin v. McCarty, 41 N. Y. 107 ; see McTeague v. Coulter, 6 J. & S. (N. Y.) 208. ' 17 N. Y. 270. 3 17 N. Y. 626. JOINDER OF ACTIONS. 4I I held that a plaintiflF claiming under a defective deed, and showing sufificient grounds for its reformation, was entitled to the same relief as if he had brought two actions : one to reform the instrument, the other to enforce it as reformed. And where the defendant claimed under a deed which was void because the grantor was non compos mentis, the plaintiff was allowed, in an action to recover possession of the land, to prove the grantor's incapacity, so as to defeat the defend- ant's claim, and it was held to be unnecessary to resort to a court of equity to set aside the deed.^ In Broiestedt v. South Side Railroad Company,^ it was expressly held that the legal rights of the owner of land could be established and declared, and the equitable remedy by injunction, re- straining any interference therewith, could be obtained in the same action. § 640. Misjoinder of actions. — In New York the gen- eral rules regulating" the joinder of causes of action have been expressly declared to be applicable to the action of ejectment ; and it seems clearly established, as elsewhere shown, that two hostile claimants of the title of a piece of land cannot unite as plaintiffs in the same action against a third party in possession.^ § 641. Ejectm,ent and trespass quare clausum f regit. — Ejectment and trespass quare clausum, fregit cannot, ac- cording to some of the cases, be united in the same com- plaint, even though the locus in quo in both cases is identi- cal. The causes of action are inconsistent. To enable the plaintiff to recover for the trespass, he must show that he was in possession when the tortious acts were committed, and that he had regained the possession at the time of the commencement of the action, while to entitle him to main- tain his action for the ouster, and to recover possession. ' Van Deusen v. Sweet, 51 N. Y. 378; see Mitchell v. Barnes, 22 Hun (N.Y.), 194. ^ 55 N. Y. 220. ' Hubbell V. Lerch, 58 N. Y. 237 ; see St. John v. Pierce, 22 Barb. (N. Y.) 362. 412 JOINDER OF ACTIONS. it is necessary to show that the defendant had the posses- sion when the action was instituted.^ A disseizee of land cannot, of course, maintain trespass quare clausum fregit for an injury done to the land until he has regained the possession.^ § 642. Ejectment and claim for purchase m,oney. — A cause of action for the recovery of land alleged to have been improperly sold, under a decree in equity, cannot be united in the same complaint with a demand against the clerk and master for the amount of the purchase money resulting from such sale.** § 643. Ejectm,ent and claim, for damages. — In a case which arose in Minnesota, it was decided that a cause of action to recover possession of one piece of real property, with a claim for damages for withholding it, was improp- erly united with a claim for damages for the detention of another piece of land,* or for trespasses committed upon other lands;® and the Supreme Court of Florida have held that it is improper to unite a cause of action for specific per- formance against one party with a cause of action in eject- ment against another party in the same action." In Illinois a count in ejectment for dower cannot be joined with counts of a different character.'' It has been held in New York, that an action against two defendants, to recover pos- session of real estate, with a claim for damages, was im- properly united with a demand against one of the defend- ' Budd V. Bingham, 18 Barb. (N. Y.) 494; see Hotchkiss v. Auburn & R. R. R. Co. 36 Barb. (N. Y.) 600-613; see Pomeroy on Remedies, § 503. 2 Frost V. Duncan, 19 Barb. (N. Y.) 560; see Freer v. Stotenbur, 36 Barb. (N. Y.) 641 ; see §§ 657, 668. ' Brown v. Coble, 76 N. C. 391. '' Holmes v. Williams, 16 Minn. 164. 5 See Hulce v. Thompson, 9 How. Pr. (N.Y.) 113; see Wager v. Troy Union R. R. Co 25 N.Y. 535. 15 Fagan v. Barnes, 14 Fla. 53. A claim for damages for withholding the land may be joined in an action for specific performance. Worrall v. Munn, 38 N. Y. 137. ' Ringhouse v. Keever, 49 111. 470, JOINDER OF ACTIONS. 413 ants, for rents and profits of the premises for which it was claimed such defendant was indebted to the plaintiff, no connection being shown between the rents and profits claimed and the alleged withholding of the possession of the premises.' And a complaint setting forth a breach of contract to sell and convey real estate, and an assault and battery committed upon plaintiff" in forcibly taking the writ- ten contract of sale from his possession, was held bad on demurrer.^ So it seems that a vendor cannot unite, in the same action, a claim against a broker for damages, for having effected a fraudulent sale of land, with a claim against the purchaser for a reconveyance and an account- ing.^ The right to recover mesne profits in the action of ejectment will be presently noticed. § 644. Young V. Young. — It has been held in North Carolina,* that a complaint containing several causes of ac- tion, viz. : first, to declare one defendant a trustee of land ; second, to recover judgment against other defendants for the purchase money of the land ; and third, to recover pos- session of the land, with damages for withholding it, was not demurrable under the provisions of the code of that State,' which allows the plaintiff" to unite in the same complaint several causes of action where they arise out of " the same transaction ; or transactions connected with the same sub- ject of action." § 645. Lis pendens. — ^The question of the propriety of filing, in the office of the clerk or custodian of the public records of the county in which the land in controversy is situated, a notice of the purpose aind pendency of an action of ejectment, has never received the consideration which the ' Tompkins v. White, 8 How. Pr. (N. Y.) 520; see People v. Mayor, &c. 28 Barb. (N. Y.) 240-249. 2 Ehle V. Haller, 6 Bosw. (N. Y.) 663 ; S. C. 10 Abb. Pr. (N. Y.) 287. ^ Gardner v. Ogden, 22 N. Y. 327. '' Young V. Young, 81 N. C. 91. * Code of North Carolina, § 1 26. 414 JOINDER OF ACTIONS. importance of the subject deserves. This is possibly due to the fact that the doctrine of lis pendens is an equitable doc- trine. In foreclosure cases it is the uniform practice to file a lis pendens, and so generally of suits in equity involving rights to realty. In Thompson v. Clark,^ it appeared that the plaintiff had instituted an ejectment, filed a lis pendens, and recovered a judgment against one B., and had been put into possession of the lands. An action for mesne profits was subsequently brought against a party who had occupied the premises, pending the ejectment, under a lease from a person not claiming under B. It was held that the judg- ment in ejectment was not evidence in the action against the defendant for mesne profits, and that he was not bound by the filing of the notice of lis pendens in the ejectment suit, as he did not acquire his title from, or claim under, the defendant in that action.^ In Sheridan v. Andrews,* the New York Court of Appeals said : " The point, that the ab- sence of a notice of lis pendens deprives the judgment of its effect as against persons claiming from or through the de- fendants, cannot be sustained. The only office of a notice of lis pendens is to give notice of the pendency of the action so as to affect persons who may deal with the defendants in respect to the property involved, before final judgment, and thus bind them by the judgment in the same manner as if they had been made parties to the action. Formerly, the commencement of a suit in equity was of itself constructive notice to subsequent purchasers, and they were bound by the decree. This rule was adopted in analogy to the rule in real actions at common law, that if the defendant aliened pending the writ, the judgment would overreach such aHen- ation.* * * It is difficult to see how, in an action of 1 4 Hun (N. Y.), 164. 2 See Aslin v. Parkin, 2 Burr. 668 ; Chirac v. Reinicker, 1 1 Wheat. 296 ; Le- land V. Tousey, 6 Hill, 328 ; Ainslie v. Mayor, i Barb. (N. Y.) 168. 3 49 N. Y. 478. See Long v. Neville, 29 Cal. 131 ; Gregory v. Haynes, 13 Cal. 591. ^ See Murray v. Ballou, i Johns. Ch. (N. Y.) 577. JOINDER OF ACTIONS. 4I5 ejectment, a notice of lis pendens can be necessary to bind even purchasers pendente lite by the judgment. * * In- asmuch as a recovery in ejectment can only be had upon a legal title, it would seem unnecessary to show notice, actual or constructive, to bind a purchaser. It is only against mere equities that purchasers without notice are protected." While it may be true that the plaintiff or claimant of the land will forfeit none of his rights by failing to file a notice of the pendency of an ejectment action, yet questions of public policy, and the rights of innocent parties, are frequent- ly involved. The defendant in ejectment may have a per- fect record title, and may transfer it, peiiding the action, to an innocent purchaser, who takes without notice, or any means of acquiring knowledge, of the adverse title, or of the actual pendency of the action of ejectment. In New York, it is now provided by statute, that the plaintiff may, in an action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of real property, file a notice of the pendency of the action in the clerk's office of each county where the land is situated,^ which shall be constructive notice from the time of filing it, and. a per- son whose conveyance or incumbrance is subsequently executed or recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action.'' 1 N. Y. Code Civ. Pro. § 1670. 2 N. Y. Code Civ. Pro. § 1671 ; see § 649. CHAPTER XXV. MESNE PROFITS AND DAMAGES. 646. Damages in real actions. 647. Mesne profits in ejectment. g'^^- I Nature of the action. 650. Joinder of ejectment and claim for mesne profits. 651. Objections to the practice. 652. Distinction between action for mesne profits and action for use and occupation. 653. Distinction between claim for dam- ages and for mesne profits. 654. Pleading in real actions. 655. In ejectment. 656. Parties plaintiff. 657. Plaintiff must actually acquire pos- session. 658. Parties defendant. 659. Possession of defendant. 660. Co-tenants. 661. Executors. 662. Recovery of nominal damages not a bar. 663. For what periods mesne profits are recoverable. 664. Damages assessed down to day of trial. 665. Measure of damages. 666. Rule in New York. 667. Interest on the value of the fee. 668. Damages for waste and trespass. 669. Damages after judgment. 670. Interest on mesne profits. 671. Judgment conclusive as to mesne profits. 672. Judgment not conclusive as to length of defendant's occupation. 673. When judgment not conclusive. 674. Evidence as to mesne profits. 675. Income from saw-mill and site. 676. From ferry. 677. Rules as to ore and mines. 678. Income from improvements. 679. Costs. 680. Defenses. 681. Bankruptcy of defendant. 682. Inadequacy of purchase price does not mitigate damages. 683. Growing crops. 684. Fixtures. 685. Apportionment of mesne profits. 686. Statute of limitations. 687. Mesne profits in equity, 688. Taxes and assessments. 689. Abatement. § 646. Damages in real actions. — Under the early prac- tice ordinarily no damages could be recovered in a real ac- tion.^ The recovery was limited solely to interests in realty, for " it is of the essence of a real action, that onlv a real thing can be recovered therein; for wherever damages, which are a pecuniary recompense, and consequently a personal thing, are recoverable in the same action, the action be- comes mixed." ^ A discussion of the forms of procedure by which the demandant, while the ancient system of real writs prevailed, recovered the rents and profits of the land,^ which 1 Steams on Real Actions, pp. 94, 244, 389 ; Jackson on Real Actions, p. 99; Booth on Real Actions, 74, 75 ; Sedgwick on Damages (7th ed.), vol. I, p. 241 [i 17]. 2 Sayer on Damages, p. 5. 3 See Booth on Real Actions, p. 74 ; Steams on Real Actions, pp. 245, 389. MESNE PROFITS AND DAMAGES. 417 had been wrongfully appropriated by the tenant (defendant), would be of little practical value at the present day, as real writs are almost wholly obsolete, and the methods by which damages and mesne profits are recovered, in the modern pro- cedure, are largely regulated by statute. In some of the real writs the demandant was permitted to recover the damages that accrued pending the writ.^ A writ of estrepement, pro- hibiting the tenant from committing waste upon the land, pending the action, was also granted as a species of provis- ional relief in aid of certain real writs. By the statutes of Merton, Marlbridge, and Gloucester, damages were given in the principal real actions.^ § 647. Mesne profits in ejectment. — " The mesne or in- termediate profits of land are those received while the prop- erty is withheld from its rightful occupant ; and when he re- covers possession, the right to the mesne profits follows his recovery." ^ The writ of ejectione firm/z, from which the modern action of ejectment is derived, was originally, as has been shown, a simple writ of trespass, brought by a lessee, or tenant for years, to recover damages resulting from evic- tion and loss of the term and possession. The recovery of compensation in damages at first constituted the sole pur- pose of the action, and the exclusive relief. Estates for years were scarcely recognized in early times, and the tenant for years was not allowed to make his precarious interest the basis of a real writ. Hence, practically, his only re- dress against a person who had disseized him during the term was a writ of trespass for damages. The defendant very frequently proved insolvent, and this remedy was, therefore, palpably inadequate ; hence, as has been shown, the practice of recovering the unexpired term, and the pos- ' See Booth on Real Actions (Am. ed.), pp. 74-76; Steams on Real Actions, p. 245; also, Chapter VIII. ' 20 Hen. Ill, c. 3; 52 Hen. Ill, c. 16; and 6 Edw. I, anno 1278. 3 Sedgwick on Damages (7th ed.), vol. I, p. 250 [123] ; see Green v. Biddle, 8 Wheat. 1-80. 37 41 8 MESNE PROFITS AND DAMAGES. session, was introduced. This innovation changed the whole nature and purpose of the writ, and gave it the character of a real action. The principal recovery under the early prac- tice, became a mere incident. When the fictitious parties were introduced into the action, and the practice of declar- ing on a fictitious lease, and of extending the action to cases where no lease in fact existed, was established, the judg- ment for damages and mesne profits necessarily became nominal.^ Thus in Davis v. Delpit,^ the Court of Errors and Appeals of Mississippi declared, that " ever since the action of ejectment was adopted as a mode of trying title to real estate, it has been well settled as a rule of the com- mon law, that the jury, in the assessment of damages, are confined to a compensation for the injury sustained by the ejectment, which being fictitious, the damage can only be nominal." A judgment for damages against the casual ejector, whether a fictitious or an actual person, was, of course, improper ; for a money judgment could not be col- lected or enforced against a fictitious person, and the casual ejector, if an actual person, had not lived upon the lands, nor received the mesne profits, hence a judgment against him would clearly be erroneous. A real tenant, who had actu- ally withheld the possession, occupied the lands, and en- joyed the profits, was needed as a defendant.^ The tenant in possession signed the consent rule, and defended the ac- tion, solely for the purpose of trying the title, not of con- testing the right of the plaintiff, or his lessor, to mesne profits or damages, and for that reason, according to many of the cases, a judgment for mesne profits could not be ren- dered against him, though there is authority to the effect that the plaintiflF might recover his real damages by giving 1 See Reeves' Hist. Eng. Law (ed. i88o), vol. IV, p. 241 ; Emrich v. Ireland, 55 Miss. 390-399; Davis v. Delpit, 25 Miss. 446; Adams on Ejectment (4th Am. ed.), p. 444; Stearns on Real Actions, p. 402; Sedgwick on Damages (7th ed.), vol. I, p. 243 [119]; see § 62. 2 25 Miss. 446. See Emrich v. Ireland, 55 Miss. 390. 3 See Runnington on Ejectment, p. 438. MESNE PROFITS AND DAMAGES. 419 notice of his. intention to proceed therefor.^ After the dam- ages in ejectment became nominal, the practice sprung up of bringing a new action of trespass for the mesne profits. Mr. Reeves says, that there is no mention of the action for mesne profits till some time after the reign of Queen Elizabeth.^ § 648. Nature of the action. — A right to land essenti- ally implies a right to the profits accruing from it, since without the latter the former can be of no value. " For what," says Lord Coke, "is the land but the profit thereof."* The person entitled to the land is of course entitled to the rents and profits; hence the legislature has no power to bestow upon another person who has no title a right to re- cover from the owner these rents and profits.* This leads to a discussion of the nature of the modern remedies or forms of procedure by which claims for compensation in damages for withholding possession of land, and for mesne profits, are asserted. The remarkable changes wrought in the nature and uses of the action of ejectment, by the in- troduction of fictions to facilitate the trial of the title, have been fitly supplemented by the alterations which, as we shall see, the action for mesne profits has undergone. Originally, the action for mesne profits was in the na- ture of trespass quare clausum /regit, and the cause of ac- tion died with the party.^ As already shown, one of the strong objections to granting provisional relief in the form of a receiver in this action was, that it was prosecuted • Battin v. Bigelow, i Peters' C. C. 452 ; Osbourn v. Osbourn, 1 1 S. & R. (Penn.) 55 ; Goodtitle w.Tombs, 3 W^ils. 118-121 ; Adams on Ejectment (4th Am. ed.), p. 330; Lion v. Burtis, 5 Cow. (N. Y.) 408 ; Aslin v. Parkin, 2 Burr. 665-668. 2 Reeves' Hist. Eng. Law(ed. 1880), vol. IV, p. 241 ; see Steams on Real Ac- tions, p. 402, sec. 3. 3 Co. Litt. 4 b; see Green v. Biddle, 8 Wheat. 1-76. ■• Rich V. Maples, 33 Cal. 102. "Stearns* on Real Actions, p. 404; Thompson v. Bower, 60 Barb. (N. Y.) 463-478; see Jackson v. Wood, 24 Wend. (N. Y.) 443; Evans v. Welch, 63 Ala. 253 ; Brewster v. Buckholts, 3 Ala. 20. 420 MESNE PROFITS AND DAMAGES. against the defendant as a trespasser, for the wrongful with- holding of the possession of land, and that it would be a preposterous proceeding to appoint a receiver to receive damages to be recovered in an action of trespass.^ In Ut- terson v. Vernon,* however, Ashhurst, J., said : "The action for mesne profits, though in form it is an action of trespass, yet in effect it is to recover the rent." Again it is held that the action for mesne profits being in its nature an equitable suit,® every equitable defense may be set up,* and that this feature of the action is borrowed from the chancery prac- tice on bills to account.* Chancellor Kent said : " The ac- tion for mesne profits is a liberal and equitable action, and will, allow of every kind of equitable defense,"* Trespass for mesne profits is of course grounded upon the fiction of law, that the disseizee, after re-entry, has been in continuous possession during the period of his disseizin.' And the plaintiff must recover possession of the lands in some lawful manner before he is in a position to claim the rents and profits taken by the disseizor,^ or the damages in- flicted by being kept out of possession. §649. In Gill V. Patten,^ this language is used : "The court thinks that the action of trespass for the mesne profits, after a recovery in the fictitious action of ejectment, is strictly analogous to the action of trespass with a continu- endo after an entry, and to that part of the remedy by assize 1 See § 614. - 3 T. R. 539-547. 3 See Johnson v. Futch, 57 Miss. 73; Ege v. Kille, 84 Penn. St. 333; Morri- son V. Robinson, 31 Penn. St. 456; Kille v. Ege, 82 Penn. St. 102. < Murray v. Gouverneur, 2 Johns, Cas. (N. Y.) 438; see Egew. Kille, 84 Penn.. St. 333; Zimmerman v. Eshbach, 15 Penn. St. 417. 6 Ewalt V. Gray, 6 Watts (Penn.), 427. 6 Murray v. Gouverneur, 2 Johns. Cas. (N. Y.) 442; see Jackson v. Loomis, 4 Cow. (N. Y.) 168. 1 Trubee v. Miller, 48 Conn. 347 ; see Dewey v. Osbom, 4 Cow. ^vT. Y.) 329. » Bockes V. Lansing, 74 N. Y. 437-442. 9 I Cr. C. C. 465. See Jackson v. Loomis, 4 Cow. (N. Y.) 168; Murray v. Gouverneur, 2 Johns. Cas. (N. Y.) 441. MESNE PROFITS AND DAMAGES. 42 1 which gave the defendant his damages, and is accompanied by the same equitable defense." In Camp v. Homesley,^ the court said that the action for mesne profits was substan- tially a continuation of the action of ejectment for the pur- pose of recovering the actual damages, and therefore when- ever a person was allowed to maintain ejectment he could have trespass to complete his remedy. The remedy is re- garded by some of the courts as a continuation or extension of the ejectment introduced as a matter of convenience for the purpose of saving time,^ or as being consequential to a recovery in ejectment.^ Thus the Supreme Court of Ala- bama said : "The damages are an incident to the judgment, as in an action of detinue damages for the detention are an incident to the recovery of the chattel detained." * And it was said by Hunt, J., in delivering the opinion of the United States Supreme Court,^ " Speaking strictly, there was not only no cause of action, but no right to the mesne profits until the judgment in the original suit." The right of the true owner to the use and profits of the land is suspended until he regains possession either by entry or under a legal judg- ment* The Supreme Court of Pennsylvania said that though the action was in form for trespass, it was in reality for use and occupation, and necessarily involved the state- ment of an account under the evidence.'' In Carman v. Beam,^ however, the rule is laid down in that State that a claim for mesne profits is governed by the same general rules that are applicable to an ordinary action of trespass. ' II Ired. (N. C.) Law, 211. 2 Bradley v. McDaniel, 3 Jones' (N. C.) Law, 128; Miller v. Melchor, 13 Ired. (N. C.) Law, 439. 3 Mitchell 2/. Mitchell, i Md. 55; Benson v. Matsdorf, 2 Johns. (N. Y.) 369; Trubee v. Miller, 48 Conn. 347. ■" Morris v. Beebe, 54 Ala. 300. * New Orleans v. Gaines, 1 5 Wall. 624. « Caldwell v. Walters, 22 Penn. St. 378; see Bigelow v. Jones, 10 Pick. (Mass.) 161 ; Avent v. Hord, 3 Head (Tenn.), 459; Bockes v. Lansing, 74 N. Y. 437-442. ' Blight V. Ewing, 26 Penn. St. 135. « gg Penn. St. 319. 42 2 MESNE PROFITS AND DAMAGES. In Illinois it is treated as an action of assumpsit/ while in New York it is practically converted into an action for use and occupation.^ It will be seen from these cases that it is not an easy task to fix the exact status of the modern action for mesne profits. The confusion results from the technical character of the early forms of action. As this remedy embraces some of the elements of an action of trespass for damages, and an action of assumpsit for use and occupation, and a suit for an equitable accounting, it necessarily differs from each of these actions, and must consequently be regarded as a form of relief by itself, to be governed by rules which are not common to the other remedies. It is established, by a preponderance of the authorities, that the action has been divested of many of the peculiarities of an action of trespass ; or rather that it has acquired the characteristics of an action ex contractu, and the recovery in the modem practice is largely regulated by the principles governing ac- tions upon contract as distinguished from actions of pure tort.* § 650. Joinder of ejectment and claim, for m,esne profits. — Under the modern practice the general rule is that the plaintiff may bring an action for the recovery of the lands, and unite in the same action the claim to recover the rents '- Ringhouse v. Keener, 63 111. 230. 2 See Holmes v. Davis, 19 N. Y. 488; Vandevoort v. Gould, 36 N. Y. 639; Woodhull V. Rosenthal, 6i N. Y. 382. 3 In Peter v. Hargrave, 5 Gratt. (Va.) 12, it appeared that the plaintiffs had recovered their freedom by bringing trespass vi et armis for assault and battery and false imprisonment, in which the damages were only nominal. A subse- quent action was brought for the mesne profits of the slaves, while wrongfully restrained of their liberty. The court held that the action for mesne profits after a recovery in ejectment, furnished no principle to sustain a demand of this char- acter. The purpose of an ejectment was said to be to remove opposition, quiet the regained possession and establish its enjoyment ; but the recovery in a suit for freedom was founded upon nothing in the nature of a disseizin, and re-entry by the disseizee; the suit for freedom is not a possessory, but a droitural action, and droitural actions do not, by the common law, give mesne profits, either by a recovery therein, or in a subsequent action. MESNE PROFITS AND DAMAGES. 423 or mesne profits and damages to which he may show him- self to be entitled.^ The legislative policy upon this subject varies in the several States, but generally it is optional with the plaintiff to join the claims for damages and mesne profits in the action of ejectment, or bring an independent action for the mesne profits, after the recovery in the princi- pal action.^ In Boyd's Lessee v. Cowan,^ Chief Justice M'Kean defends the practice of uniting with the action for the recovery of the possession of the land the claim for mesne profits, and says : " I shall now briefly consider the argumentum ab inconvenienti, which refers but to a single instance, to wit : the difficulty the jury may labor under, in deciding on the titles of the parties to the possession, and at the same time, in fixing the value of the mesne profits, if the verdict shall be for the plaintiff. There can be no great hardship in this. In actions of waste, dowry, assize, and all others, where the thing itself, as well as the damages, is recovered, the jury are liable to the same inconvenience; nor can I perceive any great perplexity that can arise in determining the rent, or annual value, of a house or parcel of land, when complete evidence is given of it. It appears to me that the inconvenience or hardship is the other way. After a person has been unlawfully kept out of his house or land, for a series of years, and undergone great trouble and ex- pense in recovering a judgment for them, to give him the ' Garner v. Jones, 34 Miss, 505 ; Armstrong v. Hinds, 8 Minn. 254 ; Lord v. Dearing, 24 Minn, no; Field v. Columbet, 4 Sawyer, 523; Dawson v. McGill, 4 Whart. (Penn.) 230; Harrall i-. Gray, 12 Neb. 543; Carman v. Beam, 88 Penn. St. 319; BottorfE V. Wise, 53 Ind. 32; Patterson v. Ely, 19 Cal. 28; Wallier v. Mitchell, 18 B. Mon. (Ky.) 541; Livingston v. Tanner, 12 Barb. (N. Y.) 481; Hotchkiss V. Auburn, &c., R. R. Co. 36 Barb. (N. Y.) 600; Gamer v. Jones, 34 Miss. 505; Beard v. Federy, 3 Wall. 478; Hecht v. Colquhoun, 57 Md. 563; Van- devoort v. Gould, 3 Trans. App. (N. Y.) 57. 2 See Vandevoort v. Gould, 36 N. Y. 639-646 ; Field v. Columbet, 4 Sawyer, 523; Emrich v. Ireland, 55 Miss. 390. A claim for damages for withholding one parcel of land cannot, however, be united with a claim to recover possession of another piece of land with damages for withholding it. Holmes v. Williams, 16 Minn. 164. 3 4 Dallas, 138. 424 MESNE PROFITS AND DAMAGES. possession merely, without any satisfaction for the use and occupation pending the action, does not seem complete justice." § 651. Objections to the practice. — This presentation of the subject, however, does not entirely dispose of the objec- tions to the joinder of the causes of action, and the trial and submission of both the issues at once. We have already deprecated the existing practice of incumbering the trials of title to land with questions of possession,^ and the objec- tions urged against that method of procedure are, to a great extent, applicable to the practice of trying the claims for damages, mesne profits, and the right to offset improve- ments at the same time with the issues relating to the right to recover the possession of the land. Under this practice too many complicated issues are clustered together. The claim for mesne profits embraces some of the elements of an equitable accounting, and is in itself not an easy task for a jury to cope with, while the defendant's set-off for im- provements often presents difficult questions as to what shall be considered improvements, and frequently calls for the exercise of much delicate discrimination in separating the income of the unimproved land from the income of the im- provements. Then, as we have seen, the right to the pos- session of land is regarded in the eye of the law as more sacred than rights involved in personal actions, and its con- sideration should not, therefore, be embarrassed by collat- eral issues, and a mass of conflicting estimates and state- ments. Juries must base their verdicts upon their memory of the testimony solely, and ejectment cases in which the presentation of the testimony extends through several days, covering complicated transactions, are quite common. The questions involved in the trial of the title are often very- intricate and difficult, and constitute, by themselves, all that the jury are competent to retain in memory and intel- ' See § 236. MESNE PROFITS AND DAMAGES. 425 ligently consider. It is not possible, in the very nature of things, for the jury to creditably discharge their duty where a series of important issues, which might easily be separated, are submitted together in a body for their consideration. While the practice of settling both the disputed title and the questions of mesne profits and improvements in a single action is convenient, yet the issues should be separately considered by the jury, for, aside from the embarrassment incident to submitting a multitude of issues, a verdict for the defendant, of course, renders the testimony, as to mesne profits and improvements, valueless, and the neces- sity for the production of the testimony on that branch of the cases is entirely uncertain until the main issue is de- cided. Moreover, if the wisdom of the laws granting statu- tory new trials of the title is questionable, there certainly can be no reason for a re-trial as of right of the issue as to mesne profits and improvements, and this is an additional consideration in favor of separating the issues.^ § 652. Distinction between action for mesne profits and action for use and occupation. — In Thompson v. Bower,^ in the New York Supreme Court, Johnson, J., delivering the opinion of the court, said : " The action for mesne profits differs from an action for use and occupation, in this, that the latter is founded upon a promise, express or implied,^ while the former springs from a trespass, an entry vi et armis upon premises, and a tortious holding. The action to recover mesne profits is an action quare clausum- f regit, and cannot be maintained without proof of the trespass. It is founded on the action of ejectment, generally, and fol- lows a recovery in that action." The plaintiff, to show him- self entitled to recover for use and occupation, must prove that the relationship of landlord and tenant, or some ex- 1 Morris V. Beebe, 54 Ala. 300 ; see, also, § 658. 2 60 Barb. (N. Y.) 463-477. 3 See Goddard v. Hall, 55 Me. 579. 426 MESNE PROFITS AND DAMAGES. press or implied agreement, existed between the parties.^ An implied promise to pay rent cannot, from the nature of things, arise out of a trespass or tortious entry upon land, and an adverse holding in the defendant's own right." It is clearly settled that assumpsit will not lie for use and occupation, unless a contract relationship existed be- tween the parties;^ nor can it be maintained after a re- covery in ejectment.* Trespass for mesne profits is the proper action.® So account rendered will not lie for mesne profits.^ As already shown, where the relationship of ten- ants in common exists, and one tenant has evicted his com- panion, the disseizee cannot maintain assumpsit against the disseizor for rents and profits that accrued during the period of the disseizin, as possession under an adverse title nega- tives the idea of a promise to pay rent, and the tort cannot be waived for the purpose of trying title to land in an action of assumpsit.'^ It will be apparent, from a considera- tion of these cases, that the action of trespass for mesne profits is exclusive in its nature, and a disseizor, or person who has tortiously entered upon or occupied lands, either in good faith or -mala fide, must be prosecuted for the rents 1 Sylvester v. Ralston, 31 Barb. (N. Y.) 286; Wood v. Wilcox, i Den. (N.Y.) 38 ; Pierce v. Pierce, 25 Barb. (N. Y.) 243 ; Bancroft v. Wardwell, 13 Johns. (N.Y.) 489; McNair v. Schwartz, 16 111. 24; Scales v. Anderson, 26 Miss. 94; De Young V. Buchanan, 10 G. & J. (Md.) 149; see Kiersted v. Orange & A. R. R. 1 Hun (N.Y.), 151. 2 Bard v. Nevin, 9 Watts (Penn.), 328; Harker v. Whitaker, 5 Watts (Penn.), 474; Irvine v. Hanlin, 10 S. & R. (Penn.) 220; Goddard v. Hall, 55 Me. 579; see Sinnard v. McBride, 3 Ohio, 264. 3 Watson V. Brainard, 33 Vt. 88; Goddard v. Hall, 55 Me. 579; Poindexter z/. Cherry, 4 Yerg. (Tenn.) 305. - Butler V. Cowles, 4 Ohio, 205 ; Larrabee v. Lumbert, 34 Me. 79. ' Leland v. Tousey, 6 Hill (N. Y.), 328; Morgan v. Varick, 8 Wend. (N. Y.) 587 ; Poindexter v. Cherry, 4 Yerg. (Tenn.) 305 ; Dean v. Tucker, 58 Miss. 487 ; Scales V. Anderson, 26 Miss. 94; Larrabee v. Lumbert, 36 Me. 440. « Harker v. Whitaker, 5 Watts (Penn.), 474. ' Richardson v. Richardson, 72 Me. 403; Van Alstine v. McCarty, 51 Barb. (N. Y.) 326 ; see Bockes v. Lansing, 74 N. Y. 437 ; Sampson v. Shaeffer, 3 Cal. 196; see § 176. MESNE PROFITS AND DAMAGES. 427 taken, and damages sustained by the true owner, in this form of action, and cannot be held accountable in forms of pro- cedure based upon contract, express or implied. § 653. Distinction between claim for damages and for mesne profits. — In New York, the distinction between the claim for damages for withholding real estate, and the claim for rents and profits of it, during the time the posses- sion is wrongfully withheld, is clearly marked. The Court of Appeals of that State held that, under a complaint which asked for the recovery of the possession of real estate, with damages for withholding it; the reception of evidence as to the value of the use and occupation of the land, and an in- struction to the jury that, in estimating the damages, they might consider the evidence as to rental value, was clearly erroneous.^ The court said that the complaint, in the case cited, failed to set forth how long the defendant had been in possession ; it did not allege that he had been in occupation of the premises at all before the day on which the action was commenced, and it contained no statement or allega- tion whatever to apprise the defendant, or indicate to him, that any claim was made for the rents and profits of the land. The rents and profits, the court said, did not "form any part of the damages for withholding the property, but constitute a separate and distinct cause of action." ^ It was further held that the complaint could not be amended so as to obviate this objection, as that would require the insertion of a new and independent cause of action, and not a mere amendment of that set forth in the complaint, and for which alone the action had been commenced. It must not be understood from this case that damages and mesne profits cannot be recovered in that State in the same ac- ' Lamed v. Hudson, 57 N. Y. 151 ; Livingston v. Tanner, 12 Barb. (N. Y.) 481 ; see Archbold's Landlord and Tenant, p. 231. 2 See Candee v. Burke, 10 Hun (N. Y.j, 350; Cagger z/. Lansing, 64 N. Y. 417, 431 ; Holmes v. Davis, 19 N. Y. 488. 428 MESNE PROFITS AND DAMAGES. tion. The disseizee may proceed for both by inserting alle- gations in his pleading of the value of the use and occupa- tion in addition to the claim for damages, so as to indicate to the defendant the nature and extent of the entire recov- ery sought.^ By the damages under the procedure in that State is evidently meant all loss and damage which may be legally awarded to the disseizee, whether for waste, injury to the freehold, or otherwise, "other than for rents and profits or for use and occupation."^ § 654. Pleading in real actions. — Under the statute in Massachusetts, the demandant, in a writ of entry, is entitled to recover the rents and profits, although not specifically demanded in the writ.^ In Maine, on the other hand, the demandant cannot obtain a judgment for damages against the tenant unless he has made claim therefor in his writ* The policy of the latter State certainly embodies the better rule of procedure. § 655. In ejectment. — Mr. Adams says® in relation to pleading the claim for mesne profits, that "the plaintiff complains in it of his ejection and loss of possession, states the time during which the defendant (the real party) held the land, or took the rents and profits, and prays judg- ment for the damages which he has thereby sustained." This formula is, under the present practice, still generally applicable, though somewhat meagre in its recitals. Under the modern procedure the premises should be described, 1 See Cagger v. Lansing, 64 N. Y. 419-431. 2 See N. Y. Code Civ. Pro. § 1525. "The court, at any time within three years after such a judgment is rendered [referring to a judgment in ejectment] and the judgment roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs, and all damages, other than for rents and profits, or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action." 3 Provident Institution v. Burnham, 128 Mass. 458; Gen. Stat, of Mass. c. 134. §§ 13, 14; Raymond v. Andrews, 6 Cush. (Mass.) 265. '- Pierce v. Strickland, 25 Me. 440 ; Larrabee v. Lumbert, 36 Me. 440. 5 Adams on Ejectment (4th Am. ed.), p. 446. MESNE PROFITS AND DAMAGES. 429 the time stated when the defendant entered thereon and ejected the plaintifT, the length of time during which the possession was wrongfully withheld, and the value of the mesne profits of which the plaintiff has been deprived, and the amount of the damagtes which he has sustained.^ The jury cannot, as a rule, take into consideration the mesne profits, unless claimed in the declaration, and notice is given of the plaintiffs intention to proceed for them,^ and in New York the claim for mesne profits should be stated in a separate count ;^ but it is too late to object, for the first time, on the trial, to the form and want of particularity with which allegations with respect to the damages and mesne profits are made.* In that State, as we have seen, under a claim for damages, evidence of the value of the use and oc- cupation cannot be received,® as the claims for damages and for rents and profits are regarded as separate causes of ac- tion which must be pleaded. A judgment for damages is clearly erroneous where no damages are alleged in the complaint.^ The damages must, of course, be assessed by the jury, and when a verdict is rendered omitting any as- sessment of damages, the court has no power to render a judgment for possession and damages.^ It will thus be seen that there is nothing exceptional about claims against a disseizor for damages and mesne profits, but that such claims must, like other causes of ac- tion, be pleaded, to entitle the disseizee to introduce evi- dence in support of them, and to uphold a recovery. > See Adams on Ejectment (4th Am. ed.), p. 450 [384] ; Higgins v. Highfield, 13 East, 407. ' Bayard v. Inglis, 5 W." & S. (Penn.) 465 ; Livingston v. Tanner, 14 N. Y. 64; Dawson v. McGill, 4 Whart. (Penn.) 230; see Carman 7/. Beam, 88 Penn. St. 319; Lamed v. Hudson, 57 N. Y. 151 ; Ringhouse v. Keener, 63 111. 230. 3 Seaton v. Davis, i T. & C. (N. Y.) 91. < Candee v. Burke, 10 Hun (,N. Y.), 350. ' Lamed v. Hudson, 57 N. Y. 151 ; Livingston v. Tanner, 12 Barb. (N.Y.) 481. « McKinlay v. Tuttle, 42 Cal. 570. ' Cannon v. Davies, 33 Ark. 56. 430 MESNE PROFITS AND DAMAGES. § 656. Parties plaintiff. — The action for mesne profits under the former practice could be brought in the name of the lessor of the plaintiff, or, according to some of the au- thorities, in the name of the nominal plaintiff ;^ and in either case it was regarded as the lessor's action.^ A disseizee, who has recovered possession of lands by any lawful means, may maintain trespass for mesne profits against a party who has occupied the premises as a tenant of the disseizor, although the tenant was ignorant of the disseizee's claim of title, and, acting in good faith, had paid the rent to the disseizor.' The only advantage which an occupant in good faith se- cures over a possessor in bad faith, as will presently appear, is that the former may recover for, or set off against mesne profits, the value of improvements left upon the land. Rent paid to a disseizor by a tenant is of no benefit to the true owner, and cannot be used by the tenant to defeat the owner's claim for mesne profits. The right to damages and mesne profits is assignable ; and a plaintiff may recover for mesne profits taken by defendant prior to the plaintiff's acquiring title, provided the right of action therefor was transferred to the claimant by his grantor.* A plaintiff is entitled to mesne profits which accrued during his mi- nority ; ^ so a cestui que trust who has recovered lands may have judgment for the rents ; ^ and a municipal corpora- tion may maintain an action for mesne profits for the use of a street.^ 1 Goodtitle v. Tombs, 3 Wils. u 8-1 21 ; Sbadwick v. McDonald, 15 Ga. 392; Adams on Ejectment (4th Am. ed.), p. 330; Lion v. Burtis, 5 Cow. (N. Y.) 408; see Masterson v. Hagan, 17 B. Mon. (Ky.) 325 ; Van Alen v. Rogers, i Johns. Cas. (N. Y.) 281, in notis ; Den v. Lunsford, Busb. (N. C.) Law, 401. 2 Aslin V. Parkin, 2 Burr. 665, 668 ; see Baron v. Abeel, 3 Johns. N. Y. 482. 3 Trubee v. Miller, 48 Conn. 347 ; Alb. Law Jour. vol. 26, p. 39; Storch v. Carr, 28 Penn. St. 135 ; see Doe v. Whitcomb, 8 Bing. 46 ; Johnson v. Futch, 57 Miss. 73 ; Green v. Biddle, 8 Wheat, i ; Bradley v. McDaniel, 3 Jones' (N. C.) Law, 128; Morgan v. Varick, 8 W^end. (N. Y.) 587. * Lord V. Dearing, 24 Minn. no. « McCrubb v. Bray, 36 Wis. 333. 6 Pugh V. Bell, I J. J. Marsh. (Ky.) 399. ' City of Apalachicola v. Apalachicola Land Co. 9 Fla. 340. MESNE PROFITS AND DAMAGES. 43 1 § 657. Plaintiff must actually acquire possession. — Tres- pass for mesne profits cannot ordinarily be maintained un- less the plaintiff, in the prior ejectment suit, actually goes into possession of the premises after the recovery in the ejectment.^ In Stancill v. Calvert, in the Supreme Court of North Carolina,'' it appeared that the defendant wrong- fully removed and converted a saw-mill, which constituted the subject matter of dispute, and there was nothing of which possession could be taken. The court held that as the removal took place, and the lease expired, before the trial, so that a writ of possession could not be executed, the plaintiff" should have urged his right, in the ejectment suit, to have actual instead of nominal damages, as in ordinary cases,^ and a nonsuit was granted in the action for mesne profits. So in Bockes v. Lansing,* in the New York Court of Appeals, Rapallo, J., said : " The claim in the complaint to recover rents and profits cannot be sustained, for it ap- pears that the plaintiffs are out of possession. They must recover possession before they are in a position to claim rents and profits." It is not necessary, however, to execute an habere to entitle a party to maintain an action for the mesne profits if the plaintiff has been let into possession by the defendant,^ for, as we have seen, it is common learning that a plaintiff may take peaceable possession without a writ." These cases illustrate the principle heretofore stated, that trespass for mesne profits is grounded upon the fiction of law, that the disseizee having been restored to the pos- ■ Stancill v. Calvert, 63 N. C. 616; Murphy ^/. Guion, 2 Murphy (N. C), 238; Poston I/. Henry, 11 Ired. (N. C.) Law, 301; Carson v. Smith, i Jones' (N. C.) Law, 106; Miller z/. Melchor, 13 Ired. (N. C.) Law, 439: Reid v. Stanley, 6 W. & S. (Penn.) 369; Zimmerman v. Eshbach, 15 Penn. St. 417; Nelson v. Allen, i Yerg. (Tenn.) 360. ^ 63 N. C. 616. 3 See Brown v. Galloway, Pet. C. C. 291 ; Carman v. Beam, 88 Penn. St. 319; Dodge V. Page, 49 Vt. 137 ; Woodhull v. Rosenthal, 61 N. Y. 385. < 74 N. Y. 437-442. = Calvart v. Horsfall, 4 Esp. 167; see Stearns on Real Actions, p. 410. « See § 549. 432 MESNE PROFITS AND DAMAGES. session, is presumed to have occupied during the period of the disseizin.^ Where the plaintiff acquired possession of the locus in quo before trial, it was held that, having given notice of his intention so to do, he could proceed for mesne profits ; ^ and the same rule appertains in Vermont, where the plaintiff's title expires pending suit.^ § 658. Parties defendant. — The proper and necessary party defendant, in an action for mesne profits, is the disseizor or party who has wrongfully withheld the possession, and appropriated the profits of the land. And one who comes into possession during the pendency of the action of eject- ment is bound by the proceedings, and is liable for mesne profits during the period of his occupancy.* So where a defendant was added, in ejectment, who took possession after suit brought, it was held that the only necessity for adding the new tenant was to hold him for mesne profits, as he would clearly have been concluded by the judgment* The judgment is conclusive of the title into whose hands soever it may subsequently pass by transmutation of the possession from the defendant in ejectment.^ Upon the death of a defendant pending an action of ejectment, if his heirs are substituted as defendants, their liability for mesne profits is limited to the rents and profits accruing during the period of their own possession after his death ; "^ they cannot be held liable for profits which they never received, nor can the disseizin or tort of the ancestor be predicated of the heir. In a case before the Supreme Court of North Carolina, it was decided that an action for mesne profits would lie against infant defendants even 1 See Trubee v. Miller, 48 Conn. 347 ; see § 648. 2 Carman v. Beam, 88 Penn. St. 319. 3 Dodge V. Page, 49 Vt. 137; see Woodhull v. Rosenthal, 61 N. Y. 385. ■> Bradley v. McDaniel, 3 Jones' (N. C.) Law, 128. 5 Willingham v. Long, 47 Ga. 540. -- Merritt v. O'Neil, 13 Johns. (N. Y.) 477 ; Jackson v. Hills, 8 Cowen (N. Y.), 294 : Jeffries v. Zane, i Miles (Penn.), 287 ; see Chirac v. Reinicker, 1 1 Wheat. 296. ' Cavender v. Smith, 8 Iowa, 360. MESNE PROFITS AND DAMAGES. 433 though they had never been in possession except by their guardian.^ It is clear that the action maybe brought against a corporation.^ In Eastwick v. Saylor,^ it appeared that a party volun- tarily, and with plaintiff's consent, was joined as defendant in ejectment for the purpose of testing his own title, and trying the right of possession of the land. The court de- cided that the fact that he was thus united with the defend- ants, as against the title of the plaintiffs, did not render him jointly liable, with the other defendants, for mesne profits when he was powerless to prevent the trespasses of the other defendants, and did not aid, abet or encourage their commission. In Morris v. Beebe,* in the Supreme Court of Alabama, it was said that because mesne profits and damages could be recovered in the action of ejectment, the rule as to the proper parties defendant was not changed, and, at least in that State, it was never intended to authorize the introduc- tion of defendants against whom no other judgment could be rendered than for mesne profits, while against others a judgment for both the mesne profits and the possession was pronounced. The court said that judgments at law were not capable of being so split up and divided. This question of parties defendant constitutes an impediment, additional to those already considered,® to the joinder and trial of the action to recover the possession of the land with the claim for mesne profits. § 659. Possession of defendant. — While it is the general rule that the plaintiff must furnish proof that the defendant was a disseizor, and withheld the possession, it seems that the objection to the absence of such proof must be taken in the court below. Thus in Hynes v. McDermott,^ it was claimed on appeal that a judgment for the entire mesne profits had - Molton V. Mumford, 3 Hawks (N. C), 483. 2 McCready v. Guardians, &c., 9 S. & R. (Penn.) 94; see § 250. 3 85 Penn. St. 15. "54 Ala. 300. 5 See §651. ''82 N. Y. 41. S8 434 MESNE PROFITS AND DAMAGES. been rendered against two of the defendants, no proof having been furnished that they had occupied the entire premises. The court held that as the record did not show that the point was brought to the attention of the trial court, it was not available on appeal. § 660. Co-tenants. — -Trespass for mesne profits may be maintained by one co-tenant against his companion, as a necessary sequence to a judgment in ejectment.^ The suc- cessful co-tenant must, however, take possession of the prop- erty within a reasonable time after the recovery in eject- ment. In Hare v. Fury,^ a month was considered a reason- able time, and the co-tenant was allowed to recover mesne profits from the date of the demise to one month after judg- ment. And the tenant cannot recover damages or mesne profits for the period during which the possession or occu- pancy was not adverse,^ and when the proof of ouster is in- sufficient or unavailable, as the basis of a recovery in chief, it is equally unavailable as a ground for the recovery of damages resulting from it.* If there is no proof of an ouster, except a denial of the plaintiff's title and right of entry in the answer, the plaintiff in ejectment can recover damages only from the date of the institution of the suit.' The principles regulating the recovery and allowance for improvements, between tenants in common, will be present- ly considered,® but it may be here observed, that the co- tenant in possession is not chargeable with rent paid by a tenant in permanent improvements on the land, such as 1 Goodtitle v. Tombs, 3 Wils. 121 ; Hare v. Fury, 3 Yeates (Penn.), 13; Ben- net -v. Bullock, 35 Penn. St. 367; Lane v. Harrold, 72 Penn. St. 267; Carpentier V. Mitchell, 29 Cal. 333; Camp v. Homesley, 11 Ired. (N. C.) Law, 212; Critch- field V. Humbert, 39 Penn. St. 427 ; Langendyck v. Burhans, 1 1 Johns. (N. Y.) 461 ; Early v. Friend, 16 Gratt. (Va.) 21 ; see Bryan v. Averett, 21 Ga. 401. ' 3 Yeates (Penn.), 13. 3 Carpentier v. Mendenhall, 28 Cal. 484. , ■> Carpentier v. Mendenhall, 28 Cal. 484 ; see Chap. IX. = Miller v. Myers, 46 Cal. 535. « See § 711. MESNE PROFITS AND DAMAGES. 435 clearing, fencing, &c.^ The preponderance of authority seems to be in favor of holding that one co-tenant of real property cannot recover from his companion on account of an appropriation by the latter, to his own use, of the pro- ducts of the common property, where there is no agreement to account, and the latter has not ousted or excluded the former from the enjoyment of the common property.^ § 661. Executors. — In a case which arose in Tennessee, it was said that an executor could not maintain an action for mesne profits, even though he was clothed by the will with the power to sell the lands and divide the proceeds ; the rents and profits are incident to the ownership of the land, and, consequently, this remedy belongs exclusively to the person having title to the land.^ Where, however, one from whom the land had been wrongfully taken died without recovering possession, it was held, in New York, that all claim for damage done to the estate, and for the rents and profits, down to the time of his death, went to his executor and belonged to the personal estate ; * and, in North Carolina, where a party died, the executors were held entitled to the mesne profits and damages for waste, up to the date of her death ; while those which accrued subsequently, and up to the time when the premises were vacated by defendant, went to the heirs and devisees.^ Under the early procedure, as we have seen, the claim for mesne profits, being founded upon a tort, and enforced by an action of trespass, died with the person.* This ' Walker z/. Humbert, 55 Penn. St. 407; see Reed v. Jones, 8 Wis. 421, 464. 2 Kean v. Connelly, 25 Minn. 222; Ragan v. McCoy, 29 Mo. 356; Dresser V. Dresser, 40 Barb. (N. Y.) 300; Pico v. Columbet, 12 Cal. 414 ; Wilcox v. Wil- cox, 48 Barb. (N. Y.) 327; Henderson v. Eason, 17 Q. B. 701 ; Israel v. Israel, 30 Md. 120. See contra. Early v. Friend, 16 Gratt. (Va.) 47 ; Shiels v. Stark, 14 Ga. 435 ; Hayden v. Merrill, 44 Vt. 348. ' Brown v. McCloud, 3 Head (Tenn.), 280. < Hotchkiss V. Auburn, &c. R. R. Co. 36 Barb. (N. Y.) 600. s King V. Little, TJ N. C. 138; see Blight ■?/. Ewing, 26 Penn. St. 135; Cobb V. Biddle, 14 Penn. St. 444. « See § 648. 436 MESNE PROFITS AND DAMAGES. is now generally changed by statute. Where the disseizee dies his personal representatives are usually entitled to the mesne profits up to the date of his death, and where the disseizor dies, the claim may, in some States, be asserted against his personal representatives.^ § 662. Recove7y of nominal damages not a bar. — The recovery of nominal damages, in the action of ejectment, is not a bar to an action for the actual damages and mesne profits. Nominal damages are necessary only to entitle the plaintiff to recover costs in the ejectment and to establish title, and are not given in satisfaction of the actual damages and mesne profits which constitute an independent cause of action.^ § 663. For what periods m-esne profits are recoverable, — The claim for mesne profits being founded upon a tort the plaintiff is required to make specific proof of his case. The defendant will not be held liable for mesne profits taken prior to his own entry, by those under whom he claims title,^ but can be charged only for the rents and profits accruing during the time he was actually in possession of the dis- puted lands, in the character of a disseizor.* And a plaintiff in ejectment recovers mesne profits only from the time his right to the possession accrued. Hence, an execution pur- chaser can have judgment for mesne profits from the date of the sheriff's deed.^ In other words, damages and mesne profits can only be computed from the time when the title was cast on the plaintiflF." § 664. Damages assessed down to day of trial. — The damages should be assessed down to the day of trial, upon the same principle that interest is recovered to that time in an action upon a money demand. The profits in one case, 1 See Hotchkiss v. Auburn, &c. R. R. Co. 36 Barb. (N. Y.) 600; Rhodes w. Crutchfield, 7 Lea (Tenn.), 518. = See Van Men v. Rogers, i Johns. Cases (N. Y.), 281 ; Davis v. Delpit, 25 Miss. 445. 3 Gardner v. Granniss, 57 Ga. 539. < Jacks v. Dyer, 31 Ark. 334. ^ Clark V. Byreau, 14 Cal. 634. e Brewster v. Buckholts, 3 Ala. 20. MESNE PROFITS AND DAMAGES. 437 and the interest in the other, are but the incidents of the cause of action.^ § 665. Measure of damages. — In Morrison v. Robinson,^ the Supreme Court of Pennsylvania said : " Trespasses to personal property are usually very easily measured by the value of the property at the time it was taken or destroyed, or by the degree of impairment of its value. But it is not so with real property withheld from the rightful owner ; for it is entirely different in its character. Generally, land is not exclusively adapted to any one special use, like most articles of personal property, but may be turned to all im- aginable uses, and its condition indefinitely altered at the pleasure of its occupant. Out of these changes of use and condition often arise very complicated questions, in the esti- mation of damages." The general rule is that the plaintiff recovers the annual value of the land from the time of the accruing of his title.* The right to interest will be consid- ered presently. The authorities show that the rule as to damages, in an action of ejectment, was very uncertain at common law.* Mr. Adams says : " " The jury are not con- fined, in their verdict, .to the mere rent of the premises, al- though the action is said to be brought to recover the rents and profits of the estate, but may give such extra damages as they may think the particular circumstances of the case may demand." In Goodtitle v. Tombs,® Gould, J., said : " The plaintiff in this case is not confined to the very mesne profits only, but he may recover for his trouble, &c. I have known four times the value of the mesne profits given by a > McCrubb v. Bray, 36 Wis. 333; see Bell v. Medford, 57 Miss. 31 ; Whissen- hunt V. Jones, 78 N. C. 361 ; Dawson v. McGill, 4 Whart. (Penn.) 230 ; New Or- leans V. Gaines, 15 Wall. 624; Love v. Shartzer, 31 Cal. 487 ; Dean v. Tucker, 58 Miss. 487 ; Ringhouse v. Keener, 63 111. 230. 2 31 Penn. St. 456. 3 Sedgwick on Damages (7th ed.), vol. I, p. 251 [124]; see New Orleans v. Gaines, 15 Wall. 624, 632; Vandevtiort v. Gould, 36 N. Y. 639-647. ' < See Woodhull v. Rosenthal, 61 N. Y. 382-394. ' Adams on Ejectment (4th Am. ed.), p. 459 [*39i]. ^ 3 Wils. 118-121. 438 MESNE PROFITS AND DAMAGES. jury in this sort of action of trespass ; if it were not to be so sometimes, complete justice could not be done to the party injured." In the same case, Chief Justice Wilmot added : " Damages are not confined to the mere rent of the premises ; but the jury may give more, if they please." In Goodtitle v. North/ it was held that bankruptcy was not a plea in bar to an action of trespass for mesne profits, as the damages were unascertained. Duller, J., said : " The dam- ages here are as uncertain as in an action of assault." Lord Mansfield remarked : " The plaintiff goes for the whole damages occasioned by the tort, and when damages are un- certain, they cannot be proved under a commission of bank- ruptcy." Ashhurst, J., added : " The plaintiff" goes for a com- pensation in damages, the amount of which is uncertain, and cannot be sworn to before the commissioners, but must be ascertained by a jury upon all the circumstances." In Dewey v. Osborn,^ the court said : " The damages in that action [mesne profits] are not limited to the rent. Extra damages may be given." "As to the amount of damages," said Washington, J., " the jury are the only proper judges ; there is no general rule, and the quantum depends on the circumstances of the case."^ In Hanna v. Phillips,* on the other hand, where the judge charged the jury that they were not to be limited or confined in estimating a verdict to the mere rent of the premises, but might give such extra dam- ages as they considered the particular circumstances of the case demanded, this was held to be error, on the ground that the jury should have been limited by the annual rent, or by some other definite standard. In Bullock v. Wil- son,® the court charged that the damages were the profits which the defendant had derived from the land. This, also, was held to be error, as the plaintiff" was entitled to recover the damages which he had sustained by reason 1 2 Doug. 584. 2 4 Cowen (N. Y.), 329, 338. 3 Brown v. Galloway, Peter's C. C. 291. * I Grant (Penn.), 253. 5 3 Port. (Ala.) 382. MESNE PROFITS AND DAMAGES. 439 of being kept out of the possession, and these were never increased or diminished by the profits acquired by the de- fendant from his occupancy. It is clear, as will presently be shown, that the defendant is answerable for all actual damage, waste, and injury to the premises, as well as mesne profits.^ Mr. Sedgwick says:^ " It is plain that the measure of compensation, which we are now considering, has been involved in confusion by the technical character of our forms of action. ' The dicta on the subject,' says Gib- son, C. J., in Pennsylvania, ' seem to have been predicated by judges who had no precise idea of it ; for they have not defined it by any landmarks.'^ The action of trespass being one of tort, admits of any evidence in aggravation ; and, therefore, in one sense, it is correct to say, that the damages in this proceeding are entirely at large and under the control of the jury. But, on the other hand, there is nothing necessarily in the action of the nature of a trespass. The property may have been withheld, and the rents re- ceived, in entire good faith. In this case the allegations of force, etc., are purely fictitious ; and it certainly never would be tolerated on such facts, that the jury should give any damages beyond the actual value of the income." The authority of the early cases which laid down the principle that the jury might determine the amount of damages and mesne profits in ejectment, without any' practical guide or limitation in considering the evidence,. has been very greatly impaired and restricted by modern decisions and legislation. The nature of the subject-matter of conten- tion is such as to practically render spepific evidence of the actual loss possible. In this respect, the remedy for mesne profits differs essentially from actions of assault, libel or slander, or actions of pure tort. Hence, in Alexander v. Herr,* cited by Mr. Sedgwick, where the jury ' Huston V. Wickersham, 2 W. & S. (Penn.) 308 ; see Goodtitle v. Tombs, 3 Wils. 118-121 ; Field v. Columbet, 4 Sawyer, 523 ; but see Emrich v. Ireland, 55 Miss. 390. ' 2 Sedgwick on Damages (7th ed.), vol. I, p. 260. = Alexander v. Herr, n Penn. St. 537. " n Penn. St. 537. 440 MESNE PROFITS AND DAMAGES. were allowed to assess such other damages as they might think the plaintiff entitled to recover, the verdict was set aside. In Kille v. Ege,^ the rule is stated to be that the plaintiff may recover for the fair rent or yearly value of the premises, and for injury done thereto.^ In Morrison v. Rob- inson,* the rule is laid down that " compensation is the pur- pose of the action." In Campbell v. Brown,* the damages were said to be not the actual yield or income of the property, but the fair annual value if prudently and judiciously man- aged. In Cutter v. Waddingham,^ the court say : " The actual annual value of the property detained, with interest thereon, is the measure of damage in ejectment." In Averett v. Brady,^ it was said that the plaintiff must prove " the value of the mesne profits, to be estimated by the amount of the crops taken, or by the fair annual value of the premises." In Boiling v. Lersner,' the plaintiff" was allowed to recover the annual value of the lands " in the hands of a prudent and discreet tenant, upon a judicious system of husbandly." These cases show clearly that the damages and mesne profits, for which a disseizor can be held accountable, are now limited to strict compensation, and are no longer at large, or in the absolute discretion of the jury. Precise proof of value, injury, etc., must be furnished ; the items of the loss and damage must be shown, and the verdict should conform to and reflect the details of the evidence.^ The action, as we have said, is now largely treated as if it were one of contract. The nature of the injury, and the fact that the disseizor, in the majority of cases, withholds the lands under a belief of title in himself, renders it improper to punish the offender by awarding exemplary damages in this action.^ ' 82 Penn. St. 107, 112. = See Huston v. Wickersham, 2 W. & S. (Penn.) 308. 3 31 Penn. St. 456. 4 2 Woods, 349. 5 33 Mo. 269-286. « 20 Ga. 523-527. See Phillips on Evidence, vol. IV, p. 315. ' 26 Gratt. (Va.) 36-58. 8 See § 674. 9 In cases of a willful withholding of the land for the purpose of oppression, or where circumstances of malicious aggravation are proved, exemplary damages may possibly be given. See Sedgwick on Damages (7th ed.), Vol. I, p. 260. MESNE PROFITS AND DAMAGES. 44I § 666. Rule in New York. — In Holmes v. Davis,^ the measure of damages, in the action for mesne profits, is held to be that which would obtain in an action of assumpsit for use and occupation ; and it was held that under the' Revised Statutes of that State, the compensation is to be adjusted as upon contract, and not upon the footing of a tort. In Low V. Purdy,^ it was said that the compensation was to be ad- justed as upon a contract for rent. In the later case of Vandevoort v. Gould,® the rule is recognized that the meas- ure of damages is that which would obtain in assumpsit for use and occupation, and the court say further : " The defend- ant's possession was wrongful, and the claim for damages for this wrong was in the nature of a claim for a tort. The question was, how much was the plaintiff damaged on the day of the trial by the defendant's wrongful act, which was continuous to that period. And the same considerations of convenience and propriety should here control, as in other cases where a recovery in one action is permitted in order to prevent unnecessary litigation by multiplicity of suits. * * * The allowance of interest or the fair annual value of the use and occupation of the premises during the period they were wrongfully withheld, was a proper subject for the consideration of the jury in determining the amount of damages which the plaintiff was entitled to recover. Such damages are generally designated mesne profits. That is to say, what the premises were reasonably worth annually, with the interest to the time of the trial. Less than this would not give the plaintiff full and complete indemnity for the injury to his rights."* § 667. Interest on the value of the fee. — In Magwire v. Labeaume, in the St. Louis Court of Appeals,' it appeared that a real estate expert, examined as a witness for the ' 19 N. Y. 488. 2 2 Lans. (N. Y.) 422. 3 36 N. Y. 639-647. * See V\?oodhull v. Rosenthal, 61 N. Y. 382; see New Orleans v. Gaines, 15 Wall. 624. * 7 Mo. App. 179-185. 442 MESNE PROFITS AND DAMAGES. plaintiff, had given his opinion as to the rental value of the lot in suit, and upon cross-examination had stated that he computed a rate of interest annually upon what he believed to be the value of the fee. The court said : " The reason was a bad one. The jury are not allowed to arrive at the rental value of unimproved real estate by such a process of calculation. As the witness was an expert, and had, it must be supposed, other means of arriving at the rental value, the court, we think, committed no error in letting the testi- mony go to the jury for what it was worth." § 668. Damages for waste and trespass. — Damages for waste may be included in the recovery in an action for mesne profits, if counted for and demanded in the declara- tion,^ and damages for actual injuries to the premises;^ so may damages for trespasses committed upon the land, such as cutting or destroying timber, pulling down fences, and destroying the growing crops.^ Hence a recovery for mesne profits is a bar to trespass quare clausuwi fregit^ In Lippett V. Kelley,^ in the Supreme Court of Vermont, it was held that the plaintiff, in addition to mesne profits, might recover damages resulting from building and grading a road across the premises, and depositing stones and dirt thereon, where- by the land was injured and depreciated in value, provided the claims for such damages were properly alleged in the declaration.^ The practice, however, is not uniform. Thus in Indiana, damages for waste or injury to the freehold are not an incident to the action for mesne profits, and should lEmrich V. Ireland, 55 Miss. 390; Morrison v. Robinson, 31 Penn. St. 456; Field V. Columbet, 4 Sawyer, 523 ; Alsop v. Peck, 2 Root (Conn.), 224 ; Lee tj. Bowman, 55 Mo. 400. 2 Huston V. Wickersham, 2 W. & S. (Penn.) 308 ; Cooch v. Geery, 3 Harr. (Del.) 423 ; Johnson v. Futch, 57 Miss. 73. - Hillman v. Baumbach, 21 Texas, 203; Bonner v. Wiggins, 52 Texas, 125; see Barton Coal Co. v. Cox, 39 Md. i. 4 Cunningham v. Morris, 19 Ga. 583 ; see Morgan v. Varick, 8 Wend. (N. Y.) 587; Kuhnsj/. Bowman, 91 Penn. St. 504. 546 Vt. 516-523; Whitledge v. Wait, Sneed (Ky.), 335. 6 See Strong v. Garfield, 10 Vt. 502 ; Walker v. Hitchcock, 19 Vt. 634. MESNE PROFITS AND DAMAGES. 443 not be joined with the claim therefor in the action of eject- ment.^ And in Pacquette v. Pickness,'^ the court held that where mesne profits were demanded in an ejectment, noth- ing more could be recovered than the value of the use and occupation of the premises, and that for injuries to the free- hold a separate action could be maintained. The damages for waste and injuries ought properly to be recovered in the judgment for rents and profits, and the cases holding otherwise are exceptional, and cannot be regarded as em- bodying a salutary rule of procedure. It may be here ob- served, that, in equity, interest should be allowed on dam- ages caused by depreciation from waste, from the time when the plaintiff w^as let into possession to the date of the assess- ment or report.^ § 669. Damages after judgment. — A lessor in an action of ejectment may bring trespass quare clausum /regit against the defendant, or his servants, for an injury done to the freehold intermediate the verdict and habere facias pos- sessionem executed.* § 670. Interest on mesne prof ts. — The rule that interest cannot be allowed upon unliquidated demands has been greatly modified by the modern authorities. In Parrott v. The Knickerbocker Ice Company,* Rapallo, J., said : " In cases of trover, replevin and trespass, interest on the value of property unlawfully taken, or converted, is allowed by way of damages, for the purpose of complete indemnity of the party injured, and it is difficult to see why, on the same ' Bottorff V. Wise, 53 Ind. 32 ; Woodruff v. Garner, 27 Ind. 4-8. = 19 Wis. 219. 3 Worrall v. Munn, 38 N. Y. 137. Under the practice in Virginia, where there is a claim for mesne profits and damages for waste, and also a claim on the part of the defendant for improvements, the various claims must all be passed upon by the same jury. Goodwyn v. Myers, 16 Gratt. (Va.) 336 ; see Malone v. Stretch, 69 Mo. 25. See § 670. * Dewey v. Osborn, 4 Cow. (N. Y.) 329 ; see Cummings v. M'Gehee, 9 Port. (Ala.) 349. °46N. Y. 361. 444 MESNE PROFITS AND DAMAGES. principle, interest on the value of property lost or de- stroyed, by the wrongful or negligent act of another, may not be included in the damages." i' As the damages in the action for mesne profits must, under the modern cases, be proved by precise evidence of value, etc., and, as we have seen, are usually limited to strict compensation, the early rule as to the non-allowance of interest on unliquidated de- mands has ceased to have any practical bearing on the ques- tion. Besides this, the rents and profits have usually a fixed value, and come within the rule allowing interest on the recovery in cases where the subject-matter has a market value. In general, in actions ex delicto, it is in the discre- tion of the jury whether to allow interest by way of dam- ages or not,^ and it is not given by the court as matter of law, but is allowed or withheld by the jury in their discretion.'' In Rensselaer Glass Factory v. Reid,* the court lays down the general rule as follows: "Where money has been lent, advanced or expended, by request, and under an agreement to pay at a specific time, or where it has been had and received under a like agreement, then the allowance of interest may be safely referred to the principle of an implied contract to pay interest on default. * * * But where no time of payment is fixed, and where the duty to pay arises from the relative situation of the parties, it seems that it should be referred to a jury to determine whether damages shall be given by an allowance of in- terest." As damages for mesne profits are to be assessed 1 See Whitehall Trans. Co. v. N. J. Steamboat Co. 51 N. Y. 369; Brown v. Southwestern R. R. Co. 36 Ga. 377; Goddard v. Foster, 17 Wall. 124; Lindsey V. Danville, 46 Vt. 144. "On principle, we can see no reason for distinguishing between liquidated and unliquidated demands. Ifinterest is given as damages, it should be given to compensate the plaintiff and not to punish the defendant, and the fact that the amount is unliquidated cannot lessen the plaintiff's damages. If anything is due him he has a right to have it paid upon demand, and he loses the interest upon the amount, as much where that amount is unknown as where it is known." Sedgwick on Damages (7th ed.), vol. II, p. 180, note iii. 2 Walrath v. Redfield, 18 N. Y. 457. 3 Richmond v. Bronson, 5 Denio (N. Y.), 55 ; see Rensselaer Glass Factory z'. Reid, 5 Cowen (N. Y.), 616. ■• 5 Cowen (N. Y.), 616. MESNE PROFITS AND DAMAGES. 445 down to day of trial/ so also the interest which is but a por- tion of the damages, should be allowed down to the same time, in order to give the plaintiff full indemnity for the in- jury to his rights.^ In Jackson v. Wood,' Nelson, J., said : " As rents in the city of New York, where these premises are situate, are payable at the usual quarter days (i R. S. 736), I think the referees, in ascertaining the value of the mesne profits, were warranted in adding to the annual rent the in- terest quarterly. So much the plaintiff has lost, and the de- fendant enjoyed, by means of the wrongful possession."* So interest is recoverable on the annual value of the prem- ises from year to year.^ Where a vendee of land was evicted, it was held that he could recover against his vendor only the value of the land at the time of the purchase, with in- terest for so much time as he had been compelled to pay mesne profits.*' So where the evicted vendee had paid no mesne profits to the true owner, it was held that such mesne profits, and the interest on the purchase money, were equiva- lents to each other, and when one was released the other could not be recovered.'^ The fact that the plaintiffs and defendants are tenants in common makes no exception to the general rule, as to the allowance of damages and inter- est,^ and where one tenant in common is in possession, he > McCrubb v. Bray, 36 Wis. 333; Whissenhunt v. Jones, 78 N. C. 361 ; New Orleans v. Gaines, 15 Wall. 624 ; Love v. Shartzer, 31 Cal. 487 ; Dean v. Tucker, 58 Miss. 487. See § 664. 3 Vandevoort v. Gould, 36 N. Y. 647 ; New Orleans v. Gaines, 1 5 Wall. 624 ; Boiling V. Lersner, 26 Gratt. (Va.) 36. 3 24 Wend. (N. Y.) 443. •I See Drexel v. Man, 2 Penn. St. 276; Sopp v. Winpenny, 68 Penn. St. 78. '" Low V. Purdy, 2 Lans. (N. Y.) 422 ; see Worrall v. Munn, 38 N. Y. 137. ^ Fernander v. Dunn, 19 Ga. 497 ; see Staats v. Ten Eyck, 3 Caines (N. Y.), HI ; Kerley v. Richardson, 17 Ga. 602; Caulkins v. Harris, 9 Johns. (N. Y.) 324; Bennet z/. Jenkins, 13 lb. 50; see, further, Clark w. Parr, 14 Ohio, 118; Pitcher v. Livingston, 4 Johns. (N. Y.) i ; Guthrie v. Pugsley, 12 lb. 125 ; Wager v. Schuy- ler, I Wend. (N. Y.) 553. ' White V. Tucker, 52 Miss. 145 ; see Rawle on Covenant for Title, p. 93 et seq. ; Patterson v. Stewart, 6 Watts & S. (Penn.) 527; Flint v. Steadman, 36 Vt. 210; Guthrie t/. Pugsley, 12 Johns. (N. Y.) 125. * Cutter V. Waddingham, 33 Mo. 269. 446 MESNE PROFITS AND DAMAGES. must pay interest to his co-tenants upon the rents found to be due for each year, from the end of such year until pay- ment.^ § 671. Judgment conclusive as to mesne profits. — The recovery in ejectment is conclusive evidence of the title of the plaintiff from the date of the demise laid in the declara- tion against the defendant, and his servants, v\^ho will not be allowed to show title in another in bar of an action of trespass.^ This rule is salutary ; the parties have had their day in court upon the question of title. If the plaintiff claims mesne profits for a period prior to the demise in the declaration, the title is open for investigation. § 672. Judgment not conclusive as to length of defend- ants occupation. — In Miller v. Henry,^ in the Supreme Court of Pennsylvania, it was declared to be well settled that the judgment in ejectment was not conclusive evidence as to the length of time the defendant had been in possession, and such is undoubtedly the general rule. The length of the occupancy is not in issue in the ejectment. § 673. When judgment not conclusive. — In Thompson v. Clark,* it appeared that the plaintiff had recovered the lands in ejectment against B., and had been put in posses- sion. Plaintiff then brought this action against C. for rents and profits. It appeared that C. rented from one N., not from B. the defendant in ejectment. Plaintiff proved the judgment in ejectment against B., and the filing of a lis pendens, and then rested. The court granted a nonsuit, and it was held on appeal that the nonsuit was properly > Early v. Friend, 16 Gratt. (Va.) 21. As to when interest will not be allowed on rents, see Allen v. Smith, 63 Mo. 103. 2 Dewey v. Osborn, 4 Cow. (N. Y.) 329 ; Chirac v. Reinicker, 11 Wheat. 280; Baron v. Abeel, 3 Johns. (N. Y.) 482; Kuhns v. Bowman, 91 Penn. St. 504; Drexel v. Man, 2 Penn. St. 271 ; Man v. Drexel, 2 Penn. St. 202. 3 84 Penn. St. 33. See Bailey v. Fairplay, 6Binn. (Penn.) 450; Sopp v. Win- penny, 68 Penn. St. 78 ; Huston v. Wickersham, 2 W. & S. (Penn.) 308. - 4 Hun (N. Y.), 164. MESNE PROFITS AND DAMAGES. 447 granted, as the lis pendens only affected the defendant, and those claiming under him, and the judgment was conclusive only upon the parties, and their privies, and as the defendant in this action did not rent from B., the defendant in eject- ment, or claim under him, the judgment was not binding upon or evidence against him.^ § 674. Evidence as to mesne profits. — A verdict for mesne profits cannot of course be upheld when there is no evidence to sustain the finding.^ There must be proof of the amount of the mesne profits,^ or of the value.* So also, where there was no conflict of evidence as to the rental value of the land, and the jury, having found for the plaintiff for the land, failed to bring in any verdict for the damages, the judgment was reversed on the ground that it did not con- form to the uncontradicted testimony.^ These cases illus- trate the principle already stated that the damages are usu- ally limited to compensation, and the recovery is largely based upon contract, and the assessment is not left to the absolute discretion of the jury. § 675. Income from, saw-m.ill and site. — In ejectment to recover a mill site having a steam saw-mill upon it, the mesne profits may embrace the rent of the mill and of the site as one establishment, and the whole may be treated as realty in estimating the plaintiff's damages. The court said : "Whatever would be rent as between landlord and tenant, is mesne profits as between the parties in ejectment."^ § 676. From ferry. — So in an action for the mesne profits of a ferry landing in Georgia, the receipts of the ferry, de- ' See Chirac v. Reinicker, 1 1 Wheat. 280-296. - Brown v. Colson, 41 Ga. 42. 3 Eaton V. Freeman, 58 Ga. 129. * Mooring V. Campbell, 47 Texas, 37. 5 Duncan v. Jackson, 16 Fla. 338. In Gill v. Gill, 37 Penn. St. 312-314, in the Supreme Court of Pennsylvania, it was held that any attempt to settle, in an action of ejectment, the damages due from one party to the other for breach of a con- tract, which was the foundation of no title, was dangerous and impracticable. « Morris V. Tinker, 60 Ga. 466. 448 MESNE PROFITS AND DAMAGES. ducting the expenses of fitting it up and running, it, were held to be the amount properly recoverable.^ So in the Supreme Court of Texas it was held that the net profits of a ferry were properly assessed, as part of the damages sus- tained by the detention of the land in connection with which the ferry was operated.^ It has been shown that though ejectment will not lie for a right or privilege which is a mere incorporeal hereditament, yet when an ejectment is brought for lands, the rights and privileges appurtenant to the lands may be recovered therewith.^ The cases just considered tend to establish the principle that the income from incorporeal rights, which are appurtenant to the land, may be considered in estimating the damages and mesne profits when the land itself is recovered. § 677. Rules as to ore and mines. — In Ege v. Kille,* it ap- peared that the defendants were bona fide occupants under color of title, and had expended large sums of money in de- veloping the mines upon the property and making perma- nent improvements of great value. It was held that they should be charged only with the value in place of the ore removed.® The court said, that " Ore leave, or the right to dig and take ore, can have no general market value." The value of ore in place is to be ascertained by deducting the cost of mining, cleansing, and delivering the ore in market from its market value when delivered — the difference being its value in place.* § 678. Income from improvements. — An important ques- tion presents itself in cases where the defendant has occupied the land in good faith, under claim and color of title, as to whether or not, in estimating the mesne profits, he shall be J Averett v. Brady, 20 Ga. 523. 2 Dunlap V. Yoakum, 18 Texas, 582. 3 See § 102. i 84 Penn. St. 333. 5 See Hardie v. Young, 53 Penn. St. 176; Forsyth t/. Wells, 41 Penn. St. 291. « See Clowser v. Joplin Mining Co. 4 Dillon's C. C. 469, note ; Coleman's Ap- peal, 62 Penn. St. 278; Barton Coal Co. v. Cox, 39 Md. i. MESNE PROFITS AND DAMAGES. 449 charged with the increase of rents and profits of the land resulting from the improvements which he has placed upon it, or, in other words, with the income from the improvements. Thus in Nixon v. Porter,^ it appeared that the defendant in ejectment had made improvements which had been destroyed by casualty, so that no permanent value was imparted by them to the land, and he was therefore entitled to no com- pensation for them. The court held that he was not liable for the enhanced rent of the premises during the existence of the improvements. And where the court found that there would have been no rents from the locus in quo with- out the improvements made thereon by the occupants, it was held to be error to charge such occupants with rents , which were but the results of their own labor. ** In Jackson V, Loomis,^ Savage, J., said : " Most clearly the defendant should not be compelled to pay an' enhanced rent in conse- quence of his own improvements." So in Wisconsin, in es- timating the value of the use of the premises in controversy, the value of the use of the improvements made by the de- fendant is to be excluded.* Especially should the defendant not be charged with the income from improvements, in esti- mating mesne profits, where he is so situated as not to be entitled to claim allowance for his expenditures in making the improvements;® and if the mesne profits are to include the income from the improvements; then it would seem but fair that the occupant should be allowed interest on his expen- ditures, instead of being awarded their value at the time of the trial. It has been held in Kentucky that if a bona fide occupant is allowed prime cost for his improvements, then he should pay the increase of income from the time of making them.^ ' 38 Miss. 401. 2 Adkins z/. Hudson, I9lnd. 392; Neale v. Hagthrop, 3 Bland (Md.), 551- 591 ; see Moore v. Cable, i Johns. Ch. (N. Y.) 385 ; Ewingz/. Handley, 4 Litt. (Ky.) 347-371: Hawkins e/. King, i Mon. (Ky.) 162. 3 4 Cowen (N. Y ), 168. " Davis v. Louk, 30 Wis. 308. ' Tatum V. McLellan, 56 Miss. 352. ' Bell V. Bamet, 2 J. J. Marsh. (Ky.) 517. 39 450 MESNE PROFITS AND DAMAGES. In Miller v. Ingram,^ in the Supreme Court of Mississippi, the court decided that, under the code of that State,^ the plaintiff in ejectment was entitled to the rent of the property as improved by the defendant. The reason for this in- novation is not apparent. In Texas, it vnzs, said that the established rule had been to allow the successful claimant for rents on the property as it was found at the time the action was commenced, or during the litigation. The court said that it would not be inequitable if the courts and juries, in estimating rents and profits, and value of improve- ments, were to take into consideration the fact that the occupant had lost his interest on the money expended in making improvements, and they considered that it would be in accordance with correct rules of equity for the legisla- ture to require this to be done.^ In Dungan v. Von Puhl,* the Supreme Court of Iowa said : " The owner is entitled to rents and profits according to the value of the land, for the purpose to which it is devoted by the occupant. The occu- pant is to pay what the use of the land is worth to him. In such a rule we think there will nothing be found in- equitable. It does not require the occupant to pay rent on improvements made by himself But it does require him to pay rent according to the increased adaptation of the land for the purpose for which it is used, though sucl:i adaptation has been brought about by the occupant's own labor." The estimate should be made upon all the land brought into a state of cultivation by him, and suitable for the raising of crops or for farming purposes ; but no rent is to be charged for the use of buildings or farm fixtures erected by the oc- cupant.^ The principle of law which prohibits the true owner from recovering, as mesne profits, the increase of income re- sulting from improvements made by the occupant, is mani- 1 56 Miss. 510. 2 Code of Miss. 1871, § 1557- - Evetts V. Tendick, 44 Tex. 570. ■< 8 Iowa, 263. s See also Wolcott v. Townsend, 49 Iowa, 456. MESNE PROFITS AND DAMAGES. 45 1 festly just and equitable. It cannot be said that the addi- tional profits are taken from the owner's land ; on the con- trary, they spring from practically an independent source. While it is true that the improvements pass to the owner by a recovery in ejectment, yet they are the property of the occupant until set oflF against mesne profits, or in some States till after their value is ascertained, and the occupant's lien upon the land therefor is satisfied. The strongest con- sideration to be urged against this policy of the law is the practical difficulty, often experienced, of separating the in- come of the improvements from the income of the land in its unimproved state. § 679. Costs. — Usually the taxable costs of the action of ejectment, if not recovered in the action itself, can be proved in the action for mesne profits, and included in the judgment in that action.^ It was held, in an early case in New Jersey, that all, the plaintiff's necessary expenses in the ejectment action, including counsel fees, might be in- cluded in the damages.^ This question came up in Tennes- see, in the case of White v. Clack,^ in which it appeared that the court, at the trial, had instructed the jury that, in addi- tion to the mesne profits, the plaintiff was entitled to recover such reasonable counsel fees as had been paid in the prose- cution of the action of ejectment. The court said that not- withstanding the discrepancy in the decisions, the estab- lished doctrine seemed to be that the plaintiff could recover not only the reasonable value of the rents and profits, but also the costs of the ejectment, and held that this meant "the legal and proper costs taxed in the action of eject- ment, not including counsel fees, or other expenses incurred by the plaintiff in the prosecution of the suit."* This is the ' Baron v. Abeel, 3 Johns. (N. Y.) 482 ; White v. Clack, 2 Swan (Tenn.), 230. 2 Denn v. Chubb, Coxe (N. J.), 466. ' 2 Swan (Tenn.), 230. * See Aslin v. Parkin, 2 Burr. 665 ; Symonds v. Page, i Cr. & J. 29 ; Brooke v. Bridges, 7 Moore, 471 ; Doe v. Davis, i Esp. 358 ; Doe v. Hare, 2 Dowl. P. C. 245; Doe V, Filliter, 13 M. & W. 47. 452 MESNE PROFITS AND DAMAGES. general rule. The costs of the ejectment suit, however, properly constitute no part of the damage recoverable against those who were not parties to that suit.^ § 680. Defenses. — In trespass for mesne profits, in Penn- sylvania, brouglit against two defendants, one paid a sum in settlement, and the action was discontinued as to him. It was held that the other was not thereby discharged;^ nor, as we have seen, is the defendant relieved by the fact he has paid rent to the disseizor as landlord.^ If the defendant abandons the possession during the pendency of the suit, he is of course not liable for mesne profits which subsequently accrued.* § 681. Bankruptcy of defendant. — The Supreme Court of Georgia has decided that the bankruptcy of the defend- ant, after verdict, is no ground .for staying proceedings, or for a writ of error in ejectment, especially where there was no judgment for mesne profits.^ In Goodtitle v. North,* it was held in England that bankruptcy was not a good' plea in bar to an action for mesne profits, and in Lloyd v, Peell,'' that an insolvent debtor's discharge was not a defense. These latter cases proceed upon the theory that the claim is founded in tort, and not being provable in bankruptcy is'not discharged. § 682. Inadequacy of purchase price does not mitigate damages. — The damages cannot be mitigated or lessened by evidence that plaintiff paid an inadequate price for the land sought to be recovered. It is no answer to a claim of right that the land cost the owner little or nothing.^ It is rather the owner's good fortune. Had he paid double value '- Leland v. Tousey, 6 Hill (N. Y.), 328. 2 Arundel v. Springer, 71 Penn. St. 398. ' Keane v. Cannovan, 21 Cal. 291 ; Trubee v. Miller, 48 Conn. 347, and cases cited. '- Mitchell V. Freedley, 10 Penn. St. 198. s Alston V. Wingfield, 53 Ga. 18. 6 2 Doug. 584. See Banister v. Scott, 6 T. R. 489 ; Charlton v. King, 4 T. R. 156; Hamond v. Toulman, 7 T. R. 612. ' 3 B. & Aid. 407. ! Love V. Powell, 5 Ala. 58. MESNE PROFITS AND DAMAGES. 453 for the land he could not have enlarged the claim for damages. § 683. Growing crops. — The general rule, as we have seen/ is, that when a defendant delivers possession of land under a writ of habere facias possessionem, he must also de- liver possession of the crops growing upon it ; and must surrender the land in its improved state.^ In New York, crops grown upon the disputed land by the tenant, during the pendency of an action of ejectment, belong to the land- lord. In that State, the commencement of an ejectment for non-payment of rent, is equivalent to re-entry, and when possession is gained, it relates back to the commencement of the action.* In Georgia, the plaintiff in ejectment, if successful, is entitled to the crops growing upon the planta- tion, unless he puts in issue and recovers, as mesne profits, the rent for that year. If the rents for the year are in- cluded in the recovery of mesne profits, then the defendant must be allowed to gather and carry away the crops.* In McLean v. Bovee,^ in the Supreme Court of Wisconsin, it appeared that the defendant had, before the suit, recovered possession of certain premises, in an action for the recovery of real property, and that he had been put in possession under the judgment, and had taken possession of a crop of wheat, part of which had been cut, and part of which was uncut, at thetime he took the land. The defendant in eject- ment brought suit to recover for the taking of the wheat, and it was held that, as the wheat was sowed long after the suit to recover the land was instituted, the crop belonged to the defendant, who had been the successful party in the eject- ' See § 563. ' McLean v. Bovee, i Am. R. 185; S. C. 24 Wis. 295 ; Adams on Ejectment (4th Am. ed.), p. 416 ; Altes v. Hinckler, 36 111. 275 ; Doe d. Upton v. Wither- wick, 3 Bing. 1 1 ; Hodgson v. Gascoigne, 5 B. & Aid. 88 ; Samson v. Rose, 65 N. Y. 411 ; see Lane v. King, 8 Wend. (N. Y.) 584; Jackson v. Stone, 13 Johns. (N. Y.) 447; Morgan v. Varick, 8 Wend. (N. Y.) 587 ; see § 563. 5 Samson v. Rose, 65 N. Y. 41 1 ; see Hodgson v. Gascoigne, 5 B. & Aid. 88. ■• Gardner v. Kersey, 39 Ga. 664. ^ 24 Wis. 295. 454 MESNE PROFITS AND DAMAGES. ment. The plaintiff, however, has no right to seize upon the products of the land, such as fodder, which had been pulled and stacked, and peas and beans, which had been gathered and stored in a crib, before the writ of possession issued.^ In Ray v. Gardner,^ it appeared that the plaintiff was in possession of a tract of land, under a claim of owner- ship, and had raised, gathered, and stacked a crop of oats upon it. Defendant, who also claimed the land, entered, without license, and carried away and converted the oats to his own use, and subsequently recovered the possession of the land. The defendant was held liable for the value of the crops.^ Stockwell v. Phelps,* was an action in the na- ture of replevin in the cepit for a quantity of hay. It ap- peared that the land from which the hay was cut, was, at the time of the cutting, in the possession of one Wild, who claimed the land as his own, and was holding it adversely to the plaintiffs, who had the title in fee. While thus hold- ing the actual possession, adversely to the plaintiffs, 'Wild sold and delivered the hay to the defendant, and plaintiffs thereupon instituted this action. It was held that an action in the nature of replevin in the cepit could only be brought when trespass could be maintained, that such a suit would only lie for dn injury to land when the plaintiff was in pos- session,® and that Wild being in the actual possession of the land, claiming it as his own, would be regarded as the owner, as to all the world, until after a judicial decision. The court said : " The remedy of the plaintiffs was a judg- ment against Wild for mesne profits in an action of eject- ment, or by action of trespass after having got possession of the land." ' Brothers v. Hurdle, lo Ired. (N. C.) Law, 490. ■^ 82 N. C. 454. = See Walton v. Jordan, 65 N. C. 170. < 34 N. Y. 363. 5 See Rich v. Baker, 3 Denio (N.Y.), 79; De Mott v. Hagerman, 8 Cowen (N. v.), 220. MESNE PROFITS AND DAMAGES. 455 § 684. Fixtures. — As between hostile claimants to min- ing lands, all the machinery and implements necessarily used in working the mine become part of the realty, whether fast or loose.^ By a recovery in ejectment the plaintiflF, as a gen- eral rule, becomes entitled to the fixtures put upon the land by the defendants or their lessees. § 685. Apportionment of mesne profits. — In ejectment for a tract of land, only a portion of which the defendant has improved, the jury, in assessing mesne profits, and the value of improvements, may deal with the entire tract together, although the defendant claims the part improved under a separate conveyance. The jury are not bound to deal with the different tracts separately in making their esti- mates.* In Jenkins v. Means,^ it appeared that the plaintiff's wall formed one side of a store room, and a narrow strip along the wall, inside of the room, constituted a part of the premises in dispute. It was held that the yearly rental value of the entire room might be proved, as a fact for the consideration of the jury, in estimating the mesne profits. In WoodhuU v. Rosenthal,* the plaintiff owned a leasehold interest in the rear portion of a city lot, and the defendants a similar interest in the front part. Defendants had taken possession of the entire lot. It was held that the true method of ascertaining the mesne profits, to which plaintiff was entitled, was to ascertain the rental value of the entire lot, and apportion it to the respective owners, according to their interests, giving the plaintiff his proper share. § 686. Statute of limitations. — The right of the suc- cessful party to recover mesne profits and damages is usu- ally limited in this country to six years.^ Where no statute ' Ege V. Kille, 84 Penn. St. 333 ; McMinn v. Mayes, 4 Cal. 209 ; see McRea v. Cent. Nat. Bank, 66 N. Y. 490, as to the general rule applicable to fixtures. ' Johnson v. Futch, 57 Miss. 73. ' 59 Ga. 55. * 61 N. Y. 382. ^ '" See Hill v. Meyers, 46 Penn. St. 1 5, and cases cited ; Jackson v. Wood. 24 Wend. (N. Y.) 443 ; Ringhouse v. Keener, 63 111. 230. 456 MESNE PROFITS AND DAMAGES. exists, the mesne profits may be recovered from the time when the plaintiff's right accrued. Thus in New Orleans v. Gaines,^ which, however, was an accounting supplementary to a decree in equity, the profits for fifteen years, with in- terest, were awarded. In New York, it has been held to . be unnecessary to plead the statute of limitations,^ for the right to the mesne profits is limited by statute in that State to six years, and for that period only can a recovery be had.* The statute in that State failed to specify when the six years, within which the plaintiff's recovery was limited, should commence or terminate. In Budd v. Walker,* it was held that the six years limitation was next before and up to the filing of the suggestion for mesne profits. The statute, of course, does not begin to run until the title to the property has been judicially determined, for no right to the mesne profits exists, or rather the right is suspended, until judgment is rendered in the original suit.^ Under the practice in Georgia, it has been held that if a part of the claim for mesne profits is barred by the statute of limitations, the statute to be availed of must be pleaded.* In Kansas, such damages only can be recovered as have accrued within three years prior to the commencement of the action.'' A plaintiff may show that a deficiency of profits in particular years, in- cluded in the period of recovery, has been compensated by an excess in years excluded from it by the statute of limita- tions. But the defendant cannot swell his claim by resort- ing to an inversion of the principle, which would, in effect, give him a right to recover expenses for a period during which he has elected to be irresponsible for profits.^ ' 15 Wall. 624. s Grout V. Cooper, 9 Hun (N. Y.), 326 ; Jackson v. Wood, 24 Wend. (N. Y.) 443- 3 Budd V. Walker, 9 Barb. (N. Y.) 493. < 9 Barb. (N. Y.) 493. See Avent v. Hord, 3 Head (Tenn.), 459. 5 New Orleans v. Gaines, 1 5 Wall. 624-633 ; Caldwell v. Walters, 22 Penn. St. 378 ; Avent v. Hord, 3 Head (Tenn.), 459 ; see § 649. « Gardner v. Granniss, 57 Ga. 539 ; see Field v. Columbet, 4 Sawyer, 523. ' Gatton V. ToUey, 22 Kans. 678. « Ewalt v. Gray, 6 Watts (Penn.), 427- MESNE PROFITS AND DAMAGES. 457 § 687. Mesne profits in equity. — The right to recover mesne profits is not limited to actions at law, or actions in the nature of trespass for mesne profits, but a recovery may- be had, in a proper case, in equity.^ Thus in Hill v. Cooper,^ in which case a decree was rendered finding that the defend- ant was a trustee for the plaintiff, and decreeing a convey- ance to plaintiff by defendant, it was held that the defend- ant could be called upon to account for the rents and profits of the land in that same suit in equity. So in South Caro- lina, a widow is entitled, in equity, when dower is assigned to her, to an account of the rents and profits from the time when her right to dower attached ; or if money be assessed in lieu of dower, to interest.* So on decreeing a restoration of land, possession of which had been obtained by fraud, the court ordered ixi account of the rents and profits to be taken, and after allowing for improvements, to be paid to the owners.* So an accounting for rents and profits was ordered in the famous case of New Orleans v. Gaines,** in which judgment had been entered in an equity suit, decree- ing possession of the premises in controversy to the defend- ant in error.* § 688. Taxes and assessments. — In Stark v. Starr,'' it was objected that the amount of money paid by the occupant, as an assessment for the improvement of the street adjoin- ' See Green v. Biddle, 8 Wheat, i ; Dormer v. Fortescue, 3 Atk. 128; Mad- dock's Chancery (ed. 1817), vol. I, p. 73 ; Grimes v. Wilson, 4 Blackf. (Ind.) 331 ; City of Apalachicola v. Apalachicola Land Co. 9 Fla. 340 ; Bains v. Perry, i Lea (Tenn.), 37; Worrall v. Munn, 38 N. Y. 137; Drury v. Conner, i Harr. & G. (Md.) 220; New Orleans v. Gaines, 15 Wall. 624. = 8 Oregon, 254. ' Clark V. Tompkins, i S. C. (N. S.) 1 19. < Searcy v. Reardon, i A. K. Marsh. (Ky.) i. 5 15 Wall. 624. " Equity will sometimes regard the special circumstances of the case where there are any pecuharities which render the rigid application of a general rule of law unsatisfactory, and will not always follow the analogy to be found in the rules for the assessment of damages at law. See especially Worrall v. Munn, 38 N. Y. 137. ' 1 Sa^vyer, 15. 458 MESNE PROFITS AND DAMAGES. ing the premises, was not an improvement " made upon the property," and hence not allowable as such. The court said that though this distinction was technical, it was neverthe- less substantial ; the assessment was, in reality, a tax, and payment of taxes upon property is not an improvement made upon it, however much such payment may indirectly enhance its value. It was, however, a proper deduction to be made from the gross rents of the property, in estimating the actual damages which the plaintiff had sustained by the defendant's wrongful withholding of the possession. It is the duty of the possessor to pay the taxes imposed by pub- lic authority.^ If the payment of the assessment by the occupant was only allowed by way of set-oflF as a permanent improvement, it would often happen that no allowance would be made for it whatever, as in this case the pavement put upon the street might be worn out, and have no present value, at the time the possession is surrendered. In Minne- sota the claimant may be required to repay to the occupant all taxes paid by the latter upon the land which were a valid charge thereon. This provision was held to be consti- tutional, and in eflfect to amount to a transfer of the lien or charge of the State to the person paying such tax.** It has been held in Missouri, however, that a plaintiff, after a recovery in ejectment, cannot be compelled to re- fund to defendant the amount of taxes paid by him while in possession. The decision is rested upon the doctrine that the payments were voluntary, and that no action can be maintained for money paid for another, except upon proof of a previous request, express or iriiplied, or a subse- quent assent or sanction.^ In Marvin v. Lewis,* in the New York Supreme Court, it appeared that the plaintiff had successfully prosecuted an action to cancel a conveyance made by his ancestor while of unsound mind. The defend- ' See Bright v. Boyd, i Story, 478; Ringhouse v. Keener, 63 111. 230. ' Madland v. Benland, 24 Minn. 372. ' Napton V. Leaton, 71 Mo. 358. ■• 61 Barb. (N. Y.) 49. MESNE PROFITS AND DAMAGES. 459 ants were in possession, claiming under divers mesne con- veyances from the grantee in the void deed, and had paid taxes and assessments. It was held that, in declaring the deed void, the court could not impose as a condition that it should be treated as good so far as to require the plaint- iff to repay what had been expended by the occupants for taxes and assessments. Even if the payment in good faith of taxes and assessments would seem in conscience to create an equity for reimbursement, there was no principle upon which a court of equity could exact it, any more than such reimbursement could be decreed where a person had committed the mistake of paying taxes on property which did not belong to him. So in Curtis v. Gay,^ it was held that taxes paid by the tenant did not constitute an improve- ment upon the land, and gave no increase to its value, and therefore did not constitute an item for which the tenant was entitled to be allowed.^ These cases reveal the somewhat confused state of the law on the subject of allowing a disseizor the amount paid by him for taxes, imposed upon the land during the period of his occupancy. His claim for reimbursement cannot properly be upheld as an improvement, for the reasons stated in Stark v. Starr ; ^ the payment is not a betterment or melioration made or placed upon the land} The amount of the taxes ought certainly to be deducted from the gross mesne profits of the land when mesne profits are claimed. The cases holding that an occupant who has paid taxes is no more entitled to be reimbursed than a person who has voluntarily paid money for the account of another, without request or sanction, lead to a harsh result, and show the strength of the inclination of the courts to protect the owner against any foreign interference with the manage- ment of his property. It may be urged that the disseizor ought in fairness to pay the taxes, as, during his occupancy, he is afforded the public protection and benefit, to maintain > 15 Gray (Mass.), 36. 2 See § 704. ^ i Sawyer, 15. ■• See § 700- 460 MESNE PROFITS AND DAMAGES. which the taxes are levied. The better policy, however, is to treat the tax as an annually accruing lien, and the stat- ute of Minnesota, which, in effect, transfers the public lien to the person paying the tax, certainly accomplishes sub- stantial justice. § 689. Abatement. — In Pennsylvania, the claim for mesne profits does not abate by the death of the defendant in ejectment, but survives against his personal representa- tives;^ and the rule is the same in Alabama,^ and is a sub- ject of statutory regulation in most of our States.* ' Arundel v. Springer, 71 Penn. St. 398. 2 Evans v. Welch, 63 Ala. 250. 3 See §§ 648, 661. CHAPTER XXVI. IMPROVEMENTS. I 690. Claim for improvements. 691. The civil law. 692. Griswold v. Bragg. 693. Improvements allowed in equity. 694. Bona fide occupant under claim of title. 695. Exception to the general rule. 696. Constructive notice not sufficient. 697. Claim and color of title. 698. Improvements in excess of mesne profits. 699. What constitutes an improvement. 700. Improvements must be made upon the land. 701. Ornamental improvements. 702. Perishable improvements. 703. Expenditures in experimenting for profits. 704. Payment of incumbrances. § 705. Improvements made after suit brought. 706. Improvements made by grantor or warrantor. 707. Basis of valuation — Apportionment. 708. Titles which will not support claim for improvements. 709. Improvements by husband on wife's land. 710. Mortgagee in possession. 711. Co-tenants. 712. Constitutionality of the improve- ment statutes. 713. In what tribunals improvements are recoverable. 714. Pleading. 715. Verdict. 716. Judgment for improvements. § 690. Claim for improvements. — The rightful owner of land is entitled to improvements or betterments placed upon it. They become a part of the freehold, and pass by the re- covery in ejectment ; that is, the plaintiff is placed in pos- session of the land in its improved condition.^ The term improvement is a comprehensive one, and includes any melioration, whereby land is converted from its natural state and condition, and rendered suitable for the use and enjoy- ment of man,^ The claim of a bona fide occupant, or pos- sessor of land, who has made useful, lasting or permanent improvements, or necessary outlays upon it, believing him- self to be the owner, to recover the value of such improve- ments, or expenditures, from the holder of the paramount title, when compelled to surrender up the possession, presents ' Bonner v. Wiggins, 52 Texas, 125; Lunquest v. Ten Eyck, 40 Iowa, 213; Parsons v. Moses, 16 Iowa, 440; McMinn v. Mayes, 4 Cal. 209; Russell v. Blake, 2 Pick. (Mass.) 507 ; see § 563. * Johnson v. Gresham, 5 Dana (Ky.), 547. 462 IMPROVEMENTS. many difficult and perplexing questions. The character of the occupant's possession,and the nature of the expenditures, or meliorations, for which allowance can properly be made, if at all, has been a subject of sharp contention, both in ac- tions at law, and suits in equity, in England and this country. The policy of the common law, as we shall presently see, is averse to making any allowance to a person adjudged to have held the possession of land, without right or title, for his labors and expenditures in improving the property, during the period of his wrongful occupancy. This princi- ple of the common law is founded upon the theory that the rightful owner of land is under no equitable or moral obli- gation to pay for improvements which he never authorized, and which originated in tort. In the case of a tortious con- fusion of goods, the law gives the entire property to the innocent party. So where an occupant expends his labor and money in making improvements upon lands of another, when the rightful owner desires to use his own property, and can only do so by availing himself of the improvements thus wrongfully placed upon it by the occupant, it would seem strange to hold that this wrong should prevail against a lawful exercise of a right incident to the ownership of property.^ In Townsend v. Shipp's Heirs,^ the court said : " If owners could not have the exclusive use and control of real estate, it would be in the power of others, by taking possession without permission and making larger improve- ments, to acquire a property in the soil. It would be mani- festly repugnant to the first principle of property, of society and of free government, that any person should pay for work and labor done without his consent." The practice of compensating the occupant for improvements, or of making deductions therefor, is also discountenanced as tending to encourage depredations upon private property.* Mr. Sedg- ' See Billings v. Hall, 7 Cal. i, and the authorities discussed. 2 Cooke (Tenn.), 293. 3 See Frear v. Hardenbergh, 5 Johns. (N. Y.) 271-277. IMPROVEMENTS. 463 wick says :^ "In regard to improvements made on the land while out of the possession of the rightful owner, the gen- eral principle of the English law, as well as our own, is, that the owner recovers his land in ejectment without being sub- jected to the condition of paying for improvements which may have been made upon it by any intruder, or occupant without title. The improvements are considered as an- nexed to the freehold, and pass with the recovery. Every possessor makes such improvements at his peril, and whether acting on an honest belief in his title or without color of right, the party who is ousted loses all benefit of his expen- ditures." Mr. Mayne,^ after remarking that the doctrine as to the allowance for improvements does not seem well founded as a mere matter of natural justice, says : " The improvements may be very valuable, but they may be quite unsuited to the use which the plaintiff intends to make of his land. Even if they are such as he would have wished to make, they may also be such as he could not have afforded to make. To compel him to pay for them, or to allow for them in dam- ages, which is all the same, is quite as unjust as it would be to lay out money in any other investment for a man, and then compel him to adopt it nolens volensP § 691. The civil law. — The civil law, however, drew a clear distinction between the possessor bon(s fidei and malce fidei: the latter was not allowed to recover for improve- ments or meliorations, but the former was permitted to mitigate the damages in an action brought by the rightful owner, by offsetting the value of permanent and useful im- provements, made upon the land in good faith, to the extent of the rents and profits claimed.* This distinction in the ' Sedgwick on Damages (7th ed.), vol. I, p. 246; see 2 Kent's Comm. p. 335; Lord Stair's Institutions, vol. I, p. 137; Frear v. Hardenbergh, 5 Johns. (N. Y.) 272. 2 Wood's Mayne on Damages, p. 554 [* 394], § 586; see Oberich v. Oilman, 31 "Wis. 495; Ford v. Holton, 5 Cal. 319. = Sedgwick on Damages (7th ed.), vol. I, pp. 247-257; see Pilling v. Armit- 464 IMPROVEMENTS. civil law has obtained in our courts, and, as we shall pres- ently see, it is an established principle, in the various States, to allow a bona fide occupant, under color of title, to miti- gate the claim for damages and mesne profits by introducing proof of the value of permanent and useful improvements.^ In some States a bona fide occupant may recover the value of the improvements in excess of the mesne profits, and his claim for the excess is made a lien upon the land, pay- ment of which may be exacted as a condition precedent to a recovery of the possession by the owner.^ § 692. Griswold v. Bragg. — In Griswold v. Bragg,^ one of the most recent and well considered cases upon the sub- ject of improvements, Shipman, J., said : " The statute prac- tically impresses upon the land of a successful plaintiff in ejectment a lien for the excess, above the amount due for use and occupation, of the present value of the improve- ments which have been placed on the land, before the com- mencemeht of the action, by a defendant or his ancestors or grantors in good faith, and in the belief that he or they had an absolute title to the land in question, and forbids occu- pancy by the plaintiff until the lien is paid. There is a natu- ral equity which rebels at tlie idea that a bona fide occupant age, 12 Ves. 84; Bright v. Boyd, i Story, 479, and authorities cited ; Just. Inst, lib. 2, tit. I, §§30-32; I Story's Eq. Jurisprudence, §§ 388-799a, note; Putnam V. Ritchie, 6 Paige (N. Y.), 390, and cases cited; Gr#en v. Biddle, 8 Wheat, i; Bell's Comm. on Law of Scotland, p. 139, § 538. " The disseizor shall recoup all in damages which he hath expended in amending of the houses." Coulter's Case, 5 Coke, 30 (vol. Ill, p. 60). " It is a maxim suggested by nature, that reparations and meliorations bestowed upon a house, or upon land, ought to be defrayed out of the rents. Governed by this maxim we sustain no claim against the proprietor for meliorations if the expense exceed not the rents levied by the bona fide pos- sessor." Kame's Equity, p. 421. 1 Woodhull -v. Rosenthal, 6i N. Y. 382 ; Davis v. Louk, 30 Wis. 308 ; Yount V. Howell, 14 Cal. 465 ; Mariow v. Adams, 24 Ark. 109; Wood v. Wood, 83 N. Y. 575 ; Walker v. Humbert, 55 Penn. St. 407 ; Ewalt v. Gray, 6 Watts (Penn.), 427; Morrison z/. Robinson, 31 Penn. St. 456; McKinly v. Holliday, 10 Yerg. (Tenn.) 477. 2 See Abbey v. Merrick, 27 Miss. 320 ; Hatcher v. Briggs, 6 Oregon, 31 ; Griswold V. Bragg, 18 Bla. C. C. 202. 3 18 Bla. C. C. 202. IMPROVEMENTS. 465 and reputed owner of land in a newly settled country, where unimproved land is of small value, or where skill in convey- ancing has not been attained, or where surveys have been uncertain or inaccurate, should lose the benefit of the labor and money which he had expended in the erroneous belief that his title was absolute and perfect. While it is true that improvements and permanent buildings upon land belong to the owner, yet, in a comparatively newly organized State, where titles are necessarily more uncertain than they are in England, there is an instinctive conviction that justice re- quires that the possessor under a defective title should have recompense for the improvements which have been made in good faith upon the land of another. The maxim, often repeated in the decisions upon this subject, ' Nemo debet lo- cupletari ex alterius incommodo,^ tersely expresses the an- tagonism against the enrichment of one out of the honest mistake and to the ruin of another. It is obvious that this statutory equity is not without occasional hardships. The true owijer may be forced to sell his land against his will, and may sometimes be placed too much in the power of capital ; but a carefully regulated and guarded statute should ordinarily be the means of doing exact justice to the owner." The occupant, as we have seen, is liable for rents and profits, but he cannot be said to have received the mesne profits which were expended upon or returned to the land in the form of betterments, and should not therefore, in equity and justice, be compelled to account for them. § 693. Improvements allowed in equity. — The principle of allowing bona fide occupants the valjie of improvements made upon lands, under a mistaken belief as to ownership, has a prominent place in equity jurisprudence. Indeed, the principles of the civil law from which, as we have said, the doctrine of allowing bona fide occupants for improvements is derived, has been introduced into the modern procedure, regulating mesne profits and improvements, largely through the instrumentality of and by analogy with equity pro- 30 466 IMPROVEMENTS. cedure, and is based upon equitable grounds.^ The im- provement acts have been construed merely to change the form of relief without altering its extent.^ If the plaintiff seeks the aid of a court of equity to enforce his title against an innocent person, who has expended money and labor upon lands, supposing himself to be the absolute owner, aid will be extended to him, in equity, only upon the terms that he shall make due compensation to such innocent per- son, to the extent of the benefits which will be received from the improvements.^ Questions of this character arise in equity where the plaintiff's claims are purely of an equi- table character, and the occupant seeking compensation for improvement was vested with the legal title.* If the plaintiff owns the legal estate, he is not entitled, as we have seen, to maintain ejectment in the form of a bill in chancery," or by a proceeding commonly denominated an ejectment bill,^ but must resort to an action at law, in the nature of ejectment, and determine the questions relating to damages and im- provements either in that action, or in the consequential action for mesne profits. Hence questions of the right of an occupant to defalk improvements, against the owner of the legal title, cannot generally arise in equity. § 694. Bona fide occupant zmder claim of title. — It is uniformly established, in the modern procedure, as we have said, that only a bona fide occupant of land will be permit- ' See Woodhull v. Rosenthal, 61 N. Y. 382-397; Green v. Biddle, 8 Wheat, i. 2 Townsend v. Shipp's Heirs, Cooke (Tenn.), 293. 3 See Bomberger v. Turner, 13 O. S. 263; Sale v. Crutchfield, 8 Bush (Ky.), 656; McLaughlin v. Barnum, 31 Md. 425; Bright v. Boyd, i Story, 494; Troost V. Davis, 31 Ind. 34; Mickles v. Dillaye, 17 N. Y. 80; Benedict v. Oilman, 4 Paige Ch. (N. Y.) 58 ; Green v. Biddle, 8 Wheat, i ; 2 Story's Eq. Jur. §§ 799a.- 1237 ; Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 390-405 ; Robinson v. Ridley, 6 Madd. 2; Attorney-General v. Baliol College, 9 Mod. 41 1; New Orleans v. Gaines, 1 5 Wall. 624. ■> See Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 390-403. s Lewis V. Cocks, 23 Wall. 466; see § 170. 6 Young V. Porter, 3 Woods' C. C. 342 ; Loker v. RoUe, 3 Ves. Jr. 4, and note; Cavedo v. Billings, 16 Fla. 261 ; see §§ 168, 169.' IMPROVEMENTS. 467 ted to mitigate the plaintiflf 's claim for damages, and mesne profits, by offsetting the value of his improvements ; and the same principle prevails in States which give the occupant a lien upon the land, for the surplus of the meliorations above the damages and mesne profits. The claim for betterments is founded upon equitable grounds, and it would be mani- festly inequitable to the owner, and, indeed, a highly dan- gerous policy, to make allowances for improvements to one who made the expenditures with full knowledge of the ad- verse claim.^ The question of the occupant's good faith is for the jury. Hence, a charge which takes from the jury the question of good faith, and contains a direction to allow the defendant for his improvements, is erroneous.* This leads to the discussion of the question as to who may be considered a bona fide occupant. A bona fide possessor of land is one who not only hon- estly supposes himself to be vested with the true title, but is ignorant that the title is contested by any other person claiming a superior right to it.^ And an occupant of land, under color of title, is presumed to be acting in good faith until the contrary appears. The court will not presume that the possessor is a trespasser or wrongdoer.* " Posses- sion," says Kent,^ "is always presumption of right, and it stands good until other and stronger evidence destroys that 'WoodhuU V. Rosenthal, 61 N. Y. 382; Wood v. Wood, 83 N. Y. 575; Thompson v. Thompson, 16 Wis. 91 ; Morrison v. Robinson, 31 Penn. St. 456; Tatum V. McLellan, 56 Miss. 352; Bellows v. Copp, 20 N. H. 492; Ragsdale v. Gohlke, 36 Tex. 286; Burkle v. Ingham, Circuit Judge, 42 Mich. 513 ; Wales v. Coffin, 100 Mass. 177 ; Bristoe -u. Evans, 2 Over. (Tenn.) 341 ; Kille v. Ege, 82 Penn. St. 102 ; Bedell v Shaw, 59 N. Y. 46 ; Townsend v. Shipp's Heirs, Cooke (Tenn.), 293. The right to set off the value of the improvements is not affected by the fact that the plaintiff is an infant or a. feme covert. Potts v. CuUum, 68 111. 217 ; see Wilie v. Brooks, 45 Miss. 542. ' Powell V. Davis, 19 Tex. 380. 3 Green v. Biddle, 8 Wheat, i; Cole 2/. Johnson, 53 Miss. 94; Morrison v. Robinson, 31 Penn. St. 456 ; Whitney v. Richardson, 31 Vt. 300; Bright v. Boyd, I Story, 478 ; Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 390 ; Henderson v. McPike, 35 Mo. 255 ; Dorn v. Dunham, 24 Texas, 366. < Stark V. Starr, i Sawyer, 15. * Smith v. Lorillard, 10 John. (N. Y.) 356. 468 IMPROVEMENTS. presumption." Knowledge of the adverse title, as we have said, is fatal to the occupant's claim for expenditures." Thus, a person who takes a title, knowing it to be defective, is not entitled to compensation for improvements, as against the true owner, even though the latter saw the improve- ments in progress and did not object.^ So, where the de- fendant entered as a trespasser, or with full knowledge of the inferiority of his title, having acquired the possession as well as the pretended title by fraudulent representations, the court held that it would not extend to him the relief to w^hich a bona fide occupant is entitled.* So, where a party wrongfully retains a title which he knows he ought to con- vey to another, he is not in a condition to claim payment for improvements.* This principle is further illustrated in the case of Tatum v. McLellan,® in the Supreme Court of Mississippi, where it was held that a trustee of land wrong- fully retaining possession of it, in opposition to the provis- ions of the trust instrument which directed him to sell it, was not entitled to an allowance for expenditures in making improvements. So, one who forcibly disseizes another, and makes improvements, cannot be allowed for them.* And, improvements made by a guardian upon lands of his ward, fraudulently purchased by the guardian, will not be reim- bursed.'^ The rule running through these cases needs only to be stated to commend it as sound, but an exception of doubtful utility remains to be considered. § 695. Exception to the general rule. — In Texas the rule laid down in Green v. Biddle,^ that a bona fide possessor ' WoodhuU V. Rosenthal, 61 N. Y. 382. 2 Walker v. Quigg, 6 Watts (Penn.), 87. 3 Mosely v. Miller, 13 Bush (Ky.), 408. ■• Thompson v. Thompson, 16 Wis. 91. s 56 Miss. 352. 6 Morrison v. Robinson, 31 Penn. St. 456. ' Eberts v. Eberts, 55 Penn. St. no; see Barrett v. Cocke, 12 Heisk. (Tenn.) 566, 8 8 Wheat, i. IMPROVEMENTS. 469 must be one who is ignorant that his title is contested, by any person claiming a better right, is limited. The court concede that the principle stated is the general rule, but say there are cases where, though aware of the adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foun- dation, and so be a possessor in good faith. In other words, the principal test is declared to be, has the occupant reasonable grounds to believe himself the true owner of the land. The notice of the adverse claim would not, neces- sarily, destroy the good faith of the possessor, if his confi- dence in his title was unshaken.^ In Hill v. Spear,^ it was held that the fact that the defendant purchased land, know- ing that his vendor held it under a deed from a married woman defectively acknowledged, was not inconsistent with his good faith in making such purchase, and the court de- cided that it was error, in such a case, to exclude from the jury evidence of the value of improvements.^ It will be ap- parent, at a glance, that the principle embodied in these Texas cases, is highly important in its bearing upon the rights of occupants to recover for improvements. If actual notice of the adverse title is not a conclusive test, in deter- mining the question of good faith, then the occupant might be allowed for improvements down to the day of trial, mere- ly upon proof that his counsel had advised him, and he hon- estly believed, that the adverse title was absolutely without merit, or upon showing that he fully expected, and had rea- sonable grounds to believe, that he would be able to defeat the hostile claim. The litigants on either side, as a general rule, expect to succeed, and can, usually, furnish a multitude of plausible reasons to justify that belief, and if the test of actual notice is departed from, it would result that almost every possessor could prove himself to be an occupant in 'See Sartain v. Hamilton, 12 Tex. 222; Dorn v. Dunham, 24 Tex. 366; Hutchins v. Bacon, 46 Tex. 408. « 48 Tex. 583. 3 See Berry v. Donley, 26 Tex. 737. 470 IMPROVEMENTS. good faith, and thus entitled to recover for improvements. If the occupant learns of an adverse title, it is but just and reasonable that the law should regard subsequent improve- ments as having been made at his peril. We have seen that one of the great objections to allowing for improvements, in any case, is, that the character of the improvements may not be suitable to the property, or such as the owner needed, or could afford, or desired to have made upon the land. Under the rule in Texas, the occupant, learning of the ad- verse claim,' might " improve the owner out of his property." The principle embodied in these cases, constitutes a dan- gerous innovation upon a settled rule of law, and if adopted would render the determination of the character of the pos- session one of great difficulty and uncertainty, and, in many cases, a recovery, or allowance for improvements, by an oc- cupant really holding in bad faith, would be a possibility. § 696. Constructive notice not sufficient. — The construc- tive notice of an adverse title, which the law implies from the record of a deed, is not sufficient to preclude an occu- pant from recovering for improvements or betterments, if he, in fact, purchased in good faith, and with the supposition that he was obtaining a perfect title in fee.^ The mere fact that a fatal defect in the occupant's title is discoverable, by an examination of the records of the county, is not enough to deprive him of the right to the value of his improve- ments in the ejectment suit. There must be brought home to him either knowledge of an outstanding paramount title, or some circumstance from which the court or jury may fairly infer that he had cause to suspect the invalidity of his own title. Thus, in Cole v. Johnson,^ it appeared that cer- tain defects in probate court proceedings vitiated the title under which the occupant purchased, and these were patent upon the record, and could have been ascertained by inspec- 1 Whitney v. Richardson, 31 Vt. 300; Green v, Dixon, 9 Wis. 532; Hatcher V. Briggs, 6 Oregon, 31. ' 53 Miss. 94. IMPROVEMENTS. 471 tion. Under these circumstances it was contended that the possessor could not claim to have become a purchaser, or to have paid his money, in good faith. But the court held that what was meant by the requirement of good faith was, that the money should have been genuinely paid, and without knowledge or suspicion, on the part of the purchaser, of fraud or imperfection. " The term," says the court, " is used in contradistinction to bad faith, and not in the technical sense in which it is applied to conveyances of title, in which latter sense, a party wholly free from moral mala fides, is still frequently held not to be z. bona fide purchaser." ' No- tice in this connection does not mean direct and positive information, but anything calculated to put a man of ordi- nary prudence on the alert. Hence, where the statute adopts the word " notice" and " good faith," the terms are to be interpreted with the full force and meaning which attached to them as inseparable incidents in the system of jurispru- dence, from whence they were derived.^ § 697. Claim and color of title. — An occupant, to suc- cessfully claim for improvements, must ordinarily show not only that he occupied and claimed the land in good faith, but also under color of title ; i. e., under some instrument or paper wrfting presenting the appearance or semblance of title.' By statute, in some States, the possessor asserting a betterment claim is required to prove occupancy under color of title. Where no such enactment exists, color of title is a highly important and practically indispensable element of proof, in showing adverse occupancy and good faith. It does not necessarily follow that the claim and color of title ' See Learned v. Corley, 43 Miss. 687 ; Lee v. Bowman, 55 Mo. 400; Dothage V. Stuart, 35 Mo. 251 ; Morrison v. Robinson, 31 Penn. St. 456. 2 Lee V. Bowman, 55 Mo. 400; see Cole v. Johnson, 53 Miss. 94. ' See Field v. Columbet, 4 Sawyer, 523; Lunquest v. Ten Eyck, 40 Iowa, 21 3; Hatcher z/. Briggs, 6 Oregon, 31; Krause v. Means, 12 Kan. 335; Thomas r/. Thomas, 16 B. Mon. (Ky.) 420; Barlow v. Bell, i A. K. Marsh. (Ky.) 246; Bell v. Barnet, 2 J. J, Marsh. (Ky.) 516; Vall6 v. Fleming, 29 Mo. 152; Bright v. Boyd, I Story, 478; Cole v. Johnson, 53 Miss. 94; Love v. Shartzer, 31 Cal. 487. 472 • IMPROVEMENTS. which will sustain a recovery for improvements must be such as will ripen into an adverse possession. Thus, in Bedell v.. Shaw,^ it was held that possession, to be adverse, must be under a claim of title in fee. An occupant under an assess- ment lease was decreed not to hold in hostility to the true title, but it was, nevertheless, decided that one who entered under such a lease, in good faith, or those who held under him, were entitled to be allowed for valuable and permanent improvements placed upon the land.*^ So the fact that the tenant had a good estate for life, will not defeat the claim for betterments, if he had reason to believe that he had a title in fee.' The general subject of color of title will be pres- ently discussed. § 698. Improvements in excess of mesne profits. — The general policy of the law, where no express statute inter- venes, is to allow the value of improvement only by way of set-ofF against or in mitigation of damages for the detention of the land, and the value of the betterments cannot usually exceed the amount of the plaintifFs damages and mesne profits.* This rule is followed in a recent ejectment case in New York,® in which the Court of Appeals in that State say that, at best, one who puts improvements upon the lands of another, is only allowed to mitigate the damages by off- setting the improvements to the extent of the rents and profits claimed.*' So, in some States, evidence of improve- ments cannot be given where no claim is made for mesne profits, '^ while in others, as already stated, the excess of the ' 59 N. Y. 46. ^ Bedell v. Shaw, 59 N. Y. 46. 3 Plimpton V. Plimpton, 12 Cush. (Mass.) 458; see Wales v. Coffin, 100 Mass. 177- ■" Yount V. Howell, 14 Cal. 465 ; McKinly v. Holliday. 10 Yerg. (Tenn.) 477; WoodhuU V. Rosenthal, 61 N. Y. 382 ; Davis v. Louk, 30 Wis. 308. « Wood V. Wood, 83 N. Y. 575. See Bedell v. Shaw, 59 N. Y. 46; Jackson v. Loomis, 4 Cow. (N. Y.) 168; Merritt v. Scott, 81 N. C. 385 ; Dowd v. Faucett, 4 Dev. (N. C.) Law, 92; Scott V. Mather, 14 Tex. 235. ' Ford V. Holton, 5 Cal. 319 ; Learned v. Corley, 43 Miss. 687. IMPROVEMENTS. 473 value of the improvements is impressed as a lien upon the land.^ Texas furnishes an example of the latter policy. In that State the right to recover for improvements is not dependent upon the claim for rents and profits, nor is it limited to cases where rent is claimed, or compensation for use and occupation allowed. It is independent of such claim on the part of the plaintiff.^ § 699. What constitutes an improvement. — An improve- ment, or melioration, is something done or put upon the land which the occupant cannot remove, or carry away with him, either because it has become physically impossible to separate it from the land, or, in contemplation of law, it has been annexed to the soil, and is therefore to be consid- ered as a fixture or part of the freehold. The character of the improvement must be such as to make the land more valuable in the future for the ordinary purposes for which such property is owned and used. Hence it is said that a structure or labor may be as permanent in every sense of the word as the pyramid of Cheops, and yet add nothing to the usefulness or value of the land, for the ordinary purposes to which it is devoted. The test is, does the melioration make the land more valuable to the owner.^ It is clear that if the plaintiff will receive no benefit from the expenditures or improvements, the defendant cannot be allowed for them. Thus, in Woodhull v. Rosenthal,* in the New York Com- mission of Appeals, it appeared that the plaintiff claimed a leasehold interest, and that his term expired pending the action. He recovered judgment for mesne profits, and the court refused to allow to the defendant, as an improvement, the value of a building erected by him upon the land, be- ' Abbey z/. Merrick, 27 Miss. 320; Griswold v. Bragg, 18 Bla. C. C. 202; Hatcher v. Briggs, 6 Oregon, 31 ; see § 691. ^ Dorn V. Dunham, 24 Tex. 366 ; see Scott v. Mather, 14 Tex. 235 ; Saunders V. Wilson, 19 Tex. 194. 3 See Stark v. Starr, i Sawyer, 15 ; Bright v. Boyd, i Story, 494; Johnson z/. Gresham, 5 Dana (Ky.), 547. * 61 N. Y. 382, per Dwight, C. 474 IMPROVEMENTS. .* cause it did not increase the value of the plaintiff's interest, and was of no benefit to him as lessee, the term having ex- pired. The defendant is entitled to give evidence of such improvements only as are of a lasting and permanent char- acter, and which give a permanently increased value to the land/' By the term value, as applied to improvements, is meant the value to the real owner.^ § 700. Improvements must be made upon the land. — The expenditures must be incurred in making improvements upon the land, and not beyond the limits of the demanded premises. Thus a claim for the construction of a sidewalk which was located outside the limits of the premises recov- ered, was excluded.^ So in Coburn v. Ames,* in the Supreme Court of California, it appeared that a lease had been given of lands bounded by low-water mark, on the shore of the ocean, and that the lessee had constructed a wharf extend- ing from the shore into the water beyond low-water mark. The court decided that the portion of the wharf beyond low- water mark was not an improvement upon the demised premises, nor appurtenant thereto, nor was it affixed to the land within the meaning of the statute, even though attached to a wharf on the demised premises by nails, bolts and screws. § 701. Ornamental improvements. — In Mississippi, any allowance for ornamental improvements is expressly ex- cepted from the statutes,^ and this policy of the law is of general application.* In Whitledge v. Wait,'' the Court of = Ege V. Kille, 84 Penn. St. 334. 2 Bristoe V. Evans, 2 Over. (Tenn.) 341. If the only interest which a possessor has in land consists in the right to recover the value of improvements made by him upon it, such claim is not subject to sale on execution. Hendricks v. Snedi- ker, 30 Texas, 296. 3 Curtis V. Gay, 1 5 Gray (Mass.), 36. •< 52 Cal. 385. 5 See Gaines v. Kennedy, 53 Miss. 103. « See Reed v. Reed, 10 Pick. (Mass.) 398 ; Woodward v. Phillips, 14 Gray (Mass.), 132. ' Sneed (Ky.), 335. IMPROVEMENTS. 475 Appeals of Kentucky, after laying down the general rule that a bona fide possessor is entitled to an allowance for lasting and valuable improvements, made on the premises, remark : " Cases may arise which may be exceptions to this general rule without impeaching it, as where unneces- sary, expensive, useless, fanciful, or ornamental improve- ments should be made or done with a design to render it out of the power of the proprietor to pay for them, and, therefore, to abandon his claim to the land." In cases where the improvements are made without the motive in- stanced in Whitledge v. Wait, it is not always an easy task to determine the question of what constitute useful and permanent as distinguished from ornamental meliorations. Thus, expenditures upon property suitable for a country residence might be allowed which would be manifestly out of place upon lands useful only for agricultural purposes. The adaptability of the improvements is the test, and this question must, of course, be determined with reference to the peculiar facts of each particular case. § 702. Perishable improvements. — Improvements which are temporary and perishable in their nature cannot be allowed to the occupant. In Morris v. Tinker,^ the im- provements consisted of a basin and wharf; the former had to be dug out and cleaned two or three times a year, and the latter repaired annually. The court held that, as the improvements, owing to their character and the destructive influences to which they were exposed, had to be renewed periodically, they could not be said to add any permanent value to the lands, and were properly disallowed. Such im- provements do not come within the rule already stated, that they must be permanent, and add to the future value of the property for the ordinary purposes for which it is to be de- voted.2 § 703- Expenditures in experimenting for profits. — In ' 60 Ga. 466. 2 See Stark v. Starr, i Sawyer, 1 5 ; see § 699. 476 IMPROVEMENTS. Noble z'. Biddle/ it was held that an occupant, who received profits from one part of the land, could not set off his losses, occasioned by experimenting for profits, on other parts of the land. The doctrine of equitable defense, in an action for mesne profits, goes no further than to allow the defend- ant to defalk the value of improvements that are advanta- geous and useful, and give the land additional value. A trespasser or wrongdoer cannot be allowed to improve the owner out of his property, by making expenditures merely to suit his whim or caprice, or by experimenting in the hope of gain. The equity which will sustain his claim for the improvement is founded upon the fact that his labor and money have gone to the actual benefit of the owner by really enhancing the worth of his property. § 704. Payment of incumbrances. — The subject of allow- ance for taxes and assessments, paid by the occupant, has already been noticed, and the unsatisfactory state of the law discussed.^ The question of the right of 2l bona fide pos- sessor of real estate, who has paid out money in discharging valid existing incumbrances, or charges upon the estate, having no notice of any infirmity in his title, has been before the courts in different forms, and it may be regarded as a settled rule, in equity, that he is entitled to be repaid the amount of such payments by the true owner seeking to re- cover the estate from him.^ This rule was probably derived from the Roman law, and was applied by Mr. Justice Story to a case where the money was appropriated, not to the dis- charge of a judgment or mortgage lien, but to the payment, of the debts of a testator, which were a general charge upon the estate.* § 705. Imp7^ovements made after suit brought. — It has been shown that constructive notice, such as the record of a deed, is not such notice of an adverse title as will deprive 8i* Penn. St. 430. 2 See § 688. 3 wilie v. Brooks, 45 Miss. 542. See Bright v. Boyd, i Story, 498 ; Cook v. Toumbs, 36 Miss. 685. IMPROVEMENTS. 477 a party of the character of an occupant in good faith. The question of the propriety of allowing for improvements made by an occupant after the institution of an ejectment, or other legal proceeding, concerning the title, has frequently been before the courts, and it may be regarded as a settled principle of law that the occupant cannot recover for or offset improvements made by him after suit brought.^ It is impossible to instance any form of notice of an adverse claim which could be more explicit and actual than the issu- ance and service of process in an action based upon the liostile title. Jackson v. Loomis,^ if the reporter's state- ment of facts is correct, countenances the principle that the value of improvements made pending the ejectment may be given in evidence in mitigation of damages. The dis- tinction between improvements placed upon the land before and after suit brought seems to have been overlooked. Chief Justice Savage, who wrote the opinion, said : " If the 'plaintiff is not content with acquiring possession of his property in an improved condition, after he has neglected to assert his title for a number of years, it is certainly equi- table that the defendant should be allowed the value of his improvements, made in good faith, to the extent of the rents and profits claimed." This is all true, but is not ap- plicable to improvements made after suit brought. The learned court overlooks the fact that the owner, who is in- voking the aid of the court to be let into possession, is no longer guilty of laches, which is the basis of the equitable claim for improvements, while the possessor, by actual notice of the suit, has lost the character of a bona fide oc- cupant. In Pennsylvania, evidence as to valuable improve- ments, made between the first and second actions of eject- ment, was excluded, the court declaring that there was no ' Haslett V. Grain, 85 111. 129 ; Morrison v. Robinson, 31 Penn. St. 456 ; Gaines V. Kennedy, 53 Miss. 103 ; see WoodhuU v. Rosenthal, 61 N. Y. 382 ; Taylor v. Whiting, 9 Dana (Ky,), 399. ■" 4 Cowen (N. Y.), 168. 478 IMPROVEMENTS. principle of law which required the defeated party to bring- his second action forthwith, at the risk of being improved out of his estate.^ So, evidence that the defendant in possession under a parol gift made improvements, at a date subsequent to a dispute about the gift, has been rejected in that State.* So, in Indiana, a defendant in ejectment was not allowed to prove that he had made permanent and last- ing improvements, subsequent to a sheriff's sale of the land to the plaintiff, and before action brought' In was even held in Haslett v. Grain,* in the Supreme Court of Illinois, that improvements placed upon the land after notice of title in another, were not to be regarded as made before no- tice merely from the fact of having been completed in pur- suance of a contract with reference thereto entered into prior to the notice. § 706. Improvements made by grantor or warrantor. — In Winslow v. Newell,^ it was held that a party who pur- chased with the belief that he acquired a good title, could not recover for improvements made by his grantor who was not an occupant in good faith, and knew he was without title, although the last purchaser may have paid for the full value of the improvements.^ The principles governing the law merchant do not of course apply to a purchaser of this character, and the grantee could acquire no right of action or of set-oflF, which his grantor did not possess. If, however, the defendant is bona fide in possession, under a claim of right, with a warranty from a previous possessor in good faith, who has made improvements, it is only just that he should have the benefit of such improvements, so far as they are in excess of the rents due from the first possessor. The plaintiff gets the improvements by his judgment, and as the defendant succeeds under his deed to all the rights of ' Wilkinson v. Pearson, 23 Penn. St. 117. 2 Aurand v. Wilt, 9 Penn. St. 54. 3 Osbornz/. Storms, 65 Ind. 321. i 85 111. 129. s 19 Vt. 164. » See Griswold v. Bragg, 18 Bla. C. C. 202. IMPROVEMENTS. 479 his warrantor, there is great equity in allowing him to set up whatever defense his warrantor might have interposed/ The defendant is, of course, not liable for mesne profits taken prior to his own entry, if he makes no claim for improve- ments. If, however, he takes credit for prior improvements, all profits chargeable to former occupants must first be deducted. § 707. Basis of valuation — Apportionment. — In a case which arose in Mississippi, it was held that the value of the improvements should be assessed on a basis co-extensive in time with the estimate of rents and profits which they con- tribute to produce, so as to allow the defendant for all im- provements made by him of which the plaintiflF recovers the benefit.^ It has been held in Georgia, that the defendant in ejectment is entitled to the value which the improvements give to the land, and that he is not limited to their actual cost.^ The value of the betterments, at the time of trial, is the correct basis of the award.* The jury in assessing mesne profits and the value of improvements, may deal with the entire tract together, although the defendant claims the improved part under a separate conveyance.^ § 708. Titles which will not support claim for improve- ments. — Improvements of any kind, put upon • land by a life-tenant during his occupancy, constitute no charge upon the land when it passes to the remainderman.^ So a ven- dee of land under a parol agreement, who has failed to com- ply with his contract, and abandoned the possession without fault of the vendor, cannot recover for improvements put by him upon the land.'^ So, in Massachusetts, a town ' Willingham v. Long, 47 Ga. 540; see Morrison v. Robinson, 31 Penn. St. 456. 2 Johnson v. Futch, 57 Miss. 73. 2 Willingham v. Long, 47 Ga. 540 ; Thomas v. Malcom, 39 Ga. 328 ; see Wilie V. Brooks, 45 Miss. 542; Booth v. Van Arsdale, 9 Bush (Ky.), 718. < Wendell v. Moulton, 26 N. H. 41 ; Griswold v. Bragg, 18 Bla. C. C. 202. ' Johnson v. Futch, 57 Miss. 73. See § 685. « Merritt v. Scott, 81 N. C. 385. ' Rainer v. Huddleston, 4 Heisk. (Tenn.) 223. 480 IMPROVEMENTS. which proceeds illegally to take lands for a school-house, is not entitled to an allowance for improvements.^ And in Texas, a tax-title does not sustain a suggestion of possession and improvements in good faith,^ and some- thing more is required to support the suggestion of good faith and claim for improvements, than a deed from one having neither title nor possession.^ So improve- ments and expenditures on the faith of a contract void by the statute of frauds, made with the knowledge of the owner, give no equity to the purchaser to retain possession until repaid.* And where the defendant set up that he entered under an agreement with plaintiff, by which he was to be paid for the improvements, it was held to be no de- fense to the ejectment ; the remedy of the parties, in such a case, is by a direct action upon the agreement.^ In Hatch- ett V. Conner,^ the Supreme Court of Texas say : " The jury were instructed in substance, that, if the appellant hon- estly believed his title to be good, or that his vendor's title was good, he was entitled to the value of his improvements, &c. This is clearly erroneous with reference to the facts of this case, as it is not pretended that the appellant has shown that either he or his vendor hold by any claim or title de- rived from the government. It is difficult to perceive how a party can honestly believe that his title is good, or how his possession can be in good faith, when he is unable to trace his title back to the government, the only source of title to land. While a defective or irregular apparent title may be the basis of a recovery for improvements made in 1 Spalding v. Chelmsford, 117 Mass. 393 ; Crosby v. Dracut, 109 Mass. 206. ' Robson V. Osborn, 13 Tex. 298 ; see Oberich v. Oilman, 31 Wis. 4.95. 3 Miller v. Brownson, 50 Tex. 583. ■< Harden v. Hays, 9 Penn. St. 151. 6 Norris v. Hoyt, 18 Cal. 217. A parol contract to pay for improvements upon land is not within the statute of frauds, as being a sale of an interest in lands. Thouvenin v. Lea, 26 Tex. 612; Godeflfroy v. Caldwell, 2 Cal. 489; Lower V. Winters, 7 Cowen (N. Y.), 263 ; 4 Kent's Com. p. 450. •i 30 Tex. 104. IMPROVEMENTS. 48 1 good faith, a void title (if such an expression may be used) cannot be."^ This is practically equivalent to holding that color of title consists of an apparent chain of title from the original source — the government. This, as we shall see, is not the true test in cases of adverse possession. The re- quirement that the occupant, to establish good faith, should trace an apparent title from the government is too exacting, and would, in many instances, practically defeat the opera- tion of the improvement statutes.^ § 709. Improvements by husband on wife's land. — On the death of a wife without issue, the husband was held, in Tennessee, to have no claim against his wife's heirs for the value of the improvements, made by him on the land, though made with her assent and approbation.^ In a case which arose in Massachusetts, an owner of land died, leav- ing a widow and children. The widow married again, and the husband improved and lived on the property, and en- joyed the rents and profits, thinking it belonged to his wife. On her death the children brought a writ of entry, and the husband was not allowed compensation for his improve- ments.* So, as we have seen, it has been held in New York, that a married woman can maintain ejectment for her lands against her husband, and the fact that he had made improvements, vshile they resided together thereon, consti- tuted no defense, and, at best, the improvements could only be allowed to the extent of the mesne profits claimed.^ It would be practically impossible for a husband to prove that he had held his wife's land adversely, having no knowledge of her title. ' See Rogers v. Bracken, 15 Tex. 568; Robson v. Osborn, 13 Tex. 298; Pitts ■u. Booth, 15 Tex. 454. ''■ In Michigan the improvement statute is interpreted to apply only to cases in which the plaintiff establishes a title in fee simple. Burkle v. Ingham Circuit Judge, 42 Mich. 513. 3 Marable v. Jordan, 5 Humph. (Tenn.) 417. < O'Brien v. Joyce, 117 Mass. 360. ' Wood V. Wood, 83 N. Y. 575 ; see Minier v. Minier, 4 Lans. (N. Y.) 424. 31 482 IMPROVEMENTS. § 710. Mortgagee in possession. — An occupant having really only the rights of a mortgagee in possession, but be- lieving himself to have an absolute title, and who, in good faith, makes valuable improvements, is entitled to be paid for them.^ Thus, in Mickles v. Dillaye,^ it appeared that valuable and permanent improvement had been made, in good faith, by a party standing upon the legal footing of a mortgagee in possession, but who believed that he held the title to the property as the absolute owner. The mortgagor brought a bill to redeem, and the court held that, as the plaintiff found himself compelled to resort to a court of equity to enforce his rights, he had placed himself within the range of the great principle that he who seeks equity must himself do equity, and that, as the improvements had enhanced the value of the property, and were really the inspir- ing cause of the suit, and the defendant had occupied, in the belief that the plaintiff had no right to the property, and the plaintiff had, for a long time acquiesced in the adverse pos- session of the premises by the defendant, and thereby con- tributed to the mistake under which the latter acted, the plaintiff, if permitted to redeem, must pay for the improve- ments to the extent of the benefit.^ These cases must be distinguished from the cases which hold that the mortgagee is not to be allowed for general improvements, made with- out the acquiescence or consent of the mortgagor, espe- cially if the improvements tend to cripple the power of redemption.* § 711. Co-tenants.^ln the case of Logan v. Goodall,' in the Supreme Court of Georgia, it was held that one 1 Green v. Dixon, 9 Wis. 532 ; Neale v. Hagthrop, 3 Bland's Ch. (Md.) 590. ' 17 N. Y. 80. See McSorley v. Larissa, 100 Mass. 270. ' See Dows v. Congdon, 28 N. Y. 132 ; Benedict ?/. Gilman; 4 Paige's Ch. (N. Y.) 62; Hubbell v. Moulson, 53 N. Y. 225 ; Atkinson v. Morrissy, 3 Oregon, 332. " Moore v. Cable, i Johns. Ch. (N. Y.) 385 ; see Mickles v. Dillaye, 17 N.Y. 80-91 ; Russell v. Blake, 2 Pick. (Mass.) 506 ; Woodward v. Phillips, 14 Gray (Mass.), 132. As to improvements made by a vendee, where the vendor's title has failed, see § 323. » 42 Ga. 95. IMrROVEMENTS. 483 tenant in common might recover an undivided half interest, in ejectment against the co-tenant, who was in adverse possession of the whole. Whatever equities there might be, between the co-tenants, based upon improvements made in good faith, and under the belief of a perfect title, were left unadjusted, but the court remarked that equity would not permit injustice to be done, nor allow one tenant in com- mon to get the benefit of improvements made by his co- tenant, under the honest belief that he held the whole title.^ The Supreme Court of Pennsylvania held, in Walker V. Humbert,* that, in a claim for mesne profits made by a co-tenant against his companion, the latter was not charge- able with rent paid in the form of permanent improvements on the land. In Massachusetts, it has been decided, on a writ of entry by two tenants in common against a third, that the demandants might recover rents and mesne profits, and that the tenant was also entitled to have the value of his improvements ascertained, and to recover compensation therefor.^ In Wisconsin, it was decided that the Betterment Statute of that State, which allows the bona fide possessor to recover the value of his improvements, applied to ac- tions brought to recover an undivided interest in land, so as to give a tenant in common, who has been defeated in an action to recover possession of sucn undivided interest, a claim against his co-tenant for his improvements in part. It was admitted that the statute was imperfectly drawn, and that the power of the court to apportion the expense of the improvements, between the tenants in common, according to their respective interests, was one arising by implication rather than conferred by express grant, yet, they say, it would be manifestly unjust in such cases to impose upon one party the entire burden of the improvements.* ' See Strong v. Hunt, 20 Vt. 614. 2 55 Penn. St. 407. 'Backus V. Chapman, in Mass. 386; see Silloway v. Brown, 12 Allen (Mass.), 30. - Phoenix Lead Mining, &c. Co. v. Sydnor, 39 Wis. 600 ; see Davis v. Louk, 30 Wis. 308; Walker v. Humbert, 55 Penn. St. 407; see § 660. In Michigan a 484 IMPROVEMENTS. § 712. Constitutionality of the improvement statutes. — In Pacquette v. Pickness,^ the improvement statute of Wis- consin is said to be founcled upon " the broad principles of equity." The making of lasting and valuable improvements requires time, and, when made by an adverse possessor, con- stitute an evidence of laches on the part of the real owner. If the legislature can declare a lapse of time an absolute bar to a recovery, by enacting a statute of limitations, it certainly possesses the power to declare the lapse of time necessary for making such improvements a conditional bar.^ It can- not be claimed that the statutes are unconstitutional be- cause they deprive the owner of the land without his con- sent. Their effect is to punish him for his laches in remain- ing quiet and failing to assert his title, or give notice of it to the occupant while the improvements are in progress.* The improvements, as we have seen, become a part of the freehold, and belong to the owner, who recovers the land in its improved condition ; having neglected to assert his title during the years in which the innocent party was expending money and labor upon the land, the owner cannot be said to be wholly free from blame. It may be true that he did not authorize or need the improvements ; but as he takes them by the recovery in ejectment he is, by reason of his laches and neglect in asserting his title, justly chargeable with the increased value which they give to the land. The plaintiff is the proper party to bear the somewhat similar statute has been interpreted so as not to apply where the de- fendant in ejectment, claiming for improvements, is one of several tenants in common. The statute, however, was so framed that the court concluded that if it was applied to tenants in common, the defendant might recover from each the full value of the improvements. See Martin v. O'Conner, 37 Mich. 440; see .Comp. Laws Mich. §§6252-3, Act 180 of 1875; Sands z/. Davis, 40 Mich. 14; .Morris v. McKay, 40 Mich. 326. ' 19 Wis. 219. 2 See Armstrong v. Jackson, 1 Blackf (Ind.) 374. 3 Ross V. Irving, 14 111. 171 ; see Davis v. Powell, 13 Ohio, 308.; Longworth v. Wolfington, 6 Ohio, lo; Shaler v. Magin, 2 Ohio, 236; Bodley v. Gaither, 3 Mon. (Ky.) 58; Pope v. Macon, 23 Ark. 644; Scott v. Mather, 14 Tex. 235; /Green .z/. Biddle, 8 Wheat, i ; Bright v. Boyd, 2 Story, 605. IMPROVEMENTS. 485 expense of the improvements, not only because he takes them, but for the additional reason that he ought to have known of the existence of his own title ; and his oppor- tunities for gaining knowledge of it are manifestly superior to those of the adverse occupant.^ It follows that a prop- erly framed improvement or betterment statute is both equitable and constitutional. An examination of the cases holding particular statutes unconstitutional, will show that special facts were involved. Thus, in Green v. Biddle,^ the leading case on the subject, the statute was adjudged un- constitutional because it impaired the provisions of a com- pact between Virginia and Kentucky. § 713. In what tribtmals improvements are recoverable. — The claim for improvements is usually asserted as an offset in the action for mesne profits, whether the latter ac- tion be joined with the ejectment or prosecuted separately. In Missouri it has been held that a claimant who had been evicted from land could not maintain an action for improve- ments. The action must be brought in the same court in which the recovery in ejectment was had, and prior to evic- tion from the premises.* In Virginia, the claims for mesne profits and improvements must all be passed upon by the same jury.* In Sherry v. The State Bank,^ the defendant in ejectment prosecuted a writ of error from a judgment rendered against him, and executed a supersedeas bond with sureties to stay further proceedings upon the judgment. The judgment having been affirmed, it was held, in a suit brought upon the bond, that the defendant could not be allowed in that suit to deduct the value of the improve- ments. It has already been shown that the claim for com- pensation for improvements made by the occupant is an ' See Green v. Biddle, 8 Wheat, i ; Billings v. Hall, 7 Cal. i ; Griswold v. Bragg, 18 Bla. C. C. 202. ' 8 Wheat, i. See Billings v. Hall, 7 Cal. i. ^ Malone v. Stretch, 69 Mo. 25 ; see Webster v. Stewart, 6 Iowa, 401 ; Claus- sen V. Rayburn, 14 Iowa, 136. ' Goodwyn v. Myers, 16 Gratt. (Va.) 336. i 6 Ind. 397 486 IMPROVEMENTS. equitable lien which cannot be made the subject of an in- dependent ejectment.^ § 714. Pleading. — The defendant, in order to be allowed for his improvements, must plead them by way of set-off in his answer,^ and must state that he entered upon the dis- puted land under claim of title.** The answer should aver that the improvements were made while holding under color of title adversely to plaintiff in good faith, and that they are permanent ; otherwise evidence as to the improve- ments cannot be given.* And it is not sufficient to set up that the occupant has made permanent improvements in good faith and allege their cost. It must be shown that the improvements are still of value and better the condition of the property. The counterclaim for permanent im- provements is confined to their value at the time of the trial* In some States the defendant, in an action of eject- ment, cannot plead the value of improvements unless the plaintiff has made a demand for mesne profits." The de- fendant cannot ordinarily have the value of his lasting im- provements ascertained until the determination of the question of title." And in California, where no evidence is introduced to show damages, it is error to admit evidence of improvements.* § 715. Verdict. — ^In Hutchins v. Bacon/ the jury re- turned a verdict for plaintiff, incorporating in it, however, the following words : " the present occupants to hold their improvements." The court treated the latter portion of the verdict as surplusage. It was held, on review, that the ' PauU's Executors v. Eldred, 29 Penn. St. 41 5 ; see § 1 59. 2 Moss V. Shear, 25 Cal. 38 ; see Bonner v. Wiggins, 52 Tex. 125. 3 Ragsdale v. Gohlke, 36 Tex. 286j Powell z/. Davis, 19 Tex. 380. ' Carpentier v. Small, 35 Cal. 346 ; Powell v. Davis, 19 Tex. 380. 5 Wythe V. Myers, 3 Sawyer, 595 ; Wendell v. Moulton, 26 N. H. 41 ; Gris- wold V. Bragg, 18 Bla. C. C. 202. « Learned v. Corley, 43 Miss. 687 ; Daniels v. Bates, 2 G. Gr. (Iowa), 151. ■■ Wernke v. Hazen, 32 Ind. 431. s Pord v. Holton, 5 Cal. 319^ " 46 Tex. 408. IMPROVEMENTS. 487 verdict clearly intended to protect the defendants to the extent of the value of their improvements, and that it could not be disregarded as surplusage.^ § 716. Judgment for improvements. — In Scott v. Reese,'* in the Supreme Court of Wisconsin, it was held that it was improper practice to enter two judgments in the action ; one in favor of the plaintiff, for the possession of the land, the other in defendant's favor for the value of his improve- ments. The court decided that there should be but a single judgment, determining the amount assessed in defendant's favor, for the value of the improvements, and awarding plaintiff the possession of the land, conditional upon his paying the amount of the assessment within the statutory period. In the case cited separate judgments had been en- tered. The court decided that on appeal from the judg- ment in defendant's favor, for the value of the improve- ments, the judgment for possession was not up for review.* ' Roberti v. Atwater, 42 Conn. 266; Martin v. Martin, 17 S. &. R. (Penn.) 43' ; see §§ 502, 503. 2 38 Wis. 638. 3 See Russell v. Defrance, 39 Mo. 506. CHAPTER XXVII. POSSESSION. § 717. Possession as evidence of title. 718. Prior possession sufficient against a trespasser or intruder. 719. Character of the possession. 720. The cases considered. 721. Possession which will warrant eject- ment against a defendant not the foci- test. 722. When possession not sufficient to support ejectment. 723. Distinction between prior possession and adverse possession. § 717. Possession as evidence of title. — Allen, J., in deliv- ering the opinion of the New York Court of Appeals, in Rawley v. Brown/ said : " Possession of property alone, and without explanation, is evidence of ownership ; but is the lowest species of evidence. It is merely presumptive, and liable to be overcome by any evidence showing the character of the possession, and that it is not necessarily as owner." The possession raises a presumption of fact which may be rebutted.^ So it was held in Kansas, that possession was a low degree of title, and descended to heirs,* and such is the general rule.* A debtor, as we have seen, may have home- stead in a possessory interest,^ and a naked possession can be sold at sheriff's sale, and the purchaser acquires the right to recover it in ejectment.'* Possession of land is prima facie evidence of the highest estate in the property, viz. : a seizin in fee,^ and, as we shall see, is alone sufficient to sup- port ejectment against trespassers.^ This is the general rule. > 71 N. Y. 85. See Thompson v. Burhans, 79 N. Y. 93. ' Yates V. Yates, 76 N. C. 142. ^ Mooney v. Olsen, 21 Kansas, 691-697. < See Ludlow v. McBride, 3 Ohio, 241 ; Phelan v. Kelly, 25 Wend. (N. Y.) 389; Gillett V. Gaffney, 3 Col. 351 ; Teabout v. Daniels, 38 Iowa, 158. See § 296. •= McGrath v. Sinclair, 55 Miss. 89. '■ Knox V. Herod, 2 Penn. St. 26 ; Hughes v. Devlin, 23 Cal. 501. ■• Ricard v. Williams, 7 Wheat. 59 ; Preston v. Bowmar, 6 Wheat. 580 ; Blunt V. Aikin, 15 Wend. (N. Y.) 522; Adams on Eject. (4th Am. ed.) p. 137; Spark- man V. Porter, i Paine, 457 ; Yates v. Yates, 76 N. C. 142. ' Jones V. Easley, 53 Ga. 454; Bates v. Campbell, 25 Wis. 613. POSSESSION. 489 Thus, a person in possession of land is presumed to have acquired the title which the people, in their capacity of sovereign, once held ;^ and it is not always a prerequisite to a recovery in ejectment that the plaintiff should trace his title back to the government, as peaceable possession under claim of right will prevail against a mere intruder, and the length of the possession is not material.^ A widow as de- mandant in dower establishes prima facie a seizin in fee, in her husband, by showing his actual possession of the premises, claiming as owner.^ § 7 1 8. Prior possession sufficient against a trespasser or intruder. — In Christy v. Scott,* Curtis, J., in delivering the opinion of the United States Supreme Court, said : " A mere intruder cannot enter on a person actually seized, and eject him, and then question his title, or set up an outstand- ing title in another. The maxim that the plaintiff must re- cover on the strength of his own title, and not on the weak- ness of the defendant's, is applicable to all actions for the recovery of property. But if the plaintiff had actual prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser, who entered without any title. He may do so by a writ of entry, where that remedy is still practiced,® or by an ejectment,* or he may maintain trespass." ^ The same rule, of course, appertains in trespass to try title,^ and, as against an intruder, it is imma- terial whether the legal title is vested in the holder of it ab- > People z/.'Trinity Church, 22 N. Y. 44.. See § 192. ° Doet/. West, i Blackf. (Ind.) 135. ^Sparrow v. Kingman, I N. Y. 242; Ward v. Mcintosh, 12 Ohio St. 231; Jackson v. Waltermire, S Cow. (N. Y.) 301 ; Bancrofts. White, i Caines (N. Y.), 190. •• 14 How. 282. See Burt v. Panjaud, 99 U. S. 186. ' Citing Jackson v. Boston & W. R. R. Co. i Cash. (Mass.) 575. « Citing Allen v. Rivington, 2 Saund. in; Doe v. Reade, 8 East, 356 ; Doe V. Dyeball, Moo. & M. 346 ; Jackson v. Hazen, 2 Johns. (N. Y.) 438 ; Whitney v. Wright, 15 Wend. (N. Y.) 171. ' Citing Catteris v. Cowper, 4 Taunt. 548 ; Graham v. Peat, i East, 246. * Caplen v. Drew, 54 Texas, 493. 490 POSSESSION. solutely, or whether he holds it in trust for another. Hence where an attorney purchased land in his own name, it was held that the nature and extent of his interest could only be questioned by his client, or those claiming under him.^ It follows from these cases that where there is an absence of proof of title on either side, a presumption of title in favor of the first possessor may be indulged. And so the author- ities hold.^ This is necessarily the rule, for it rarely happens that in the older portions of the country a possessor can trace his title, by an uninterrupted chain, to its original source. To raise a presumption, however, as to the quality or degree of the interest claimed, if not an absolute fee, proof of possession must be accompanied by evidence of some claim of title.* § 719. Character of the possession. — The question of what constitutes evidence of possession of land sufficient to raise a presumption of title and to support ejectment without other proof of title, has been before the courts in many forms. The varied uses to which real property may be put render the task of formulating a rule governing the subject one of extreme difficulty. A distinction, which will be presently considered, has been suggested, and to some extent estab- lished, between the possession which will uphold a recovery in ejectment against an intruder, and the possession which will ripen into an adverse title. This distinction is not easily traced, and the wisdom of the policy of engrafting into the law disseizins of different degrees, may certainly be ques- ! Lair v. Hunsicker, 28 Penn. St. 115. 2 Fowke V. Darnall, 5 Litt. (Ky.) 317; Whitney v. Wright, 15 Wend. (N. Y.) 171 ; Doe d. Harding tj. Cooke, 7 Bing. 346 ; Hunter v. Starin, 26 Hun (N. Y.), 529; Schultz V. Arnot, 33 Mo. 172; Wilson v. Palmer, 18 Texas, 592; Nagle -v. Macy, 9 Cal. 426; Shumway v. Phillips, 22 Penn. St. 155; Burt v. Panjaud, 99 U. S. 180; Yates v. Yates, 76 N. C. 142; Kline v. Johnston, 24 Penn. St. 72; Oregon, &c. R. R. Co. v. Oregon Steam Nav. Co. 3 Oregon, 178; Kelly v. Mack, 49 Cal. 524; 2 Greenl. Ev. §618; Clarke w. Clarke, 51 Ala. 498; Lum i". Reed, 53 Miss. 73. 3 See Ricard v. Williams, 7 Wheat. 59. POSSESSION. 491 tioned. Acts which constitute mere trespasses or depreda- tions upon land, cannot often be distinguished from acts of ownership, which amount to a disseizin ; the introduction of an additional classification of acts of possession, where the line of distinction is still narrower, will be very difficult of application, if not practically an impossibility, in ordinary cases. In Woods v. Banks,^ it appeared that the plaintiff"'s agent entered upon the land, with a view of taking pos- session of it under a claim of title, and marked the lines by spotting the trees around it. It was held, in trover, for timber cut on the lot, that this was a sufficient prior possession of the land to uphold a recovery against a tres- passer who subsequently entered upon it, and that it was not necessary to cultivate or to build a fence in order to take possession of land. This case was substantially fol- lowed, by the Supreme Court of New York, in Thompson V. Burhans,^ but this latter case was reversed in the New York Court of Appeals.^ Earl, J., in delivering the opinion of the court, said : " In Woods v. Banks,* it was held that an entry upon a lot, with a view of taking possession of it under a claim of title, and marking the lines of it by spotting the trees around it, is a sufficient possession of it against one who can show no right to enter upon the land, to sustain an ac- tion of trover for timber cut and taken from the lot. It is sufficient to say of that case that it is sustained by neither principle nor any authority to be found in this State. Can one mark the trees around one thousand or fifty thousand acres of forest land, and thus gain a possession which will shut out all the rest of the world but the true owner ? If the. land were derelict, without an owner, according to the philosophic writers on the origin of society and of property, such acts would not give such possession as would exclude others. Passing around land or over it, asserting title ever so loudly, does not give possession." In this case of > 14 N. H. loi. 2 15 Hun (N. Y.), 580, 584. ' 79 N. Y. 93, loi. ■■ 14 N. H. loi. 492 POSSESSION. Thompson v. Burhans, it appeared that the locus in quo, which consisted ol a very extensive tract of woodland, was not inclosed ; no part of it had ever been cultivated or im- proved ; whatever work had been done upon it consisted in taking value from it, and not in putting value upon it ; and it did not appear that any one had ever lived in the shanty which had been erected upon the lands. The court said : " Payment of taxes, surveying and assertion of right do not constitute possession. They merely show a claim of title. * * * Going upon land, from time to time, and cutting logs thereon does not give possession. Such acts are mere- ly trespasses upon the land against the true owner, whoever he may be. Any other intruder may commit similar trespasses, without liability to any other trespasser. Such acts do not constitute a. disseizin of the true owner." The court, in the course of the opinion, observed that it had never been supposed that the hunter had possession of the forest through which he roamed in pursuit of game, or that the wood-chopper could be said to be in possession of the woods into which he entered to cut logs. It will thus be apparent that, at least, so far as the State of New York is concerned, the case of Woods v. Banks, ubi supra, is not an authority. Indeed, it seems remarkable that such slender and shadowy proofs of assertion of ownershij5 should ever have been considered sufficient to form the basis of a finding of possession. This case is clearly the result of the attempt to establish disseizins of different grades. In Mil- ler V. Long Island Railroad Company,^ the question of the possession of woodland was considered in the New York Court of Appeals. Earl, J., said : " The possession, unac- companied with paper title, requisite to furnish the pre- sumption of ownership sufficient to maintain this action, must be actual ; nothing less will answer. When lands are unoccupied, unimproved, and uninclosed, it is quite difficult to make out such possession. It can be done by showing '71 N. Y. 380. POSSESSION. 493 that the lot was kept as a wood lot of suitable size for an improved farm, and that the owner of the farm habitually, for some years, cut thereon his firewood, saw logs, and fenc- ing and building timber." ^ § 720. The cases considered. — In Sankey v. Noyes,^ the Supreme Court of Nevada said : "What acts are sufficient to constitute such a possession of public land as will main- tain ejectment, has long been a vexed question in the courts of California, and our own courts have found it im- possible to announce any general rules that would meet the varying circumstances of every case. But it seems to be generally agreed that these acts must in a great measure depend upon the character of the land, the locality, and the object for which it is taken up. While arable or meadow land should be inclosed with a substantial fence, cultivated and improved land, which is only valuable for the timber upon it, might be held by a much less substantial inclosure, and cultivation or improvement would not be necessary." In Lea v: Hernandez,^ in the Supreme Court of Texas, the rule is recognized that a plaintiff may, by reason of his prior peaceable possession of lands, recover an ejectment against a mere trespasser by whom he has been dispos- sessed. The court supplement this by saying that "the fact of his prior possession must be clearly and unequivo- cally proved." The indicia of possession which the court in this case considered insufficient to uphold ejectment, are not fully stated in the report of the case. In Plume v. Seward,^ the Supreme Court of California, after deciding that possession is prima facie evidence of title and suffi- cient to support ejectment, said : " There must be an actual bona fide occupation, a possessio pedis, a subjection to the will and control, as contra-distinguished from the mere as- sertion of title, and the exercise of casual acts of ownership, ' See Machin v. Geortner. 14 Wend. (N. Y.) 239. This subject is discussed in treating of adverse possession. = 1 Nevada, 71. ^ 10 Texas, 137. •• 4 Cal. 95. 494 POSSESSION. such as recording deeds, paying taxes, etc." The mere staking off of land, without occupation or other acts of ownership, does not constitute such a possession as would maintain ejectment, unless such acts were closely followed up by other and continuous acts of ownership.^ In Cali- fornia it has been held to be sufficient proof of prior pos- session if the plaintiff shows that for several years before defendant's entry, plaintiff inclosed the premises with a fence, and until the adverse possession, cultivated the inclo- sure by raising and gathering crops thereon, though no direct proof of the character of the fence is given.^ And in Pennsylvania, a person who entered upon vacant land with a view to acquire title under the laws of the State, may recover against one who turns him out of possession without right.^ § 721. Possession which will warrant ejectment against a defendant not the test. — In Quicksilver Mining Company V. Hicks,* it was said that any subjection of land to the dominion of an individual, as owner, would constitute pos- session sufficient to enable an adverse claimant to maintain ejectment against him ; that actual occupation in person or by an agent or servant was not essential. Hence, main- taining a bridge, one end of which springs from a small strip of land on the bank of a creek, under a claim to own the strip, is sufficient evidence of possession to warrant ejectment. The test of the sufficiency of the possession which will warrant the owner in instituting an ejectment, and making the alleged occupant a defendant, cannot be applied in determining the sufficiency of the proof of pos- session which will support ejectment ; for, as we have seen, trespasses committed by one claiming title, may be con- 1 Sankey v. Noyes, i Nev. 68-72. ' Hestres v. Brannan, 21 Cal. 423. "i Kline v. Johnston, 24 Penn. St. 72. ' 4 Sawyer, 688. See Ward v. Parks, 72 N. C. 452; Burke v. Hammond, 76 Penn. St. 172; Courtney w. Turner, 12 Nev. 345. POSSESSION. 495 sidered acts of possession,^ and squatters,^ and even serv- ants,* who manifestly could not support the action, may be made defendants. § 722. When possession not sufficient to support eject- ment. — The Supreme Court of California held that inclosing land with a fence, consisting of posts seven feet apart, and one board* six inches wide nailed to the posts, but which was not sufficient to turn cattle, and the land being unculti- vated, did not constitute possession sufficient to sustain ejectment.* The mere taking from the land of a portion of the herbage growing thereon, is not sufficient to give the right of possession.^ The principle of law, which permits a recovery against a trespasser, intruder or wrongdoer, upon proof only of prior possession of the land by the plaintiff, does not extend to the case of a defendant who acquired the possession peaceably, and holds it under a claim or color of title. In the latter case the defendant may protect the pos- session so acquired and held, and may force the plaintiff to recover solely upon the strength of his own title, and may avail himself of defects in plaintiff's title, or prove that the true title is outstanding in another.* § 723. Distinction between prior possession and adverse possession. — This distinction has already been noticed. In Hunter v. Starin,^ Cullen, J., in delivering the opinion of the Supreme Court of New York, said : " It is urged by the defendant that the facts proved are insufficient to constitute an adverse possession in the plaintiff, and numerous cases are cited to establish this contention. I think defendant is cor- rect, and the finding of the court below of an adverse pos- session erroneous. But I think there is a plain difference 'See §234. 2 See §241. 3 See § 242, n. ■"Baldwin v. Simpson, 12 Cal. 560; see Hughes v. Hazard, 42 Cal. 149; Southmayd^/. Henley, 45 Cal. loi. ' Steinback v. Fitzpatrick, 12 Cal. 295. " See Fowler v. Whiteman, 2 Ohio St. 270 ; Drew v. Swift, 46 N. Y. 204. ' 26 Hun (N. Y.), 529, 496 POSSESSION. between the possession which will bar the true owner of his title, and commonly called ' adverse,' and the possession which is sufficient to support a title as against third parties. I think the cases recognize this distinction. In Smith v. Burtis,^ the plaintiff claimed title by adverse possession. Kent, Ch. J., says : ' We may infer title from his ten years possession sufficient to put the tenant upon his defense, but we ought not to infer a tortious entry or an actual ouster sufficient to bar every defense.' So in Wheeler v. Spinola,^ the distinction even in physical elements between posses- sion and adverse possession is recognized. To constitute the latter the possession must be exclusive, while the ex- ercise of ordinary control and dominion of the land, I think, constitutes a sufficient possession from which to infer title as against strangers." The principal acts of dominion and control proved to have been exercised in Hunter v. Starin, the case from which we are quoting, consisted in cutting sedge and wood from the land. Such acts, however, unless the woodland is connected with a farm, may be treated as mere trespasses, and do not necessarily constitute occu- pancy, or amount to a claim or assertion of possession or ownership, and the case ought properly to be classed with Woods V. Banks, ubi supra, where the acts of possession con- sisted of spotting the trees around the locus in quo, which latter case, as we have seen, the New York Court of Ap- peals refused to follow.^ Indeed, Hunter v. Starin can hardly be reconciled with Thompson v. Burhans, for, in the latter case, aside from the question of extent of territory, the acts of possession, and assertions of ownership, were more numerous and defined than in the former case, and in addition to cutting timber included payment of taxes, sur- ' 6 Johns. (N. Y.) 197. 2 54 N. Y. 377. 3 See Vi^oods w. Banks, 14 N. H. loi ; Thompson v. Burhans, 15 Hun (N. Y.), 584 ; reversed, 79 N. Y. 93. POSSESSION. 497 veying, and other indicia of claim and assertion of owner- ship. The distinction, which some of the cases seek to estab- lish, between prior possession and adverse possession, may be likened to the distinction applicable to a disseizin between strangers, and between tenants in common, or parties oc- cupying a relation of trust ; the difference is in degree, or in the amount of proof which must be furnished in each case, though otherwise the analogy does not hold good. CHAPTER XXVIII. ADVERSE POSSESSION UNDER STATUTES OF LIMITATIONS. 724. 725. 726. 727. 728. 729. 730. 731- 732. 733- 734- 735- 736. 737- 738. Limitations and prescription histor- ically considered. Statutes of limitation governing real actions in the different States. Theory of prescription and limita- tions. Purpose and policy of statutes of limitations. General principles of possession, seizin, ouster, &c. What constitutes adverse possession in general. Entry and ouster, effect and requi- sites of. Adverse possession in general, requi- sites of, &c. Possession must be "actual ; " what constitutes, &c. Requisites of possession as affected by nature of the land. What is a sufficient actual posses- sion. Possession must be " open " and ' ' notorious." Notice to the owner, actual or con- structive. [■ Possession must be " continuous." § 739. Requisites of continuity in posses- sion. 740. Interruption of the possession. 741. By re-entry of the owner. 742. Statutory regulations as to an effect- ual re-entry. 743. Effect of bringing an action or re- covering a judgment in ejectment. 744. Possession lost or interrupted by abandonment. 745. Interruption by other adverse claim- ants. 746. Tacking. 747. j Privity, what constitutes for pur- 748. ) poses of tacking, 749. Possession must be " hostile;" 750. Where the possession is begun in subserviency to the owner's title. The question as between tenants- in-common. 751. The rule applied generally where there is a privity of possession or title. 752. Possession must be " exclusive.'' 753. Conflicting possessions, general prin- ciples regulating. § 724. Limitations and prescription historically consid- ered. — It has sometimes been said that at common law there were no stated or fixed times of limitation for the recovery of lands/ and that the matter is wholly one of statutory reg- ulation. This statement of the matter is, however, inaccu- rate. The statute of Merton,^ usually referred to as the source of all modern legislation on the subject, did indeed provide various periods of limitation for different real writs, but an examination of the writs in use before its passage shows that limitations of some sort had always been re- quired. The limitation was indeed fixed by the writ itself. : People V. Gilbert, 18 Johns. (N. Y.) 227, per Woodworth, J. 2 20 Hen. Ill, c. 8, a. d. 1235. ADVERSE POSSESSION. 499 Thus among the pleas in the time of John, we find the lim- itation de tempore quo rex Henricus avus noster fuit vivus et mortuus ; in a writ of aiel die quo rex Henricus abiit appears ; and so in a writ of mort d' ancestor, the first coronation of Henry II (a limitation of between thirty and forty years), is fixed as a limit.^ The original periods of limitation seem, from this early evidence, to have been arbitrarily fixed by the royal authority, and it was not until the middle of the thirteenth century that they can, in the modern sense of the word, be said to have been at all defined by law. This is in accordance with, and what might in fact be inferred from what we know, in other respects, of the history of proced- ure in England. The writ, introduced into England by the Normans, was not, at first, anything more than a device for bringing the controversy to which it related within the royal jurisdiction. It had nothing to do with the form or nature of the action, except that it usually specified the nature of the demand. During the period which roughly covered the two centuries between the Conquest and the statutes of Mer- ton, the king's prerogative to issue and sell writs was un- questioned. As is pointed out by Mr. Bigelow in his recent learned work on the History of Procedure in England,''' "There is no evidence that the adoption of the writs of Glanvill laid any restriction upon the king in this particular. He continued to issue writs whenever it suited his pleasure, or answered his pecuniary needs. The king sanctioned the use of the writs of Glanvill ; and probably his justiciar gen erally felt bound to follow them. The court clerks certainly were bound to do so. Suitors must have had to go to the king (or possibly to the Council) for writs adapted to spe- cial and peculiar cases" (p. 197). It was not until the year 1258, that the Provisions of Oxford bound the Chancellor to issue no more writs, except writs of course, without com- ' See Glanvill, lib. 13, c. 3. ^ History of Procedure in England, from the Norman Conquest. The Norman period. By Melville Madison Bigelow, Ph.D. Boston: Little, Brown & Co., 1880. 500 ADVERSE POSSESSION. mand of the king and of his council present with him. " This, with the growing independence of the judiciary on the one hand, and the settlement of legal process on the other, terminated the right to issue special writs, and at last fixed the common writs in unchangeable form." The pe- riods of limitation, originally fixed at the pleasure of the king, now gradually became matters of statutory regulation. By the statutes of Westminster, 3 Edw. I, c. 39, a. d. 1275, the writ of right was limited to the first day of the reign of Richard I, and other limitations were fixed for other cases. The period established by this law, originally nearly a hundred years, increased every day, and not being capable of any abridgement, as in early times, by the use of royal prerogative, gave rise to much trouble and inconvenience, which finally led to the passage of the first general statute of limitations (32 Hen. VIII, c. 2, a. d. 1540). This was followed, nearly a hundred years later, by the more compre- hensive statute of 21 James I, c. 16, entitled "An Act for limitation of actions, and for avoiding of suits in law." This statute has been the model of all the legislation on the lim- itation of actions for the recovery of land in this country. It was generally adopted here during the colonial period, and though now superseded by more modern legislation, the rules of construction laid down by the courts with re- gard to it, are held to govern the statutes which have been modeled upon it and taken its place.^ The period fixed by the statute of Westminster, as a limitation in cases of writs of right, has led to some confusion with regard to the anal- ogy between titles by prescription and titles by limitation. Technically and strictly, prescription only applies to incor- poreal hereditaments, such as a way, a water-course, or the like, L e., interests in land which lie in grant. The theory of prescription in the case of easements, originally was that an incorporeal right in the lands of another, the origin of which could not be traced, must have been enjoyed from a ■ Walden v. Gratz, i Wheat. 292. ADVERSE POSSESSION. 5OI time exceeding the limit of human memory.^ The date of the coronation of Richard I, established by the statute of Westminster as a period of limitation in writs of right, had no necessary bearing, therefore, upon the question of prescriptive titles to easements, or other incorporeal heredit- aments ; nevertheless the courts, proceeding by analogy, at an early date, applied the period appropriate in one class of cases to the other. It was held that an undisturbed enjoy- ment of an easement for a period of time sufficient to give a title to land by possession, was sufficient also to give a title to the easement.'* On this principle, when the limitation was reduced to sixty years by the statute of 32 Henry VIII, c. 2, the period of legal memory ought to have been reduced by the courts to the same period. But this was not done, probably because the introduction by the courts of the doctrine of a presumed grant made it a matter of little im- portance. According to this doctrine, after the lapse of a period which would, under the statute of limitations, be sufficient to bar an action for the recovery of lands, the jury in the case of an incorporeal hereditament was directed that they might presume a grant.^ Whether the period of legal memory, therefore, still goes back to the date of the corona- tion of Richard I, is, at most, a matter of curious learning, and does not even affect title to incorporeal hereditaments by prescription, while neither the doctrine of legal memory, nor the theory of a presumed grant, has any application to the matter we are now considering — the length of time uader the statutes of limitation by which an actioti to recover land by the real owner is barred or taken away. § 725. Statutes of limitation governing real actions in the different States. — Without attempting to discuss in detail the ' Hall V. McLeod, 2 Mete. (Ky.) 98. ' 2 RoUe's Abr. p. 269; 2 Inst. p. 238; Rexz'. Hudson, 2 Stra. 909; 3 Starkie on Ev. 1205; Coolidge v. Learned, 8 Pick. (Mass) 503; 3 Washb. R. P. p. *449- ^ Hill V. Crosby, 2 Pick. (Mass.) 466; Carlisle v. Cooper, 4 C. E. Green (N. J). 259. 502 ADVERSE POSSESSION. various statutes of limitation applicable to real actions adopted by the different States, we may say generally, that, being of the same origin historically, and adopted upon the same considerations of public policy, and having the same main object, namely, the quieting and settlement of titles to land by barring any assertion of title, even by the owner, if he has been out of possession of the land for a fixed time, they differ from one another only in respect to the extent in time of the limitation imposed, and in respect to minor pro- visions, such as those suspending the operation of the statute in favor of persons under " disabilities." AH these statutes are, in substance and effect, as follows : No person shall commence an action for the recovery of lands, except with- in a certain number of years from the time when the right to bring such action accrued, or unless within the same number of years he, or one with whom he is in privity, has been in possession of the premises. As a rule, there are no provisions in the statutes of the different States providing in terms that adverse possession shall confer a title upon the adverse possessor, nor any provisions as to what will con- stitute a disseizin of the true owner and an adverse posses- sion in another, but questions of seizin and disseizin, entry and ouster, and as to what acts will establish an adverse possession by a stranger, and, hence, whether the statute can be pleaded as a bar to an action by the owner, are left to be determined by the courts, in each case, by the principles of the common law. In New York, however, and the several States which have adopted almost verbatim its Code of Pro- cedure, there are expressly laid down in the statute certain requirements, which must exist to constitute adverse pos- session under it, and a distinction is made in the stat- ute itself between possession under color of title and a naked possession under a claim of title founded upon no written instrument. So, there are certain provisions as to presumptions of possession in certain cases, &c.^ But it ' See N. Y. Code of Civil Procedure, §§ 362-375, and the statutes of following ADVERSE POSSESSION. 5O3 seems that these provisions, for the most part, are but de- claratory of the common law, and the general rules as to ad- verse possession which have always obtained are, in the main, adopted by all the courts in construing and applying the statutes of their respective States. We shall, therefore, confine ourselves to the consideration of these general prin- ciples without attempting to further notice the distinctions between, or the special provisions of, the various statutes as enacted by the several States. § 726. Theory of prescription and limitations. — As we have seen, the theory oi prescription^ and of the title there- by acquired, rests upon the presumption of a past grant in- ferred from, and evidenced by, an adverse enjoyment for a period fixed by law. A title to an incorporeal hereditament is thus said to be acquired by prescription. The essence of this doctrine is, therefore, the enjoyment of the right by the claimant, which enjoyment creates the title. The doctrine of limitations, on the other hand, rests upon no such pre- sumption of a right or title in one other than the true owner of the land ; on the contrary it assumes the title to be in the latter, but refuses to allow him to assert it because of his want of possession. The essence of the doctrine of limitations is technically, therefore, the non-possession of the true owner, not, as under the theory of prescription, the ad- verse enjoyment of some one else. Prescription is positive and creates ; limitation is negative and destroys. The lat- ter can properly be said to create only so far as it destroys a remedy, or, as is said in the leading case of Humbert v. Trinity Church,^ '' It is of the nature of the statute of lim- itations * * to mature a wrong into a right by cutting off the remedy." § 727. Purpose and policy of statutes of limitations. — ■ Statutes of limitations applicable to actions for the recovery States : South Carolina, Wisconsin, Florida, California, Nevada ; see also Maine R. S. c. 147, § II. ' 24 Wend. (N. Y.) 587. 504 ADVERSE POSSESSION. of land are, like all statutes of limitations, founded upon con- siderations of public policy ;^ " to promote the peace and good order of society, by quieting possessions and estates, and avoiding litigation."^ Such statutes are, therefore, charac- terized as statutes of " repose,"^ and, with respect to land, are founded upon the additional consideration, that it is contrary to the interests of the State that lands should lie uncultivated during the litigation over the title to them, and that, therefore, a limitation should be put upon such litigation.* So also it has been said, that " The statute protects the occupant, not for his merit, for he has none, but for the demerit of his antagonist in delaying the contest be- yond the period assigned for it, when papers may be lost, facts forgotten, or witnesses dead."* The policy upon which the statute of limitations, for the recovery of land in Texas, is stated also to rest, is that " of compelling those who had a right of entry under title, to take actual possession of their lands, and have the country settled, at the peril of being ousted by those who would settle the lands and im- prove the country." ^ But whatever the theory of limitations may be, as distinguished from prescription, and whether the title, resulting from adverse possession, be considered as created or transferred by the statute,^ or ais founded upon a presumed grant,® or as conveyed to the adverse possessor by the possession itself for the required time,' and though the prime object of these statutes may be the destruction of the right of re-entry, the necessary result and legal effect ^'^ is, at any rate, the establishment of the exclusive ad- verse rights of him through whose possession the right to = Elder v. Bradley, 2 Sneed (Tenn.), 253; McElmoyle v. Cohen, 13 Pet. 312. ' Humbert v. Trinity Church, 24 Wend. (N. Y.) 614. 3 Bledsoe v. Little, 5 Miss. 24. * Angell on Limitations, 6th ed. p. 6. » Gibson C. J., m Sailor v. Hertzogg, 2 Penn. St. 182. • Kinney v. Vinson, 32 Tex. 128. ' Jones v. Jones, 18 Ala. 253. » Davis V. McArthur, 78 N. C. 357 ; Melvin v. Waddell, 75 N. C. 361. 9 Winthrop v. Auburn, 31 Me. 465. 1° Crispen v. Hannavan, 50 Mo. 550. ADVERSE POSSESSION. 505 assert a paramount title has been extinguished, and the vest- ing in him of the only title to the land.^ § 728. General principles of possession, seizin, ouster, &c. — It is a familiar rule of law that there can be but one actual seizin of an estate ; that possession follows the title * in the absence of any possession adverse to it, and, as a re- sult of these two principles, that the rightful owner of land is deemed to have the possession until he is ousted from it or disseized, and also, in the absence of limitations, that he is re- stored to possession when the hostile possession or disseizin ceases. Want of possession, therefore, in the true owner necessarily implies an ouster of him by another through an entry and hostile possession. Hence, the ultimate test of the want of possession of the true owner, and his neglect to assert his right to the possession, upon which the statutes of limitation rest, is the existence of an adverse possession of another denying the owner's right. What constitutes, then, such an adverse possession of land as, under the stat- utes of limitation, will bar the right of the true owner to recover it ? § 729. What constitutes adverse possession in general. — It may be laid down as an indisputable general rule of law that, to constitute an effectual adverse possession, there must concur two things : first, an ouster of the real owner, followed by an actual possession by the adverse claimant; and, second, an intention on his part to so oust the owner and possess for himself ; ^ or, as it is sometimes called, there must be a " claim of right " or " title " in himself adverse to ' Langford v. Poppe, 56 Cal. 75. The use of such a term as "prescriptive title," or "title by prescription," which the code and courts of Georgia seem to have exclusively adopted, to designate a title acquired by adverse possession, seems objectionable in connection with land itself, in distinction from easements and the like, as confusing and as an improper use of terms. For the use of the terms '' prescriptive title " and " titles by prescription," see Jones v. Bivins, 56 Ga. 538; Castleberry z/. Black, 58 Id. 386; Ford v. Holmes, 61 Id. 419; Farrow v. Bullock, 63 Id. 360. 2 Bradley v. West, 60 Mo. 40. 3 Davis V. Bowmar, 55 Miss. 765. 506 ADVERSE POSSESSION. the true owner. It is sometimes asserted that the posses- sion, to be adverse, must be under " claim or color of title," and even that " the possession must have commenced under "color and claim of title."^ The latter is certainly an inac- curate statement ; for the books are full of cases, where a tortious entry upon, and possession of lands, without a pretense of a paper title, or rightful claim, have ripened into a title by adverse possession. The statement that there must be " claim or color of title " is also, strictly speaking, inaccurate ; for it would imply that there might be an effectual adverse possession under color of title, with- out any claim of title. We shall see hereafter, that "color of title" is, in its very essence, a claim of title, and is chiefly important in the subject under discussion as an as- sertion of title, and as defining its extent.^ There can be no effectual color of title without a claim of title, whereas there can well be a claim of title or right adverse to the owner's without any color of title whatever. To repeat, then, two ingredients are essential to constitute adverse possession : the factum, possession, and the hostile inten- tion. "So the whole inquiry is reduced to the fact of entering and the intention to usurp possession." '^ Mere possession alone would be neither the foundation of a legal right, nor a bar to the assertion of the owner's title.* In the absence of evidence to the contrary, if there be pos- session of land by another than the true owner, the pre- sumption of law is, that such possession is in accord with, or in subservience to the true title, and the legal possession of the owner.^ Permissive possession is never a basis for the statute of limitations. On the other hand, a mere claim or assertion of title to land, unaccompanied by pos- ' Tyler on Ejectment and Adverse Possession, p. 859. = See infra, Chap. XXX. 3 Bradstreet v. Huntington, 5 Peters, 439. * Jones V. Hockman, 12 Iowa, 107. 5 Jaclcson v. Tliomas, 16 Johns. (N. Y.) 293. ADVERSE POSSESSION. 507 session, would neither benefit the claimant or affect the rights of the owner.^ § 730. Entry and ouster, effect and requisites of. — It is axiomatic that the possession which follows the title to land must cease before a hostile possession can commence. There cannot be two possessions, actual or constructive, of the same land at the same time. There must, therefore, be an ouster of the true owner and an entry by another before an adverse possession is established. " The requisites in order to constitute an actual possession are that there should be made an entry, so that there may be an ouster effected and an adverse possession begun." ^ The true owner being " in possession, by force of his title, he so remains until disseized or ousted by some one who enters with a claim of adverse possession. When this ouster takes place, the limi- tation of the statute begins to run."^ Bearing in mind at the outset that the object of the statute is to cut off and de- feat the claim or rights of the true owner, we arrive at the general principle, that the criterion of the time when the statute begins to run is the ouster of the true owner and his consequent right to be reinstated in the possession, and that it is not in theory the entry of the adverse claimant. To determine, then, the character and sufficiency of an entry as the foundation of an adverse possession, we inquire whether it is sufficient to constitute an ouster of the one entitled to the possession. An entry by an adverse claim- ant, as the first act of adverse possession, must be charac- terized by most of the same elements as, we shall see, are essentials in such possession. What will constitute an entry sufficient to oust the one entitled to possession will, like the adverse possession which follows it, depend upon a variety of considerations, such as the character of the land and the uses to which it may be naturally put ; the previous rela- 1 Magee v. Magee, 37 Miss. 138. ' Bradley v. West, 60 Mo. 41 ; see Thomas z/. Marshfield, 13 Pick. (Mass.) 250. ^ Robinson v. Lake, 14 Iowa, 421, 424. 508 ADVERSE POSSESSION, tion of the parties, whether strangers or in some privity with one another ; whether the owner be in actual possession, or simply in the constructive possession which his title gives him ; and whether the entry be made under some color of title, or a naked claim, &c. Entry and ouster, too, may, like possession, be either actual or constructive. Thus the entry and ouster may be a physical invasion of the land and an actual forcible ejectment of the possessor, or the adverse claimant being already in possession, under, for example, a lease or agreement with the owner, and the owner out of the actual possession, the entry and ouster may be construct- ively accomplished by a hostile act on the part of the ten- ant, equivalent in its legal effect to an actual invasion and ejectment. It may be well here to call attention to the two leading requisites in an entry sufficient to set in motion the statute of limitations, which are, first, that the entry must be sufficiently notorious and open to give the owner notice of the hostile claim and possession begun ; and, second, that it must be hostile. The owner must, or with diligence could, have knowledge of the adverse entry. " Such knowl- edge, or the means by which such knowledge may be attained, must be brought home to the person who was seized or possessed of the land ; because the statute proceeds on the ground that he, knowing that a cause of action ex- ists in his favor for the intrusion, yet acquiesces in it, and does not attempt to regain the possession of his land in the mode provided by law. A clandestine entry or possession will not set the statute in motion, because the owner of the land cannot be said to have acquiesced in the wrongful en- try or possession. The owner will not be condemned to lose his land because he has failed to sue for its recovery, when he had no notice that it was held or claimed ad- versely ; but the statute cuts off" his remedy only when he has neglected to commence his action beyond the period assigned for it." ^ So an entry to work an interruption to I Thompson v. Pioche, 44 Cal. 508. ADVERSE POSSESSION. 509 possession " must be made under such circumstances as to enable the party in possession, by the use of reasonable diligence, to ascertain the right and claim of the party mak- ing the entry." ^ Without such an entry, or hostile acts, from which the jury may. find the fact of notice to the true owner, it has been held there can be no ouster, and the entry would be a mere act of trespass.* Thus, a survey of land has been held to be " not such a distinct and notorious act of possession as will justify the reasonable presumption of an ouster, or that the party went upon the land with a palpable intent to claim the possession as his own." ^ In the second place, the entry, or the first act of posses- sion on the part of the claimant, must be hostile. The pre- sumption of law, according to a familiar rule, is in favor of regularity as against irregularity, of what is lawful as against what is unlawful. An entry upon the land of another will, therefore, by presumption of law, be deemed permissive, in accord with, and not in defiance of the owner's right. " Every presumption is in favor of possession in subordination to the title of the true owner. An entry adverse to the lawful owner is not to be presumed, but must be proved."* Hence the mere entering upon and taking possession of land, how- ever notorious, is not sufficient, unaccompanied by acts or declarations, or both, which rebut the presumption that it is in subservience to the rights of the owner, and which leave no doubt of its hostile character. The evidence necessary to establish the hostility of the acts necessary to set in mo- tion the statute of limitations on the part of a stranger taking actual possession, and that required on the part of such persons as stand in some relation of privity with the true owner, and who may be already in possession of the ' See Wing v. Hall, 47 Vt. 182 ; Soule v. Barlow, 49 Vt. 329. ' Pray 7/. Pierce, 7 Mass. 383; see also HoUey z/. Hawley, 39 Vt. 534; Carrol V. Gillion, 33 Ga. 539, 548. ' Beatty v. Mason, 30 Md. 414. * Hart V. Bostwick, 14 Fla. 178, and cases cited. 5IO ADVERSE Possession. land, we shall further discuss in considering the various requisites of adverse possession.^ §731. Adverse possession in general, requisites of, &c. — The owner of the land, or the one entitled to the possession, having been ousted by the entry of an adverse claimant, the adverse possession of the latter being thus established and the statute being set in motion, there remain to be con- sidered the character and requisites of the possession, which, continued for the time prescribed by the statute, will both bar the right of recovery of the owner, and will confer upon the adverse possessor the only title to the land. We shall consider this subject under two heads ; first, naked posses- sion, where the rights of the adverse occupant depend upon possession alone, and, second, possession under color of title, where, in addition to an actual occupation of the land, or some part of it, the adverse occupant claims the right to do so under some deed, writing or paper title to the same. Un- der the latter head, to which alone it belongs, we shall con- sider the subject of " constructive " adverse possession.^ In general, it may be stated that, whether the adverse claimant bases his rights under the statute upon mere naked posses- sion, or, in addition to the latter, upon some color of title, some actual adverse possession is necessary, and, though the rule as to the sufficiency of the actual possession may in some cases be somewhat relaxed, when the possession is accom- panied with color of title, yet, in the main, in both cases the requisites of the actual adverse possession are the same. Though we find a great variety of terms in use in the au- thorities on this subject defining adverse possession, its req- uisites may be reduced to the following : the possession under consideration must be actual, open, continuous, hostile, and exclusive. That such possession shall ultimately estab- lish the adverse rights of the possessor, it must be accom- panied by the intention, on his part, to claim adversely, or a " claim of right," as it is called, in himself. ' See post, § 751. 2 See infra. Chap. XXX. ADVERSE POSSESSION. 5II § 732. Possession must be "actual;"''' what constitutes, <2fc. — It is impossible to lay down a general rule as to what con- stitutes an effectual actual adverse possession of lands and what falls short of it.^ It is, necessarily, a question governed more or less by the facts of each case,^ and particularly by the character and situation of the land in question, and the uses to which it would naturally be put.^ In Ford v. Wilson, above cited, it is stated as the doctrine of the Supreme Court of the United States, that it suffices that " visible and notorious acts of ownership are exercised over the premises," &c. So, in a recent case in the Supreme Court of Illinois, it is held that actual residence is not indispensable, but that " if there is continuous dominion manifested by continuous acts of ownership, it is sufficient."* On the other hand, the limita- tion act of Texas giving, after a certain period, to a " naked possessor " the title to the land, is construed as requiring actual residence thereon, though the act requires, in terms, only "peaceable possession and cultivation, use or enjoy- ment."' It is held in Ohio, that the naked possessor " must show a substantial inclosure, an actual occupancy, a pedis possessio, which is definite, positive, and notorious." " In Illinois, on the other hand, it is held unnecessary to inclose all the land by a fence,, and the court say, that, as a general rule, it is sufficient if the land is -appropriated to individual use in such a way as to apprise all persons in the vicinity as to who has the exclusive use and enjoyment.^ Mr. Justice Story, in delivering the opinion of the Supreme Court in Ellicott V. Pearl, stated that no authority was necessary for so plain a proposition, as that " to constitute actual posses- sion, it is not necessary that there should be any fence or ' Ford V. Wilson, 35 Miss. 505. ' Leeper v. Baker, 68 Mo. 405 ; Turner v. Hall, 60 Id. 275. 3 See infra, § 733. < Coleman v. Billings, 89 111. 189; contra, under act of 1835, Martin v. Judd, 81 111. 488. ' Sloan V. Martin, 33 Texas, 418. « Humphries v. Huffman, 33 Ohio St. 403 ; Bristol v. Carroll Co. 95 111. 93. '^Kerrz/. Hitt, 75 111. 51. 512 ADVERSE POSSESSION. inclosure of the land," for the reason that the erection of a fence is only an act presumptive of an intention to assert an ownership, and that there are many other acts equally evincive of such an intention.^ In a late case in the Supreme Court of Missouri, it is said, that " a fence, building or other improvement, is not essential to constitute an adverse possession. Acts of ownership, under a claim of right, visible, are sufficient to authorize the court to find such possession." * So in a case in Alabama, the language used is that " the inclosure is but one act indi- cating possession and claim of ownership. There are many other acts equally indicative of possession," &c.^ In a case in North Carolina, it is said, " the leading idea is, that there shall be notice to the world," and it was accordingly held that " building a shed, quarrying rock, erecting a lime-kiln, cutting wood," &c., were sufficient acts of ownership, because they were " of a nature calculated to attract more than ordi- nary notice." * On the other hand, in a case in New York, where the claimants under a tax deed caused some surveying to be done on the land, and paid some taxes thereon, it was held that " such acts have never been held to show a posses- sion for any purpose," * To the same effect, as in the cases above quoted from, is the language of the Supreme Court of Arkansas : " It is not the particular use made of the land, or whether built upon and used as a residence, or cleared and cultivated as a farm, but the exclusive use and adverse pos- session may be proven as well by other acts and declarations, which show a visible, open and exclusive possession and use of the land." " So held where a plot of ground was used as a ' Ellicott V. Pearl, lo Pet. 441, 442; see also Ewingz/. Burnet, 11 Pet. 41 ; com- pare Davis V. Bowmar, 55 Miss. 671. 2 Leeper v. Baker, 68 Mo. 400, 407 ; see also Turner v. Hall, 60 Mo. 275, 277. 3 Bell V. Denson, 56 Ala. 448. * Moore v. Thompson, 69 N. C. 120; compare Davis v. Bow^mar, 55 Miss. 671, in which the fundamental principles of adverse possession are exhaustively and ably discussed. " Thompson v. Burhans, 61 N.Y. 70. 6 Mooney v. Cooledge, 30 Ark. 655 ; see also McCreery^. Everding, 44 Cal. 346 ; Brown v. Rose, 48 Iowa, 233. ADVERSE POSSESSION. 513 family burial ground ; the adverse possession being estab- lished by such a use, but being confined to the parts of the land actually covered with graves. § 733- Requisites of possession as affected by nature of the land. — In determining the sufficiency of an adverse possession, as stated above/ much depends upon the char- acter and situation of the land in question. Thus, in a re- cent case in the Supreme Court of Massachusetts, the court said : " What is an adverse and exclusive possession, * * * depends very much upon the character of the land, and the purposes to which it is adapted, and for which it is used."^ Again: "So much depends on the nature and sit- uation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it ; that it is difficult to lay down any precise rule adapted to all cases;"* and also "the jury may take into consideration the nature and situation of the land;"* and, "the possession must be by acts suitable to the character of the land."® So in the case of Draper v. Shoot,* cited in Leeper v. Baker, it is said: "It is no easy matter to say what is an adverse possession. It is a question compounded of law and fact, and every case in which it is involved must be determined by its own circumstances. What is adverse possession is one thing in a populous country, another thing in a sparsely settled one, and still a diiferent thing in a town or village." And in a case in California, it has been decided that "the acts of ownership and dominion over land, which may be sufficient to constitute an actual posses- sion, vary according to the condition, size and locality of the tract." ' Again, " the rule of law is very well settled that, where a person claiming land exercises acts of ownership of ' See supra, § 733, etc. ' Bowen v. Guild, 130 Mass. 123. ' Ewing V. Burnet, 1 1 Peters, 53. < Turner v. Hall, 60 Mo. 271. * Bell v. Denson, 56 Ala, 449. « 25 Mo. 203. See Leeper v. Baker, 68 Mo. 407. ' Brumagim v. Bradshaw, 39 Cal. 24; see also Creech v. Jones, 5 Sneed (Tenn.), 631, 635. 33 514 ADVERSE POSSESSION. it, by the use of it for the purposes to which it is adapted, he is in such actual occupancy of it as will even bar an ac- tion after the lapse of the statutory time. Such possession is as actual as that by inclosure."^ So held in respect to un- inclosed timber land on which the adverse claimant had cut wood and timber. It may be doubted, however, whether the mere cutting of timber would generally be held to be sufficient evidence of actual adverse possession. In the case last cited, the defendant held under color of title, and it is probable, from the statement of facts in the case, that the land in dis- pute was used as a timber lot in connection with other land owned by the defendant or his grantor. A distinction based upon the latter circumstance, i. e., that the land was used in connection with other land as a timber wood-lot, is well drawn in the case of Miller v. Long Island R. R. Co.,'' in the New York Court of Appeals, where it is made the ground of distinguishing the case of Machin v. Geortner,' in the same State. The same distinction is made in the case of Beaupland v. McKeen,* in the Supreme Court of Pennsylva- nia, where it is held as follows : " If the fact be that those in possession of the Patterson tract, at Bear Creek, made such use of the interference as owners ordinarily make of their adja- cent timber lands — taking firewood, fence rails, or lumber from it, for the use of their mill, * * * this would be possession. * * * Such acts as I have enumerated, have repeatedly been held to constitute actual possession. * * * But, if this was mere marauders' ground — if anybody wlio wanted to get lumber manufactured at the Bear Creek mill went upon the interference to take timber without regard to the Patterson title — if, in a word, the only acts of posses- sion were occasional entries for lumbering purposes, they would not constitute the possession essential to title."^ In a case in the Supreme Court of Illinois, the court say. ' Clement v. Perry, 34 Iowa, 567. 371 N. Y. 383. 3 14 Wend. (N. Y.) 239. a 28 Penn. St. 134. s See also Williams v. Wallace, 78 N. C. 354; Austin v. Holt, 32 Wis. 478. ADVERSE POSSESSION. 515 " When a party has title, or color of title, to woodland, and uses the land for the purpose of obtaining wood for fuel, or fencing for a farm in the neighborhood, under a claim of ownership, such facts have been held, under a number of decisions of this court, to constitute possession."^ But non constat, that if there had been no color of title in the claim- ant, such occupation or use of woodland for a farm in the neighborhood — in this case half a mile distant — would have been held sufficient actual adverse possession. We shall see later that when an adverse possession is coupled with " color of title," oftentimes less positive actual and notorious acts of ownership over the land are re- quired.^ In a recent case in Tennessee, where the land in dispute was uninclosed and unimproved timber land, and where the testimony did not " show absolutely that the land was not susceptible of cultivation or residence," but had been used by defendant simply for the purpose of cutting timber, and was situated about three-fourths of a mile from land on which the defendant resided, it was held, that the possession was insufficient to defeat ejectment by the owner, and the rule was reiterated, that, in general, nothing short of actual inclosure will be regarded as suffi- cient evidence. Some exceptions, however, were recog- nized to this rule, as, for example, where the property con- sisted of an ore bank, a sand pit, stone quarry, or the like.' So, in a case in the Supreme Court of Minnesota, it is held, that the mere cutting of timber from wild lands without actual occupancy or cultivation, or inclosure of the land or some part of it, when it is adapted to and capable of such im- provement, will not constitute adverse possession sufficient to maintain an action of replevin for logs cut and carried away.* In Alabama, however, it is said, that " cutting tim- ber on land fit for no other purpose might be adverse pos- ' Scott V. Delany, 87 111. 148; citing Davis v. Easley, 13 111. 199; Austin v. Rust, 73 111. 491. 2 See infra, Chap. XXX. ^ PuUen v. Hopkins, i Lea (Tenn.), 741- * Washburn v. Cutter, 17 Minn. 361 ; see also Carrol v. Gillion, 33 Ga. 539. 5l6 ADVERSE POSSESSION. session, but if the land were suitable for other purposes such mere acts of occupation would not be sufficient." ' In the case of Leeper v. Baker, cited above, where some swamp land mostly unfit for cultivation, and incapable of being fenced without a risk of the fences being washed away by high water, and when it would not have paid the plaintiff to have cultivated the few acres susceptible of cultivation, had been used as incident to other land of the plaintiff, and adjoining it, to obtain wood, &c., from, that circumstance in connection with payment of taxes, and a survey on record, &c., was held sufficient evidence of adverse possession. § 734. What is a sufficient actual possession. — It is sometimes said or implied,^ that one criterion to deter- mine whether the acts of possession of the claimant are sufficient to constitute adverse possession, is the inquiry — what would be the character of the real owner's possession, or treatment of the particular land in question ? In many cases this would be a proper test ; but, in the class of cases just discussed, such a criterion would be a very unreliable one. In the case of remote and wild lands, for example, an owner would usually be content with the constructive pos- session of the land which his title would give him, and with, it may be, the payment of taxes. Improvement, fencing, and the like, would, for years, perhaps, be out of the ques- tion. Should, however, an adverse claimant, by asserting color of title by a deed on record, and by paying taxes, show thus a treatment, in such a case, in all respects such as the real owner would give the land, that would, alone, be clearly insufficient to establish any adverse title.^ However, in view of the main object of the requirements of the stat- utes of limitation as to the character of the adverse posses- sion which will bar the owner's right, being notice to the owner of the adverse claim, and such acts of ownership - Rivers v. Thompson, 46 Ala. 338 ; see Ewing v. Burnet, 1 1 Pet. 53. 2 See Ewing v. Burnet, 11 Pet. 53 ; Beaupland v. McKeen, 28 Penn. St. 134- 3 Brown v. Rose, 48 Iowa, 233 ; Turner v. Hall, 60 Mo. 271. ADVERSE POSSESSION. 517 therefore being required as are presumed of themselves to give such notice — actual or constructive — it would seem, that, if it were proved that the owner of the land had actual notice of the adverse claim, and of some acts of ownership thereunder, it might be sufficient to bar the owner under the statute, though, in the absence of actual notice, such acts of ownership of the adverse claimant would not be held sufficient to constitute an adverse possession. Ac- cordingly, such acts as putting deeds on record, passing over the tract, employment of an agent living near by to look after the land, and the payment of taxes, were held insuffi- cient to constitute adverse possession, unless such acts were known to the party holding the legal title, and they were done under claim of adverse title.^ In view of what has been said above, we, can lay down only the very general rule, that, to constitute the actual possession required by the statute, there must be some tangible, positive acts of own- ership upon, and some actual use or appropriation of the locus in quo ; and that the nature of such acts, use or appro- priation is determined, in large measure, by the character and location of the land, and the uses to which it would naturally be put.^ § 735- Possession -must be "open'''' and "notorious!''— The next requisite of adverse possession which we shall consider, is, that it must be "open," or, as it is sometimes called, "visible" and "notorious." He who would claim by reason of his adverse possession must, as has been said, " keep his flag flying."^ The main reason for the require- ments of the law respecting the character of the adverse possession which will set in motion the statute, and will ultimately bar the rights of the true owner of land, is, that the possession shall be of such a character that it itself shall ' Turner v. Hall. 60 Mo. 271 ; compare Clark v. Gilbert (39 Conn. 97), §736. " See cases cited above. As to the statutory regulations in respect to what constitutes adverse possession in several of the States, see supra, §§ 729-731. ' Wood V. Drouthett, 44 Tex. 370; see Stephens v. Leach, 19 Penn. St. 265. 5l8 ADVERSE POSSESSION. notify the owner of the land of the adverse claim/ and force him to protect his rights, or, by acquiescing in the adverse claim for a certain period, lose them altogether. "The ground upon which the junior claimant acquires title by adversary possession, is the supposed laches of the owner. The latter sees his boundaries invaded by an adverse claim- ant asserting title, and, if he remains passive under such cir- cumstances a sufficient length of time, he is held to acqui- esce in the adverse claim." So the adverse possession, like the original entry ,^ " must be such as to notify the real owner, at least as against him, of the possession and claim."' " Notoriety is only important when the adverse character of the possession is to be brought home to the owner by pre- sumption;"* "because it gives the owner notice that his seizin is interrupted, and that his title may be endangered."* Moreover, " acquiescence," upon which the whole doctrine of adverse possession rests, " cannot be presumed, unless the owner has, or may be presumed to have, notice of the pos- session." It is said, " The law designs that the owner shall have ample knowledge on the subject, and a full opportu- nity to assert his claim, but if he sleeps upon his rights for a period of fifteen years he is presumed to have acquiesced in the claims of another." ^ So we have seen that a " clan- destine entry" is insufficient to set the statute in motion,'' because the owner must have "knowledge or means of knowledge." So "a silent possession, accompanied by no act which can amount to an ouster or give notice to his co- tenant of his intention to exclude him, will not make a pos- session adverse."^ ''Secret possession will not do, as pub- ' Turpin v. Saunders, 32 Gratt. (Va.) 27. 2 Soule V. Barlow, 49 Vt. 329; Wing v. Hall, 47 Id. 182. = Fugate V. Pierce, 49 Mo. 447. ■■ Clark V. Gilbert, 39 Conn. 97. s Cook V. Babcock, 11 Cush. (Mass.) 210. li School District v. Lynch, 33 Conn. 334. ' Thompson v. Pioche, 44 Cal. 508. 8 Abercrombie v. Baldwin, 1 5 Ala. 370 ; see McCIung v. Ross, 5 Wheat. 1 16 ) Willison V. Watkins, 3 Pet. 51 ; Turpin v. Saunders, 32 Gratt. (Va.) 34. ADVERSE POSSESSION. 5I9 licity and notoriety are necessary as evidence of notice and to put those claiming^ an adverse interest upon inquiry." ^ § 736. Notice to the owner, actual or constructive. — The test, therefore, as to whether acts of ownership or pos- session are sufficiently open and notorious, is whether they are sufficient in themselves to notify the owner of the pos- session and its hostile character.^ Hence it is not necessary to prove actual knowledge on the part of the owner. " All that is necessary to constitute disseizin is actual, adverse and exclusive possession, so open and notorious that it may be presumed to have been known to the rightful owner." * And whether the notoriety is such as to raise such presump- tion of knowledge is for the jury to determine. Thus, " where an inclosure, consisting partly of natural and partly of artificial obstructions, is relied upon as, in itself, establish- ing a possessio pedis, it is the province of the jury, upon all the proofs, and considering the quantity, locality and charac- ter of the land,* to decide whether or not the artificial bar- riers were sufficient to notify the public that the land was appropriated, and to impart to the claim of appropriation the notoriety and indicia of ownership which constitute so important an element in a possessio pedis "^ But the fol- lowing language in a charge to the jury, "that any acts done on the premises indicating an intention to hold the land," is held " altogether too loose." " In view of the reason for the rule requiring notoriety of possession, namely, that notice may be given to the owner, and according to the case of Clark v. Gilbert above quoted from, it would seem ' Armstrong v. Morrill, 14 Wall. 145. ^ Moore v. Thompson, 69 N. C. 121 ; see also a recent case in the Court of Er- rors and Appeals of the State of New Jersey, in which the subject of the requi- sites of adverse possession is admirably treated by Depue, J., in Foulke v. Bond, 12 Vroom (N. J.), 527. ^Samuels v. Borrowscale, 104 Mass. 210; see also Alexander v. Polk, 39 Miss. 755. ■■ See supra, § 733. * Brumagim v. Bradshaw, 39 Cal. 50. * Lynde v. Williams, 68 Mo. 370. 520 ADVERSE POSSESSION. that if the owner had already actual knowledge of the ad- verse possession and claim, then, as it is expressed in the case just cited, "openness and notoriety are unimportant."' When the possession is taken under a deed which is placed on record, it has been held that there is a construct- ive notice to the owner ^ of the claim and its extent. Any such effect, however, given to a deed on record would not relieve the adverse claimant from proving an " actual " and " open " possession of some part of the locus in quo, in ac- cordance with principles already stated ; the effect of the recorded deed would, no doubt, as regards notice to the owner, be confined to the part of the land outside the actual possession of the claimant,® and claimed only by a construct- ive possession. § 737- Possession must be "■continuous." — The one en- titled to the possession of land being ousted by the entry of an adverse claimant, and the adverse possession of the latter being begun by actual and open acts of ownership upon the land, in order that the owner shall be barred of his right of re-entry and recovery of the land, such adverse possession must continue uninterruptedly for the period of time lim- ited by the statute. This period, as we have remarked, varies in the different States of the Union ; and in the same State there are often different limitations, depending upon different conditions, such, for example, as whether the pos- session be accompanied with color of title — so-called— or with payment of taxes, or has been begun in good faith, and the like. As a rule, we find, on examination of the statutes, that, in the older and more settled portions of the country, where the conditions of property of all kinds are more stable, the periods prescribed by the statute are longer than in the more recently settled communities, where land, as well as property of all kinds, is constantly changing hands, and varying in value. In the latter, too, it is the > Clark V. Gilbert, 39 Conn. 97 ; compare Turner v. Hall, 60 Mo. 271 ; see ^ 734- 2 Forest v. Jackson, 56 N. H. 357. ^ As to this and kindred subjects, ste.post, Chapter XXX. ADVERSE POSSESSION. 52 1 policy of the State that the lands should be quickly set- tled, as is stated in a Texas case cited above ^ ; and every encouragement, therefore, is given to " enter and take the land." While in New York, for example, the period of limitation for the recovery of real property is twenty years, in California, which in other respects has adopted the New York statute, the period is but five years. As we have seen, the time when the statute begins to run is when the party entitled to the possession is disseized, or, in other words, when his right of action for the recovery of the pos- session accrues. As the possession by presumption of law follows the title, except in the case of an adverse posses- sion,^ it follows, that the adverse possession ceasing, either by the abandonment of the disseizor or by the re-entry of the true owner before the adverse possession has ripened into title, the true owner is restored to the possession.* The adverse possession must, therefore, continue as it has begun, to work ultimately a forfeiture of the right of the owner. To determine, then, in this respect, the sufficiency of the adverse possession, we inquire whether the adverse tenant has ever within the period abandoned the possession, or ceased to exercise the acts of dominion which we have found are necessary to constitute adverse possession, or whether, meanwhile, the true owner has been restored to the possession, either by his re-entry and ouster of the ten- ant, or by any other interruption of the latter's possession. In connection with this subject, we shall also consider how far the periods of time, during which different occupants have held possession of the land, may be joined or "tacked" together to constitute one continuous possession.* ' See supra^ § 727. " Ruggles V. Sands, 40 Mich. 559; Williams v. Wallace, 78 N. C. 354. ' Armstrong v. Morrill, 14 Wall. 120; Potts v. Gilbert, 3 Wash. C. C. 479; Holdfast V. Shepard, 6 Ired. (N. C.) Law, 364 ; see also Smith v. Chapin, 31 Conn. 531, where it is said: "Doubtless the possessions must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them." * See infra. 522 ADVERSE POSSESSION. § 738. It is hardly necessary to cite authorities, in addi- tion to those already given on the requisites of adverse pos- session, to support the general proposition that the adverse possession must be continuous. Moreover, the "continuity"' of the adverse possession is the very essence of the doctrine and policy of the statutes of limitation. As the court say in Groft v. Weakland, " If there be one element more dis- tinctly material than another in conferring title, where all requisites are so, it is the existence of a continuous adverse possession,"^ &c. So in the case of Armstrong v. Morrill, in the Supreme Court of the United States, Mr. Justice Clifford, in delivering the opinion of the court, says : " Con- tinuity of possession is also one of the essential requisites to constitute such an adverse possession as will be of efficacy under the statute of limitations. Whenever a party quits the possession the seizin of the true owner is restored, and a subsequent wrongful entry by another constitutes a new disseizin, and it is equally well settled that if the continuity of possession is broken before the expiration of the period of time prescribed by the statute of limitations, an entry within that time destroys the efficacy of all prior possession, so that to gain a title under the statute, a new adverse pos- session for the time limited must be taken for that purpose." ^ In other words, the underlying reason for requiring conti- nuity of possession is, as above stated, the principle of law that an adverse possession ceasing or being interrupted for any cause, the possession of the true owner is restored, and the latter, having actually or constructively re-entered, the statute limiting his right of re-entry of course stops running, to be set in motion again only by a new entry, ouster, and hostile possession. As is said in Olevine v. Holman, in the Supreme Court of Pennsylvania, " If the continuity of the possession be broken for a single day before the twenty-one 1 34 Penn. St. 308 ; see also Bell v. Denson, 56 Ala. 449 ; Riggs v. Fuller, 54 Ala. 141. '•i Armstrong v. Morrill, 14 W^all. 146. ADVERSE POSSESSION. 523 years have elapsed, the previous possession goes for nothing, and the wrong-doer must commence de novo."'^ As to the necessity, in general, of continuity in adverse possession, we shall, in addition, quote only from a few authorities on the subject, as it is one that hardly demands or admits of further discussion. § 739. Requisites of continuity in possession. — " The stat- ute protects only such adverse possession as has been con- tinuous in fact, both as to time and interest, during the prescribed period."^ The jury "must find that such pos- session was continuous as well as adverse, and if they further find that there was a break in such possession, or that said premises were not in the possession of any one for one or more years during that time, that the same was not continuous."^ " Such a temporary occupancy for such an important purpose, really nothing but trespasses repeated from year to year, can confer no title by adverse posses- sion."* So held when the adverse possession sought to be established consisted in entries upon the land once a year for over twenty years, and in the cutting and removal of grass. Such acts are plainly separate acts of trespass and not such a constant and continuous possession as is required to ripen into title.^ So the adverse claimant "must also continue in possession for seven years. Occasional entries upon the land will not serve, for they may either be not ob- served, or if observed, may not be considered as the asser- tion of rights." " But it is said : " To constitute a continu- ous possession it. is not necessary that the occupant should be actually upon the premises continually. The mere fact ' 23 Penn. St. 284 ; see also Brolaskey v. McClain, 61 Id. 166. "^ San Francisco v. Fulde, 37 Cal. 353. 2 Lynde v. Williams, 68 Mo. 365. . ^ Wheeler v. Spinola, 54 N. Y. 387. » White -v. Reid, 2 N. & McC. (S. C.) 535 ; see also Ward v. Herrin, 4 Jones' (N. C.) Law, 25 ; Austin v. Holt, 32 Wis. 478 ; see also Gudger v. Hensley, 82 N, C. 481, 483. « Williams v. Wallace, 78 N. C. 356, 357, and cases cited ; see also McCul- lough V. Wall, 4 Rich. (S. C.) Law, 81 ; Washabaugh v. Entriken, 34 Penn. St. 74. 524 ADVERSE POSSESSION. that time intervenes between successive acts of occupancy does not necessarily destroy the continuity of the posses- sion." ^ Moreover, " his possession must not only have been adverse * * * but he must also have claimed the title * * * during the entire statutory period."^ So "the adverse enjoyment must have been continuous, and to the full extent for the whole of the time. * * * It is not sufficient that a person entering upon lands, has entered more than twenty years ago, if there have been one or two years in which he has had no possession within the twenty years."" "To make the bar of twenty years possession operative and effectual to destroy a right of entry, it is necessary that the possession claimed as adverse should be shown to be continued and uninterrupted," ^ and the ground of this requirement, as stated in the case cited, is, that there must be at any period of the twenty years some occupant against whom the owner might bring an action of ejectment in order that the latter should be barred by the statute. Or, as it is elsewhere expressed, the occupation must be such " as to shew an uninterrupted exercise of ownership, or con- tinued assertion of right, and liability at all times to the possessory action of the owner."^ So it is stated, as another reason for requiring the tenant to " remain permanently upon the land," that the possession should be such " as to leave no doubt on the mind of the true owner, not only who the adverse claimant was, but that it was his purpose to keep him out of his land."^ Or, as it is expressed in cases above cited, the tenant must " keeg his flag flying."' On the principle that the constructive possession of the owner revives when the land ceases to be actually adversely possessed by another, the continuous possession required must ' Webb V. Richardson, 42 Vt. 473. 2 Lovell v. Frost, 44 Cal. 475. 3 Carlisle v. Cooper, 4 C. E. Green (N. J.), 259. " Trotter v. Cassady, 3 A. K. Marsh. (Ky.) 366. 6 Holdfast v. Shepard, 6 Ired. (N. C.) Law, 365 ; see Moss v. Scott, 2 Dana (Ky.), 274. « Denham v. HoUman, 26 Ga. 191. ' See supra, §§ 737, 738, 739. ADVERSE POSSESSION. 525 be, so to speak, stationary. As it is said in Potts v. Gilbert/ above cited : " The adverse possession before mentioned, must not only continue, but it must continue the same, in point of locality. * * * A roving possession from one part of a tract of land to another, cannot bar the right of entry of the owner upon any part of the land which had not been held adversely for twenty-one years, although the different periods of possession of the separate parcels, should amount, in the whole, to that number of years." § 740. Interruption of the possession. — The requirement of continuity implies that the possession shall not have been interrupted, either by the act of the owner, or the interfer- ence of another adverse occupant, or by the abandonment of the adverse claimant himself. In either case, as we have seen, the constructive if not the actual possession of the owner revives,^ a new entry on the part of the adverse claim- ant becomes necessary, and a new adverse possession must be inaugurated, which his previous possession can in no respect assist.^ The important question, therefore, in this subject, is, what amounts to an interruption of an existing adverse possession sufficient to stop the running of the statute, and render the previous possession of no avail as against the true owner ; in other words, to restore the latter to the possession from which he had been ousted ? As is said in the case of San Francisco z/. Fulde,* above cited, "it makes no difference by whom, or in what manner, the continuity of the adverse possession is broken, so only that it is broken." § 741. By re-entry of the owner. — If the theory of lim- itations rests upon the neglect and acquiescence of the owner of the land, it naturally follows that, should he re-assert his rights as owner, by again exercising acts of dominion over his land, hostile to any pretended adverse right, the adverse ' 3 Wash. C. C. 478. = Mally v. Bruden, 86 N. C. 259. 3 Jackson v. Leonard, 9 Cow. (N. Y.) 653 ; Melvin v. Proprietors of Locks, &c. 5 Mete. (Mass.) 32 ; Allen v. Holton, 20 Pick. (Mass.) 465. * 37 Cal. 353. 526 ADVERSE POSSESSION. possession will be defeated, and the running of the statute stopped.^ And such an entry " has the same effect in arrest- ing the progress of the limitation as a suit."^ In other words, the re-entry of the owner ousts the former disseizor. Moreover, the adverse occupant need not be actually turned out of possession by the owner, to defeat the statute, and that, too, on account of the same rule of law that makes it necessary, in order to establish an effectual adverse posses- sion to the owner, that the latter should be actually ousted if in actual possession ; namely, the principle that if two or more persons are in actual occupation of the land, the legal possession follows the title. But, in most respects, we find that the requisites for an effectual re-entry by the owner are the same as to establish an adverse possession in the case of an entry by a disseizor. That is to say, the re-entry must be evidenced by distinct acts of ownership inconsistent with any adverse claim, and be done with the intent to claim the exclusive possession. As it is said by Gibson, C. J., in a leading case on this subject in Pennsylvania, " there must be an explicit declaration, or an act of notorious dominion, by which the claimant challenges the right of the occupant ; or it cannot perhaps be better defined than by saying that the entry must bear, on the face of it, an unequivocal intent to resume the actual possession." ^ As to what acts by the owner, in themselves, will constitute an interruption of the adverse possession, it is impossible to lay down any rule. It has been held that it is for the jury, under proper instruction, to determine from the number, character and time of such entries by the owner, whether the possession of the owner was exclusive, and, in the case before the court, it was held improper for the trial judge to characterize the entries of the owner from time to time as trespasses, and say they were ' Pederick v. Searle, 5 S. & R. (Penn.) 239. " Henderson v. Griffin, 5 Pet. 1 58. » Altemas v. Campbell, 9 Watts (Penn.), 3 1 ; see also Holtzapple v. Phillibaum, 4 Wash. C. C. 356. ADVERSE POSSESSION. 527 ineffectual to prevent the operation of the statute, unless accompanied by such an assertion of title as would be neces- sary to toll the statute in the case of an actual disseizin.^ In the case, however, of Holtzapple v. Phillibaum,^ above cited, it is said, admitting that the quo animo with which the entry is made is to be decided by the jury, yet that " whether the entry was made in a legal form or not, is exclusively a question of law, when the fact is ascertained." But in a recent case in Massachusetts, where the entry was followed by no act of ownership, and was simply a passing over the land for the purpose of ascertaining its condition, to see whether any use had been made of it, or whether any build- ings or structures had been erected upon it, &c., and "the presiding judge having ruled that this single fact * * * was in itself a matter of law, an interruption of the posses- sion," it was held error,^ the court holding, that, " although there may be cases in which the occupation by the true owner may be of such a nature, and so continued, that it would be the duty of the court, upon the truth of such facts being apparent, to rule, as matter of law, that the adverse possession had been interrupted, still the general principle is that it is a question for the jury to determine whether in fact the adverse possession has been continuous or has been interrupted." § 742. Statutory regulations as to an effectual re-entry. — The rules of law, as above stated, as to the effect of re-en- try by the owner in interrupting the adverse, and restoring his own possession, are those which obtain at common law. Many of the States, however, have enacted statutory regu- lations as to what is necessary to constitute an effectual en- try upon land, so as to defeat the statute. Generally, in these States, it is necessary, in addition to making an entry. ' O'Hara v. Richardson, 46 Penn. St. 385. 2 4 Wash. C. C. Rep. 370. < s Bowen t/. Guild, 130 Mass. 121, 124, and cases cited; compare Ransom v. Lewis, 63 N. C. 45; but see O'Hara v. Richardson, 46 Penn. St. 385, 391. 528 ADVERSE POSSESSION. either to bring an action within a certain period — usually one year — from the time of entry, or to maintain an open and peaceable possession for the same period/ On this sub- ject, therefore, the laws of each State must be consulted. On the subject, too, of forcible entry and detainer, there are statutory regulations in some of the States, which would materially modify, if not destroy, the common law rule as to the effect of a forcible entry by the owner.^ In the absence of statutory regulations, however, it may be stated generally, that an unequivocal entry and assertion of ownership upon the land, evidenced by an open and hostile act of dominion, combined with an intention so to assert exclusive rights on the part of the owner, will eflfectually interrupt the adverse possession and defeat the statute of limitations. § 743. Effect of bringing an action or recovering a judg- ment in ejectment. — The main object of the statute of limi- tations being to bar an action by the owner for the recovery of the land, it follows, of course, that if an action is insti- tuted by the owner before the statutory period has elapsed, the running of the statute, and the adverse possession upon which it depends are, at least, suspended, and the rights of the parties, according to the general rule, are to be deter- mined as they existed at the time the action was brought. If, then, at that time the statute had already run in favor of the defendant, the plaintiff must fail ; but if at that time the statute had not run, the plaintiff is entitled to recover, though the statutory period might elapse during the prog- ress of the action. These rules hardly admit of discussion. When, however, the plaintiff has recovered judgment in such a case, the question arises, whether it is necessary for him to follow up such recovery by an actual entry and tak- ing possession, or whether the recovery of the judgment is > See, for example, the laws of Massachusetts, New York, Michigan, Vifiscon- sin, Missouri and others. 2 For example, see Ferguson v. Bartholomew, 67 Mo. 219; Gary v. Edmonds, 71 Id. 525. ADVERSE POSSESSION. 529 itself an interruption of the adverse possession, rendering the former adverse possession entirely ineffectual, and neces- sitating a new adverse possession for the whole statutory period. In support of the latter view is the case of Bro- laskey v. McClain/ in the Supreme Court of Pennsylvania, in which it is said, " If Wester" (under whom the defend- ant in the ejectment claimed) " and his heirs had the con- tinued and adverse possession of the lot during all this time, it would be sufficient to give them a title under the statute. But, as we have already seen, Richard Peters brought an action of ejectment against Henry Wester in 1818, and recovered a verdict and judgment therein in 1825. This recovery stopped the running of the statute, and even if the Westers held adverse possession of the lot thereafter until the house was torn down in 1838, they acquired no title under the statute of limitations." In an earlier case however, in the same court, it is certainly implied, if not held directly, that something more than a mere recovery of judg- ment is needed to interrupt the course of the statute.^ But in a recent case in Michigan, where a decree had been ren- dered requiring a prior occupant of the land to convey it to one standing in privity with the plaintiff in ejectment, it was held as follows : " Whatever may have been the true character of Mrs. Smith's possession * * * the decree made * * * which required her to convey * * * shifted her position, and placed her in the same condition in regard to her possession as though she had then voluntarily made conveyance. * * * Her previous possession was of no avail any longer as a holding to help make out a con- tinuous adverse possession. Her entire right was deter- mined by the decree, and her possession thereafter, even ' 61 Penn. St. i66 ; see also the case of Hood v,. Palmer, 7 Rich. (S. C.) Law, 138, where it is held that the issuing of a writ of ejectment stops the running of the statute, so that a subsequent possession cannot be joined with a prior occu- pation, to make out the requisite period. 2 See Groft v. Weakland, 34 Penn. St. 307, 308 ; see also Pederick v. Searle, S S. & R. (Penn.) 235, 239. 34 53° ADVERSE POSSESSION. when joined to that of her successors in the same right, ap- pears to have been too short to give rise to a title under the mortgage, founded on adverse possession."^ On the other hand, it is held in Alabama,^ that " the fact of a recovery in ejectment, without an entry under it, did not stop the statute of limitations," citing the New York case of Jackson v. Haviland.^ In the latter case, when the plaintiff had failed to enter after recovering judgment in ejectment, the court say : "he (the plaintiff) now stands in the same relation to the defendant as if he had never attempted a legal remedy by the former suit." And in a case in the United States Su- preme Court, it was decided that the recovery of a judgment in ejectment did not, alone, suspend the statute, but that there must be also a change of possession.^ § 744. Possession lost or interrupted by abandonment. — If continuity is an essential element in adverse possession, it is, of course, a truism to say, that, should the adverse claim- ant abandon his possession before the period prescribed by the statute has run, no bar under the statute will have been created. What amounts to an abandonment depends upon the principles which we have already considered ; that is to say, when the possession ceases to be of a character required to destroy the actual and constructive possession of the true owner, i. e., ceases to be adverse, then the rights and possession of the true owner revive, provided he is not already barred by the statute. Therefore, openness being required, should . the possession of the claimant become secret and not such as continually to notify the owner of the adverse claim ; or, actual residence or cultivation being required, should the residence be given up, or the cultivation be abandoned, the possession of the owner would revive, and the statute cease running. Again, hostility to the true owner being the most ' Gower v. Quinlan, 40 Mich. 572, 575. 2 Doe V. Reynolds, 27. Ala. 364, 377. '' Jackson v. Haviland, 13 Johns. (N. Y.) 229, 235. 1 Smith V. Trabue, i McL. (U. S.) 87. ADVERSE POSSESSION. 53 1 essential requisite of adverse possession, should the tenant, by a distinct recognition of the title of the true owner, give up his hostile intent, the possession, though outwardly con- tinuing the same in character, would cease to be adverse. So we find, that, if a party in possession of land offers to purchase it from the true owner, and this offer is made, not merely to buy an outstanding or adverse claim in order to quiet his possession, or protect himself from litigation, the offer is a recognition of the owner's title, and will stop the running of the statute.^ Again, in reference to the effect of attornment, it was held, that " the surrender was equally in- voluntary, when the attornment is the alternative of actual ouster." ^ An agreement to submit a question of location of a boundary line to arbitration, is such an abandonment of the requisite hostile intent, as to interrupt the adverse possession and the running of the statute.*' As already shown, the pos- session required in particular cases depends upon the charac- ter of the land, so that what would amount to abandonment in one case would be insufficient in another.* So, also, it is said, " while an abandonment of the premises will so break the possession of him who has occupied, that the construct- ive possession of the true owner will again attach, and thus save his right of entry, every failure to cultivate the field for a season, or a delay in repairing the fences when destroyed, will not be held to be an abandonment if a sufficient reason appears." ® § 745. Interruption by other adverse claimants. — As the adverse possession may be interrupted by the re-entry of the owner, or lost by the abandonment of the tenant, so it may be interrupted by the entry of a new adverse claimant, oust- ing the former tenant and establishing a new possession. ' Lovell V. Frost, 44 Cal. 471 ; compare Bowen v. Guild, 130 Mass. 121. » Groft V. Weakland, 34 Penn. St. 308. = Hunt V. Guilford, 4 Ohio, 310; compare Trustees, &c. v. Kirk, 84 N. Y., 215. * Nixon V. Porter, 38 Miss. 415 ; see, in addition, cases cited in § 733, &c. ' Crispen v. Hannavan, 50 Mo. 550. On the principle that an abandonment restores the possession of the true owner ; see also Sawyer v. Kendall, 10 Gush. (Mass.) 241. 532 ADVERSE POSSESSION. adverse to the true owner. We have seen that the con- structive possession is restored the moment the adverse pos- session ceases ; consequently, before a second adverse posses- sion is inaugurated, the true owner must be again disseized or ousted. The possessions of two successive adverse claim- ants not in privity are, therefore, distinct, and, as we shall see below, the later possession must be judged by its own merits alone, in determining whether it has ripened into title. What hostile act of another adverse claimant will interrupt the possession of the first tenant, by establishing the former's possession, will, in general, be determined by the same requirements, as, we have seen, belong to an entry sufficient to oust the owner in the first place ; that is to say, it must be an open hostile act of ownership, coupled with the intention to hold the possession exclusively. Thus it is said in a recent case in Alabama.^ "The unknown intru- sions of mere trespassers will not interrupt the continuity unless continued for such a length of time as to become assertions of adverse right." In a late case in Texas, where a few days after the occupant of land had gone into posses- sion, he was driven away by the Indians, but returned "as soon as it was safe for him to do so," but about a year after his expulsion, the court refused to reckon a part of the time of his absence to complete the bar of the statute, on the ground that he had not "such actual, continuous, adverse possession as was contemplated by the statute."^ § 746. Tacking. — Under the head of continuity, as an essential ingredient in effectual adverse possession under the statute of limitations, may be considered the subject of " tacking," as it is called, or, in other words, the joining to- gether of the periods of time during which two or more suc- cessive occupants have had possession of the premises, with a view to form one continuous and complete adverse pos- session. Although the expression, " tacking of possessions," 1 Bell V. Denson, 56 Ala. 449 ; see also Doe d. Farmer v. Eslava, 1 1 Ala. 1028. « Fitch V. Boyer, 51 Tex. 349, 350; see especially Clark v. Potter, 32 O. S. 49; Smith V. Lorillard, 10 Johns. (N. Y.) 338. ADVERSE POSSESSION. 533 is frequently met with, it is, strictly speaking, incorrect. It is not the case that different possessions are tacked, but rather the successive periods of time during which different occupants have held the same possession. There is but one possession, which, however, may be begun and continued by different occupants ; or, as it is expressed, " it is immaterial whether the possession be held for the entire period by one party, or by several parties in succession, * * * provided the possession be continued and uninterrupted."^ The very test of whether " tacking " may be permitted to make out the necessary statutory period for adverse possession, is, whether the successive occupancies, so to speak, may be considered as forming a single, uninterrupted possession, a " unity of possessions " as it is called,^ or in other words, one begun and continued in the same right. It may, then, be stated generally, that tacking is permissible only when the successive occupants have held the possession in the same right ; in other words, when there is a privity of estate between them.'' The Supreme Court of Alabama use this language:* "Continuity is an indispensable ele- ment of an adverse possession. If several persons enter on lands at different times, and there is not a privity of estate between them, the several possessions cannot be tacked so as to make a continuity of possession on which the statute of limitations will operate. But if there is such privity of estate, or of title, as that the several posses- sions can and should be referred to the original entry, they are regarded as joined and continuous. The possession of a landlord and his tenant, of an ancestor and his heirs, of a vendor and his vendee, may be tacked to complete the bar of the statute of limitations. There is no break or inter- ' Benson v. Stewart, 30 Miss. 57. ' Schrack v. Zubler, 34 Penn. St. 41. ^ See Haynes v. Boardman, 119 Mass. 415 ; Chandler -u. Rushing, 38 Tex. 595. < Riggs V. Fuller, 54 Ala. 146 ; compare Clark v. Chase, 5 Sneed (Tenn.), 636 ; see also Bakers/. Hale, 6 Baxter (Tenn.), 46; Jackson v. Leonard, 9 Cow. (N. Y.)653. 534 ADVERSE POSSESSION. ruption in the possession, each possessor is connected with his predecessor, and the whole is a continuous possession." But, on the other hand, we may add, unconnected posses- sions, though successive, cannot be tacked, for the reason that the moment that one possession ceases, there is a break in the continuity, and, as we have above shown, in that moment the possession of the owner is restored, and a new period under the statute must therefore begin with the new adverse possession, however immediately it may have succeeded its predecessor. In such a case, as it is expressed by the Supreme Court of California,^ " the possession of each is distinct, and cannot constitute one adverse posses- sion, for they are referable to different entries ; and because, as the defendant merely succeeds the former possessor, with- out privity, there may be an immediate succession of posses- sions, but not a continuity of possession." In Melvin v. Pro- prietors of Locks, etc.,^ the Supreme Court of Massachusetts said ; " It is a principle well established, that where several persons enter on land in succession, the several possessions cannot be tacked, so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected. Whenever one quits the possession, the seizin of the true owner is restored, and an entry afterward by another, wrongfully, constitutes a new disseizin."* As it is expressed also by the Supreme Court of Connecticut : " The possessions must be connected and continuous, so that the possession of the true owner shall not constructively inter- vene between them." * So, and for the same reasons, two or more distinct possessions of the same occupant cannot be tacked to make out a sufficiently long adverse possession, for, as we have seen, in such a case the continuity has been interrupted.'' It was held in a case in the United States Su- 1 San Francisco v. Fulde, 37 Cal. 353, and cases cited. 2 5 Mete. (Mass.) 32. 3 See also Morrison v. Hays, 19 Ga. 294; Sawyer v. Kendall, 10 Cush. (Mass.) 244; Crispen v. Hannavan, 50 Mo. 536. ■• Smith V. Chapin, 31 Conn. 531. ' See Austin v. Bailey, 37 Vt. 219, 224. ADVERSE POSSESSION. 535 preme Court, that, though the actual possession of the claim- ants had never in point of fact been interrupted, yet the land in the meantime having been forfeited to the State for non- payment of taxes, the possession in law had been interrupted, and consequently the possession of the same occupant prior and subsequent to the forfeiture could not be tacked.^ The Supreme Court of Georgia, in which State the statutes of limitation were suspended from the 14th of December, 1861, to the I St of January, 1863, decided that a possession en- joyed prior to December 14th, 1861, could be tacked to a possession subsequent to January ist, 1863.^ § 747. Privity, what constitutes for purposes of tack- ing. — The cases already referred to are sufficient to support the general principle that privity of some sort between successive occupants is essential to tacking their periods of possession, so as to preserve its continuity ;^ the main ques- tion remaining, then, is, what connection or relation be- tween successive tenants will be held to constitute such privity? It is held by the Supreme Court of Missouri,* that " there must be a privity of grant or descent, or some judicial or other proceeding, that shall connect the posses- sions, so that the latter shall apparently hold by right of the former ; " and the court add, " not even a writing is nec- essary, if it appear that the holding is continuous and under the first entry!' The ordinary relations of landlord and tenant, ancestor and heir, and vendor and vendee, specified in cases already cited,® clearly constitute such a privity, as that the " latter shall apparently hold by right of the for- ' Armstrong v. Morrill, 14 Wall. 121, 145 and 146. 2 Pollard V. Tait, 38 Ga. 443. 5 Though the principle stated in the text may be laid down as an indisputable rule of law, yet occasional dicta are to be met with holding the contrary doctrine, namely, that "no privity or connection among the successive tenants " is necessary. See Davis v. McArthur, 78 N. C. 359, and cases cited ; Scales v. Cockrill, 3 Head (Tenn.), 432; but see Baker v. Hale, 6 Baxter (Tenn.), 46. * Crispen v. Hannavan, 50 Mo. 549. ' See Riggs v. Fuller, 54 Ala. 141 ; Sawyer v. Kendall, 10 Cush. (Mass.) 244. 536 ADVERSE POSSESSION. mer," and that the possessions of both shall be " referable to the same entry," and, consequently, tacking in such cases is clearly allowable. The test question as to whether the requisite privity exists between successive tenants is, wliether the occupation of the subsequent tenant is referable to the same entry, and under the same " claim of right," as it is called, as that of the prior occupant: in other words, whether the occupation of the one constitutes but a contin- uation of the possession of the other. We need not inquire, in addition, whether the occupation of the subsequent tenant was derived directly from the prior tenant. It was decided, however, by the Supreme Court of Vermont,^ that there was not the requisite privity between one in possession of land under a will under color of a life estate, and one in possession, after the termination of the life estate, under the same will, claiming in remainder. But the contrary and better doctrine, it seems to us, is held in a later case in Massachusetts,* wherein the opinion of the court is thug ex- pressed : " It is claimed that there is no such privity between the life tenant and the remainderman, because the latter in no sense claims under the former. But the answer is, that both claim under the same will by one title. The disseizin, which was commenced by the testatrix, is continued by each in accordance with that title, and is referred by each only to the entry of the testatrix. There has been no loss of possession ; no restoration of the seizin to the true owner; no new entry. The disseizin which commenced with the testatrix has been continuous in her devisees, and estab- lishes her title by lapse of time. It is plainly distinguished from a case of successive entries and new disseizins by dif- ferent and independent parties. * * * The test of title is that there has been no interruption of possession, and no new entry required." § 748. In the following cases, which we cite as illustra- 1 Austin V. Rutland R. R. Co. 45 Vt. 215. 2 Haynes v. Boardman, 119 Mass. 415. ADVERSE POSSESSION. 537 tions, it has been held that the relation between the succes- sive tenants, constituted such a privity that their possessions could be tacked : between a purchaser of land at a sale by an administrator of a prior occupant and the latter ; ^ a hus- band, possessing land in the right of his wife during his life, and the widow continuing the possession in her own right ;^ officers and merabers of an unincorporated society, occupying land, and the society after its incorporation continuing the possession ;^ the vendor and vendee of land, where no deed has been ^given of the premises in question, and the trans- fer of possession is shown only by parol* This question of whether a deed, or writing effectual to pass title, is neces- sary, in order to connect the occupancy of a transferee of the possession with that of the prior occupant, has often arisen, but there is no doubt that, where the question only of an actual, in distinction from a constructive, possession arises, no necessity for such written evidence of transfer exists in order to show a continued possession. The Supreme Court of Ohio remarked:^ "The mode adopted for the transfer of the possession may give rise to questions between the parties to the transfer ; but, as respects the rights of third persons against whom the possession is held adversely, it seems to us to be immaterial, if successive transfers of pos- session were in fact made, whether such transfers were effected by will, by deed, or by mere agreement, either written or verbal." In such a case, too, as far as the actual possession transferred is concerned, it makes no diflFerence if one of the occupants had color of title and the other had • Cochrane v. Faris, 18 Tex. 850. ^ Holton V. Whitney, 30 Vt. 405. On the other hand, it has been held that a wife has no such privity of estate with her husband, in land of which he died in an adverse possession to the real owner, that her continued possession after his decease can be tacked to his occupancy. Sawyerz/. Kendall, 10 Cush. (Mass.) 241. ^ Reformed Church v. Schoolcraft, 65 N. Y. 134. ' Weber v. Anderson, 73 111. 439. = McNeely v. Langan, 22 Ohio St. 32 ; see Weber v. Anderson, 73 111. 444 ; citing Smith v. Chapin, 31 Conn. 531 ; Menkens v. Blumenthal, 27 Mo. 203 ; Cris- pen -v. Hannavan, 50 Mo. 544. 538 ADVERSE POSSESSION. not. The actual possession of the prior will avail the sub- sequent occupant.^ But when it is attempted to apply the doctrine of privity of possession to a constructive as well as an actual possession, claimed to be continued in the subse- quent occupant, the possession of the latter must be under either the same " color of title," or written instrument, under which the prior occupant claims, as, for example, a will ; or under such an instrument derived from the prior occupant,^ as, for example, a deed. As we shall see presently, a deed void upon its face cannot constitute " color of title ; " and so it has been held in the Supreme Court of New York, that such a deed from one possessor to another will not preserve the continuity of a constructive possession.^ § 749. Possession must be " hostile^ — It is, of course, but tautology to say that adverse possession must be " hostile," and, on the general principle that possession, to be an effectual defense under the plea of the statute of limitations, must be in "derogation of," and not in " conformity wfth," the rights of the true owner,* it is hardly necessary to cite any further authorities. We repeat, that the whole doctrine of the bar of the statute is based upon the acquiescence of the owner in the hostile acts and claim of the adverse pos- sessor. As we shall see hereafter, there must exist in the occupant an hostile intent or a claim inconsistent with any right of the owner ; and, as already shown, such intent or claim must be manifested by acts of possession sufficiently actual, open, and continuous. To say that the possession must be hostile, is, in effect, to say that it must not be with the permission or in subserviency to the rights of the true owner. Where, therefore, there is already existing any relation or agreement between the owner and the occu- pant, in pursuance of which the latter is in possession of the > Day V. Wilder, 47 Vt. 583 ; see also Howland v. Newark Association, 66 Barb. (N. Y.) 366. 2 Crispen v. Hannavan, 50 Mo. 549; see also Cooper v. Ord, 60 Mo. 431. 3 Simpson v. Downing, 23 Wend. (N. Y.) 316, 320. ■< Compare Farish v. Coon, 40 Cal. 33. ADVERSE POSSESSION. 539 land, as where the occupant has merely been in possession by sufferance, and without any intent to appropriate the land for himself, though such possession may have been exclusive'' in fact, — there can be no question of adverse possession. It may be here remarked that there are two presumptions of law always entertained ; first, that every possession is presumed to be in accordance with right,^ i. e., with the title of the owner, or the converse that no entry or possession is presumed to be adverse to the lawful owner;* and, secondly, that a condition or relation, shown once to exist, is presumed to continue till facts are shown to over- come such a presumption. Hence, to establish that a pos- session has been adverse, acts must be shown by the posses- sor which negative the presumption that it has been in sub- serviency to the rights of the owner ; ^ and where a relation, such as, for example, that of owner and tenant at will, has been shown once to exist between the owner and the occu- pant, the adverse character of the latter's possession can be established only by proof of acts on his part sufficient to re- but the presumption that such relation has continued.® § 750. Where the possession is begun in subserviency to the owner's title. — The question as between tenants in common. — It may be generally stated, that when a relationship which is not only consistent with, but is in itself, a recogni- tion, by the occupant, of either the paramount right of the owner, as in the case of an owner and a tenant at will, or the ' Russell V. Davis, 38 Conn. 562. ^ Alexander v. Polk, 39 Miss. 738 ; Alexander v. Stewart, 50 Vt. 87 ; Parker V. Banks, 79 N. C. 480; Davis v. Bowmar, 55 Miss. 671. The New York Court of Appeals uses the following language : " Possession alone, unexplained by col- lateral circumstances, evidences no more than that the occupation is rightful." Bedell v. Shaw, 59 N. Y. 50. So the possession of a judgment debtor holding over after a sale of the land under execution.is presumed to be by the indulgence of the purchaser at such sale. Cook v. Travis, 20 N. Y. 403. - Hart V. Bostwick, 14 Fla. 162; Brandt z/. Ogden, i Johns. (N. Y.) 156; Jack- son V. Vredenburgh, Id. 159-163; Jackson v. Parker, 3 Johns. Cas . (N. Y.) 124. < Davis V. Bomar, 55 Miss. 671. ' Buchanan v. King, 22 Gratt. (Va.) 414. 540 ADVERSE POSSESSION. equal rights of another, as in the case of co-tenants in com- mon, has been shown to exist, the acts of hostility, sufficient to manifest an exclusive claim on the part of the occupant, must be of a more unequivocal character than w^hen such relation has existed. Thus it is held in a late leading case in New Jersey, as follows : " In the acquisition of title by ad- verse possession the distinction between strangers and ten- ants in common relates to the character of the evidence necessary to prove that the possession was adverse. * * If the parties are strangers in title, possession and the exercise of rights of ownership are in themselves, in the absence of explanatory evidence, proof of an ouster of the true owner ; whereas, in cases of privity of title, such as subsists between tenants in common, the acts of possession of one tenant will, in the absence of satisfactory evidence to the contrary, be referred to the community of title, and there must be clearer and more decisive evidence of an ouster by one tenant in common of his associate than is necessary to prove that a person having no right to possession has ousted an owner in severalty." ^ To the same effect it is held by the Supreme Court of Illinois, in respect to the claim of adverse posses- sion by one tenant in common against his co-tenants, as fol- lows : " When one tenant in common is in possession of land, it requires clear and satisfactory proof of a subsequent dis- seizin of a co-tenant to characterize his possession as being adverse, so as by lapse of time to bar a right of entry. It is not sufficient that he continues to occupy the premises and appropriates to himself the exclusive rents and profits, makes slight improvements on the land and pays the taxes. To constitute a disseizin there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as, by their own import, to impart in- formation and give notice to the co-tenant that an adverse possession and an actual disseizin are intended to be as- 1 Foulke V. Bond, 12 Vroom (N. J.), 538; compare Sherman v. Kane, 86 N. Y. 68, 69; Zeller v. Eckert, 4 How. (U. S.) 296 ; see §§ 278, 280. ADVERSE POSSESSION. 54 1 serted against him."^ So it is held in New York, that full possession by a tenant in common for many years, will not, per se, constitute adverse possession. There must be an open claim of exclusive right, a refusal to account, or a de- nial of title to constitute ouster. So again, ouster will not be presumed from a sole possession, unless accompanied with some notorious act or claim sufficient to give character to the possession ; as if the tenant purchase his co-tenant's in- terest at a sheriff"'s sale.^ Where, however, one of the ten- ants had been guilty of fraud, though he had procured a tax deed of the property which had been on record for five years, it was held that the statutes meanwhile had not been set in motion against his co-tenants in common.^ So in a case in Vermont, it is held that nothing short of an ouster of his co-tenants in common can establish an adverse pos- session in favor of one co-tenant.* Although in general the rule is as stated, that, as between co-tenants, some un- equivocal act of ouster sufficient to indicate the adverse claim must be shown, yet, in a recent case in New York, it was held that the jury \m^t presume an ouster from the fact of an exclusive occupation by one co-tenant for forty years, he having, during that tim^e, conveyed in his own name por- tions of the land by deeds on record, and otherwise ignored the rights of his co-tenant.^ In the case in the same court, however, above quoted," where an uildivided portion of land had been sold by one tenant without objection ' Busch V. Huston, 75 111. 343 ; see also Lapeyre v. Paul, 47 Mo. 586. 2 Kathan v. Rockwell, 16 Hun (N. Y.), 90; see also Millard v. McMullin, 68 N. Y. 352; Culver v. Rhodes, 13 N. Y. Weekly Dig. 563; s. P. McQuiddy v. Ware, 67 Mo. 74. = Austin V. Barrett, 44 Iowa, 488. Where one heir took exclusive possession of the land and improved it for more than twenty-five years, it was held that ejectment would not lie against him by the other heirs. Campau v. Dubois, 39 Mich. 274. Similarly in respect to tenants in common. See Lapeyre v. Paul, 47 Mo. 586. ■■ HoUey v. Hawley, 39 Vt. 534. 5 Woolsey v. Morss, 19 Hun (N. Y.), 273 ; see § 289. « Kathan v. Rockwell, 16 Hun (N. Y.), 90. 542 ADVERSE POSSESSION. by his co-tenant, and the purchaser^ — a school district — had erected a school-house upon the land, which had been standing for forty years, it was held that this was in- sufificient to raise the presumption of ouster and adverse possession by the district, as against the co-tenant, but that the purchase of the undivided portion was a recognition of the co-tenancy, rather than an act in derogation of it. Had however, the court added, one of the co-tenants attempted to convey the whole land, and had the district occupied under such a conveyance, an adverse possession would have been inaugurated.^ It would also seem, for the same rea- sons, that had a portion of the land been conveyed by one tenant, by metes and bounds — not an undivided portion — the grantee would have held possession adverse to the co- tenant. So we find it generally stated, that a conveyance by one tenant in common to a third person, works in favor of the latter a disseizin of a co-tenant ; ^ though it may well be doubted whether such a conveyance would alone be suf- ficient notice to effect an ouster of a co-tenant.^ It is a familiar principle, that the possession of one tenant in com- mon is the possession of his co-tenants.* So long, therefore, as the relation of co tenancy continues, one tenant cannot possess the land exclusively for himself, and thus establish a possession adverse to his co-tenants ; the acts of hostility, therefore, required of one tenant in common sufficient to oust his co-tenant, must be such as amount to a renouncing of the co-tenancy, and which shall put an end to the relation previously existing. § 751. The rule applied generally where there is a priv- ity of possession or title. — As in the case of co-tenancy, 'Citing Florence v. Hopkins, 46 N. Y. 182. = Riggs V. Fuller, 54 Ala. 141 ; Home v. Howell, 46 Ga. 9; Kinney v. Slat- tery, 51 Iowa, 354 ; Foulke v. Bond, 12 Vroom (N. J.), 527. ' HoUey v. Hawley, 39 Vt. 531; Culver v. Rhodes, 13 N. Y. Weekly Dig. 563; Buchanan v. King, 22 Gratt. (Va.) 414; see §§ 283, 287, 288. 4 Kinney w. Slattery, 51 Iowa, 354; Foulke v. Bond, 12 Vroom (N. J.), 527; see also Lapeyre v. Paul, 47 Mo. 586 ; Neely v. Neely, 79 N. C. 478 ; see § 276. ADVERSE POSSESSION. 543 so in general it is true, that whenever such a relation or trust or privity of estate exists between the actual occupant of the land and another, that, in respect to the possession, there is between them an identity or subordination of interests, then the possession of one — the occupant — becomes, as in the case of co-tenancy, the possession of the other, through the principle of agency or trust. For instance, the possession of a tenant is the possession of his land- lord, and, it may be added, as it is expressed by the New York Court of Appeals, " a tenant for years is possessed, not properly of the land, but of the term for years." ^ Moreover, while such tenancy continues, and until the ex- piration of the term, the statute will not run against the landlord or reversioner, for the reason that he is not entitled to the immediate actual possession.^ Such relation, privity, or trust must be explicitly renounced or disclaimed by declarations or acts unmistakably hostile to it, and an exclusive adverse claim asserted, before the possession of the occupant can be considered adverse.^ In other words, there must be a concurrence of two things : a repudiation of the previously existing relation, and an assertion of an appropriation * by the occupant for himself, accompanied, of course, by an actual exclusive occupation. As a rule, both these essentials are manifested by the same acts, which at once amount both to a repudiation of any pre-existing rela- tion of privity or trust, and to an assertion of an exclusive adverse claim. Thus, where land had been conveyed by a ' See Bedell v. Shaw, 59 N. Y. 49. ^ See Sands v. Hughes, 53 N. Y. 294 ; or, in other words, " no possession can be deemed adverse to a party who has not, at the time, the right of entry and pos- session." Devyr v. Schaefer, 55 N. Y. 446. ^ Estes V. Long, 71 Mo. 605 ; Long 7/. Mast, 1 1 Penn. St. 189 ; Hall v. Stevens, 9 Mete. (Mass.) 418 ; Day v. Cochran, 24 Miss. 261 ; Clarke v. McClure, 10 Gratt. (Va.) 305; Criswell v. Altemus, 7 Watts (Penn.), 581 ; Harrison v. Pool, 16 Ala. 167; Zeller v. Eckert, 4 How. (U. S.) 289; WiUiams v. Cash, 27 Ga. 507; Ham- ilton V. Boggess, 63 Mo. 233; Burhans v. Van Zandt, 7 N. Y. 527; Bazemore ». Davis, 48 Ga. 341 ; Cathn v. Decker, 38 Conn. 262. ■* As to the necessity for an intent to appropriate for himself, on the part of the claimant, see post, Chap. XXIX. 544 ADVERSE POSSESSION. plaintiff, a religious society, to a town, in trust for the use and support of ministers of the gospel, it was held that the' application by the town of the rents to municipal purposes, with the knowledge of the plaintiff, was a repudiation of the trust by the town, and an assertion of such adverse claim as, after a long period of time, vested an absolute title in the town.^ So an agency may be renounced by the " hostile atti- tude " of the agent, manifesting an intent to hold for himself and not for his principal ; ^ and so may a tenancy, it seems, by an open and notorious act of appropriation, inconsistent with the rights of the landlord and the continuance of the tenancy.'' Authorities are numerous to the effect that a tenant for years cannot possess adversely to his landlord, nor impeach his landlord's title. This general rule rests, for the most part, upon the principle of estoppel. There can be no doubt that, so long as the tenancy continues, the pos- session of the tenant cannot be adverse ; but, unless it can be maintained that a tenant cannot, by any act, renounce his tenancy, and thus put an end to the privity before exist- ing between him and his landlord and the consequences of it, and thus assume the position of a stranger to the title and possession, it would seem that a tenant, like any other person in privity with, or occupying a position of trust to- ward, the owner of the land, might originate an adverse pos- session.* In New York, it is held that possession under a deed from a tenant is subordinate to the tenancy, and hence cannot be adverse,® though it is also held that such a rule applies only to the " conventional " relation of landlord and tenant, and not to a holding under an assessment lease.^ ' Congregational Society v. Newington, 53 N. H. 595 ; compare Catlin v. Decker, 38 Conn. 262. ' Whiting V. Taylor, 8 Dana (Ky.), 403. » Sharpe v. Kelly, 5 Denio (N. Y.), 431 ; Holley v. Hawley, 39 Vt. 534; see also Sherman v. Kane, 86 N. Y. 68 ; citing Jackson v. Burton, i Wend. (N. Y.) 341- 4 See Sherman v. Champlain Trans. Co. 31 Vt. 162. 6 See Christie v. Gage, 71 N.Y. 189-193; Jackson v. Davis, 5 Cow. (N.Y.) 123. « See Sands v. Hughes, 53 N. Y. 287. ADVERSE POSSESSION. 545 Following the rule, that so long as such a relation or privity exists as those discussed in the text, the possession (of a ten- ant, for example,) cannot be adverse, it is held in North Caro- hna, that the possession of a tenant of the widow of the de- ceased owner of the premises under a lease, which the widow had no authority to make, could not be adverse to the heirs of the deceased owner.^ A trustee's possession of land pur- chased with trust funds, though in his individual name, is the possession of the beneficiaries, until he does some " unequiv- ocal act denying their right," ^ when the statute would be- gin to run. In a recent case in the New York Court of Appeals,* the doctrine is reiterated, that a grantor, even with warranty, may originate a possession adverse to his grantee. The court on this point say : " When there is a disclaimer by the grantor of the title of the grantee, subsequent to the delivery of the grant, an adverse possession may be acquired, and it is not necessary that such possession should be hostile in its inception." And in California, it is held that a grantor of a quitclaim deed may remain in possession, and " assert an adverse possession," which will ultimately lead to title.* In Iowa, the possession of a grantee in possession, who has recovered judgment against his grantor on his covenant of title, is adverse only from the time of recovery of judgment* So a possession commenced by a permissive entry may become adverse by a distinct disclaimer of the possession and title of the owner.* In Iowa, it is held that in the case ■ > Melvin v. Waddell, 75 N. C. 361 ; compare Kincaid v. Perkins, 63 N. C. 282. So the statute does not run against the reversioner until termination of the life estate. Pinckney v. Burrage, 31 N. J. L. 21 ; McCorry v. King, 3 Humph. (Tenn.) 267; Christie v. Gage, 71 N. Y. 189-193; Dewey v. McLain, 7 Kans. 126; Doe V. Gregor}', 2 Ad. & E. 14; Poor v. Larrabee, 58 Me. 543. '' Butler V. Lawson, 72 Mo. 227 ; citing Norris' Appeal, 71 Penn. St. 106 ; see also Paschall v. Hinderer, 28 Ohio St. 568 ; but see Bargamin v. Clarke, 20 Gratt. (Va.) 544- * Sherman v. Kane, 86 N. Y. 68, 69, and cases cited. ' Dorland v. Magilton, 47 Cal. 485. ' Davenport v. Sebring, 52 Iowa, 364. « Hudson TJ. Putney, 14 W. Va. 561 ; Ford v. Holmes, 61 Ga. 419 ; S. P. Collins V. Johnson, 57 Ala. 304. 35 546 ADVERSE POSSESSION. of a tenant at will, notice to quit to the latter is necessary, before his possession can be adverse to the owner.^ And in Alabama, an " overt act of hostility !' is required to set the statute in motion in favor of a mortgagor, or his vendee, against a mortgagee out of possession.^ On the other hand, in Iowa, it is held, that in the case of a mortgagee in posses- sion, the statute does not begin to run till the debt has been paid. After such an event, the possession of the mortgagee would, if sufficiently open, and accompanied by acts of ownership, be deemed adverse to the right of the mortgagor.* So, also, it is held in Mississippi, that from the time of the for- feiture of the mortgagor's estate by a breach of condition, his possession is, as to the mortgagee, adverse,* though, in general, the statute will not run in favor of a mortgagor against an equitable mortgagee.® When there is a contract of purchase or agreement to convey, between the owner of the land and the occupant, the question often arises as to when the possession of the latter can become adverse. In general, it may be said that such possession is deemed subordinate to the rights of the > Austin V. Wilson, 46 Iowa, 362. ' Boyd V. Beck, 29 Ala. 703 ; see Parker v. Banks, 79 N. C. 480. 3 Green v. Turner, 38 Iowa, 112. It must be borne in mind that the estate of the mortgagee in the mortgaged premises is somewhat different in Alabama from what it is in Iowa — see, on this subject. Barker v. Bell, 37 Ala. 358; Hall v. Savill, 3 Greene (Iowa), 37 ; Babcock v. Hoey, 1 1 Iowa, 377 ;— and, in general, that on the question of adverse possession, arising between mortgagor and mortgagee, much depends upon their respective interests in the land as they have been construed by the courts of the different States. For example, the question of adverse possession cannot arise at all in favor of a mortgagor in possession, against a mortgagee, in those States where the latter's interest is considered a mere chattel interest, and not an interest in the land. So, also, the question would be determined differ- ently, where a mortgage conveys an absolute estate. On this subject see, «. g., Poignand v. Smith, 8 Pick. (Mass.) 272; Sheafe v. Gerry, 18 N. H. 247; Foster V. Perkins, 42 Me. 168; Northy 2/. Northy, 45 N. H. 144; Johnson v. Phillips, 13 Gray (Mass.), 198; Kortright v. Cady, 21 N. Y. 343; Grattan v. Wiggins, 23 Cal. 26; Philips v. Bank of Lewistown, 18 Penn. St. 402. See §§ 327, 345. < Wilkinson v. Flowers, 37 Miss. 579, 585 ; but see Seeley v. Manning, 37 Wis. 574. ' Green v. Mizelle, 54 Miss. 220. ADVERSE POSSESSION. 547 owner,* till the conditions entitling the possessor to a con- veyance have been fully performed, when the possession will become adverse.^ . Thus in Hart v. Bostwick,^ cited above, it is held, that when one under an agreement to buy land pays the consideration money, and enters with the owner's consent, the statute begins to run in favor of the purchaser. In the. same case, it is said {obiter) that if a purchaser enters under a contract for a deed with one, but subsequently takes a deed from another, the possession thereupon becomes adverse to the first party, but we doubt whether the mere taking of a deed from another would be a sufficient " repudiation " of the contract under which he entered. If an entry is made under a bond for a deed, the possession prior to the time of payment of the purchase money cannot be adverse,* and the same may be said of any entry and possession under an executory contract to convey.* § 752. Possession must be ''exclusive." — That possession to be adverse must be in exclusion of the rightful owner, is a self-evident corollary of the principles already stated. There can be no such thing as a conflict of actual posses- sion of the same premises between the owner and another ; the owner's seizin continues till he is disseized. The' hostile > See Hart v. Bostwick, 14 Fla. 162, where it is held that if an entry merely be made under a contract to purchase, the statute will not run till the contract is repudiated. See also Fulkerson v. Brownlee, 69 Mo. 372. 2 Matter of Department of Parks, 73 N. Y. 560; Fulkerson v. Brownlee, 69 Mo. 372. In an earlier case, in New York, it was held that in an action of ejectment, where the defendant had occupied the premises more than twenty years under a contract of purchase, the purchase money not being paid, the stat- ute of limitations would be a defense to the payment- of the purchase money, but not a defense to uphold an equitable title in the defendant through the presumption of payment arising from the lapse of time. See Lawrence v. Ball, 14 N. Y. 477. ^ 14 Fla. 162; see cases cited. * Ormond v. Martin, 37 Ala. 604; but see Outcalt v. Ludlow, 32 N. J. Law, 239. * Brown w. Supervisors, 54 Miss. 230; Nowlin v. Reynolds, 25 Gratt. (Va.) 137 ; Benson v. Stewart, 30 Miss. 49. 548 ADVERSE POSSESSION. act of an adverse claimant sufficient to establish an adverse possession will at the same time oust or disseize the owner ; any hostile act of less effect will at most amount to a mere trespass, sufficient to disturb, perhaps, but not to destroy the owner's possession. But the claimant's possession, whenever once established, must be exclusive of all others,* as well as of the owner, to be effectually adverse against the latter. The reason for this rule is obvious when we consider the general principle, that the moment the posses- sion of an adverse occupant ceases, the seizin or possession of the owner is constructively, at least, restored. In the case, therefore, of several adverse occupants who, at tlie same time, or successively, occupy the locus in quo, and be- tween whom there is no privity, as the adverse possession of each ceases, so often is the owner restored to his rightful possession ; '^ therefore in such a case there can be no ef- fectual continuous adverse possession. § 753. Conflicting possessions, general principles regu- lating. — But there may be an apparent conflict of posses- sion between two or more occupants of the same land, each of whom claims adversely to the true owner, when the question will arise as to which possession shall be effectual, both as against the other adverse claim and as against the owner. For example, one adverse claimant may have an actual possession of a part of a tract of land, of which another part may be in the actual possession of another claimant, who at the same time has " color of title " to the whole tract. In such a case it has been claimed that the actual partial possession of the former should yield to the possession under color of title, even though the latter is subsequent in time to the former.* For the solution of : Boulo V: New Orleans, &c. R. R. Co. 55 Ala. 480; Thomas v. Marshfield, 13 Pick. (Mass.) 250. ' Compare supra, §§ 738, 739, 740, 741, 744, and Smith v. Chapin, 31 Conn. S3«- ^ Norris v. Russell, 5 Cal. 249. ADVERSE POSSESSION. 549 such questions, the following rules, which we consider con- sistent both with principle and authority on this subject, are deemed adequate : First, there cannot be two actual pos- sessions of the same identical land at the same time. What may appear to be such, are either possessions of different parts of the same tract, or are alternately possessions of the whole. In the former case, each adverse possession de- pends upon its own merits alone ; in the latter neither is effectual against the true owner, unless one is continued exclusively for the statutory period. Second, where one of the adverse occupants has, besides a partial actual possession, color of title to the whole tract, and thereby claims construct- ive possession of the remainder, such circumstance is as inef- fectual against an actual possession of a part of the same by another adverse claimant, as would be the constructive pos- session of the true owner against an actual ouster from a part of his land. Third, where two or more claimants are in possession of land, each actually occupying a part of the same, and each having color of title to the whole, the junior must yield to the senior possession or title,^ as to the part claimed by both through constructive possession under color of title, on the same principle that the pos- session of an adverse claimant must be confined to what lie actually occupies, though he have color of title to the whole tract, if the rightful owner be still in the actual pos- session of any part of the same,^ or recovers possession of some part of it.^ So, also, it may be added, that in all cases of conflict of possessions, or of possession under different claims of right, or of " lapping," or interfering conveyances, where a constructive possession is called in question, such ' Where, however, the junior claimant has an actual possession, there can be no question of conflict. See McAllister v. Devane, 76 N. C. 57. = Armstrong v. Risteau, 5 Md. 256. ' Semple v. Cook, 50 Cal. 26. 550 ADVERSE POSSESSION. possession follows the title,^ or the better right,^ or the older color of title," as the case may be. ' Kitchens. Wilson, 80 N. C. 191; Barr v. Gratz, 4 Wheat. 213; Smith v. Burtis, 6 Johns. (N. Y.) 218 ; Codman v. Winslow, 10 Mass. 146, 151 ; Whitting- ton V. Wright, 9 Ga. 23 ; Brimmer v. Proprietors of Long Wharf, 5 Pick. (Mass.) 131 ; Stevens v. HoUister, i8 Vt. 294 ; Crispen v. Hannavan, 50 Mo. 536; Sem- ple V. Cook, 50 Cal. 26. ° Hunt V. Wickhffe, 2 Pet. 201 ; s. P. Bradley v. West, 60 Mo. 33 ; compare Martin v. Bonsack, 61 Mo. 556; McAllister z/. Devane, 76 N. C. 57. 3 Borrets v. Turner, 2 Hay. (N. C.) 113; compare Hodges v. Eddy, 38 Vt. 344 ; Ballance v. Flood, 52 111. 49. CHAPTER XXIX. INTENTION.— CLAIM OF RIGHT. 754. Possession must be accompanied by an adverse intent. 755. Intent the essence of adverse pos- session. 756. Variously designated.— " Claim of ownership " necessary. § 757- Good faith in assertion of adverse claim. 758. Acts and declarations of the occu- pant indicating intent. 759. Possession under a mistake. 760. Boundary lines erroneously located between adjoining proprietors. § 754. Possession must be accompanied by an adverse in- tent. — We come now to consider the second essential of an effectual adverse possession under the statute of limitations. The possession of the adverse claimant must not only be ac- tual, open, hostile and continuous, but it must be accom- panied by an intention on his part to hold the land so pos- sessed for himself and as the owner of it ; or, in other words, such possession must be under a claim of title or ownership. There must concur at the same time the fac- tum — of possession, and the intentio — of a claim of owner- ship ; as it is said : " The fact of possession, and the inten- tion with which it was commenced and held, are the only tests" of whether a possession be adverse.^ In other words, no matter how exclusive and hostile to the real owner a possession may be in fact and in appearance, it cannot be effectually adverse, unless accompanied by the intent on the part of the tenant to make it so, or, as it is expressed : " The possession of no person can be adverse to the title of the true owner, unless the person intends it to be adverse to that title." ^ Adverse -possession must be, therefore, so to ' Davenport v. Sebring, 52 Iowa, 366 ; see also Jackson v. Wheat, 18 Johns. (N. Y.) 44; La Frombois v. Jackson, 8 Cow. (N. Y.) 609, 613, 617; Grant v. Fowler, 39 N. H. 104; Root v. McFerrin, 37 Miss. 51 ; Davis v. Bowmar, 55 Miss. 671. ' Stamper v. Griffin, 20 Ga. 321. 552 INTENTION. speak, subjectively as well as objectively hostile, though, of course, in the absence of express declarations of the claimant, his intent is to be proved, oftentimes, merely by the character of his acts of possession. § 755. Intent the essence of adverse possession. — The claim by the tenant, " in opposition to the title to which his possession is alleged to be adverse," has been called " the very essence of an adverse possession."^ And it has been said, that, if there be " a naked possession, not accom- panied with any claim of right, it will never constitute a bar, but will inure to the advantage of the real owner."* It is the intention which " fixes the character of the original entry," and determines whether it be 'an ouster or a mere trespass,^ or whether the possession established be in sub- ordination or in hostility to the real owner.* So it is said, that " he who sets up the title, must go upon the lands with a palpable intent to claim the possession as his own. The intent to claim and possess the land is one pi the qualities necessary to constitute a disseizin and to hold under an ad- verse possession ; " ^ and also, that " the intention of the pos- sessor to claim adversely, is an essential ingredient;"* and " The statute of limitations runs only in favor of parties in possession claiming title adversely to the whole world." ^ § 756. Variously designated — "Claim of ownership'''' neces- sary. — This adverse intention on the part of the claimant has been called by a variety of names, such as "claim of right," ' Farish V. Coon, 40 Cal. 57. » Humbert v. Trinity Church, 24 Wend. (N. Y.) 597. ' Ewing V. Burnet, 1 1 Peters, 41 ; Wiggins v. Holley, 1 1 Ind. 2 ; Austin v. Holt, 32 Wis. 490. * Society, &c. v. Town of Pawlet, 4 Peters, 506, 507 ; Clarke v. McClure, lo Gratt. (Va.) 305 ; Bedell v. Shaw, 59 N. Y. 46. s Bradley v. West, 60 Mo. 41. « See Washburn v. Cutter, 17 Minn. 368; Pepper v. O'Dowd, 39 Wis. 538; French v. Pearce, 8 Conn. 445; see also Grube v. Wells, 34 Iowa, 149, 150; McNamee v. Moreland, 26 Iowa, 109. ' McCracken v. City of San Francisco, i6 Cal. 635. INTENTION. 553 "claim of title," "claim of ownership," and "claim of appropria- tion." ' Of these expressions, perhaps thelast is the most ac- curate, for, except in the case of a dona^de c\aimaT\t,v/ho actual- ly believes that he is the rightful owner, there cannot be properly, at the inception of an adverse possession, and until the same has continued for the statutory period, any claim of title or right, or ownership in the premises, but only an intention to appropriate and hold the same as owner, and to the exclusion, rightly or wrongly, of every one else.* The intention of the tenant must be not only to hold the land exclusively and adversely, but to hold it for himself, and as the owner. Thus, it is held in New York,® that pos- session to be adverse, so as to ripen into a title, must be ac- companied by a claim of title in fee. "The quality and extent of the right, (the court say) depends upon the claim which goes with it," and it was accordingly held that pos- session under a claim for an unexpired term could not be adverse and ripen into title, because it was not a " claim to the entife title." It has been decided that entry under a deed, which admits title in another thsin the grantor, could not, in the absence of any disclaimer on the part of the grantee, be under the requisite " claim of title exclusive of any other right."* Again it is said that a " claim of owner- ship" is necessary.^ Therefore, a claim having been made to the "ownership of the improvements," such fact was held evidence of the absence of the requisite " claim of title and right to the land," upon which to base adverse possession.® So it was decided that acts of ownership upon the land, should be such as to indicate a notorious "claim of property in it." '' In a case in the Supreme Court of Indiana, where it ' See, ef._^., Brumagim v. Bradshaw, 39 Cal. 24. 2 See m/ra, § 758, and note. = Bedell v. Shaw, 59 N. Y. 49, 50. ' Furlong v. Garrett, 44 Wis. iii. ' Hollister v. Young, 42 Vt. 407. " Davenport v. Sebring, 52 Iowa, 367, 368. ' Ford V. Wilson, 35 Miss. 505 ; see also the leading case of Davis v. Bowmar, 55 Miss. 671. 554 INTENTION. was contended that, by a " constant and exclusive " occu- pancy and use of-a part of a street by a railroad company " as and for a right of way," the company became the owners of the part so occupied, the court held that such use could not ripen into an " absolute ownership of the part of the street." The court use this language : " It is not alleged that the use was under a claim of ownership of the soil, nor is it claimed or averred that the use was adverse to the right of the public to use the place as part of th^ street."^ In a case in the Supreme Court of Connecticut,^ a charge that " it is essential that the possessor should hold the land, claiming it as his own, and denying the right of everybody else," was held to be erroneous ; and in an earlier case in the same court,^ it was said that, " to make a disseizin, it is not necessary that the disseizor should claim title to the lands taken by him. It is not necessary that he should deny or disclaim the title of the legal proprietor," but, the court added, "It is necessary only, that he should enter into and take the possession of the lands, as if they were his own." These cases are perfectly consistent with the principle laid down on this subject in all the cases above cited, to the effect, that, to constitute a disseizin of the true owner, there must be, on the part of the adverse occupant, an intention to appropriate the land as his own ; the cases differ only in respect to the language used to express such an intention. As we have remarked above, the expressions, claim of title, or right, or ownership are, in connection with a naked ad- verse possession, inaccurate, for they imply a belief in the validity of the claim, or good faith on the part of the claim- ant. This leads us to the subject of good faith in connec- tion with an adverse possession. § 757- Good faith in assertion of adverse claim. — As we shall see hereafter, the question of good faith is important ' Indianapolis, &c. R. R. Co. v. Ross, 47 Ind. 30. = Johnson v. Gorham, 38 Conn. 520, 521, and cases cited and discussed. 3 Bryan v. Atwater, 5 Day (Conn.), 181. INTENTION. 555 only in connection with a constructive possession, through the instrumentality of a deed or other instrument, giving the claimant under it " color of title " to land, of a part of which he is in actual possession. In connection with the subject of a naked actual adverse possession, good faith has no place. The whole theory as to the necessity for an " in- tention to appropriate," as we prefer to call it, and as to the further necessity for good faith in such an appropriation, when a constructive possession is claimed under color of title, may be summed up as follows : " It is the possession that bars the owner of a recovery," as the court say in a case in Illinois,* that is, the possession of an adverse claim- ant. No such possession is acquired without a disseizin of the true owner; for otherwise, the owner's possession, con- structively or otherwise, continues, and the occupation of any one else is permissive and not adverse. But no one can be a disseizor without the intention to disseize, or to possess for himself, which is equivalent to it. Hence, in all cases of adverse possession, there must be present the inten- tion to appropriate. But the appropriation once made, the possession begun, the presence or absence of good faith in the possessor is immaterial. It is the possession that bars the owner, and this is true whether the possession be actual or constructive, a naked one or accompanied by color of title. The necessity for good faith in claiming under color of title applies only so far as the possession claimed is derived from and depends upon the instrument constituting the color of title, i, e., it applies only to the constructive possession which such an instrument gives the claimant under it. Should such an instrument (assumed to be defect- ive because it is only color of title) be entirely annulled or invalidated by the fraud of the claimant, it can no longer create any constructive possession or perform any other oflice for such claimant. Hence, as soon as bad faith in the claimant, or a want of belief in the genuineness of his title Weber v. Anderson, 73 111. 442. 556 INTENTION. has vitiated the instrument constituting his color of title, so soon does the constructive adverse possession which it creates cease to exist, though his actual adverse possession may continue. This subject has been much discussed in the books, though the distinction which we make be- tween actual and constructive possession, through some written instrument, has been often overlooked in consider- ing the necessity for good faith. Thus, in the case of Livingston v. Peru Iron Co.,^ in the Court of Errors of New York, it was held, that a deed fraudulently obtained was not available as the foundation of an adverse pos- session and, in general, that, to constitute a possession ad- verse, the adverse claimant must act bona fide, and must believe the land to be his. It is, however, no longer a question, that, in claiming title to land under the statute of limitations, through a naked or actual adverse possession simply, accompanied by the necessary adverse intention, the good or bad faith of the adverse possessor, in ac- quiring or in continuing the possession, is of no importance- " The statute of limitations * * does not involve the question of good faith in the naked possessor " as the court say in a case in Texas,^ or " if the possession of the intruder has in fact been adverse, and has been asserted by such open and notorious acts of ownership as are essential in the ac- quisition of title by adverse possession," as is held by the Court of Errors of New Jersey.^ So, in the Connecticut case above cited, it is said: " If the property be so taken and so used by any one, though he claims no title, but avows ' 9 Wend. (N. Y.) 511. The ruling in this case, in spite of what seems une- quivocal and general language, on the essentials of adverse possession, has been treated in subsequent cases in the same State, to have appUed only to an, adverse possession in reference to the Champerty Act. Furthermore, the apparent ruling, that good faith is necessary in acquiring adverse possession, has been overruled in the same court, in the case of Humbert v. Trinity Church, 24 Wend. (N. Y.) 587, where, in equally general language, it is held that the question of good faith in the adverse claimant is immaterial. The distinction between claiming by actual possession and by constructive possession, is, in the latter case, also ignored. For a further discussion of this subject, see infra, Chap. XXX. 2 Kinney v. Vinson, 32 Tex. 125. 3 Foulke V. Bond, 12 Vroom (N. J.), 541. INTENTION. 557 himself to be a wrong-doer, yet, by such act, the legal pro- prietor is disseized." ^ § 758. Acts and declarations of the occupant indicating intent. — The adverse intention of the tenant, in the absence of proof of his own admissions to the contrary, or other proof that his possession was only permissive or, in fact, without hostile intent, may be generally evidenced by the character of his possession and acts of ownership. If these are sufficiently definite, open and exclusive, it will be presumed that they are done with the intent to appropriate the land. By such acts, it is said, the party proclaims to the pub- lic that he asserts an exclusive ownership over the land. * Thus, it is said that an assertion, other than by acts, of such intention is unnecessary, and that the mere fact of posses- sion would, in general, indicate that the possession was ad- verse.' So it is has been held competent, to prove the occu- pant's " claim, of ownership," that " while he occupied he asserted ownership by bringing his suit of trespass against others who attempted to enjoy the premises."* A mere hos- tile assertion of ownership is of no consequence, unaccom- panied by acts of appropriation or ownership : ^ to establish therefore, the requisite adverse intent of the claimant, his " actions speak louder than words." To disprove such intent, on the other hand, the declarations or admissions of the ten- ant showing an absence of an intent to appropriate, or a purpose on his part in acquiring or retaining the possession, consistent with the rights of the true owner of the land, ' Bryan v. Atwater, 5 Day (Conn.), 189. In a later case in the same State, it it said : " Into the recesses of his (the possessor's) mind, his motives or purposes, his guilt or innocence, no inquiry is made. It is for this obvious reason ; that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote viewrs or belief of the possessor." French v. Pearce, 8 Conn. 443 ; see also Smith v. Roberts, 62 Ala. 83 ; Munro v. Mer- chant, 26 Barb. (N. Y.) 383, 402. 2 Brumagim v. Bradshaw. 39 Cal. 46; see also Davis v. Bowmar, 55 Miss. 671. ' Johnson v. Gorham, 38 Conn. 522. •• Holliston V. Young, 42 Vt. 407. ' Pitts V. Wilder, i N. Y. 527, 528. 558 INTENTION. are competent evidence to show the character of the pos- session, and that it lacks the essential element of being hostile. ^ Thus, it is held that it is clearly competent to show by the declarations of the occupant, that he did not hold adversely, ^ for " it is enough," as is elsewhere held, to show the absence of an hostile intent, " that he does not himself consider it to be adverse."^ So it has been decided, that evidence of acts and declarations made after the statute was claimed to have run, " which had a tendency to show the motives and views " of the occupants before the stat- ute had run, was proper " to show the nature of the occu- pancy."* Admissions of this kind by the claimant, are competent evidence against him on general principles of the law of evidence, but there seems to be a disposition to go farther and to admit as evidence, declarations either of the tenant or his grantor, to establish the adverse character of a pos- session, or by such declarations to show its extent.^ § 759. Possession under a mistake. — Assuming that pos- session must be accompanied by an intent to appropriate, in order to be adverse, the question arises, whether a posses- sion acquired and held under a mistake of fact — a misap- prehension, for example, as to the true boundary of a piece of land — can be strictly adverse as to the part erroneously occupied. On the one hand, it may be said, that, in such a case, the intention, upon taking possession, was to occupy a part only, perhaps, of the land actually occupied, and that as to the excess, the necessary intent or adverse claim is lacking, and that consequently as to such excess, the possession is more ' Pitts V. Wilder, i N. Y. 525, 526. 2 McNamee v. Moreland, 26 Iowa, 109. •1 Sailor v. Hertzogg, 2 Penn. St. 184, 185 ; see also Day v. Wilder, 47 Vt. 593, 594; Brolaskey 7/. McClain, 61 Penn. St. 167. ^ Church V. Burghardt, 8 Pick. (Mass.) 327, 328. ''■ See, on this subject, Abeel v. Van Gelder, 36 N. Y. 513; Swettenham -u. Leary, 18 Hun (N. Y.), 285, 286; Hamage v. Berry, 43 Tex. 567, 570; Hannibal, &c., R. R. Co. V. Clark, 68 Mo. 374. INTENTION. 559 accidental than strictly adverse. To corroborate this view, it is said that " a disseizin cannot be committed by mistake, because the intention * * * is an essential ingredient in a disseizin." ^ On the other hand, it may be contended that the intention in such a case is two-fold : first, to take possession in accordance with some extrinsic plan or ulterior facts, such as the description in a deed ; and second, the intention as manifested by the very fact of taking possession, to possess the particular piece of land actually occupied, without regard to the original motive or purpose of the possessor ; that such intention, in the latter aspect, though it might not have been carried out were the possessor not laboring under a mistake, exists none the less, and that it is an intention to appropriate that particular land, and that consequently the possession is in fact adverse, whatever the original purpose of the possessor may have been. So it may be said, that such a possession can be called unintentional only in the same sense in which the possession of any honest man can be called uninten- tional, who, in good faith, under color of title perhaps, occu- pies land supposing it is his own, and who thus acquires title to it under the statute, on the ground that had he known that he had no right on the land, he would not have begun or continued a possession which infringed on the rights of the true owner. Would the possession of a man who en- tered upon and held land under a mistake, supposing that it was his own, be the less a possession with intent to ap- propriate, because the occupant had no tortious, hostile intent against the true owner, but simply the purpose to appropriate what he supposed was his own ? In a case in the Supreme Court of Missouri, it is said : " Honest men always inclose land not their own by mistake, or with the consent of the owner, and if the law on this subject were not as this court has held, the statute of limitations in such cases would never run in favor of an honest man, because he would never avow his purpose to have been to take the land of another."^ Whether, in general, the mistake or ignorance ' Ross V. Gould, 5 Me. 212. « Cole v. Parker, 70 Mo. 380. 560 INTENTION. of the occupant in taking and keeping possession of land will be held fatal to the existence of the necessary hostile intent, is a question which has received, unfortunately, too little judicial discussion, and respecting which the decisions are in conflict. Thus, in a case in the Supreme Court of lowa,^ where the defendant's grantor had inclosed, by mis- take, more land than he was entitled to, and possession had been continued for twenty-five years, it was held that some- thing more was necessary than the mere belief on the part of the defendant and her grantor, that they were entitled to the land in dispute, though accompanying the actual possession of it; that there was needed an "active assertion of right," and that such a right is not " asserted by the possession ; " or, in other words, that "simple belief on the part of de- fendant of her right to the land * * is not equivalent to * * * the claim required by the law, and * * possession will not establish the quo animo." It would seem, from the reasoning of this case, that if the " belief" of the defendant had been wanting, and she had tor- tiously continued the possession of what she knew did not belong to her, there would then have existed the necessary adverse claim and "active assertion" of right. Therefore, in such a case, bad faith in the occupant is more profitable than an honest mistake. Directly op- posed to the case last cited is that of French v. Pearce, in the Court of Errors of Connecticut,^ where it is held, that though "the intention of the possessor to claim adversely is an essential ingredient," yet that " the person who enters on land believing and claiming it to be his own," though under a mistake, " does thus enter and possess. The very nature of the act is an assertion of his own title and the de- nial of the title of all others." The court say further, that 1 Grube v. Wells, 34 Iowa, 150, 151, and cases cited; compare S. P. Skinner v. Crawford, 54 Iowa, 119 ; Thomas v. Babb,45 Mo. 384, and cases cited; Gates w. Butler, 3 Humph. (Tenn.) 447; but see Cole v. Parker, 70 Mo. 380; Howard v. Reedy, 29 Ga. 1 52 ; Worcester v. Lord, 56 Me. 265 ; Brown v. Cockerell, 33 Ala. 45. ' 8 Conn. 439, 445. INTENTION. 561 "it is as certain that a disseizin may be committed by mis- take, as tiiat a man may, by mistake, take possession of land, claiming title, and believing it to be his own." And further : " Adopt the rule, that an entry and possession un- der a claim of right, if through mistake, does not constitute an adverse possession, and a new principle is substituted. The inquiry no longer is, whether visible possession, with the intent to possess, under a claim of right, and to use and enjoy as one's own, is a disseizin ; but from this plain and easy standard of proof we are to depart, and the invisible motives of the mind are to be explained ; and the inquiry is to be had whether the possessor of land acted in conformity ^ with his best knowledge and belief" We may add, that the protection of a possession taken under a mistake, accords certainly with the policy of the law in imposing limitations to actions for the recovery of real property, as well as the upholding, through such limitations, of a possession tor- tiously taken and continued for the requisite period with full knowledge, on the part of the occupant, of the rights of the true owner. § 760. Boundary lines erroneously located between ad- joining proprietors. — The question which we have been considering usually arises in connection with the possession of adjoining proprietors according to a boundary line be- tween them which has been erroneously supposed to be the true line. It often happens that the actual and visible boundary between adjoining lands, such as a fence, hedge or wall, is not identical in location with the line defined by the respective muniments of title. So, also, by agreements between adjoining proprietors, a line may be fixed as the true line, though in fact it is not, or a temporary boundary may be agreed upon, till the true line be ascertained. In such cases, where the possession has continued for the ' Compare, s. P., Schneider v. Botsch, 90 111. 577; Swettenham v. Leary, 18 Hun (N. Y.), 284; Grimm v. Curley, 43 Cal. 250; Cole v. Parker, 70 Mo. 372. 3G 562 INTENTION. Statutory period, though the courts are, at least apparently, in some conflict, and the decision of each case depends, in some measure, upon its peculiar circumstances, the question whether there has been an effectual adverse possession de- pends upon well settled principles which we have already discussed. Hence, in disputes arising from the wrong loca- tion of the actual dividing line, whether the possession of the encroaching proprietor, assuming that it has been notorious, continuous, &c., has been adverse in its character is, as in other cases, to be determined by his intent. There- fore such possession must not be permissive ; hence, if the evidence shows that there was a mutual understanding or agreement that the visible boundary was not the real one, the necessary hostile intent is lacking, and the mere occupation up to the visible boundary cannot affect the title to the part beyond the true line. So it is held ^ that, under such an agreement, a temporary boundary line being fixed till the true line should be ascertained, the possession of neither proprietor could be adverse till such agreement is repudiated. As the court say : " Each party entered upon the portion of land which was outside his true line, in sub- ordination to the title of the party upon whom he en- croached, * * * and he held the possession by the license or permission of the owner of the adjoining land."^ So, in a case where there being doubt as to whether adjoining buildings were located correctly, their respective owners agreed, in writing, that neither w'ould disturb the other in the occupation of his building, it was held that such agreement was, by each, a recognition of the other's title to the true line, and inconsistent with an adverse claim to any part beyond it, so long as the agreement was in force.' In such cases, the principle laid down can admit of no > Irvine v. Adler, 44 Cal. 559; see also Cole v. Parker, 70 Mo. 372, 380. 5 Irvine w. Adler, 44 Cal. 559. 3 Devyr v. Schaefer, 55 N. Y. 446, 451 ; compare Corning v. Troy, &c. Fac- tory, 44 'N. Y. 577 ; Reed v. McCourt, 41 N. Y. 435. INTENTION. 563 doubt ; the chief difficulty and the conflict of the author- ities in this class of cases, are to be met with when there is no agreement to consider the boundary line fixed upon as one for convenience only, the true line being in doubt, or till the true line be discovered. The difficulty arises from the notion that possession, under a mistake as to the extent of the possessor's rights, cannot be under the necessary ad- verse claim. As we have seen, the views of the courts are directly opposed on this general subject, and we find the same conflict where coterminous possessions are held under a mistake as to the true boundary. Thus it was held by the Supreme Court of Maine, where two adjoining proprietors had occupied lots divided by a fence placed upon a wrong divisional line by mistake, which the parties erroneously sup- posed was substantially upon the true line, and had occupied according to the fence only because they supposed it was on the true divisional line, that there was no adverse possession of the portion beyond the lines described in the deed under which the land was occupied.^ On the other hand, the Su- preme Court of Alabama ^ decided that, where two adjoining owners unconditionally establish a dividing line by consent arid occupied up to it, the possession of each was adverse. The court say : " In such a case, there would be a clear asser- tion that such was the dividing line, and that each claimed title up to it." ■ Should, however, the dividing line be placed beyond the true line, it is added " through mere inadvertence, or ignorance, or from convenience, and with no intention to claim it ; in such a case, the possession, up to the dividing fence, would not be adverse." But in a case in Missouri, already cited,* it was held that, though the claimant intended to claim only to the true line, "still, if he inclose to a certain line, claiming it to be the true one, and that the land to ' Dow V. McKenney, 64 Me. 138. ^ Brown v. Cockerell, 33 Ala. 38 ; S. P. Smith v. McKay, 30 Ohio St. 409,418; Foulke -v. Stockdale, 40 Iowa, 99 ; Hiatt v. Kirkpatrick, 48 Id. 78. ^ Cole V. Parker, 70 Mo. 380. 564 INTENTION. that line is his, his possession is adverse." And again in an earlier case ^ in the same court, it was held of coterminous pro- prietors that, if they fix upon a division line, and each holds possession to such line, claiming it to be the true one, the pos- session is adverse. The court use this language : " The mere fact that he claims that line to be the true one cannot nega- tive the intention and make him hold, if mistaken, under the opposing claimant." On the other hand, it seems to be held, in a recent case in lowa,^ that, in the absence of a presump- tion that the claimant intended to disregard the true line, his possession of the part erroneously occupied would not be deemed adverse. Much of the conflict in the rulings of the courts, on this subject, arise from the different presumptions which they entertain at the beginning of their reasoning. Thus, on the one hand, the actual possession alone raises the presumption of an intent to claim,^ which must be re- butted by the true owner by showing, for example, that the boundary line fixed upon and the possession taken were temporary or conditional. On the other hand, the pre- sumption omnia rite acta esse, and hence, that the intention to claim extends only to the true line, places the burden upon the claimant of showing that he had an actual adverse intent in taking possession beyond the true line, and that there was an actual disregard of the true boundary.* With regard to these presumptions, it should be observed that the first is only the ordinary inference of a particular intention from facts which are shown by common experience to warrant it ; the second, on the other hand, seems to us to confuse a simple question of evidence by the unnecessary introduction of a vague maxim, which certainly ought not to affect the I Tamm v. Kellogg, 49 Mo. 123; but see Knowlton v. Smith, 36 Mo. 507. Conira, Smith v. McKay, 30 Ohio St. 418; compare also Houx v. Batteen, 68 Mo. 84; Walbrunn v. Ballen, 68 Mo. 164 ; Bader v. Zeise, 44 Wis. 96. - Hiatt V. Kirkpatrick, 48 Iowa, 78. ' See French v. Pearce, 8 Conn. 439. ■• See e. g.. Brown v. Cockerell, 33 Ala. 45, 46. INTENTION. 565 burden of proof. In a leading case in New York/ the gen- eral doctrine as to actual possession taken under a deed by mistake, is thus summed up : " Where a grantee, in taking possession under his deed, goes unintentionally and by mis- take beyond his proper boundaries, and enters upon and actually occupies and improves land not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the statute of limitations." And it is added ; " It cannot be denied that this doctrine is in accordance with the strict letter of the statute ; and it may perhaps be equally within its spirit and intent." ' Crary v. Goodman, 22 N. Y. 175, and cases cited ; see also Pope v. Hanmer. 74 N. Y. 245. CHAPTER XXX. COLOR OF TITLE. § 761. General character of adverse pos- session with color of title. — Prin- cipal effect of color of title. 762. Color of title. — Definition, &c. 763. Distinction between "claim" and " color of title," — Color of title as showing the character and extent of the possession. 764. Misapplication of the term color of title. — Color and claim of title confounded. 765. Instrument insufficient, as color of title may be evidence of a claim of title. 766. Color of title as creating a con- structive possession. 767. Color of title must describe and de- fine the land. 768. Constructive possession limited to amount described. 769. No constructive possession without written instrument. 770. Some actual possession necessary upon which to base constructive possession. 771. Character of such actual possession. 772. The underlying principles of color of title and constructive posses- sion summed up. Certain exceptions noticed. Qualifications of the general rule of constructive possession. — Extent of a constructive possession lim- ited. Good faith as an ingredient in con- structive possession. The New York doctrine on the subject. Statement of the prevailing rule. — Doctrine of the New Jersey Court of Errors. 778. Good faith expressly required by statute in some States. Difficulty of laying down a general definition of color of title. Instances of what held to be color of title. What held insufficient to constitute color of title. 773- 774- 775- 776. 777- 779- 780. 781. § 761. General character of adverse possession with color of title. — Principal effect of color of title. — One of the most frequent expressions, in connection with the sub- ject of adverse possession, to be met with in the books, is that "possession, to be adverse, must be under claim or color of title." The expression would be, perhaps, more ac- curate and clear if it were : possession, either with or with- out color of title, to be adverse must be under a claim of right. The existence of a color of title in the claimant does not dispense with the necessity for an hostile claim on his part ; every adverse possession, must be under a claim or assertion of ownership, whether with or without color of title ; in fact, the color of title is itself an assertion or at least evidence of such a claim.^ So, too, the possession of ' See Jackson v. Woodruff, i Cow. (N. Y.) 285, where it is said : " There is no doubt that actual occupancy, and a claim of title, whether such claim be by deed or otherwise, constitute a valid adverse possession, &c. ; " see also Clapp v. Bromagham, 9 Id. 557. COLOR OF TITLE. 567 a deed or other written muniment of title does not dis- pense with an occupation of some part, at least, of the premises ; whether the adverse claimant has color of title or not, he must, except perhaps in exceptional cases provided by statute, have some actual possession of the locus in quo. It is " the possession that bars the' owner of a recovery," as the court say in Weber v. Anderson,^ and not any "deed or instrument of title." So it is said : "The muniment is but one circumstance by which to make out an adverse posses- sion."^" And, also, "it is the possession under claim of right to which the law attaches most significance, and, if such possession commenced under a written instrument of any kind, * * * it may be looked to for the purpose of showing the character and extent of the possession and claim, and the intent with which the entry was made." We have heretofore considered the requisites of such actual possession ; these in general apply as well to possession with color of title as without it. Hence, we conclude, an adverse claimant having color of title to land, must have been in actual possession of at least some part of the land, with an intent to appropriate the same, and such possession must also have been hostile, open, exclusive, continuous, &c., in order to bar the owner's right of entry. It may be stated generally that the only exclusive effect of what is called " color of title," in connection with adverse possession is, to define the extent of the possession claimed, and, by creating a constructive possession, beyond the actual pos- session, or pedis possessio, of the claimant, to ultimately shut out the owner of the land from a much larger tract, than in the case of an adverse claimant relying simply upon his naked possession. The subject, therefore, of color of title, becomes one of great importance. § 762. Color of title. — Definition, &c. — In the case of Wright V. Mattison, in the Supreme Court of the United ' 73 111. 442. "- Humbert z/. Trinity Church, 24 Wend. (N.Y.) 604; see also Mead v. Lef- fingwell, 83Penn.St. 191. 568 COLOR OF TITLE. States, it is said : " The courts have concurred, it is believed, without an exception, in defining ' color of title ' to be that which in appearance is title, but which in reality is no title." ^ And, as is added by the Supreme Court of Califor- nia : " It is that which the law will consider prima facie a good title, but which, by reason of some defect, not appear- ing on its face, does not in fact amount to title." ^ So, in New York, color of title has been defined to be that which "the law w\\\, prima facie, consider a good title ;"^ and in the case of a deed, relied upon as color of title, " it must be such an one as might be valid."* On the other hand in Indiana, it is said that the New York doctrine that " color of title is that which di^^esirs, prima facie to be a ' good title,' is without reason and is being abandoned."^ In Maryland it is held that "the paper title, to give color, must be so far prima facie good in appearance as to be consistent with the idea of good faith, &c." ^ And in Illinois the instrument relied upon " must profess to convey a title to the grantee," "^ or " must purport, on its face, to convey title." ^ In an ear- lier case, however, in the same court, it is said : " Color of title may be made through conveyances, or bonds and con- tracts, or bare possession, under parol agreements." ® So, in Massachusetts, an entry under a parol gift was designated as an entry under color of title.^" In South Carolina, however, color of title was very loosely defined to be "any semblance of title by which the extent of a man's possession can be as- certained." " By the Supreme Court of Georgia, color of title 1 Wright V. Mattison, i8 How. (U. S.) 56, and cases cited; see also Edgerton V. Bird, 6 Wis. 527 ; Baker v. Swan, 32 Md. 355 ; see also cases cited, and espe- cially Jackson v. Frost, 5 Cow. (N. Y.) 346; LaFrombois v. Jackson, 8 Cow. (N. Y.) 589. 2 Bernal v. Gleim, 33 Cal. 676. ^ Jackson v. Frost, 5 Cowen (N. Y.), 351. * Livingston v. Peru Iron Co., 9 Wend. (N. Y.) 522. • Bell V. Longworth, 6 Ind. 277. <■ Baker w. Swan, 32 Md. 355. ' Coleman z/. Billings, 89 111. 190. 1= Kruse v. Wilson, 79 111. 240. 9 Woodward v. Blanchard, 16 111. 430. Quoted from at length in Wright v. Mattison, 18 How. (U. S.) 58. '» Sumner v. Stevens, 6 Mete. (Mass.) 338. " Turpin v. Brannon, 3 McC. (S. C.) 261. COLOR OF TITLE. 569 is defined to be a " writing, upon its face, professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used ; a title that is imperfect, but not so obviously so, that it would be apparent to one not skilled in the law." ^ And subsequently by the same court color of title is loosely defined to be anything in writing, connected with title to land, which seems to define the limits of the claim ; ^ but in a later case the same court say that " color of title can- not rest in parol ; there must be a document of some sort." * So, in Vermont, color of title is defined to be a '' deed or sur- vey of the land, placed upon the public records of land titles, whereby notice is given to the true owner and all the world that the occupant claims the title." On the other hand, it is held in Missouri that " it does not always require a written instrument to constitute color of title, but there must be some visible acts, signs or indications, which are apparent to all, showing the extent of the boundaries of the land claimed, to amount to color of title."* In Tennessee, color of title has been defined to be " where the possessor has a conveyance of some sort, by deed or will or inherit- ance, which he may believe to be a title."® So in Iowa, it is held that if an adverse possessor die, the possession de- volves upon his heirs, and the possession of the latter is under color of title.* In a case in Pennsylvania, Gibson, C. J., delivering the opinion of the Supreme Court, said: "The words (color of title) do not necessarily import the accom- paniment of the usual documentary evidences ; for though ' Gittens v. Lowry, 15 Ga. 338; see Beverly v. Burke, 9 Id. 443. 5 Walls?/. Smith, 19 Ga. 8. ' Roe V. Kersey, 32 Ga. 155 ; as to necessity for a writing, see also Tate v. Southard, 3 Hawks (N. C.), 121. * Cooper t/. Ord, 60 Mo. 431 ; see Hughes ii. Israel, 73 Mo. 547; Rannels v. Rannels, 52 Mo. 108. ■' Wilson V. Kilcannon, 4 Hayw. (Tenn.) 185; see also Darby % McCarrol, 5 Id. 286. ^ Teabout v. Daniels, 38 Iowa, 161. In an earlier case in Iowa, it is said that to constitute color of title, "he (the claimant) must have a paper title." Hamilton v. Wright, 30 Iowa, 486. 570 COLOR OF TITLE. one entering by a title depending on a void deed, would cer- tainly be in by color of title, it would be strange if another, entering under an erroneous belief that he is the legitimate heir of the person last seized, should be deemed otherwise. * * * To give color of title, therefore, would seem not to require the aid of a written conveyance, or a recovery by process and judgment, for the latter would require it to be the better title. I would say that an entry is by color of title when it is made under a bona fide and not pretended claim to a title existing in another." * In Oregon it is held that " if from the face of the deed compared with the law regulating the subject, he (the grantee) might have had title," such conveyance gives color of title to possession taken under it.^ In Alabama it is held that " he who holds under a paper title, which apparently gives him a right to the land, which would lead an honest mind to the conclu- sion that the right to the land passed by the deed * * * must be considered as holding under color of title."* And in North Carolina it is held that, to constitute color of title, there must be " some written document of title, profess- ing to pass the land, and one not so obviously defective that it could not have misled a man of ordinary capacity."* § 763. Distinction between " claim " and " color of title" — Color of title as showing the character and extent of the possession. — From the above quotations it will sufficiently appear that considerable diversity of opinion exists on the subject of color of title, inasmuch as the very definitions of the term are so various and irreconcilable. Hence, too, it iMcCallw. Neely, 3 Watts (Penn.), 72; see also Abercrombie v. Baldwin, 15 Ala. 372, where color of title is regarded as a " synonym of a bona fide claim of title." See also Herbert v. Hanrick, 16 Ala. 595, where it is said by the court: " he must have color of title, in other words, some deed or written evidence of title." That to constitute color of title there must be a paper title, see also Ham- ilton V. Wright, 30 Iowa, 486. 2 Stark V. Starr, i Sawyer, 20. 3 Saltmarsh v. Crommelin, 24 Ala. 352. '- Dobson V. Murphy, i Dev. and Bat. (N. C.) Law, 586 ; see McConnell v. McConnell, 64 N. C. 342. COLOR OF TITLE. 571 is impossible to lay down any definition of color of title which will not conflict with many to be found in the books. Much, however, of the confusion on this subject arises un- doubtedly from confounding color of title with claim of title, which, as we have already seen, are by no means identical.^ This confusion is evident from the argument in the Pennsylvania case quoted from in the preceding section, where, as in other cases above cited, the technical sense of the term color of title is lost sight of. The possession of color of title by an adverse claimant to land is important for two things : first, as showing the animus of his possession and its character, i. e., that he lays claim to the possession as the owner ; and, second, as defining the amount of his possession and extending it by means of a constructive possession.*^ As is said in a case in the Supreme Court of Pennsylvania, " It is not to be forgotten that mere color of title is valuable only so far as it indicates the extent of the disseizor's claim ; " ^ and in the Supreme Court of Min- nesota, "The effect of color of title * * * is to define the extent of the possession claimed." ■* Regarded as show- ing the animus of the possessor, or his claim of exclusive ownership, color of title is merely a piece of evidence, like any hostile act or assertion of ownership by the claimant, which establishes the necessary adverse character of the pos- session, or as has been already quoted : " The muniment is but one circumstance by which to make out an adverse possession." ® § 764. Misapplication of the term color of title. — Color and claim of title confounded. — It is when so regarded, i. e., as showing the intent of the claimant, that the ■ That " color " and " claim " of title are not synonymous terms, see the case of Hamilton v. Wright, 30 Iowa, 486, where it is said : " The defendant may rely upon either a color of title or a claim of title. To constitute the former, he must have a paper title, but the latter may exist wholly by parol." ' Welborn v. Anderson, 37 Miss. 155. ' Ege V. Medlar, 82 Penn. St. 99. J Washburn v. Cutter, 17 Minn. 369. ' Humbert v. Trinity Church, 24 Wend. (N. Y.) 604. 572 COLOR OF TITLE. term " color of title " has been so often misapplied and wrongly defined. For example, in the case of Edgerton v. Bird, in the Supreme Court of Wisconsin,^ it was held that, though color of title be " that which in appearance is title, but which in reality is no title," and though the tax deed under which the defendant went into possession was " void upon its face," yet that such a deed was admissible in evi- dence to show " colorable title" in the defendant, and the " character of the possession," and that the possession was " adverse." In this case there sfeems to be no question of constructive possession through color of title, but simply whether the possession in its inception could be " adverse," or in other words under a claim of ownership, in the face of the presumption of law (arising from the fact that the deed was void on its face) that the claimant knew that the deed " was not adequate to carry the true title ; " though the fact was, as the court say, that the defendant "undoubtedly sup- posed that the tax deed was good." The question, there- fore, was as to the character of the defendant's claim, not whether the deed in question amounted to color of title in its proper sense. It may be remarked, moreover, that, so far as this case implies, that good faith is necessary in order to give an actual adverse possession the benefit of the statute of limitations, it is at variance with the great weight of author- ity on this subject."^ As another example of the same mis- use of the term "color of title," we may cite the opinion of Chancellor Jones, in the case of La Frombois v. Jackson, in the Court of Errors in New York.^ The Chancellor says : " His (the grantor) assuming to be entitled, and con- tracting to convey, gave to the purchaser under him a color of title, which would characterize the possession of such purchaser under such contract as adverse against all other claimants." Though literally this is holding that an execu- tory contract to convey may be color of title, it is apparent from the rest of the Chancellor's opinion, and from the ' 6 V^is. 527. 2 Stepost, § 775 et seg. 3 g Cow. (N. Y.) 589. COLOR OF TITLE. 573 other opinions in the case, that the only question of im- portance in the case was, as the Chancellor says : " Whether this documentary evidence (the document being admitted to be void on its face) * * * is not sufficient to give a char- acter of adverse possession to the occupancy " to the defend- ant in ejectment, and "to rescue him from the reputation of being a mere trespasser." That is, whether the possession of the defendant under tHis document did not give his claim the character of a claim of ownership, and thus render his possession adverse. So in all the opinions in this case, the possession of the void written contract was treated as evi- dencing the intention or adverse claim of the defendant, which could have been evidenced as well by other things. So it is said by one of the senators, in his opinion : " This possession, accompanied by claim of title, was good with- out the paper." There was evidently no question of con- structive possession under color of title. § 765. Instrument insufficient, as color of title may be evi- dence of a claim gf title. — It may be generally stated that a deed or other similar document may be introduced to show the character of the claim of the possessor under it, though such writing would be insufficient to constitute color of title, and thereby create a constructive possession. As it is held in a case in the Supreme Court of the United States : ^ " Color of title, even under a void and worthless deed, has always been received as evidence that the person in posses- sion claims for himself, and, of course, adversely to all the world." So, also, in the case of Humbert v. Trinity Church, in the New York Court of Errors,^ the court say: " It was very properly conceded, * * * that a claim of title, even under a paper altogether void and inoperative as a deed, will yet characterize a possession as adverse within the statute of limitations." So in the High Court of Errors and Appeals of Mississippi it is held, that " under the plea of the statute ! Pillow V. Roberts, 13 How. (U. S.) 477. 2 24 Wend. (N. Y.) 604. 574 COLOR OF -TITLE. of limitations, generally a void deed, record, or proceeding may be introduced to show the fact of possession held- under it, and the quo animo with which such possession was taken." ^ It is held in the Supreme Court of Vermont, that the record of a survey of lands does not " constitute color of title ; but might be evidence tending to show that he (defendant) was claiming title." ^ So an entry under a recorded deed may be shown, as is said, not to " prove no- tice, as such, but to show the claim of' title under which he held possession."® § 766. Color of title as creating a constructive possession. — By far the most important effect of color of title is the creation of a constructive possession, or, as it is defined, "a possession in law, without possession in fact," * by extending, as the Court say in Chapman v. Templeton, the posses- sion of a part of a tract of land so as to include the whole tract.^ Just as the true owner of land is deemed by pre- sumption of law in possession of it through his deed and without any physical occupation of the land, so the law gives the adverse claimant constructive possession of all to which he has color of title. Or, as it is held, his possession is "co-extensive with the boundaries defined thereby"* {i. e., by what constitutes his color of title) ; and, if he holds under a deed, '' the deed gives him constructive possession of all the land embraced in the deed ;" ' and " where one is in actual possession of a part of a tract of land, and holding the whole under claim and color of title, he will in law be held to be in possession of the remainder;"* ' Root V. McFerrin, 37 Miss. 51 ; see Welborn v. Anderson, Id. 161. 2 Atkinson v. Patterson, 46 Vt. 765 ; see also Wing v. Hall, 44 Id. 122. 3 Stevens w. Brooks, 24 Wis. 330 ; see also Foulke v. Bond, 12 Vroom (N. J.), 543i 544- « Hodges V. Eddy, 38 Vt. 344; see also Buck v. Squiers, 23 Vt. 504. 5 Chapman v. Templeton, 53 Mo. 465 ; see also Washburn v. Cutter, 17 Minn. 361. « Wilson V. Williams, 52 Miss. 493 ; see also Cunningham v. Frandtzen, 26 Tex. 38 ; Pepper v. O'Dowd, 39 Wis. 544. ' Chandler v. Rushing, 38 Tex. 596. 8 Powell V. Davis, 54 Mo. 318. COLOR OF TITLE. 575 and "such possession would be a disseizin of the true owner of the whole tract described in his deed ; " ^ and " he is pre- sumed to enter according to his title ;"^ and "where one enters upon land under a recorded deed, his entry and claim are referred to that deed, and measured by it." ^ The only difference between the case of the true owner and one claiming under color of title is, that in the latter case there must be some actual or corporeal possession of the locus in quo, whereas in the case of the true owner, no such posses- sion is necessary. It is held in Fugate v. Pierce, in the Mis- souri Supreme Court : " The doctrine of constructive pos- session, which follows the title,' when there is no adverse possession, is applied to one who takes actual or corporeal adverse possession under color of title, and he is held to be possessed of the contiguous land covered by the instrument under which he enters, and which he claims by virtue of such instrument."* § 767. Color of title must describe and define the land. — It is held in a recent case in Ohio: "that one in pos- session, claiming by metes and bounds under a paper title, and openly and notoriously exercising control and do- minion on the land, is presumed to be doing so to the ex- tent of his claim. Where, however, his paper claim is void for want of any description of the land, or anything to define its extent, his acts and dominion can create no such presumption. The occupancy must be such as to give notice to the real owner of the extent of the adverse claim. Hence it is, that occupancy, without a deed defining the land, is only notice to the boundaries actually inclosed or im- proved."^ And it is said, a deed "which describes with pre- ' Putnam Free School v. Fisher, 34 Me. 177. 2 Bailey v. Carleton, 12 N. H. 15 ; see also Brackett v. Persons unknown, 53 Me. 228; Wells v. Iron Co. 48 N. H. 530; Phillippi v. Thompson, 8 Oregon, 436; Coleman v. Billings, 89 111. 188 ; Barger v. Hobbs, 67 111. 592. 3 Stevens v. Brooks, 24 Wis. 329. ■" 49 Mo. 447. ■' Humphries v. Huffman, 33 Ohio St. 404. 576 COLOR OF TITLE. cision the boundaries of the land," shall be " a substitute for a substantial and permanent fence around the whole."' And it is also held in the case of Ege v. Medlar, cited above, that a disseizor holds constructive possession of the whole tract only when his entry was under " color of title by specific boundaries to the whole tract." ^ The first requisite of such color of title as will give constructive possession to the claimant is, therefore, some definite description showing- the extent of the claim which, as to the part constructively possessed, may be said to perform the same office as acts of ownership upon the parts in actual possession.^ So in the case of Livingston v. Peru Iron Company,* in the Court of Errors in New York, it is said : " Without the paper title the possession is limited by the pedis possession'' and, " it is immaterial whether the deed conveys a good title ; " * * * " if no lands are described in it, nothing can pass, the deed is a nullity, and lays no foundation for a claim be- yond the actual occupancy. It would be easy to multiply cases to the same eflfect, that an adverse possession, without paper title, is good only to the extent of actual inclosure, and no further." § 768. Constructive possession limited to amount de- scribed. — So, also, the extent of the adverse constructive 1 Chandler v. Spear, 22 Vermont, 405. So it is held that possession under a deed on record is itself a constructive notice of the adverse claim. Forest v. Jack- son, 56 N. H. 357; see also Thompson v. Burhans, 79 N. Y. 99, 100; EUicott v. Pearl, 10 Peters, 442. In the latter case, the court say: " The law construes the entry to be co-extensive with the grant to the party, upon the ground that it is his clear intention to assert such possession.'' '- Ege V. Medlar, 82 Penn. St. 87. 3 See Henley v. Wilson, 81 N. C. 405, where it is held that a description by metes and bounds is not necessary where the premises are well known by name, as, for example, " McClenahan Mills." A deed for a given number of acres out of a certain tract of land, without specifying the particular part, is void for uncer- tainty, as the land cannot be located by the description, and hence such a deed cannot be good color of title. Shackleford v. Bailey, 35 111. 387; see also cases cited; see § 461. < 9 Wend. (N. Y.) 517 ; see also Kent v. Harcourt, 33 Barb. (N. Y.) 498. COLOR OF TITLE. 577 possession will be limited to the amount described or de- fined by whatever constitutes the claimant's color of title. There can be no adverse possession, whether actual or con- structive, where there has been no definite claim to it. The deed, or whatever writing constitutes the color of title, must, at least, " purport to include " the land claimed, " upon the general principle that a deed cannot operate as color of title so as to have effect beyond the estate which it professes to pass."^ So, also, if the land actually occupied is a tract or lot altogether different from the one which the deed describes, under which the occupant claims, there will be no construct- ive possession created, but the claimant will be limited to his actual possession.* As is said by Chief Justice Church in a case in the New York Court of Appeals,^ when con- struing the New York statute on this subject : " Where premises are included in the instrument under which the title is claimed, constructive possession, as provided by section 83, is sufficient, while to the land not included in the instrument, the possession must be actual, as required by section 85;" and, elsewhere in the same opinion, "it seems to me incongruous to say that a person claims title under a written instrument, to land not included in the instrument." § 769. No constructive possession without written instru- ment. — As the amount of land which can be claimed by constructive possession is limited by the terms of some written instrument, so, it can be stated generally, that there can be no constructive adverse possession which is not based upon a claim under some written instrument consti- tuting in form a paper title. In a recent case in the New York Court of Appeals, the court say : " Constructive pos- session is based upon a written title, which may be valid or invalid."* In Jackson v. WoodruflF,® cited above, it is said : ' McEvoy V. Loyd, 31 Wis. 147 ; and cases cited. " Crary v. Goodman, 22 N. Y. 173, and cases cited; see also Swettenliam v. Leary, i8 Hun (N. Y.), 286. '' Pope w. Hanmer, 74 N. Y. 244. * Thompson v. Burhans, 79 N. Y. 99. 5 i Cow. (N. Y.) 285. 37 578 COLOR OF TITLE. " But when a party claims to hold, adversely, a lot of land by proving actual occupancy of a part only, his claim must be under a deed or paper title." So it is said in a case in the Supreme Court of New Hampshire,^ that "there can be no constructive possession of land without color of title." And in Missouri,^ it is held, that " such possession is never based upon a claim merely," but "there must be a deed, purporting to convey the whole, or some proceeding or in- strument giving color and defining boundaries, as well as actual possession of a part ; " and again, " having no color of title, his possession could not extend beyond the limits of his actual occupation." In Humbert v. Trinity Church,^ it is said, that to warrant the application of the statute of limitations in ejectment, "the books require color of title, by deed or other documental semblance of right in the defendant, only when the defense is founded on a con- structive adverse possession." § 770. Some actual possession necessary upon which to base constructive possession. — It is hardly necessary to add, what has been already referred to, as a further essential to the existence of a constructive adverse possession, that it should be based, not only upon some written instrument, but upon an actual, though only partial, possession of the locus in quo. The necessity for some such corporeal posses- sion will be readily seen, if we revert to the general rule of law that, until disseized by an actual adverse entry, the true owner is at least in the constructive possession of his land, and, in the case of an apparent conflict of constructive posses- sions, that the possession is deemed to follow the true title.* An actual entry and disseizin of the true owner by the ad- verse claimant under a paper title is, therefore, necessary for ' Wells V. Iron Company, 48 N. H. 530. = Long V. Higginbotham, 56 Mo. 251 ; but see Hughes v. Israel, 73 Mo. 547; see also Fugate v. Pierce, 49 Mo. 441 ; Crispen v. Hannavan, 50 Mo. 544 ; S. P. Scales V. Cockrill, 3 Head (Tenn.), 436. ' 24 Wend. (N. Y.) 604. * Clarke v. Courtney, 5 Peters, 353, 354- COLOR OF TITLE. 579 the latter to acquire any constructive possession under it.^ So, it is said: " The constructive is dependent upon the actual possession, and must continue or fail with it."" Conse- quently, when an adverse possessor sells or parts with " that over which he had actual possession," he " loses his construc- tive possession of the remainder." ^ § 771. Character of such actual possession. — Though some corporeal possession be necessary as a foundation for a constructive possession, yet it may be doubted whether the same strictness would be required in determining the suffi- ciency of hostile acts to constitute " a'ctual " possession, as would be in the absence of a paper title, when the adverse possession is based merely upon a naked claim of ownership. Thus it is held, that in respect to such acts of ownership, less notoriety will be required when the possession and claim are under color of title.* Though, as a rule, if there be a sufficient actual possession of a part, no acts of ownership need be shown upon the remainder of the land (when claimed under color of title), yet, in Missouri the statute expressly requires the exercise of the " usual acts of ownership over the whole tract so claimed." ® So, too, in a recent case in the Court of Errors and Appeals of New Jersey,' where the general sub- ' Moingona Coal Co. v. Blair, 51 Iowa, 448; see also Thayer v. McLellan, 23 Me. 419, where it is held that the owner of land will not become disseized by a survey, allotment and conveyance thereof, and by recording the deed, but that an open occupation of some part of the premises purported to be conveyed by the deed, is necessary. So in connection with an adverse claim to land under color of title, "the entry and possession must be proved by acts sufficient in law to constitute such adverse entry and possession." Washburn v. Cutter, 17 Minn. 369; see also Baker v. Swan, 32 Md. 355. The existence of color of title alone is, like that of any bare claim to land, without some actual occupation of the land under it, of no avail to the claimant, for, as it is held in the case of Walls v. Smith, 19 Ga. 8, color of title can be of service only in aid of possession. 2 Cunningham v. Frandtzen, 26 Texas, 38. ' Chandler v. Rushing, 38 Texas, 597. * Hodges V. Eddy, 38 Vt. 32?; see also Parker v. Propr's Locks, &c., 3 Mete. (Mass.) 99, 102. = See Norfleet v. Hutchins, 68 Mo. 599. « Foulke V. Bond, 12 Vroom (N. J.), 547; to same effect, see Den v. Hunt, Spencer (N. J.), 492. 580 COLOR OF TITLE. ject of adverse possession is most ably and elaborately dis- cussed, it is distinctly held, that " the rule of law, that pos- session by one having paper title, will be presumed to be co-extensive with the boundaries of the title deeds, applies only to the owner of the legal title," and that, consequently, though " color of title, and actual occupation by residence, cultivation or inclosure of part of the tract * * * may serve to give character to his (the disseizor's) acts of pos- session over the residue," yet it "will not relieve him from the obligation of satisfying a jury that his possession has been of such a character as, under the circumstances, may reasonably be expected to have informed the true owner of the nature of the possession and the extent of the title pro- posed to be acquired under it." And elsewhere in the same opinion, it is implied that " a substantial holding, co-exten- sive with the boundaries in the deed," must be established. So in New York, not only is the constructive possession given by a paper title limited in amount to a tract of land " of suitable size," for example, "to be kept for the balance of a farm," but it is intimated, at least, that the land not under actual cultivation or possession, must be used in some way habitually — not merely occasionally — in connection with the land actually cultivated.^ § 772. The underlying principles of color of title and constructive possession summed up. — The cases cited in the preceding sections, which embody the generally accepted and best views on the subject of color of title and construc- tive possession, in connection with the statute of limitations, are, undoubtedly, based upon the following principles : First, that color of title is important in creating a constructive possession beyond the limits of the actual possession ; Sec- ond, that such constructive possession is conj&ned to cases where the adverse claimant is in possession under some doc- umentary evidence of title ; Third, and this is a necessary deduction from the first two, that color of title must neces- 1 Miller v. Long Island R. R. Co., 71 N. Y. 384. COLOR OF TITLE. 58 1 sarily consist in some written instrument describing the locus in quo. § 773. Certain exceptions noticed. — We have dwelt upon this subject somewhat at length in view of the misconcep- tion of the meaning and effect of color of title and the irreconcilable definitions of the term to be met with, and which are above referred to. The rule, for example, that color of title must consist in some written instrument upon which alone constructive possession can depend has been frequently questioned. Thus in the case of Rannels v. Ran- nels,^ in the Supreme Court of Missouri, it is distinctly held that it is not necessary that color of title " should be created by deed or other instrument of writing," but, that " it may be created by an act in pais without writing." The cases cited and quoted from by the court only partially support this prop- osition. The opinion of Judge Gibson in the case of McCall V. Neely,^ quoted from, the same court had already refused to follow in a case,^ also cited in Rannels v. Rannels, which does not by any means go so far as to hold that no writing is nec- essary to constitute color of title. So also the two Massa- chusetts cases cited,* do not at all support such a proposition, but merely lay down the principle that a claim of title can be adverse as well without as with a deed. In fact the very citation of these two Massachusetts cases, in support of the proposition attempted to be laid down in Rannels v. Ran- nels, is but another instance of the disposition above com- mented upon,^ to confound "color" with "claim" of title. Moreover, notwithstanding the general language in Ran- nels V. Rannels, the court, in view of the circumstances of the case, decided only that the defendant, to whom the plaintiff had made a verbal gift of the premises and had "put her (defendant) into possession under this survey ' 52 Mo. 112. ==3 Watts (Penn.), 69; see above, § 762. ^ City of St. Louis v. Gorman, 29 Mo. 593 ; see also Crispen v. Hannavan, 50 Mo. 547. * Ashley v. Ashley, 4 Gray (Mass.), 197 ; Sumner v. Stevens, 6 Mete. (Mass.) 337. ' See supra, % 764. 582 COLOR OF TITLE. (made by plaintiff) and the description in his (plaintiff's) own deed, was in possession under " color of title." In one sense, therefore, there was a written instrument describing the locus in quo, i. e., the plaintiff's own deed, which may well be considered as constituting for the purposes of con- structive possession the defendant's color of title, since it performed its prime office — that of defining the extent of the occupant's claim.^ Furthermore, the case of Rannels v. Rannels, though cited with approval in a later case^ in the same court, is certainly inconsistent in its language with the two Missouri cases above cited,'' which confine the doctrine of constructive possession to possession under some written instrument. The decisions of the Supreme Court of Vermont seem to form an exception to the rules above stated. For ex- ample, the case of Hodges v. Eddy,* already referred to, although stating the general rule that, to constitute color of title there must be some written instrument, yet declares the law in Vermont, in distinction from "many of the other States," to be " settled, that where a person without title, or color of title, enters upon a vacant lot, and actually occupies a portion of it, and the lot has a definite boundary marked upon the land, such person by claiming to be the owner to the boundary lines of the lot, has a constructive possession of the whole." So, too, in an earlier case it is held, " if one's fence is in such a form, as to clearly indicate that, when completed, it will include a portion of wood land, which the party now only uses for making sugar or cutting wood, the person must be regarded as in the constructive possession of the whole lot, although there be no paper claim, or color of title." '^ In Hodges v. Eddy, however, the language last quoted was construed to mean " no more ■ This view seems to be taken in a later case in the same court. See Hughes V. Israel, 73 Mo. 547. 2 Cooper V. Ord, 60 Mo. 431. ^ Long V. Higginbotham, 56 Mo. 245 ; Fugate v. Pierce, 49 Id. 441 ; see supra, §769. < 38 Vt. 327. 5 Buck V. Squiers, 23 Vt. 503. COLOR OF TITLE. 583 than this, that such claim of ownership and dominion, as the fence indicated, in connection with his acts doiie upon it, gave him a sufficient actual possession."^ But, query, whether the same construction cannot, be put upon the language used in Hodges v. Eddy, ab(^ve quoted ? If, in the case of Buck v. Squiers, the facts as stated are held to give the claimant actual and not constructive possession, why should not the entry upon a lot with a " definite boundary marked upon the land," and an actual occupation of a portion of it by a person " claiming to be the owner to the boundary lines," be deemed to give an actual rather than a constructive possession ? So that, after all, the decisions of the Vermont court may not be so much an exception to the rule of constructive possession being confined to cases of possession under a written instrument, as they are au- thorities on the subject of what constitutes a sufficient actual possession.^ Certainly in the absence of such circumstances or acts, as would sufficiently clearly indicate the extent of the claim, some deed or written instrument is held necessary, even in Vermont, to extend a " possession constructively beyond the limits of the land actually occupied."** Similarly in Indiana it is held that, though an adverse possessor " must be limited to that portion over which he exercises palpable and continuous acts of ownership, * * * there being no other evidence, in such case, to enable us to determine the quantity," yet, " where a party is in possession under and pursuant to a state of facts which, of themselves, show the character and extent of his entry and claim," that such facts "perform sufficiently the office of color of title," by evi- dencing " the character of the entry and extent of the claim,"* and hence give constructive possession. As in the Ver- mont cases, however, it may be questioned whether this is ' Hodges V. Eddy, 38 Vt. 348. 2 See also Beach v. Sutton, 5 Vt. 209. 3 Wing v. Hall, 47 Vt. 216. * Bell V. Longworth, 6 Ind. 277. In North Carolina in a recent case it is held that "The existence of visible and definite boundary marks is required to enlarge a possession beyond the limits of actual occupancy or a ;5o^j^.rjzo/^^z'^." Scott V. Elkins, 83 N. C. 427. 584 COLOR OF TITLE. not rather an authority on what may constitute actual pos- session, than an exception to the rule that a purely con- structive possession is limited to cases where partial posses- sion is accompanied with color of title. In California the ordinary rule limiting constructive pqssession to cases where some actual possession is held under a " paper title " is not applied in the case of mining claims. On this subject, the court say : " But we think, where a claim is distinctly de- fined by physical marks, that possession taken for mining purposes embraces the whole claim thus characterized, though the actual occupancy or work done be only on, or of a part, and though the party does not enter in accordance with mining rules, or under a paper title. The rule which applies to agricultural land, and holds to a more strict inter- pretation oi 2i possessio pedis, does not apply to such a case."^ § 774. Qualifications of the general rule of constructive possession. — Extent of a constructive possession limited. — There is an important "qualification of the general rule that the adverse claimant under a paper title has constructive posses- sion of all which the deed or other written instrument calls for, and in which possession the statute of limitations will protect him. In the case of Thompson v. Burhans,^ above cited, the court, after affirming the general rule of con- structive possession under a paper title, as above stated, qualifies it as follows : " The part not actually possessed must be for use with or subservient to that actually pos- sessed, and have some necessary connection therewith." And, again, " such constructive possession will extend only 1 English V. Johnson, 17 Cal. 116; see also Attwood v. Fricot, 17 Cal. 43- For an application of the general rule of constructive possession of the whole through a partial actual possession under a paper title, see Donahue v. Gallavan, 43 Cal. 575 ; see further Finlay v. Cook, 54 Barb. (N. Y.) 9; Scott v. Delany, 87 111. 146; Lynde v. WiUiams, 68 Mo. 360; Welborn v. Anderson, 37 Miss. 155; Chandler v. Rushing, 38 Tex. 591 ; Texas Land Co. v. WiUiams, 51 Tex. 51; Den V. Hunt, Spencer (N. J.), 487; Hannibal, &c. R. R. Co. v. Clark, 68 Mo. 371, 378; Wells V. Iron Co. 47 N. H. 253, and cases cited; Turney w. Chamberlain, 15 111.271. = 79 N. Y. ipo. COLOR OF TITLE. 585 to such land as is used in connection with the improved land actually possessed, and to only so much as is reasonable and proper for that purpose, according to the custom of the coun- try." Accordingly, the plaintiff claiming title under a void tax deed, to some 6,000 acres of wild land, but having suffi- cient actual possession of less than a quarter of an acre, it was held that he had no constructive possession of the land not actually possessed. It may also be here remarked, that the court held in this case that evidence, to the effect that the plaintiff had paid taxes on the lands and caused them to be surveyed and had at times cut logs and roads upon them, was insufficient to establish the necessary actual pos- session required by the statute. On the other hand, the earlier case of Munro v. Merchant,^ in the same court, which case, as is said by one of the Commissioners of Appeals, in Thompson v. Burhans,^ " carried the rule farther than any other," held, that when about 300 acres out of 1,500 or 1,600 acres had been cleared, and the uncleared portion had been used extensively for cutting timber trees, to be drawn and manufactured into lumber upon the cleared portion and elsewhere, and for fencing timber and firewood, the claimants under a deed were in possession of the whole tract. This case, in its facts, differs from Thompson v. Burhans, not only in respect to the pro- portion which the land claimed bore to that actually occu- pied, but in respect to the relation and connection between the two tracts- — that actually possessed and that claimed by constructive possession. The reason of the rule affirmed in Thompson v. Burhans, as is said by Commissioner Earl,' "is well stated by Judge Woodruff in Jackson v. Woodruff,* as follows : ' Possessions thus taken under a claim of .title, are generally for the purpose of cul- tivation and permanent improvements. It is generally ' 28 N. Y. 9. 2 61 N. Y. 69. ' 61 N. Y. 69. See also Miller v. L. L R. R. Co., 71 N. Y. 380, 384. ^ Cow. (N. Y.) 276. 586 COLOR OF TITLE. necessary to reserve a part for wood land. Good husbandry forbids the actual improvement of the w^hole. The posses- sions are usually in the neighborhood of others; the boundaries are marked and defined. Frequent acts of ownership in parts not cultivated give notoriety to the pos- session. Under such circumstances there is but little dan- ger that a possession of twenty years will be matured against the right owner; if it occasionally happens, it will arise from a want of vigilance and care in him who has the title. It is believed that no well-founded complaint can be urged against the operation of the principle ; but the attempt to apply the same rule to cases where a large tract is con- veyed, will be mischievous indeed.' " The case last quoted from is cited with approval in a case in the Supreme Court of Vermont,^ where the court also say : "It is, doubtless, impracticable to specify any precise quantity of land, that ought to be considered so far appendant to an actual im- provement, as to be the proper subject of a constructive possession ; " and, " it is not intended to say, that any quan- tity of land, which may reasonably be supposed to have been purchased and entered upon for purposes of cultiva- tion, and for use as a wood or timber lot, might not be pro- tected by such a possession." So, in a case in the Supreme Court of Wisconsin,^ the court, in construing the statute governing the subject of constructive adverse possession, held, first, where the premises were divided into known lots, that "actual use on one lot cannot carry with it con- structive use on another lot of the same piece of timber,"* 1 Chandler v. Spear, 22 Vt. 406. •>■ Pepper v. O'Dowd, 39 Wis. 538, 550. 3 On the other hand, it is held, in a recent case in Georgia, that possession of part of one lot embraced in the same deed with other lots, will not be extended, by construction, to the other lots, unless the deed be on record. If the deed is on record, however, it will give constructive possession of the other lots, for the reason, as stated, that the record of the deed being notice to the owner, is equiv- alent to the visible possession of the lot by an actual occupancy. Tritt v. Rob- erts, 64 Ga. 156; see also Janes v. Patterson, 62 Id. 527. In a case already re- ferred to in Missouri (Fugate v. Pierce, 49 Mo. 447), the adverse possessor under COLOR OF TITLE. 587 and secondly, that " the extent of land so used must bear a reasonable proportion to the rest ; must not be positively greater than is reasonably sufficient for fuel and fencing, in the circumstances of each case," and that, " what is a reason- able quantity, in each case, is * * a question for the jury." From the cases quoted in this and the preceding sec- tions, it will be seen that the courts, in some States at least, are disposed to hold, that, as to the part claimed by con- structive possession, something more is necessary than the mere possession of a deed including it, and that there must be some use made of the land in connection with the part actually occupied or improved. The effect, therefore, of having color of title to land would be, as to the part beyond the actual occupation or improvement, not to dispense with any acts of possession, but to relieve the claimant from such distinct and continuous acts of appropriation as would otherwise be required. In connection with the general rule of constructive possession it may also be remarked, that the actual partial possession and the claim under the instrument constituting the color of title, must be co-existing, i.e., the constructive possession given by the instrument cannot re- late back to the time when actual possession commenced, but before color of title was acquired. In other words the statute begins to run in favor of the adverse constructive possession, only from the time when both actual possession and color of title concur.^ So also it must be borne in mind that where the legal owner takes actual possession of the premises or a part of them, the constructive possession of the former adverse claimant is destroyed, and the latter color of title '' is held to be possessed of the contiguous land covered by the in- strument." This ruling, however, seems inconsistent with the language in a subsequent case in the same court, where it is said that actual possession, accom- panied with color of title, carried the possession to the whole tract, though the part in controversy was a lot of timber land, and " situated some distance from plaintiff's other land." See Powell v. Davis, 54 Mo. 315, 319; compare Scott v. Delany, 87 111. 148. ' Watson V. Tindal, 24 Ga. 494 ; see also Cooper v. Ord, 60 Mo. 420. 588 COLOR OF TITLE. will thereafter be confined to his possessio pedis} This is on the well-recognized principle that, in the case of a conflict of possession, the constructive possession always follows the true or better title. § 775. Good faith as an ingredient in constructive pos- session. — A very important qualification or condition in the law of constructive adverse possession frequently met with in the books is the presence of good faith in the claimant. It may be here stated generally that, when the adverse claim under the statute of limitations extends simply to the land actually occupied by the adverse claimant — his possessio pedis — the question of good or bad faith on the part of the claimant does not arise. Under the plea of the statute of limitations in such a case the only inquiry is, has the actual possession been sufficiently open, hostile, &c., and continued for the time required by the statute. Or, in such a case, as the court say in Smith v. Roberts : " It is the actual claim of ownership, not the bona fides which is the test." ^ When, however, the adverse claim is made un- der color of title, and, consequently, extends beyond the possessio pedis of the claimant to the limits of the instru- ment constituting the color of title by means of the con- structive possession created by it, — in such a case, the bona fides of the claimant may become an important element. The necessity of good faith in the claimant under color of title is often taken for granted by the courts, though the subject, it must be admitted, is far from having been satis- factorily adjudicated upon. Thus, in a case in the Supreme Court of the United States,® Mr. Justice McLean, deliver- ing the opinion of the court, says : " Upon their face, the deeds purport to convey a title in fee ; and having been accepted in good faith, * * * they show the nature and ex- tent of the claim to the premises ; " the clear implication of ' Bradley v. West, 60 Mo. 33 ; see also Wing v. Hall, 47 Vt. 207 ; Brimmer V. Proprs. of Long Wharf, 5 Pick. (Mass.) 131. 2 Smith V. Roberts, 62 Ala. 86. 3 Gregg v. Sayre, 8 Peters, 253. COLOR OF TITLE. 589 the opinion is, therefore, that the absence of good faith would have been fatal to the adverse possession claimed under the deeds. So, in a case in the highest court of Mississippi, the court say : " It is well settled that when a party enters into possession under a colorable title and holds adversely, that his possession is construed to be co-extensive with the premises, as described in the deed or will under which he claims, and which he believes gives him a sound title." ^ In a recent case in the Supreme Court of Pennsylvania * the court say : " If, however, it was known, or ought to have been known, that that sale did not in fact, embrace the Moses Foulke tract, then the purchaser acquired no color of title ; for, as is said by Gibson, C. J., in McCall v. Neely,^ 'An entry is by color of title when it is made under a hona fide, and not pretended, claim of title existing in another.' " And also, in a case in California, the court say : " If a party enters bona fide under color of a title, * * * the possession of a part * * * is the posses- sion of the entire claim described by the paper." * But in some cases the necessity for good faith under the circumstances in question is distinctly held. Thus, in a case in the Supreme Court of Missouri, it is held that, " In addi- tion to the actual occupancy of a part * * * there must be a claim to the whole * * * and such claim must be bona fide and evidenced by some paper," &c.* And in another case in the same court, it is said, " Good faith may become an important element * * * in reference to defining the limits of the possession." " So in a case in the Supreme Court of Iowa, the court, in reference to a claim under color of title, say : " Of course he (the claimant) must make ' Welborn v. Anderson, 37 Miss. 163. , * Ege V. Medlar, 82 Penn. St. 98, 99. ' 3 Watts (Penn.), 72 ; see supra, § 762. ' Attwood V. Fricot, 17 Cal. 43; see also Buckley z*. Taggart, 62 Ind. 238; Miss. & Tenn. R. R. Co. v. Devaney, 42 Miss. 555. ' Crispen v. Hannavan, 50 Mo. 544 ; see also Fugate v. Pierce, 49 Mo. 447. ' Bradley v. West, 60 Mo. 41 ; see also Chapman v. Templeton, 53 Mo. 465 ; Hannibal & St. Joseph R. R. Co. v. Clark, 68 Mo. 371. 590 COLOR OF TITLE. the claim in good faith, and not in wantonness." ^ In a recent case in Texas, it is held that " It is unquestionably a well estab- lished general rule, that where entry is made upon land under color of title, * * * the party entering acquires con- structive possession * * * to the extent of the bound- aries in the title under which he enters. The extent of possession acquired by entry does not depend upon the character of the title, * * * but whether it is bona fide and under such color of right as that other parties can ascertain its character and extent."^ That here the necessity for good faith is confined to a claim to con- structive possession under color of title is shown by another case in the same court, where it is held, that "the statute of limitations does not involve-the question of good faith in the naked possessor." ^ In a case in California, it is said by Field, C. J., in his opinion: The claim, "when founded upon a written instrument, * * * must be as- serted by the occupant in good faith, in the belief that he has good right to the premises."* So, in a leading case in the Supreme Court of New Jersey,^ the court say: "A party who sets up an adverse possession under color of title must act bona fide, or, in other words, he must be honest. He must believe his deed to be valid in law, and that it conveys to him a good title to the land." This doctrine has been recently followed in an important case in the Court of Errors and Appeals of the same State, which we have already cited, and to which we shall presently recur.* The cases above cited, it is believed, reflect the prevailing opinion on this question of bona fides in claiming title to land by a constructive adverse possession through color of title. ' Close V. Samm, 27 Iowa, 510. 2 Texas Land Co. v. Williams, 51 Tex. 62. 3 Kinney v. Vinson, 32 Tex. 128. * McCracken v. City of San Francisco, 16 Cal 636. 6 Den V. Hunt, Spencer (N. J.), 493. So also the "paper title " must warrant, by its appearance, good faith on the part of the person entering under it. See Baker z;. Swan, 32 Md. 355. ' See supra, § 771 ; and infra, § 777. COLOR OF TITLE. 59 1 though it is to be regretted that the subject has not received more general judicial investigation and adjudication. On the other hand, however, there are decisions, apparently at any rate, directly opposed to the opinions above quoted. In a case in the Supreme Court of Tennessee,^ where the defendant in ejectment claimed under a void tax deed and pleaded the statute of limitations, and where, the " defend- ant, having been particeps to the pretended purchase for taxes," it was contended his possession was not adverse, the court held that such an objection was untenable, for, in such a case, " the jury would try the defendant rather than his title ; " and so it was held, as the head note reads, that " the act of limitations will prove a bar to an ac- tion of ejectment, although the defendant, when he received his deed, knew that the person conveying to him had no title." But here there was no question of a constructive possession under the deed beyond the limits of the actual possession of the adverse claimant. The question simply was, "could an actual hostile possession, accompanied by a deed known to the claimant to be void, be strictly adverse } " and the ruling of the court to the effect that such posses- sion can be adverse, no matter how tortiously obtained or how groundless the occupant may know his claim to be, will not be questioned by any one. § 776. The New York doctrine on the subject. — -The most serious dissent from what we deem the prevailing and the better rule, as to the necessity for bona fides in one claiming constructive adverse possession through color of ti- tle, is to be found in New York, though the earlier cases in that State would seem to require good faith, not only in con- nection with a claim founded upon a written instrument con- stituting color of title, but also when the adverse possession is based upon a mere claim of title. Thus, in the case of ' Love V. Shields, 3 Yerg. (Tenn.) 405 ; see contra, Definition of Color of Title, above quoted ; Wilson v. Kilcannon, 4 Haywood (Tenn.), 182 ; and Water- house V. Martin, Peck (Tenn.), 407. 592 COLOR OF TITLE. Clapp V. Bromagham in the Court of Errors,^ the Chancel- lor says, in reference to the contention that the purchase and possession of the adverse claimant were fraudulent, " if that objection to the title was well-founded, it might be fatal ; for fraud vitiates whatever it touches." But the court held that fraud could not be imputed to the purchaser, through his negligence in not inquiring as to the validity of the title acquired, implying therefore, that actual fraud or knowledge of the defects of his title must be proved.^ It may be remarked that this case has frequently been cited by the New York Courts, to the effect that constructive no- tice of defects in a title, arising out of neglect in the purchaser to investigate, is not applicable on the question of adverse possession,® but the decision, in respect to the language of the Chancellor above quoted, has never, so far as we are aware, been distinctly overruled. So, in a later case in the same court, the same doctrine as to the necessity of good faith in every adverse claim of title, whether founded upon . a written instrument or not, is affirmed. In the course of his opinion the Chief Justice says : " The animus, then, or intent with which an entry is made, must be bona fide an entry believing in good faith that the land is his, and that he has title." * The doctrine of the earlier cases in New York seems, however, to have been discarded in the leading case, already cited frequently, of Humbert v. Trinity Church, in the Court of Errors,^ where it is held that " neither fraud in obtaining or continuing the possession, or knowledge on the part of the tenant that his claim is unfounded, wrongful and fraudulent, will excuse the negligence of the owner in not bringing his action within the prescribed period." In reference to the language in Livingston v. Peru Iron Co., ' 9 Cow. (N. Y.), 557. 2 See also Foulke v. Bond, 12 Vroom (N. J.), 543. ^ See for example Sands v. Hughes, 53 N. Y. 297. "Livingston z^. Peru Iron Co. 9 Wend. (N. Y.) 518; see also Howard v. Howard, 1 7 Barb. (N. Y.) 667, 668. 5 24 Wend. (N. Y.) 587. COLOR OF TITLE. 593 above quoted, the court say : " The question is on the quo animo, the intent, not, I take it, as was suggested in Liv- ingston V. The Peru Iron Co., the intent to claim hon- estly, but the intent to claim at all, right or wrong, with or without knowledge that another has title." The general language of the Chief Justice in the Livingston case is overruled, or at any rate is confined in its application to the case of an adverse possession, not under the statute of lim- itations, but under that against champerty and mainte- nance.^ The language used in the several opinions delivered in the case of Humbert v. Trinity Church, on the subject of bona fides, is certainly general enough to warrant its ap- plication to all cases of adverse possession, under the stat- ute of limitations, whether such possession be founded upon a mere claim or upon color of title, and whether the pos- session claimed be simply at possessio pedis, or, in addition, a constructive possession to the extent called for by a written instrument. We find, therefore, that the doctrine apparently laid down in Humbert v. Trinity Church, that bona fides is never necessary in adverse possession, is, on the authority of that case, applied to cases where, in fact, the adverse claim extended to land not actually possessed, but claimed by constructive possession under a deed or the like.^ In a later case in the New York Court of Appeals,^ however, we find the court basing the distinction between the cases of Liv- ingston V. Peru Iron Co. and Humbert v. Trinity Church, upon the difference between the champerty act and the statute of Hmitations in that State. After drawing this dis- tinction, the court say : " A deed fraudulently obtained is a nullity, and gives to the fraudulent grantee not even a color- ' See Crary v. Goodman, 22 N. Y. 177. 2 See e. g., Munro v. Merchant, 26 Barb. (N. Y.) 401, 402 ; Howland v. New- ark Association, 66 Id. 367. ■ Under the title '' adverse possession," and the sub- heading "The claim must be under color of title," in Abbott's New York Digest, vol. I (p. 43), we find the following: "Whether defendant entered into possession in good faith, believing he had a good title, or not, is no longer material." ' Crary 7/. Goodman, 22 N. Y. 177. 38 594 COLOR OF TITLE. able title. Hence, in the former of these cases (the Living- ston case), which depended upon the champerty act, it was held that the possession of the grantee, under such a deed, was not such an adverse possession as would avoid a subse- quent deed from the true owner. The other case (the Hum- bert case) turned upon the statute of limitations, and under that statute, as we have seen, the thing contemplated was a mere naked possession, irrespective of any right or color of right. Therefore the court held that even fraud in obtaining or continuing the possession would not excuse the negli- gence of the owner in not bringing his action within the pre- scribed period." The clear implication, at least, of this lan- guage is, that if " the thing contemplated " were a construct- ive possession through a deed fraudulently obtained, the fraud in obtaining such a deed — not in obtaining actual possession — would defeat the adverse claim to a constructive possession under it. This would, therefore, restrict the rul- ing in the Humbert case, that fraud is immaterial as an objection to the defense of the statute of limitations, to cases involving naked possession only, and would harmon- ize the New York rule on this subject with what we deem to be the prevailing opinion. But in a later case, in the same Court of Appeals,^ it seems to be doubted whether this restriction of the language of the Humbert case, or the dis- tinction attempted to be drawn, is warranted, though the reason for the doubt is not stated by the court. % 'j'j'j. Statement of the prevailing rule. — Doctrine of the New Jersey Court of Errors. — Notwithstanding the New York cases above cited, we think the better and the prevailing opinion to be in eflFect, that fraud in acquiring •an actual naked possession — whether accompanied by a deed' or not — will not, on that account, render the posses- sion less adverse, and will be no objection to the plea of the statute of limitations on the part of the disseizor or adverse claimant ; but that no constructive possession can be ac- ' Sands v. Hughes, 53 N. Y. 296. COLOR OF TITLE. 595 quired through a written instrument obtained through fraud, or with actual knowledge of its invalidity to convey a good title ; in other words, that such a written instrument can- not perform the office of color of title. This rule, and the reasons therefor, are well stated in a recent important case in New Jersey,^ as follows : " The general doctrine of the law is that fraud in obtaining or continuing possession, or knowledge that the party's claim of ownership is unfounded and wrongful, will not deprive him of his title by adverse possession, or; relieve the true owner of the consequences of the bar of the statute of limitations, if the possession of the intruder has in fact been adverse, and has been asserted by such open and notorious acts of ownership as are essen- tial in the acquisition of title by adverse possession (citing Humbert v. Trinity Church, 24 Wend. 587). * * * The statute of limitations establishes a peremptory and in- flexible rule of law, which terminates the rights of the legal owner, and protects the disseizor in his possession, not out of regard to the merits of the latter's title, but for the reason that the real owner has acquiesced in a possession which was adverse for such a length of time that the statute has de- prived him of all remedy for the enforcement of his legal title. Possession clandestinely taken and held for the pur- pose of fraudulently concealing from the real owner knowl- edge of the acts of ownership over his property, in virtue of which title is endeavored to be obtained, will defeat the effort to acquire title by such means, not on any general doctrine of fraud, but for the reason that possession under such circumstances would be devoid of that notoriety of the possession, and of the adverse claim which is necessary to perfect title by adverse possession. * * * This is the doctrine of the law in all cases where the adverse possession commjences with an actual disseizin. But a disseizin may be effected by an entry under a deed or a feoffment, which is void in the sense that no title is actually conveyed there- '■ Foulke V. Bond, 12 Vroom (N. J.), 541. 596 COLOR OF TITLE, by, and where a party claims a disseizin by virtue of an entry under such a muniment of title, he is claiming the ad- vantage of color of title. In such a case the rule above mentioned is not applied in all its strictness. A party cannot have the advantage of an entry under color of title unless his deed, which gives the colorable title, was ob- tained bona fide. If obtained by fraud, or with knowledge that the grantor had no title to convey, the deed will avail the grantee nothing. But a grantee will not be deprived of the legal advantages of an entry under color of title, un- less it be for actual fraud on his part." § 778. Good faith expressly required by statute in some States. — The necessity for good faith in one claiming under color of title, has been expressly recognized by the statutes on this subject in several of the States, which, however, from our view, are merely declaratory of the common law on the subject, so far, at least, as the rule is applied in respect to constructive possession.^ § 7 79. Difficulty of laying down a general definition of color of title. — As we have seen, it is by no means easy to lay down a satisfactory definition, which shall accord with the various opinions in the books, as to what, in general, con- stitutes color of title. It is no easier to so define the term as to include every instance of what may be held to be color of title, and to exclude all that has been or may be discarded as such. Each case must be decided in respect to its own circumstances and ingredients, controlled by the general principles which we have above attempted to deduce from the authorities. It may, however, be advantageous to enumerate some of the instances of color of title held to be such by the courts, as well as some of those deemed in- sufficient as such. ' See, for example, Georgia Code, 1873, § 2683; Revised Statutes of Illinois, 1874, c. 83, §§ 6, 7; see also Castleberry z/. Black, 58 Ga. 386; McCamy w. Hig- doii, 50 Id. 629; Brown v. Wells, 44 Id. 573 ; Garrett v. Adrain, Id. 274; Stub- blefield v. Borders, 92 111. 279; Russell z/. Mandell, 73 Id. 136. COLOR OF TITLE. 597 § 780. Instances of what held to be color of title. — The following have been held sufficient to constitute color of title : A tax deed made under a sale of swamp land, which was ex- empt from taxation as belonging to a county, as well as the deed from the purchaser ; ^ a tax deed of an auditor, regu- lar on its face, " without regard to the constitutionality of the laws under which it was devised ;"^ a sheriff's deed of land not in his own county ;^ a deed made by an administrator with the will annexed, though no power of sale was given by the will, and no sale had been ordered by the court ;* a deed of a grantor, purporting to convey as an administrator, under a special act of the legislature, which act was uncon- stitutional and void ; ^ so also a conveyance by a guardian made in pursuance of a void decree of a probate court ; ^ a paper writing purporting to be a will, proved before the proper tribunal by the oath of one witness only,^ though contra had the writing never been proved as a will ; ^ a claim to land through condemnation proceedings subsequently adjudged void was held to be under color of title ; ' a tax title subsequently becoming invalid through individual or judicial action." So it has been held that color of title and possession under it were not disturbed by a mere judgment in ejectment against the claimant, and where the plaintiff's title was bought in by the claimant.^^ An imperfect or invalid title bond ; ^^ a deed under a de- cree of a court void for want of jurisdiction, if the deed ' County of Piatt v. Goodell, 97 III. 84. "^ Woodward v. Blanchard, 16 111. 424 ; see also Stubblefield v. Borders, 92 111. 280. ' Beverly v. Burke, 9 Ga. 440. ■■ Riggs v. Fuller, 54 Ala. 141. » Fagan v. Rosier, 68 111. 84. « Molton V. Henderson, 62 Ala. 426. ' McConnell v. McConnell, 64 N. C. 342. * Callender v. Sherman, 5 Ired. (N. C.) Law, 711. 9 Mississippi, &c., R. R. Co. v. Devaney, 42 Miss. 555. 1" Hamilton v. Wright, 30 Iowa, 490. " O'Neal v. Boone, 53 111. 35. '2 Bell V. Coats, 56 Miss. 776, 781. 598 COLOR OF TITLE. purport to convey title ; ^ a tax deed regular on its face ; ^ a comptroller's deed executed without authority; ^ a deed by an attorney in fact without proof of his authority* and a deed by a person representing himself to have a written au- thority from the owner, the deed being made by the assumed agent in his own name without mention of the principal' A deed made without authority by the clerk of the board of bounty commissioners of land sold for taxes ; * a tax deed of land against which no judgment had in fact been ob- tained ; ^ a sheriffs deed without a seal, but otherwise for- mal;^ a deed of a purchaser at a master's sale, where in the foreclosure a proper party had been omitted as defend- ant.' Where lands were sold for delinquent taxes under a judgment, and the sale made at a day later than that fixed by law, and this appeared from the recitals in the deed which purported to convey the land, such a deed was held color of title."" A deed with defective acknowledgment ; " so a paper purporting to be a deed, but without a seal, though held to be not valid for the purpose of conveying title, yet is admissible in evidence for the purpose of show- ing the extent of the possession of the claimant under it, and hence fills the office of color of title.^^ So, also, a deed attested by the seal of a court stamped upon the paper, instead of wax or a wafer, was held to be admissible to show color of title, and as evidence of the adverse possession of the claimant under it.^* Written memoranda by a sheriif, > Huls V. Buntin, 47 III. 396; s. P. Welborn v. Anderson, 37 Miss. 162. « Stubblefield v. Borders, 92 111. 284; Woodward v. Blanchard, 16 111. 433; S. P. Dawley v. Van Court, 21 111. 460. ' Thompson v. Burhans, 61 N. Y. 60; s. P. Finlay v. Cook, 54 Barb. (N. Y.) 9; see also Ladd v. Dubroca, 61 Ala. 28; Washburn v. Cutter, 17 Minn. 361. '- Munro v. Merchant, 28 N. Y. 41. So a deed of a tax collector without proof of his authority. Ladd v. Dubroca, 61 Ala. 25. ' Payne v. Blackshear, 52 Ga. 637. e Edgerton v. Bird, 6 Wis. 527. ' Coleman v. Billings, 89 111. 190. s Kruse v. Wilson, 79 111. 233. - Rawson v. Fox, 65 111. 200. m Hardin v. Crate, 60 111. 215. " Dalton V. Bank of St. Louis, 54 Mo. 105. 12 Barger v. Hobbs, 67 111. 592. " Pillow V. Roberts, 13 How. (U. S.) 472, 477. COLOR OF TITLE. 599 regularly made in a book for that purpose, of a sale of land, the sheriff being dead, have been held admissible as evidence to show color of title, in a purchaser at such a sale.^ Though a deed void for want of a description cannot be color of title,^ yet a tax deed which designated the proper sections, townships and ranges, but not the county or State in which the land lay, has been held good color of title ; ^ so a " bond for titles " received in good faith,* even though the bond were forged," if, at any rate, the purchase money has been paid.' A void patent may be used to give color of title and fix the limits of possession ; ^ and a certificate of entry ob- tained in good faith, upon the payment of the entrance money from an officer having the right to make sales of public land,* though such certificate be subsequently can- celled without, however, the knowledge of the claimant. An invalid tax deed without attesting witnesses ; ^ a quit- claim deed from one having no interest ; ^^ a deed from the husband of a life tenant after latter's death, the former being simply in possession, and without any title to the land con- veyed;" a deed of the wife's land, made by the- husband and wife, but void as to the latter through want of her private examination ; ^^ a deed founded upon a void or voidable decree in chancery ; ^* a written agreement to divide lands owned or claimed in common, though made by the adminis- ' Field V. Boynton, 33 Ga. 239, 242. 2 See supra, § 767. ' Hanna v. Renfro, 32 Miss. 128. * Garrett v. Adrain, 44 Ga. 274. » Griffin v. Stamper, 17 Ga. 108. ' Stamper v. Griffin, 20 Ga. 312, 322 ; see also S. P. McQueen v. Ivey, 36 Ala. 308. ' Logan V. Jelks, 34 Arlc. 547, 549. « Hannibal, &c. R. R. Co. v. Clark, 68 Mo. 371, 377. » Dillingham v. grown, 38 Ala. 311. •» Wells V. Iron Company, 47 N. H. 253 ; S. P. Castleberry v. Black, 58 Ga. 386, and cases cited ; see also McCamy v. Higdon, 50 Ga. 629 ; but see Brown v. Wells, 44 Ga. 573, where it is held that if defendant knew he was only purchas- ing a mere squatter's title, he stands in no better condition than the original squatter. " Forest v. Jackson, 56 N. H. 357. "Ferguson v. Kennedy, Peck (Tenn.), 321. " Whiteside v. Singleton, Meigs (Tenn.), 207. 600 COLOR OF TITLE. trator of one of the tenants in common, without an order from the court for the partition thereof ; ^ a forged writing believed to be genuine ; ^ so a deed which had been can- celled may serve as color of title.^ § 781. What held insufficient to constitute color of title. — The following have been held insufficient to constitute color of title : A sheriff's deed void because of its execution before the expiration of the time given by law for redemp- tion ;* a tax deed of 100 acres of land of a survey contain- ing 600 acres and without specifying what particular por- tion ; '^ an unprobated will, where also there was " nothing to show that it had ever been regarded and acted on as confer- ring any right ; " ^ a guardian's deed where the sale is not con- firmed by the court as required ; ^ a bond, showing upon its face that the obligor claimed no title, but admitted it to be in another.^ It has been held in Illinois that a bond for a deed, upon condition of a compliance with its terms in future, will not constitute color of title, inasmuch as it does not on its face " in terms purport to convey the title; " ' and, for the same reason, that a " certificate of purchase at a tax sale," and " a certificate of a land officer, showing that, at one time, a party was entitled to a pre-emption," did not consti- tute color of title." But in Alabama, it has been held that, though a vendor's bond conditioned to make titles where ' Shiels V. Lamar, 58 Ga. 590. 2 Stamper v. Griffin, 20 Ga. 312. = Hughes V. Israel, 73 Mo. 547. '- Bernal v. Gleim, 33 Cal. 668, 676 ; compare Annan v. Baker, 49 N. H. 161 ; but see cases cited above, § 780; and especially Hardin v. Crate, 60 111. 215. = Humphries v. Huffman, 33 Ohio St. 395, and cases cited; S.P. Shackleford z-- Bailey, 35 111. 387.' The deeds in these cases being void for uncertainty, they did not on their face " purport to convey any title to a particular tract of land." See also S. P. Fraser v. Hunter, 5 Cranch's C. C. 470 ; Wray v. Chicago, &c. R. R. Co. 86 111. ,425 ; Shiels v. Lamar, 58 Ga. 590. 6 Rothschild v. Hatch, 54 Miss. 554, 558; see also supra, McConnell v. Mc- Connell, 64 N. C. 342. ' Rawlings v. Bailey, 15 111. 178; compare Molton z/.-Henderson, 62 Ala. 426. " Simmons v. Lane, 25 Ga. i8i. 9 Rigor V. Frye, 62 III. 508, 509, and cases cited. '^ Bride v. Watt, 23 111. 507; Spellman v. Curtenius, 12 111. 409. COLOR OF TITLE. 6oi the purchase-money is paid, cannot be color of title so long as the purchase-money remains unpaid, yet it becomes so after such payment is made.^ The same distinction is taken in New York.^ A record of a survey of lands has been held insufficient to constitute color of title, though it may be evi- dence of a claim of title and of the character of the actual possession.* So also, as shown above, an indefinite descrip- tion in a deed renders it insufficient to perform the office of color of title.* In the same way the deed must cover, in its description, a tract of land of which that in actual possession is a component part.^ 1 See supra, McQueen v. Ivey, 36 Ala. 308 ; S. P. Stamper v. Griffin, 20 Ga. 322 ; see also Bell v. Coats, 56 Miss. 776. ' Briggs V. Prosser, 14 Wend. (N. Y.) 227. In this case, however, the con- tract to convey seems to have been by parol, and the main question seems to have been, whether, though the contract price had been paid, a claimant under such an executory contract could hold possession adversely, which the court decided in the affirmative, because, as the court say, " there is nothing in the char- acter of it (such holding) inconsistent with the idea of an adverse possession." This case, however, so far as it decides that a parol agreement to convey, where the purchase-money has been paid, can be technically color of title, seems to us misleading. Were the executory contract in writing, the consideration-money being paid, there seems to be no doubt that possession thereunder would be under color of title strictly speaking. See for example, Jackson v. Foster, 12 Johns. (N. Y.) 488; La Frombois v. Jackson, 8 Cow. (N. Y.) 589; S. P. Furiong v. Gar- rett, 44 Wis. III. » See supra, § 765 ; Atkinson v. Patterson, 46 Vt. 750 ; see also Oatman v. Fow- ler, 43 Id. 462. * See supra, § 767 ; Wray v. Chicago, &c. R. R. Co. 86 111. 425 ; see also Hen- ley V. Wilson, 8i N. C. 405. ° Stephenson v. Doe, 8 Blackf. (Ind.), 508. Hence if the part claimed, by con- structive possession, be a tract distinct from the part actually occupied, the deed, though covering both tracts, cannot, for the former, perform the office of color of title ; in such a case there would have to be, therefore, some additional actual possession of the former tract. INDEX. INDEX [References are to sections^ ABANDONMENT of possession, effect of, 232. ejectment will not lie subsequent to, 232. relieves from liability for subsequent mesne profits, 680. possession lost or interrupted by, 744. effect of, on adverse possession, 740, 744. restores possession of true owner, 744, n. (ABATEMENT, early practice as to, in ejectment, 49. death of plaintiff did not abate the action, 49. contempt to assign as error death of plaintiff, 49. action for mesne profits formerly died with the person, 648. modern practice, 661-689. upon death of defendant, heirs may be substituted, 658-689. ancient demesne good plea in, 26, n. ABUTTER may bring ejectment for abandoned road-bed, 138. ejectment by, for lands put to unauthorized use, 133, 135, 161. cannot recover where fee is taken for public use, 138. 'right of, to bring trespass, 134. ACCEPTANCE of rent after condition broken, 371. waives right to enforce forfeiture, 371. ACCOUNT rendered will not lie for mesne profits, 652. ACCRETION defined, 125. land formed by, recoverable in ejectment, 125. title to islands formed by, 124. ACTIONS. See Ejectment ; Real Actions. affecting realty are local, 465. to which statutory new trials apply, 585. for construction of will cannot be substituted for ejectment, 163. ejectment converted into action to redeem, 180. which are not substitutes for ejectment reviewed, 162, 184. ejectment, i, 63, 162. See Ejectment. real actions, 2, 3, 5, 8, 64, 65, 66, 79. See Real Actions. 6o6 Hefermces] INDEX. [<»« to sections. ACTOR, defendant need not become, 488. may show as defense facts warranting equitable relief, 488. affirmative judgment need not be pronounced, 488. practice in California, 487. in New York, 487, 488. See Answer. ACTUAL adverse possession, what constitutes, 731, 732, 734, 771. ouster not necessary to sustain ejectment in early practice, 29. entry not required, 205, 206. ouster must be shown between tenants in common, 277, 278, 283, 750. between joint tenants, 295. between coparceners, 295. See Tenants in Common ; Ouster. ADMEASUREMENT OF DOWER, not conclusive in ejectment, 129. ADMINISTRATOR. See Executor ; Personal Representatives. summary proceedings by, not proper when title is in issue, 164. cannot usually bring ejectment, 207, 208, 209. cum tesiamento annexo may bring ejectment in Pennsylvania, 208. may recover in ejectment estates for years, 208. not freehold terms or leases, 209. may recover land acquired by foreclosure, 210. statutory changes, 211. ADMISSION of parties to defend, 39, 259, 265, 658. landlord, 39, 264, 265, 266. joint owner^, 259. claimant under title paramount to both litigants, 260. parties claiming against defendant, 261. mortgagee, 262. ^Xi.rc\i2i5tr pendente lite, 263. ADVERSE POSSESSION, under statutes of limitations, 724, 753, 754, _ 760, 761, 781. limitations and prescription historically considered, 724. Statute of Merton, 724. limitations fixed by the writ, 724. theory and object of statutes of limitations governing real ac- tions, 725, 727. rule as to pleading, 482, 493. adverse possession and possession sufficient to support eject- ment distinguished, 723. character of possession to render deed champertous, 190, 776. (i.) Distinction between limitations and prescription, 724, 726, 727, 727, n. prescription "creates," 724. limitation " destroys," 724. References] INDEX. [are to sections. 607 ADVERSE POSSESSION— ir^«;f/«K^^. (2.) Possession follows title, 728, 737. but one actual seizin of an estate, 728. rightful owner deemed possessed until ousted, 728. cannot be two possessions of same land, 730. (3.) What constitutes adverse possession. two things must concur, 729. af^a/ possession by an adverse claimant, 729. intention to oust, 729, 754. ^ mere possession insufficient, 729. permissive possession not the basis of adverse possession, 729. entry and ouster, effect and requisites of, 730. entry must be notorious and open, 730. must be hostile, 730. (4.) Must be actual, open, continuous, hostile and exclusive. what constitutes actual possession, 732-734. fence or inclosure not required, 732. rule as to adjacent timber land, 733. effect of cutting timber, 733. requisites of possession as affected by nature of the land, 733. the cases reviewed, 733. (5,) Open and notorious, 735. claimant must " keep his flag flying," 735. reason for the requirement, 735, 736. to give notice to the owner, 736. secret or silent possession insufficient, 735, 777. (6.) Continuous possession, 737, 738, 740. must be no interruption during statutory period, 737. continuity of possession the essence of^the doctrine and policy of the statutes, 738. requisites of, 739. occasional entries insuificient, 739. possession must be stationary, 739. roving possession will not suffice, 739. possession of true owner must not intervene, 737, n. {7.) Interruption of the possession, 740, 741, 742, 743, 744, 745- stops the statute, 740. by re-entry of the owner, 741. has same effect as a suit, 741. by other adverse claimants, 745. statutory regulations as to effectual re-entry, 742. effect of bringing ejectment or recovering a judgment, 743. must be followed by change of possession, 743. abandonment of possession, 744. 6o8 References] INDEX. [are to sections. ADVERSE POSSESSION— unoccupied lands, 234. what is sufficient claim of adverse title, 235. References^ INDEX. \are to sections. 62 7 DEFENDANTS — continued. proof of possession, 236, 432. service of writ prima facie evidence of possession, 236. possession of part of the land, 237. character of possession, 133, 161, 235. (2.) Joinder of defendants., of landlord with tenant, 238. of husband and wife, 238, 255. wife, when improperly joined, 255. when liable to ejectment, 255. mortgagee with party in possession, 238. joint occupants, 238. effect of joint denial, 238. claiming distinct parcels, 239. claiming under distinct titles, 240. squatters, 241. (3.) Parties defendant, servants or employees not liable to ejectment, 242, 242, n. 243. clergymen or trustees of religious corporations not liable, 243. trustee may defend legal title, 222. federal officers, 244, 245, 246, 247, 248, 249, 249, n. See United States. corporations liable to ejectment, 250. city, 252. county, 251. insolvents, 253, infants as defendants, 254. must be represented by guardian, 254. may come in to defend, 254. can defend by guardian as landlord, 254. husband and wife, 255. widow, 256. tenant at will, 258. holder of tax title, 257. (4.) Who may come in and defend, joint owners may, 259. infant, 254. holder of paramount title cannot, 260. nor can parties claiming in opposition to defendant's title, 261. '^xixchsAtx pendente lite not admitted, 263. mortgagee, 262. landlord as defendant, 264. third party claiming as landlord, 265, 266. DEFENSES, bankruptcy not a defense to claim for mesne profits, 68i. equitable, allowed in modern practice, 485, 487. See Answer. elements of equitable defense, 487. 628 References\ INDEX. [are to sections. H'EY'E^S'ES— continued. must be pleaded, 486. outstanding title, 57, 194, 222, 339,477- statute of limitations, 482, 727. DEMAND OF POSSESSION, 310, 372, 384, 391, 414. See Notice to Quit. between vendor and vendee, 310, 394. not generally necessary after default, 394. English rule different, 394. followed in Virginia, 394. between tenants in common, 283, 391. rule where defendant relies on adverse title, 391. sets up title by answer, 290, 391. in case of tenant at will, 384. DEMAND OF RENT, necessity of, 371, n. is waiver of forfeiture, 371. DEMISE, though a fiction, required to be consistent, 28, 424. DEMURRER, uncertainty in pleading not reached by, 428. defective pleading of estate is ground for, 434. to answer, 494. may be interposed to ejectment bill, 169. DESCRIPTION OF THE LANDS. See Verdict. description under the early practice, 54, 56, 455. general and imperfect description sufficient, 54, 455. no greater certainty required than in an action of trespass, 54. strict rules governing real actions relaxed in ejectment, 455. peculiarities of a personal action retained, 455. rule that sheriff must find the land without assistance relaxed, 455- Lord Mansfield's statement of requisites of description, 455. insufficient description ground of attacking verdict, 497. (i.) Early practice, examples under, 54, 56, 456. vague and imperfect descriptions allowed, 456. ejectment sustained for " five acres of alder car," 456. for a beast gate, 456. for cattle gates, 456. for messuage or tenement called Black Swan, 456. for corn mills, 456. stable, 456. passage room, 456. room, 456. "part of a house in A," 456. place called a vestry, 456. "ten acres of pease," 456. References'] INDEX. [are to sections. 629 DESCRIPTION OF THE l^K^TlS— continued. (2.) Modern practice, 457, 458, 534. regulated by statute, 56, 458. State or country must be stated, 457, 467. county must be named, 457. town or city given, 457. section or sub-division of county added, 457. allegations as to geographical position of lands jurisdictional, 457; description of tin bound, no. (3.) General and particular descriptions, 45 8. more particular description controls words of general descrip- tion, 458. deed and pleading governed by same rule, 458. plaintiff setting forth general description may be required to furnish detailed description, 458. objects of particularity of description, 459. reasonable certainty only required, 459. defective description, 463. (4.) Street numbers, 460. " No. 136 South Third Street, in the city of Philadelphia," suf- ficient description, 460. object of giving metes and bounds, 460. necessary only to identify the property, 460. (5.) Reputed name, ^61. examples of descriptions held sufficient, 461. name sometimes overrides mistake in description, 461. not necessary to describe land by abuttals, 461. (6.) Sections of townships, 462. designation of land by number of government survey, 462. example of description held bad, 462. (7.) Amendment of description, description in writ may be amended, 458, 464. not to affect statute of limitations, 464. amendment embracing new and different piece of ground inad- missible, 464. admissible to render description furnished more certain, 464. in Texas new land may be included by amendment, 464. amendment of description at the trial, 464. amendment after close of evidence, 464. DEVISEES may maintain ejectment, 206. have seizin to support writ of entry, 206. actual entry unnecessary, 206. cannot join in ejectment with executor, 189. cannot bring suit to construe will, when, 163. 630 References^ INDEX. \are to sections. DISABILITIES under statute of limitations, 725. statutes vary as to, 725. DISAFFIRMANCE of infant's deed, 198, 451. must be by notorious act or actual entry, 198. notice of election to repudiate must be given, 198. disaffirmance must be averred in complaint, 451. DISCLAIMER, 369, 387, 390. verbal, does not forfeit estate for years, 369. dispenses with service of notice to quit, 369, 387. by tenant of landlord's title, 360. will never be implied, 360. must be direct repudiation of landlord's title, 390. is question of fact for jury, 388. what amounts to, 388. effect of attornment, 388. disclaimer and denial inconsistent, 480. DISSEIZIN. See Ouster; Tenants in Common. distinction between and trespass, 80, 93. attended with amotion from possession, 80. ejectment the remedy for, 93. disseizin between tenants in common, 157, 283, 750. See Ouster. examples, 284, 287, 289. declaration in writ of entry must show, 430. complaint must put defendant in the wrong, 432, 433. by mistake, 759. DISSEIZOR is a trespasser, 176. cannot be treated as a tenant, 176. DISTILLERY, condition against, in deed valid, 213. DISTINCT PARCELS, or tracts of land, 128, 239, 240. several tracts recovered in one action, when claimant disseized by same defendant, 128. defendants claiming distinct parcels, 239. holding under distinct claims of title, 240. joinder of defendants, 238, 240. DOWER recoverable in ejectment, 129. not before admeasurement, 129. widow's grantee cannot recover before admeasurement, 129. validity of widow's claim may be contested notwithstanding admeasurement, 129. lost by husband's breach of condition subsequent, 212. not subject to set-off, 489. lands assigned as, may be recovered by heirs after widow's death, 205. DROITURAL actions, 65. References] INDEX. [are to sections. 63 1 EASEMENT, "lyeth in grant and not in livery," 146. is not an estate in lands, 147. ejectment will not lie for, 95, 97, 102, 146, 161. nor will writ of entry, 146. remedies for interruption of, 147. ownership of land and right to easement independent, 132, 147. public and private, attempted distinction between, r4o, 161. public easement will support ejectment, 139, 161, 267, 268, 269, 271, 275. municipal corporation vested with, may bring real action, 161, 267, 268, 275. right not fully recognized, 272, 273, 274. public easement will not support ejectment in Kentucky, 272. claim of easement not generally sufficient to uphold ejectment, 161. land subject to easement recoverable in ejectment, 130, 132, 141, 158, 526, 571- subject to ferry right, 132. passage way, 132. homestead right, 141. party wall, 158. judgment for land subject to, 526. writ of possession for land subject to, 571. EAVES projecting over land, remedy for, 156. encroachment will not sustain ejectment, 93, 156. ECCLESIASTICAL OFFICE not recoverable in ejectment, 148. EJECTIONE FIRM^, sketch of, 12, 19,647. See Ejectment. not of any great antiquity, 12. originally a writ of trespass, 19. its requisites, 20. defined by Blackstone, 21. when it issued, 22. recovery in, 23. term not recoverable in early practice, 24. extension of recovery to the term, 25. EJECTMENT. See Complaint; Plaintiffs; Defendants; Venue; Description; Answer; Verdict; Judgment; Writ of Possession. history of, i, 12, 19, 63, 510, 546. origin and nature of, i, 10, 12, 16, 20, 25. character and scope of the action, 162. right of possession involved in, 94. originally a simple action of trespass, i, 510, 546. damages the exclusive recovery, i, 23, 96, 647. advantages of personal actions, 7, 10. 632 References\ INDEX. [are to sections. 'E'i'&CTWE^T— continued. objections to real writs, 2, 3, 5, 6, 75. their abandonment, 8, 26, 78. influences leading to the change, 7, 9, 10, 11. effect of forcible entry statutes, 4. influence of practice in trover and assumpsit, 11. ejectment in New England, 73. unpopularity of the remedy, 74. (i.) Ejectione firmcB, sketch of, 12, 19. See Ejections FirmjE. ejectment derived from, 12. its requisites, 20. only damages at first recovered, 23, 24, 546, 647. the relief inadequate, 23, 510. extension of recovery to the term, 25, 546. freehold estates in feudal times, 13. imperfect remedies of tenants for years, 14. (2.) Early practice in ejectment, 27, 28. a valid lease necessary, 28. actual ouster not required, 29. abuses in early practice, 30, 31. notice to tenant in possession, 32. tenant admitted to defend, 32. inconvenience attending the formalities, 33. what plaintiff was required to show, 34. title, lease, entry and ouster, 34. (3.) Consent rule, introduced by Chief Justice Rolle, 35, 36. when invented, 36. condition of permitting tenant to defend, 36- (4.) Fictitious parties, introduction of, reprobated by Blackstone, 37. basis of the objection, 37. (5.) The practice stated, 37. form of declaration and notice, 37. non-suit, 38. judgment by default, 39. who admitted to defend, 39. writ habere facias possessionem, 40, 546. See Writ of Possession. (6.) Judgment, effect of, 41. possession, but not seizin, recovered, 41. claimant possessed " according to his right," 41, 510. judgment not conclusive, 42, 43, 44, 511, 513, 524. See Judgment. policy in America, 43, 44, 524. abolition of fictions renders judgment conclusive, 43, 515, 516, Si7>S24. References^ INDEX. \are to sections. 633 EJECTMENT — continued. injunctions against further ejectments, 46, 47. (7.) Method of regulating ejectment, 48, 49, 50. confusion resulting from caprice of judges, 50. theory of the decisions, 50. introduction of equitable principles, 51. influence of Lord Mansfield, 51. Lord Kenyon's views, 52. Coke's opposition to ejectments, 45, 67. liberal view of fictions by the courts, 53, 424. rules governing personal actions retained, 54. legislative changes, 55. who may maintain ejectment, 185, 230. See Plaintiffs. (8.) For what ejectment lies, 95, 145. for corporeal hereditaments only, 95, 146, 148. nature of the interest sought to be recovered, 97. must be visible and tangible, 97. capable of livery of seizin, 97. something of which possession can be delivered by the sheriff, 97, loi- true test as to when ejectment lies, 10 1. rights and privileges appurtenant, 102. test of annexation to the soil, 103. fixtures, 104, 115. ejectment for room, chamber, or portion of building, 105, 155. theory of the decisions, 106. vaults, 107. salt boilery, 126. inaccessible lands, 127. dower, 129. fishery, 142. pasturage and herbage, 143. church property, 144. (9.) Mining rights and interests, 108, 150. coal mine, 109. tin bound, no. quarry, in. oil wells, 112, 113, 114. conflict of the cases, 112. right or privilege of boring for oil, 113. oil regarded as a mineral, 114. vein or lode, 115. possessory mining claims, 116. (10) Land under -water, 117. 634 References\ INDEX. \are to sections. Y.^'&Q.IM.YMT— continued. made lands, 118. land under water granted by land ofifice, 119. rivulet or pool, 120. bed of the ocean, 121. tide lands, 122. land swallowed by the sea, 123. new islands, 124. accretions, 125. (11) Land subject to easement, servitude or public use, 130, 132, 141, 526, 571. See Easement. land may be recovered subject to the servitude, 130. subject to passage way, 132. to ferry right, 132. homestead right, 141. party wall, 158. Cincinnati v. White discussed, 131. ownership of land and right to an easement independent, 132, 147. rights of owner of the fee, 134. lands applied to unauthorized use, 135. distinction between public and private easements, 140, 161. (12.) Interests or wrongs for which ejectment will not lie, 146,161. not for a trespass, 93. . nor for interference with property in possession, 93. not for incorporeal hereditaments, 146. the reason stated, 146. easement not an estate in land, 147. not mainfainable ior projit a prendre, 148. nor for pannage, 148. nor privilege of a landing place, 148. right to an alley, 148. right of way, 148. right to a road, 148. glebe, 148. advowson, 148. canonry, 148. right of common, 148. free warren, 148. rule as to water courses and overflowed lands, 149. mining privileges, 108, 113, 114, 150. settle shore lines, 151. ' ferry right or franchise, 152. wharfage, 153. remove cloud on title, 154. References\ INDEX. \are to sections. 635 EJECTMENT — continued. for room or chamber, 105, 106, 155. projecting eaves, 156. projecting foundations, 157. party walls, 158. claim for improvements, 159. rent reserved without right of re-entry, 160, 350. claim of easement, 161. (13.) Relief peculiar to ejectment not to be had in other actions, 162-184. when action to construe will cannot be substituted for, 163. summary proceedings, when not proper, 164. when specific performance not maintainable, 165. partition not a substitute for ejectment, 166, 167. ejectment bills not maintainable, 168, 169, 170, 171. jurisdiction in equity when remedy at law is incomplete, 173. injunction not granted where remedy by ejectment is adequate, 174- when mandamus not allowed in aid of judgment in ejectment, 175- title not tried in assumpsit, 176. title in condemnation proceedings, 177. reasons for mistakes in selecting remedies, 184. changes in forms of action, 180, 181, 182, 183. distinction between ejectment and trespass, 80, 93, 641. between ejectment and forcible entry, 94. ejectment and covenant, or specific performance, 306. EJECTMENT BILLS defined, 169. not maintainable, 169. demurrer may be interposed to, 169. EJECTOR, casual, 27, 30, 31, 37, 38. See Casual Ejector. ELECTION OF REMEDIES by vendor, 307. EMPLOYEES AND SERVANTS, as defendants, 242, 243. ENGLAND, real actions extinct in, 72. feeling with reference to, 78. real property commissioners, report of, on ejectment, 78. origin and growth of ejectment in, r, 54. ENTRY, right of, essential to support ejectment, 99, 100, loi. right of, must exist, whatever the character of the title, 100. and ouster, requisites of, in adverse possession, 730. must be notorious, open, and hostile, 730. ENTRY, WRITS OF. See Writs of Entry. EQUITABLE title will not support ejectment bill, 171. relief not usually awarded in ejectment, 154, 182. 6-2 6 References^ INDEX. [are to sections. EQUITABLE — continued. relief, when awarded, 169, 173. action cannot be changed to ejectment, 179. defenses must be pleaded, 483, 485, 486. defenses, elements of, 487. See Answer. principles, introduction of, by Lord Mansfield, 51. principles govern in cases of mortgages, 329. rights, vendee may assert, 322. title must be pleaded, 437. EQUITY, mesne profits in, 687. improvements allowed in, 693. shore line divisions must be determined in, 151. legal estate cannot be asserted in, 172. jurisdiction of, when remedy at law is incomplete, 173. relief in, and at law in same action, 169, 639. of redemption, mortgagee may purchase, 343, 344. court of, may compel conveyance of land in foreign state, 542. ]^RROR, WRIT OF, effect of pendency of, on statutory new trial, 605. to United States Supreme Court, 175. defendants may unite in, 175. may separately apply for stay, 175. furnish separate bonds, 175. ESCHEAT, title by, State may recover upon, 192. ESTATE FOR YEARS, will support ejectment, 216. verbal disclaimer does not forfeit, 369. nature of estate must be specified in pleading, 56, 430. how pleaded, 439. character of, to support ejectment, 185. regulated by statute, 185. ESTOPPEL, between vendor and vendee, 318. See Judgment. vendee in default cannot impeach vendor's title, 317. avoidance of, 539. between landlord and tenant, 351. See Landlord and Tenant. must be mutual, 351. tenant cannot dispute landlord's title, 351, 751. reason of the rule, 352. when estoppel ceases, 353. what titles applicable to, 353. between co-tenants, 361. EVIDENCE of title not to be pleaded, 445. rules of, similar in the various actions, 92. parol, admissible to show deed a mortgage, 337. References\ INDEX. \_are to sections. 637 EVI D^'^CE— continued. admissible under general issue, 477. as to mesne profits, 674. of service of notice to quit, 414. of defendant's possession, 236. of ouster between co-tenants, 277, 295, 303. when proof of, unnecessary, 290. of possession, 717, 719- as to improvements, 698, 714. EXCLUSIVE, adverse possession must be, 731, 752. EXECUTION against the person, 630. See Provisional Remedies. not generally given, 630. rule in New York, 630. in Wisconsin allowed, 630. EXECUTION PURCHASER, ejectment by, 335. of equity of redemption, 343. EXECUTOR. See Administrator; Personal Representatives. right of, to maintain ejectment, 207, 208, 209, 210. usually vested with no power over realty, 207. authorized by will to enter on land, may support ejectment, 210. may recover term for years, 208. not freehold terms or leases, 209. cannot join with devisees, 189. right of, to obtain construction of will, 163. title of, to mesne profits, 661. EXEMPLARY DAMAGES, 665, n. EXHIBITS properly constitute no part of pleading, 444. rule as to pleading, 444. FEDERAL COURTS, statutes granting new trials controlling in, 607. local laws constituting rules of property binding in, 607. FEDERAL OFFICERS, ejectment against, 244, 249. See United States. FEE SIMPLE, how pleaded, 440. may be pleaded in general terms, 440. right of owner of, where land is subject to public use, 134. rule as to ejectment by abutter where fee is granted for public use, 138. abutter cannot maintain ejectment in such case, 138. must wait until title reverts, 138. under claim of fee simple life estate not recoverable, 436. nor estate in fee tail, 436. claim of, as the basis of adverse possession, 697, 756. 638 References'^ INDEX. {are to sections. FEE TAIL recovery of, not allowed under claim of fee simple, 436. FELON, right of, to bring ejectment before office found, 229. FENCE, not necessary to establish adverse possession, 732. FERRY RIGHT, nature of, 152. is not tangible property, 152. not the subject of ejectment, 152. nor of a forcible entry proceeding, 152. land subject to, recoverable in ejectment, 132. rule as to mesne profits of, 676. FICTIONS, the fictitious lease, 35, 36, 37, 39, 422, 423, 424. practice invented by Rolle, 35, 37. consent rule, 36. introduction of imaginary parties, 37. method of procedure, 37, 38, 39. judgment inconclusive by reason of the fictions, 42, 513. liberal view of, by the courts, 53, 424. fictions now abolished, 43, 55, 425. abolition of, renders judgment conclusive, 43, 515, 516,517,524. FIRE, destruction of building by, terminates tenant's interest, 155. FISHERY, ejectment for, 142. confusion in the cases, 142. right of, gives no right to adjoining lands, 142, n. in America ejectment cannot be maintained for, 142. trespass for injury to, 142. FIXTURES, ejectment for, 103, 104. and improvements pass to plaintiff by recovery in ejectment, 563, 684, 690. recovery of vein or lode, surface fixtures do not pass, 1 15. as between hostile claimants, 684. FLORIDA, rights of mortgagee in, 332. pleading statute of limitations, 482. example of plea held insufficient, 482. receiver in ejectment after judgment, 619. FORCIBLE ENTRY statutes, influence of, upon ejectment, 4. idea of giving ejectment effect of real action, derived from, 4. proceeding distinguished from ejectment, 94. title cannot be tried in, 94, 471. designed to protect actual possession, whether rightful or wrong- ful, 94. recovery opposed to legal possession, 94. incorporeal hereditaments not recoverable under, 152. proceeding for ferry right, 152. proceeding changed to ejectment, 183. statutes, new trials in actions under, 594. References^ INDEX. [a« to sections. 630 FORECLOSURE, common remedy of mortgagee, 329. more effectual than ejectment, 329. 'foreign judgment cannot affect or pass title to land, 465, 467, 542- court of equity may compel conveyance of land in foreign State, 542- FOREIGN STATES, corporation and aliens by comity may bring eject- ment in, 195. judgment in, does not affect realty, 465, 467, 542. FORFEITURE, ejectment for breach of covenant against waste, 362. test of waste, 363. waste by tenant at will, 363. construction of covenants, 365. covenant against trade of a butcher, 365. to repair, 365. against trade or business, 365. no severance of conditions in case of forfeiture, 366. construction of conditions, 367. covenants or conditions, matters strictissimi juris, 367. forfeiture never favored or implied, 367. liberal construction by Lord Tenterden, 368. verbal disclaimer is not, 369. waiver of right to enforce forfeiture, 326, 371. effect of acceptance of rent, 371. or of annuity, 371. acknowledgment of subsisting tenancy, 371. of life estate, 214. waste by life tenant, not ground of, 214. nor claim of the fee, 214. nor conveyance of entire estate, 214. the English doctrine, 214. FORM of notice to quit, 401. See Notice to Quit. must be free from ambiguity, 401. notices held good, 402. mistakes in notices, 403. effect of misdescription, 401. of writ of possession, 550. of provisional relief, 612. of ancient real writs not regarded, 75. FOUNDATION, projecting, remedy for, 157. FRANCHISE of ferry, not su^bject of ejectment, 152. FRAUD OF LANDLORD to be availed of by tenant, must be pleaded, 355- FRAUDS, statutes of, lease void as to, 379. conveyance void as to, 344. 640 References^ INDEX. \ciye to sections. Y'SiAXSH^— continued. contract void as to, will not sustain claim for improvements, 708. FREEHOLD ESTATES in early times the only acknowledged title, 13. estates for years unknown, 13. writs to determine rights of property in, 2. personal representatives cannot recover, 209. GARNISHMENT, process of, upheld on count for mesne profits, 617. GENERAL ISSUE in ejectment, 476. See Answer. "not guilty," 476. the plea favored, 476. defenses admissible under, 477, 483. advantages of the plea to the defendant, 476. effect of, on question of possession, 479, 480. in trespass to realty, 484. GENERAL PRINCIPLES governing ejectment, 57. same in the various actions, 92. GEORGIA, mortgagee cannot bring ejectment, 332, 338. has no right of entry, 332. ejectment on deed intended as a mortgage, 338. when receiver will not be appointed in ejectment, 617, 619. process of garnishment allowed in claim for mesne profits, 617. when trustee may bring ejectment, 222. joinder of defendants, 240. right to bring ejectment remains in vendor, 308. GLEBE, after sequestration, not recoverable in ejectment, 148. GOOD FAITH, occupant in, allowed for improvements, 63, 690, 694. See Improvements. rule of the civil law, 691. question of good faith for jury, 694. who is a bona fide occupant, 694, 695, 696. " notice " and " good faith," how interpreted, 696. in assertion of adverse possession, 759. only important in connection with color of title, 757, 775. GOVERNMENT OFFICIALS, judgment against, 245, 540. not conclusive on government, 245. judgment negatives presumption of privity of contract, 540. ejectment against, 244, 249. See United States. GRADES of real actions, 66. GRANT, presumption of as applied to incorporeal hereditaments, 724, 726. ejectment not maintainable for interests which lie in, 146. References\ INDEX. [are to sections. 64 1 GRANTEE suing in grantor's name, 190, 420. may use grantor's name against his will, 190, 420, 421. liability of grantor for costs, 421. of deed witli warranty may recover against grantor, 230, of quitclaim deed may bring ejectment, 230. may recover for improvements made by grantor or warrantor, 706. GRANTOR, right of grantee to use name of, 190, 420. liability for costs, 421. or warrantor, improvements made by, 706. may bring ejectment after breach of condition subsequent, 212. GRASS, 143. See Pasturage and Herbage. GROWING CROPS. See Crops. pass to disseizee, 563, 683. commencement of ejectment equivalent to re-entry, 683. GUARDIAN, general guardian, powers and duties of, 202. tendency of modern legislation, 202. guardian in socage may bring ejectment, 199. has an interest in the estate, 199. who may be guardian in socage, 199. may bring trespass, 199. right of, to lease ward's estate, 200. when not allowed for improvements, 694. guardian for nurture or by nature, 200. cannot support ejectment, 200. ejectment by both infant and guardian, 196, 201. conflict of the cases, 196, 201. general guardian, ejectment by, 196, 199. usually has no power to convey realty, 114. 202. chancery guardian, rights of, 199. guardian ad litem for infant parties, 196, 254. GUTTER, overhanging, not ground of ejectment, 93, 156. HABERE FACIAS POSSESSIONEM, 23, 40, 82, 510, 546. See Writ of Possession. origin of the writ, 23, 546. granted by analogy with equity procedure, 546. effect of execution of the writ, 41, 510, 743. form and contents, 550, 551. . alias writs, 552. allowed in trespass to try title, 82. plaintiff may take possession at his peril, 4SS> 554) 564- peaceable possession without a writ, 549. 41 642 References\ INDEX. \are to sections. HABERE FACIAS SEISINAM. See Writ of Possession. final writ in system of real actions, 548. awarded seizin of land recovered, 548. effect of the execution of, 548. distinction between and habere facias possessionem, 42, 510, 548. HEIRS AT LAW may bring ejectment, 205. may recover lands belonging to ancestor, 205. may support the action, though the ancestor died out of posses- sion, 205. or was holding by adverse possession, 205. of trustee, rights of, 205. after death of widow heirs may recover lands assigned as dower, 205. of rent charge with condition of re-entry, 205. hold as tenants in common, 205. possession of, is under color of title, 762. one of several may recover in ejectment, 205. cannot maintain action to construe will, 163. ejectment by, against widow, 256. may be let in to defend with widow, 256. cannot join with her, 189. writ of possession on behalf of, 573. pleading by, 442. HERBAGE AND PASTURAGE, ejectment for, 143. the English cases, 143. rule in America, 143. HEREDITAMENTS, corporeal ejectment will lie for, 95, 97, 98, loi, 127, 146, 185. consist of permanent and substantial objects, 95. See Ejectment. HIGHWAY, land subject to right of, recoverable in ejectment, 130, 132, 148, 526, 571. rights of the owner of the fee in, 134. may use and enjoy the same without interfering with public right, 134. entitled to mines and profits, 134, 140. HISTORY of ejectment, i, di, 510, 546, 647. See Ejectment. of real actions, i, 2, 3, 5, 6, 8, 64, 80. See Real Actions. of limitations and prescription, 724. HOMESTEAD RIGHT, land subject to, recoverable in ejectment, 141. qualified judgment for land subject to, 141. decisions not uniform, 141. rule in Illinois, 141. evidence of, admissible under general issue, 477. married woman may sue for, 220. References\ INDEX. \_are to sections. 643 HOMESTEAD ^IGYLi:— continued. ejectment by insolvent for, 224. judgment for land subject to, 526. person asserting, not entitled to notice to quit, 386. HOSPITAL, condition against, valid, 213. HOSTILE CLAIMANTS cannot join in ejectment, 188, 450. See Complaint. joint complaint by, 450. fixtures between, 684. entry necessary to acquire title under statute of limitations, 73°> 749- possession necessary to constitute adverse possession, 749. HOUSE, ejectment lies for part of, 105, 106, 155. portion of, may be delivered in execution, 105. HUSBAND AND WIFE, joinder of, as defendants, 255. rule at common law, 255. overt act of wife must be shown, 255. joinder of, as plaintiffs, 219, 220. joint demise not sustained on proof of title in husband, 449. husband not entitled to notice to quit from wife, 376. improvement by husband on wife's lands, 709. ejectment by husband, 219. ejectment by wife, 220. ILLINOIS, owner of equity of redemption cannot bring ejectment, 230. mortgagee owns the fee, 333. % may bring ejectment, 333. married woman may recover homestead, 220. judgment in ejectment must specify particular estate, 535. same rule as to verdict, 500. judgment against vendee not binding on vendor, 536. land subject to homestead right not recoverable, 141. rule as to appointment of receiver in ejectment, 618, 632. public authorities may authorize railway in a street, 137. disclaimer by tenant dispenses with notice to quit, 389. rule as to change of venue, 471. when change of venue is a matter of right, 471. imposing terms, 471. homestead may be shown under general issue, 477. statute of limitations need not be pleaded, 482. liberal interpretation of statutes granting new trial, 584. IMPROVEMENTS, (>i, 690, 716. (i.) Claim for improvements, what embraced in, 690. policy of the common law, 690. 644 Referencts\ INDEX. \are to sections. IM.Y^ONYM.^'Hi:^— continued. averse to granting allowance for improvements, 690. rule of the civil law, 691. distinction between possessor boncB fidei and malcB fidei, 691. bona fide occupant allowed for improvements, 691, 694. improvements allowed in equity, 693. effect of, upon actions at law, 693. improvements in excess of mesne profits, 698. constitutionality of improvements acts, 692, 698, 712. improvements made by grantor or warrantor, 706. basis of the valuation, 707. apportionment of improvements, 707. betterments pass by recovery in ejectment, 563, 690. on surface, do not pass by recovery of lode or vein, 115. {2.) Bona fide occupant under claim of title, 694. question of good faith for the jury, 694. who is a bona fide possessor, 694, 695. occupant under color of title, 694. no presumption that possessor is a wrong-doer, 372,694. trustee and guardian, when not allowed for improvements, 694. exceptions to the general rule, 695. rule in Texas considered, 695. (3.) Constructive notice of adverse title insufficient, 696, 705. defect apparent of record, will not defeat claim for improvements, 696. the true rule stated, 696. "notice " and " good faith," how interpreted, 696. (4.) Claim and color of title, 6^"]. color of title usually required, 697. occupant need not claim the fee, 697. requisites of color of title, 697, 761, 781. (5.) What constitutes an improvemefit, 699, 700, 701, 702. must be annexed to the soil, 699. must render the land more valuable, 699. expenditures of no benefit to the owner disallowed, 699. must be made upon the land, 700. ornamental improvements not allowed, 701. adaptability of the improvements the test, 701. perishable improvements not regarded, 702. expenditures in experimenting for profits disallowed, 703. payment of taxes and incumbrances, 688, 704. incumbrances allowed in equity, 704. (6.) Improvements after suit brought, 705. notice of title by bringing suit, fatal to the claim, 705. References^ INDEX. \a,re to sections. 645 IMPROVEMENTS— (T^wft^^^i/. the principle illustrated, 705. (7.) Titles which will support claim for improvements, 694, 708, 709, n. improvements by life tenant not chargeable against remainder- man, 708. vendee in default cannot claim, 708. vendee not in default, rule as to, 323. tax title insufficient in Texas, 708. improvements under contract void by statute of frauds disal- lowed, 708. apparent chain of title from the government required in Texas, 708. improvements by husband on wife's lands, 709. by mortgagee in possession, 710. by co-tenants, 711. (8.) Practice as to recovery of improvements, 713, 714, 715, 716. in what tribunals recoverable, 713. practice in Virginia, 713. claim cannot be made the subject of an independent suit, 159, 713- (9.) Pleading improvements, 714. must usually be pleaded by way of set-off, 714. possessor must state that he entered under claim of title, 714. sufficiency of the plea, 714. verdict for improvements, 715. (10.) Judgment for improvements, 716. practice as to form of, 716. INACCESSIBLE LANDS recoverable in ejectment, 127. writ of possession for, 572. writ issued for lands covered with water, 572. INCOME FROM IMPROVEMENTS, 678. See Improvements. not usually allowed as mesne profits, 678. INCORPOREAL HEREDITAMENTS. See Ejectment. cannot be recovered in ejectment, 95, loi, no, 146, 148, 152. effect of recital of, in judgment, 527. appurtenant to land may be recovered with it, 102, 102, n. income of, as mesne profits, 676. INCUMBRANCES AND TAXES, payment of, by disseizor, 688, 704. rule as to allowance for, 688, 704. paid by one co-tenant, lien for, 291. INDEMNITY, officer executing writ of possession may require, 565, 566. INDIAN, right of, to bring ejectment, 228. INDIAN TITLE, outstanding effect of, 194. 646 References'] INDEX. W^ '" sections. INDIANA, all defenses admissible without special plea, 477. statutory new trials in actions to quiet titles, 586. damages for waste, not allowed as mesne profits, 668. INFANT may bring ejectment, 196. See Guardian. security for costs by, 197. disaffirmance of deed, 198,451. how pleaded, 451. as plaintiff, notice to quit by, 398. realty of, guardian cannot convey, 114, 202. may recover mesne profits, 656. as defendant, 254. must appear by guardian, 196, 254. INJUNCTION, 622, 632. See Provisional Remedies. against ejectments, 46, 47, 580, 608. not proper in order for restitution, 568, 575. against trespass or waste pending ejectment, 622, 624. failure to prosecute ejectment forfeits right to, 625. by mortgagee against mortgagor, 629. to prevent interference with easement, 147. to prevent disturbance of possession, 173. not granted when remedy by ejectment is adequate, 174. favored as a form of provisional relief, 622. ordinary uses of land not restrained by, 625. against cutting timber, 622, 628. malicious and destructive waste, 626. when allowed, in addition to usual relief in ejectment, 173, 639. INSOLVENT, right of, to bring ejectment, 224. to sue for homestead, 224. ejectment against, 253. when not let in to defend, 253. ejectment against wife of, 253. assignee of, may bring ejectment, 225. INTENTION, claim of right, 754, 760. possession must be accompanied by adverse intent, 754. no adverse possession without intention, 754. intent the essence of adverse possession, 755. fixes the character of the original entry, 755. claim of ownership necessary, 756. the rule stated, 756. good faith in assertion qf adverse claim, 757. acts and declarations of the occupant indicating intent, 758. possession under mistake, 759. disputed boundary lines erroneously located, 760. References] INDEX. [are to sections. 647 INTEREST on mesne profits, rule as to, 664, 670. generally allowed, 670. distinction between liquidated and unliquidated demands, 670, 670, n. INTERESTS for which ejectment lies, 93-145. See Ejectment. for corporeal hereditaments only, 95, 146, 148. nature of the interest sought to be recovered, 97, 127. must be visible and tangible, 97. capable of livery of seizin, 97. something of which possession can be delivered by the sheriff, 97, i°i- true test as to when ejectment lies, 10 1. rights and privileges appurtenant, 102. test of annexation to the soil, 103. rule as to fixtures, 104, 115. ejectment for room, chamber, or portion of a building, 105, 106, iSS- theory of the decisions, 106. vaults, 107. inaccessible lands, 127, 572. mining rights, 108, 109, no, in, 150. land under water, 117, 119, 122. land subject to easement, 130, 132, 141, 158, 526, 571. INTERESTS or wrongs for which ejectment will not lie, 146-161. See Ejectment. not maintainable for a trespass, 93. nor for interference with property in possession, 93. nor for incorporeal hereditaments, 146. not maintainable for profit a prendre, 148. nor for right of way, 148. ferry right, 152. wharfage, 153. remove cloud on title, 154. room or chamber, 155- projecting eaves, 156. projecting foundations, 157. party walls, 158. ' claim for improvements, 159, 713. INTERLOCUTORY ORDER not conclusive as an adjudication, 508. INTERPRETATION OF STATUTES, rule as to, 193. See Construction. circumstances prompting enactment of, considered, 193. INTERRUPTION OF ADVERSE POSSESSION, 740, 741, 742, 743, 744- by re-entry of the owner, 741. 648 References'^ INDEX. \are to sections. INTERRUPTION OF ADVERSE YO'a^YJ&'&lQ)^— continued. by other adverse claimants, 745. effect of bringing ejectment, 743. by abandonment, 744. INTRUDERS, not entitled to notice to quit, 376, 377. IOWA, pleadings liberally construed, 428. ISLANDS, newly formed, title to, 124. adverse possession of, 124. ISSUE, substance of, must be found by verdict, 497. of fact must be tried by jury, 170, 496. See Jury. JEOFAILS, statute of, extended to writs of right, 498. JOINDER OF ACTIONS, 633-637, 650, n. two actions for same cause not allowed, 633. early practice in ejectment, 634. how the objection is raised, 636. same title involved in both actions, 633. two actions on different titles for same land allowed, 635. actions at law and suits in equity, 636, 637, 639. misjoinder of actions, 640. of ejectment and trespass quare clausum f regit, 641. ejectment and claim for purchase money, 642. ejectment and claim for mesne profits, 643, 650, 651. objections to the practice considered, 651. ejectment and bill to foreclose, 330. practice as to joinder in North Carolina, 644. JOINDER OF PARTIES. See Plaintiffs; Defendants; Parties. of joint tenants, 302. of coparceners, 303. of tenants in common, 297, 298, 299. of plaintiffs, 187, 188, 189. of hostile claimants, 188, 450. cases of misjoinder, 189. executor cannot join with devisee, 189. widow cannot join with heirs, 189. reversioners must all join, 189. of defendants, 238, 239, 240, 241. of landlord with tenant, 238. of husband with wife, 238, 255. mortgagee with party in possession, 238. joint occupants, 238. squatters, 241. JOINT DEMISE, title proved under, must be joint, otherwise action fails, 187. by tenants in common, 297, 298, 299. References^ INDEX. \are to sections. 649 JOINT OWNERS may come in and defend, 259. JOINT TENANTS, joinder of, 302. effect of severance, 302. ejectment between, 295. proof of ouster required, 295. rule as to notice to quit by, 408. JOINT TITLE, rule as to pleading, 449. must be truly stated, 449. failure of title in one plaintiff defeats the action, 187, 449. JUDGMENT, 39, 41, 42, 43, 44, 47, 67, 68, 506, 545, 574, 716. judgment in personal actions conclusive, 68, 506, 517. test of conclusiveness of a judgment, 507. evidence which will sustain the two actions must be the same, 507, S°8; causes of actions must be identical, 507. conclusiveness of a judgment not affected by the form of the action, 507. nor by fact that judgment was rendered upon erroneous grounds, S°7- what included within the estoppel, 508. all matters which might have been adjudicated, 508. interlocutory order or judgment not conclusive, 508. effect of judgment on adverse possession, 743. (i.) Judgment in real actions, 67, 69, 509, 522. writs of different degrees employed, 509. judgments upon inferior writs not an estoppel as to superior writs, 509. demandant proceeding by inferior writ could secure more than one trial, 509. each writ conclusive for its own purpose, 67, 509. judgment on writ of right conclusive, 69, 507. trespass to try title, 82, 92. (2.) Judgment in ejectTuent, 42, 43, 44, 45, 506, 545. review of the origin of ejectment, i, 23, 24, 25, 27, 36, 37, 510, Sii, 512, 576. originally an action of trespass, i, 510. damages formerly the only recovery, i, 23, 510, 546. seizin not awarded by the judgment, 41, 510. plaintiff became possessed according to his right, 41, 510, 520. parol evidence admissible to show the exact title adjudicated, 523- as to after acquired title, 541. (3-) Judgment inconclusive, 41, 42, 43, 44, 511, 512, 513, 514, 515, 576. reasons for this result, 42, 511, 513. no privity between fictitious parties, 42. 650 References'] INDEX. [are to sections. 'lU'DGM.'E^i:— continued. each ejectment based upon a new lease, 42. no seizin or estate awarded by the judgment, 511, 512, 513, 514. nothing remaining of record to show the title adjudicated, 513. judgment established right of possession, 42, 513. (4.) Abolition of fictions renders judgment conclusive, 43, 511, 513, 515, 516, 517, 518, 521, 524. exceptional cases considered, 514, 515, 518, 524. United States Supreme Court decisions, 515, 516. conflict of the cases, 517. Missouri cases reviewed, 518, 519. judgment not a source of title, 520. does not transfer title, 520. operates by way of estoppel, 520, 521. (5.) Distinction between realty and personalty, 516, 521, 522. rule as to judgments, 516, 521, 522. no inherent difference, 522. test as to conclusiveness, 507, 508. result of the cases stated, 524. (6.) Requisites of the judgment, 525, 535. must conform to complaint and verdict, 525. as to description of lands, 525. as to plaintiff's estate or interest, 525. may be rendered for land subject to an easement, 130, 132, 135, 526. and a homestead right, 526. recitals of incorporeal hereditaments, 102, 527. relief incident to interference with property in possession not awarded, 156, 157, 528. against government officials, 540. judgment by default, 530. practice as to, in New York, 530. judgment by consent binding, 531. effect of judgment by confession, 532. between vendor and vendee, 536. judgment in California, 533, 544. in Vermont, 534. in Illinois, 535. in Texas, writ of possession must conform to, 530. form and effect of, the same in the various actions, 92. (7.) Landlord and tenant, 537, 538. tenant usually a party defendant, 537. judgment against tenant not binding upon the landlord, 537. reason of the rule, 537. References^ INDEX. [are to sections. 65 1 JUDGMENT — continued. not binding, though the tenant notified the landlord of the suit, 537- when conclusive by way of estoppel, 538. landlord may be joined with tenant in New York, 537. liability of landlord for costs, 537. (8.) Judgment for possession and damages, 454, 545, 650, 651, 671. conclusive as to mesne profits, 671. exception to the rule, 673. not conclusive as to length of defendant's occupancy, 672. form of judgment for improvements, 716. JURISDICTION in equity to grant injunctions, 626. in equity, when remedy at law is incomplete, 173. in forcible entry proceedings, title cannot be tried, 94. in ejectment over corporeal interests only, 95, 97, 146. objection to, after plea to the merits, 470. relief peculiar to ejectment not to be had in other actions, 162- 184. over lands in possession of federal officers, 244-249. JURY, questions of fact to be tried by, 170, 496. trial matter of right in actions at law, 1 70. must find actual ouster in ejectment between co-tenants, 281, 295- disclaimer by tenant is question for, 388. may allow interest as damages in actions ex delicto, 670. may deal with entire tract in assessing mesne profits, 707. good faith is question for, 694. KANSAS, statutory new trials, when not allowed, 592. statutory new trial must be demanded in trial court, 603. KIMMEL v. BENNA criticised, 518. KENTUCKY, pubhc easement not the basis of an ejectment, 272. mortgagee cannot bring ejectment in, 332. KENYON, LORD, influence of, upon ejectment, 52. KING, ejectment by, 191. not considered " consistent with royal prerogative," 191. cannot be disseized, 191. rule applied only to the king, 191. king's lessee could bring ejectment, 191. ejectment by State or people, 192. when the people cannot recover, 193, 194. KNOWLEDGE of adverse title defeats claim for improvements, 694, 705- 652 References\ INDEX. \_are to sections. LACHES in prosecuting ejectment, 625. forfeits right to injunction, 625. right to improvements founded upon, 712. LAND, what embraced in definition of, 105, 115. emerging from the sea, title to, 123. under water, ejectment for, 117, 119. subject to easement, recoverable in ejectment, 130, 132, 526, 571- subject to homestead right, 141, 526. private way, 132. passage way, 132. alley way, 132. ferry right, 132. how described in ejectment, 455, 464. reputed name of, description by, 461, 767, n. LANDING PLACE, privilege of, not recoverable in ejectment, 148. LANDLORD AND TENANT, ejectment between, 346-371. prior to introduction of summary proceedings, 346. objections to the remedy, 347. title to land not usually involved, 349. statutory new trials in actions between, 593. execution of writ of possession, 569. (i.) Landlord, defined, 39, 265, 266. what the landlord must prove in ejectment, 350. must show present right of possession, 350. forfeiture or expiration of term, 350. title to land not usually in issue, 352. has no right of re-entry unless reserved, 160, 350. redress is damages, 350. estoppel against the tenant, 351. tenant cannot assail landlord's title, 351. tenant cannot show outstanding title, 351. or title acquired during existence of tenancy, 351. reason of the rule, 351, 352. founded on delivery of possession, 351. public policy, 352. estoppel ceases upon re-delivery of possession, 353. estoppel against tenant applies only to title under which he en- tered, 353. estoppel not applicable in cases of fraud, 355. judgment against tenant not binding on landlord, 537. fraud of landlord, 355. as defendant, 264. ejectment will lie against, on possession of tenant, 264. References^ INDEX, \are to sections. 653 LANDLORD AND 'YY.YiK&T— continued. party claiming as, 265. defending in tenant's place, 393. rule as to notice to quit, 393. (2.) Tenant raa.y show that landlord's title has expired, 358. or that it has been extinguished or failed, 358. no estoppel where contract is void for usury, 358. may show that he has acquired landlord's title, 358. not estopped from claiming homestead by accepting lease, 358. implied obligation as to use of property, 362. obligation results from the relationship, 362. must not unnecessarily injure it, 362. not bound to rebuild in case of fire, 362. interest of, ceases when buildings are destroyed, 155. test of waste, 363. can only be committed of thing demised, 363. waste by tenant at will, 364. disclaimer by, 388. tenant's notice to landlord, 400. LEANING WALL, remedy for, 156. LEASE, to bore for oil, ejectment based upon, 112, 113, 114. entry and ouster, 34. valid lease necessary under early practice, 28, 424. landlord has no right of re-entry during existence of, 350. unless right is reserved, 160, 350, 370. when forfeited, 362, 365, 369. severance of conditions in, 366. construction of conditions, 367. waiver of forfeiture, 371, 371, n. LEGAL AND EQUITABLE RIGHTS may be adjudicated in same forum, 169, 184, 639. entire relief obtained in one action, 184, 639. LEGAL AND EQUITABLE TITLE, party vested with, cannot pro- ceed in equity, 172. LEGAL TITLE generally prevails in ejectment, 58. bill in equity not maintained for lands claimed under, 168, 169. LESSEE, rights of, cease on destruction of building by fire, 155. not bound to rebuild in case of fire, 362. LESSOR in early practice, 17, 28, 37. LIBERTY or privilege to mine, not subject of ejectment, 150. does not vest any interest or estate, 150. differs from grant or demise of the metals, 150. LICENSE to mine not the subject of ejectment, 150. to use land, insufScient to support ejectment, 98. 654 References'] INDEX. [are to sections. LICENSEE, vendee holds as, 305. LIFE ESTATE, forfeiture of, in England, 214. commission of waste does not forfeit, 214, 624. effect of life tenant claiming the fee, 214. basis of ejectment, 185, 215. LIFE TENANT may bring ejectment, 185, 215. permissive waste by, 624. forfeiture of estate, 214. LIMITATIONS, statutes of, historically considered, 724. rule as to pleading, 482, 686. purpose and policy of, 727. in mesne profits, 686. &« Ad VERSE Possession; Color of Title; Constructive Possession. LIS PENDENS, practice as to filing, 645. effect of, in ejectment, 645, 673. statutory policy in New York, 645. LIVERY OF SEIZIN, subject matter of ejectment must be capable of, 97,146. LOCAL ACTIONS. See Venue. actions affecting realty are, 457, 465. not maintainable in foreign jurisdiction, 467,542. distinction between actions local by nature and by statute, 465, 470. distinction not affected by form of remedy, 465. ejectment is a local action, 249,465. geographical position of land must be stated, 457. LODE or vein recoverable in ejectment, 115. recovery of, gives no right to surface fixtures, 115. LUNATIC. See Committee of Lunatic. may bring ejectment in Missouri, 203. committee of, cannot bring ejectment, 203. committee may maintain equitable action, 204. MADE LANDS, recoverable in ejectment, 118. MAINE, statutory real actions in, 79, 233, 430. declaration in writ of entry in, 430. must describe premises, 430. specify estate claimed, 430. alleged seizin within twenty years, 430., pleading fee simple, 440. amendment embracing new land not admissible, 464. rule as to notice to quit, 384. writ of entry maintainable for land covered with party wall, 158. References\ INDEX. \_are to sections. 655 MAINE — continued. title to land cannot be tried in assumpsit in, 176. remedy of mortgagor against mortgagee, 345. MAINTENANCE, 190. See Champerty Statutes. in early practice in ejectment, 28. MANDAMUS not issued in aid of judgment in ejectment, 175. to officer to execute writ of possession, 565. MANSFIELD, Lord, introduction of equitable principles by, in ejectment, 51- MARKET GROUNDS, ejectment for, 271. MARRIAGE, validity of, cannot be determined in summary proceed- ings, 164. determined in action for dower, 129. admeasurement proceedings not conclusive as to, 129. MARRIED WOMEN, right of, to bring ejectment, 215, 220. may recover in ejectment against their husbands, 220. may sue for homestead, 220. can recover term for years. 220. tenant cannot set up title of, in Massachusetts, 359. improvements by husband on lands of, not allowed, 709. MARSHAL, duties of, in executing writ of possession, 555, 562, 566. See Writ of Possession. may demand indemnity, 565, 566. has no judicial powers, 566. burden upon, to excuse non-execution of writ, 561. cannot file affidavit as to non-execution of writ, 567. MARYLAND, right of alien to recover in ejectment, 226. rule as to notice to quit, 382. construction of verdict, 498. MASSACHUSETTS, writs of entry in, 70, 73, 74, 75, 79. for land subject to homestead right, 141. writ of entry by tenant in common, 187. against tenant at will, 233. remedy of mortgagor in, 345. tenant cannot set up wife's title, 359. tenancy at will, how terminated, 402. tenant pleading general issue, estopped to deny possession, 479. MEASURE OF DAMAGES, 665, 666. See Mesne Profits and Damages. MERTON, statute of, 724. MESNE PROFITS AND DAMAGES, 61, 62, 454, 646-689. damages originally the only recovery in ejectment, 61, 62, 546, 647. origin of action for mesne profits, 647. 656 Seferences] INDEX. [are to sections. MESNE PROFITS AND T)AMKGE?>— continued. nature of the action, 648, 649. a bar to trespass quare clausum fregiti 668. (i.) Damages in real actions. in early practice no damages recoverable in real writs, 646. recovery limited to a real thing, 646. recovery of damages given by statute, 646. (2.) Mesne profits in ejectment, 647. ^ mesne or intermediate profits defined, 647. sketch of ejectione firmcB, 647. See Ejectione Firm^. effect of the introduction of fictions upon the recovery of dam- ages, 61, 647. nature of the action, 648. changes effected in modern practice, 648. treated as an action of contract, 649, 674. originally the cause of action died with the party, 648. distinction between action for mesne profits and for use and oc- cupation, 652. between claim for damages and for mesne profits, 653. recovery of nominal damages not a bar to mesne profits, 662. damages after judgment, 669. (3.) Joinder of ejectment and claim for mesne profits, 454, 650, 658. objections to the practice considered, 651, 658. (4.) Pleading damages in real actions, 654. the legislative policy unsettled, 654. (5.) In ejectment, 655, 668. claim for mesne profits must be distinctly pleaded, 655. requisites of a good plea, 655. in New York claim should be stated in a separate count, 655. judgment for damages erroneous where no damages are claimed, 655. (6.) Parties plaintiff, 656, 660, 661. disseizee is the proper party plaintiff, 656. right to damages and mesne profits assignable, 656. plaintiff must actually acquire possession, 657. co-tenants, 660. executors. 661. (7.) Parties defendant, 658, 659. disseizor or occupant the proper party, 658. rule as to parties defendant, 658. (8.) Periods for which mesne profits are recoverable, 663, 664, 665. for what defendant is liable, 663. not accountable for profits prior to his entry, 663. nor subsequent to abandonment, 680. References^ INDEX. [are to sections. 657 MESNE PROFITS AND DAMA.Q-E?,— continued. plaintiff only recovers from time his right to the possession accrued, 663. damages assessed down to day of trial, 664. (9.) Measure of damages, 665, 666, 667. uncertainty of the early rule, 665. damages limited to compensation, 665. distinction between realty and personalty, 665. rule in New York, 666. compensation adjusted upon footing of contract, 666. interest on the value of the fee not the proper measure, 667. (10.) Damages for waste and trespass, 668. may be recovered in action for mesne profits, 668. damages to timber and crops allowed, 668. rule otherwise in Indiana and Wisconsin, 668. (11.) Interest on mesTie profits, 670. interest not allowed on unliquidated demands, 670. the rule not founded on principle, 670, n. greatly modified in modern cases, 670. interest generally allowed on rents and profits, 670. (12.) Evidence as to mesne profits, 674, ^75, 676, 677. proof of amount and value of mesne profits must be furnished, 674. verdict must conform to the testimony, 674. income of saw mill and site, 675. proceeds of a ferry, 676. rules as to ore and mines, 677. {13.) Income from improvements, 678. not generally allowed to disseizee, 678. the rule in Iowa, 678. practical objections to the policy, 678. (14.) Defenses, 680, 681, 682. effect of release of one defendant, 680. payment of rent to disseizor as landlord not a defense, 680. effect of bankruptcy, 681. inadequacy of purchase price does not mitigate damages, 682. apportionment of mesne profits, 685. statute of limitations, 686. payment of taxes and assessments, 688. (15.) Mesne profiis in equity, 687. the recovery not limited to actions at law, 687. mesne profits recoverable in chancery, 687. rules not always the same aS' at law, 687, n. 42 658 References] INDEX, [«'"'« to sections. MICHIGAN, ejectment for streets, 273. public easement not the basis of the action, 273. ejectment against mortgagee in possession, 342. ejectment by guardian, 199. right of administrator to bring ejectment, 210, 211. mortgagee cannot have ejectment, 332, 334. joinder of husband and wife, 255. against several defendants — joint occupancy must be shown, 239- presumption of ouster between co-tenants, 289. ejectment on deed intended as a mortgage, 338. notice to quit — tenant at will, 384. tenant at sufferance, 385. statutory new trials in, 593, 596, 598. MINE maybe recovered in ejectment, 108, 109, no, in. defined, in. may be delivered in execution, io8, 109. may be worked by owner of fee where land is subject to ease- ment, 134, 140. distinction between, and quarry, 111. ejectment for possessory mining claim, 116. ejectment for patented mining claim, 116. rule as to mesne profits of, 677. injunction against working, 626. distinction between grant of minerals and liberty to prospect, ISO- license to mine not basis of ejectment, 150. legal right to, not the basis of bill in equity, 169. MINNESOTA, administrator may bring ejectment, 211. joinder of defendants, 239. vendee may assert equitable rights, 322. rule as to equitable defenses in, 488. practice as to new trials, 602. MISJOINDER of parties plaintiff, 188, 189. of parties defendant, 238, 240. of actions, 640, 641, 642. cured by verdict, 505. MISSISSIPPI, ejectment for lands subject to homestead right, 141. school trustee may bring ejectment, 230. vendor's interest regarded as a mortgage, 309. statute of limitations need not be pleaded, 482. MISSOURI, lunatic may bring ejectment, 203. executor cannot recover by virtue of individual interest, zii. rule as to recovery by tenants in common, 300. References\ INDEX. [are to sections. 659 Ml'S>?iOVR.l— continued. equitable defense, 488. judgment in ejectment not conclusive, 518, 519. MISTAKE in notice to quit, 403. possession by, 759, 760. MIXED POSSESSIONS, general principles regulating, 753. MOIETY, undivided, recovered on claim of the whole, 438. MORTGAGEE AND MORTGAGOR, ejectment between, 327-345. the early practice, 327. mortgagee formerly vested with entire estate, 327. rights of, at common law, 330. disadvantages of ejectment between, 328. not a final remedy, 328. foreclosure more effectual relief, 329. modern practice, 331, 332. mortgagee cannot generally bring ejectment, 329, 331, 332. in what State the action allowed, 333. statutes prohibiting ejectment by mortgagee, when unconstitu- tional, 334. ejectment by execution purchaser, 335. title afte? default, 336. deed absolute on its face may be shown to be a mortgage, 337. ejectment upon deed intended as a mortgage, 338. outstanciingJitle, 339. mortgagee may_purchase equity at execution sale, 343. may come in><3aefend, 262. rule as to improvements, 710. MORTGAGOR AGAINST MORTGAGEE, ejectment by, 340. remedy of, 345. not maintainable until after accounting, 341. and application of rents, 341. rule in Michigan, 342. conveyance by mortgagor to mortgagee, 344. MUNICIPAL CORPORATIONS, ejectment by, 139, 267-275. vested with the fee, 267. with public easement, 268. rights incident to, enlarged in the modern cases, 270. right of, to bring ejectment, founded on public necessity, 270. ejectment by, for streets and pubUc places, 271, 275. when the action will not lie, 274. may recover mesne profits, 656. may set up public easement as a defense in ejectment, 268. MUNIMENTS OF TITLE not to be set forth in pleading, 444. 66o References^ INDEX. {are to sections. NAME of place overrules mistaken description, 461. of land, description by, 461. NAMES of parties to actions, 426. initials and middle names not recognized, 426. senior and junior no part of a name, 426. when fictitious, record should so state, 426. mistake as to, in notice to quit, 401, 403. reputed, of property, description by, 461, 767, n. NATURE OF EJECTMENT, r, 63. of action for mesne profits, 648, 649. NATURE OF LAND, requisites of adverse possession as affected by 733- as distinguished from personalty, 522, 665. NEBRASKA, holders of tax deed not proper parties to foreclosure, 257. NEVADA, tenant in common may oust intruder, 300. NEW ENGLAND, ejectment in, 73. unpopularity of the remedy, 74. reasons considered, 73, 74. real writs in, 70, 71, 75, 76, 77. objections to real actions, 75. changes effected, 75, 77. adoption of real actions, 76, 77. ancient forms little regarded, 75. modern changes, 79. NEW HAMPSHIRE, statutory real actions in, 79. real action for wife's land, husband need not be joined, 255. remedy of mortgagor against mortgagee, 345. writs of formedon in, 71. NEW ISLANDS, title to, 124. NEW JERSEY, shore line divisions must be settled in equity, 151. rule as to notice to quit, 374. NEW TRIALS, 576-609. early practice as to new trials in ejectment, 576. Lord Mansfield's views, 576. reason for allowing new trial, 576. (i.) New trials at common law, 576, 577, 580, 581. any number of new trials granted for errors, 577. practice more liberal than in other actions, 577. not granted in aid of an outstanding title, 577. statutory and common law new trials independent, 581, 596. (2.) Statutory nsw trials, 578, 608. prevail in many States, 578. policy of the law upon which the right is based, 578, 608. peculiar sanctity attending the tenure of real property, 578. References] INDEX. [are to sections. 66 1 NEW HKIKL^— continued. reason for granting new trial to plaintiff, 579. successful plaintiff not allowed to discontinue ejectment to avoid second trial, 583. defeated defendant cannot become plaintiff in second action, 587,598; statutes restrictive of common law rights, 580. avoiding statutory new trials by bringing trespass, 582. (3.) Interpretation of the statutes, 584. conflict of the cases, 584. liberally construed in Illinois, 584. strictly construed in Texas, 584. the true rule of construction, 5 84. (4,) Actions to which the statutes apply, 585, 592, 609. to actions in the nature of ejectment, 609. to ejectment where equitable relief is also asked, 585. where damages are demanded, 585. where equitable defenses are interposed, 585. where judgment was rendered on demurrer, 585. suits to quiet title in Indiana, 586. actions to determine conflicting claims in New York, 592. right not lost by defects in forms, 585, 588. (5.) Actions not within the statutes, 585, 589, 591, 592, 593, 595, 6og. not applicable to equitable actions, 589, 609. new trials granted in equity in analogy to the statute, 590. new trial not granted in cases of non-suit, 585. nor in cases of disputed boundaries in Texas, 591. nor in actions to determine conflicting claims in Kansas, 592. not generally applicable between landlord and tenant, 593. apply to forcible entry proceedings in Minnesota, 594. trespass not within the statutes, 595. nor suits for specific performance, 595. nor suits to set aside conveyances, 595. (6.) Practice governing applications for new trials, 580, 584, 590, S96, 598, 602, 603. common law new trials not counted, 596. effect of entry of erroneous judgment, 588. conditions of procuring the order, 598. payment of costs required, 598, 599, 600. practice in New York, 599, 600. strangers to the record not entitled to new trial, 601. practice in various States, 602, 603. new trial waived by stipulation, 604. second action must be brought in same court, 606. new trial must be demanded in trial court, 603. 662 References] INDEX. {are to sections. NEW I'KlhUS,— continued. effect of pendency of writ of error or appeal, 605. what title investigated on second trial, 597. statutes controlling in federal courts, 607. abuses under the statutes, 582, 608, 609. repeal of the statutes recommended, 608, 609. NEW YORK, real actions abolished, 79. statutory ejectment given, 79. ejectment for land covered by party wall, 158. infant may bring real action, 196. committee of a lunatic cannot prosecute ejectment, 203. is not trustee of express trust, 203. mortgagee cannot have ejectment, 331. attorney's authority to proceed in ejectment, 416, 420. written authority required, 416. complaint in ejectment must allege unlawful withholding of possession, 433. must claim a certain estate, 434, 438. defect available by demurrer, 434. under claim of fee simple may prove title as mortgagee in pos- session, 437. questions of venue, how raised, 469. rule as ta trial of local actions, 472. statute of limitations must be pleaded, 482. doctrine as to color of title, 776. rule as to equitable defenses, 486, 487, 488. vendee may assert equitable rights, 322. rule as to notice to quit, 375, 376, 383, 384. effect of pleading a particular title, 492. judgment in ejectment, 529, 530, 537. order of restitution, 568, 575. statutory new trials, 589, 599, 600. receiver not appointed before judgment, 615. executions against the person and orders of arrest, 630. practice as to joinder of aptions, 636, 639, 640, 641. pleading claim for mesne profits, 655. rule as to damages, 666. distinction between damages and mesne profits, 653. NEXT FRIEND, ejectment by, 196, 199, 200, 201. See Guardian. NOMINAL DAMAGES, recovery of, not a bar to actual damages, 662. after introduction of fictions, 61, 647. , NON-I*AYMENT OF RENT, ejectment for, 160, 370. NON-SUIT under early practice, 38. joinder of too many plaintiffs ground for, 187. statutory new trials not granted in cases of, 585. References'] INDEX. [are to sections. 663 NORTH CAROLINA, practice as to provisional relief, 623. defendant's right to a receiver, 620. right of alien to bring ejectment, 226. joint owner may come in to defend, 259. mortgagee may bring ejectment, 333. statute of limitations need not be pleaded, 482. practice as to joinder of actions, 644. NOT GUILTY. See Answer. the general issue in ejectment, 476, 484. advantages of the plea to the defendant, 476. tendency to favor the plea, 476. defenses admissible under, 477. defendant may show deed a mortgage, 338. waiver of the plea, 492. NOTICE OF PENDENCY OF ACTION, 645. See Lis Pendens. NOTICE TO QUIT, 372-414. upon what the right is founded, 373. no distinction between lands and houses, 373. presumption that occupant's possession is rightful, 372. privity of estate must exist to render notice necessary, 374, 375, 377- notice not necessary when title is in issue, 374. tenancy must be shown, 374, 375. intruder not entitled to notice, 376. husband not entitled to notice from wife, 376. same rule as to trespassers, 377. rule when term expires by provisions of lease, 378. rule when lease is void by statute of frauds, 379. tenant holding over, 380. landlord's option in such cases, 380. tenant cannot change the relationship, 380. uncertain tenancies, 381. constructively held to be tenancies from year to year, 381. tenancy from year to year, 382. either party may determine, 382. reasonable notice, what considered, 383. tenancy at will, notice in cases of, 384. demand of possession necessary in England, 384. tenant at sufferance, 385. at common law not entitled to notice to quit, 385 . exception to the rule in Michigan, 385. void homestead claim, possession under, 386. possessor not entitled to notice to quit, 386. adverse possession, no notice necessary, 387. 664 References'^ INDEX. \(ire to sections. NOTICE TO CiJJYY— continued. disclaimer by tenant renders notice unnecessary, 387. tenant becomes trespasser, 387. disclaimer is a question of fact, 388, 389. examples of disclaimer, 388, 390. claim of adverse possession forfeits right to notice, 389. such claim inconsistent with a tenancy, 389. denial of landlord's title, 389. when refusal is not a disclaimer, 390. must be direct repudiation of landlord's title, 390. tenant of tenant in common, rule as to, 391, 392. parol notice, 404. tenant's notice to landlord, 400. rules governing same as landlord's notice to tenant, 400. (i.) Between vendor and vendee, 310, 394, 395, 396. vendee cannot be ejected without demand and notice, 394. may be after default, 394. notice to quit not generally necessary, 310, 394. practice is an exception to the general rule, 394. different rule in England, 394. (2.) Between mortgagor and mortgagee, 397. the early rule, 397. notice not generally required, 397. (3.) Infant plaintiff must give, 398. (4.) Personal representatives, rule as to, 399. (5.) Form of notice, 401, 402, 403. must be free from ambiguity, 401? must not be optional, 401. obvious mistake does not vitiate, 401. misdescription not necessarily fatal, 401. effect of mistake in name, 401, 403. notices held good, 402. (6.) By whom given, 405, 406, 407, 408, 409. by landlord, 405. by authorized agent, 405. by agent of corporation, 407. should be in principal's name, 405. owner of reversion, 405. devisee, 405. heir, 405. executor, 405. receiver, with power to let, 405. receiver in chancery, 406. rule in doubtful cases, 405. References'] INDEX. \_are to sections. 665 NOTICE TO QlJli:— continued. joint tenants, 408. trustees, 408. tenants in common, 409. (7.) Who cannot give notice, 410. vendee without title cannot, 410. (8.) Waiver of notice, ^T.1. objection must be taken at nisi prius, 411. acceptance of subsequently accruing rent is waiver of, 411. how disclaimer may be waived, 411. effect of second notice, 411. notice waived by stipulation in lease, 411. by agreement, 411. by admission in pleading, 411. (9.) Service of notice, 412, 413, 414. delivery to wife or agent of tenant, 412. notice to corporation, 412. may be served upon officers, 412. when tenant dead, may be served on administrator, 412. service of tenant in common, 412. on tenant's partner, 412. (10.) How served, 412, 413. rule in New York, 413. at dwelling house, 413. upon tenant's servant, 413. leaving at tenant's place of business insufficient, 413. (11.) Service, how proved, 414. copy of notice competent evidence, 414. proof of contents of notice, 414. notice to produce, not necessary, 414. NUISANCE, action of, for interference with easement, 147. leaning wall constitutes, 156. overhanging cornice is, 156. may be abated by action or act of the party, 156. ejectment not proper remedy for, 156. bill to abate is local, 465, 475, n. OBJECTIONS to real writs, 2, 3, 5, 6, 75. to ejectment in New England, 73, 74, 75. OCCUPANT OF LAND must be made defendant, 231, 234, 236, 432, 659- OCCUPATION OF LAND, character of, to warrant ejectment, 133, 135, 161, 232, 233, 234. to constitute adverse possession, 729, 731. 666 References'\ INDEX. [«« io sections. OCEAN, bed of, recoverable in ejectment, 121. OFFICE FOUND, alien may recover in ejectment until after, 226. felon before office found may convey land, 229. OHIO, religious society may bring ejectment by its trustees, 230. practice as to statutory new trials, 602. OIL WELLS, ejectment for, 112, 113, 114. leases of, 112. oil regarded as a mineral, 114, 202. conflict in the cases, 112, 113, 114. ORAL PLEADINGS not allowed in real actions, 427. written pleadings required in modern practice, 427. ORDER for restitution, 575. not to contain injunction, 568, 575. granting statutory new trials, conditions of procuring, 598. of arrest in ejectment, 630. ORE AND MINES, rule as to mesne profits, 677. OREGON, tide lands belong to the State, 122. may be recovered in ejectment, 122. tenant in common may oust intruder, 300. chain of title must not be pleaded, 444. ORIGIN OF EJECTMENT, i, 63. trespass to try title, 81, 91. statutory new trials, 578. action for mesne profits, 647. ORNAMENTAL IMPROVEMENTS, cost of, disallowed, 701. OUSTER. See Tenants in Common; Co-tenants. what constitutes, is a question of fact, 281. early practice as to, 277. must be shown between tenants in common, 277. between joint tenants and co-parceners, 295. differs in degree from ouster in other cases, 278, 280, 750. more difficult of proof, 278. burden of proof, 282. evidence of, must be positive, 281. must be found by jury, 281. forcible expulsion not necessary, 283. denial of title by answer is, 283. denial must be unequivocal, 284. claim of the fee is not, 284. must be disturbance of possession, 284. conveyance of entire estate is, 287, 750. of wild lands, 285. to sustain trespass, 157, 286. defective pleading of ouster, 482. presumption of ouster from lapse of time, 289, 750. References\ INDEX. [are to sections. 667 OUTSTANDING TITLE, defendant may show, 57, 477. in Indians defeats recovery by the people, 194. wrong-doer cannot set up title of cestui que trust against trustee, 222. authority of claimant to invoke, 420. new trial not granted in aid of, 577. as between tenants in common, 292. tenant in common must permit co-tenant to share in, 292. qualifications of the doctrine, 292. mortgage, 339. OVERFLOWED LANDS, sheriff must deliver possession of, under writ, 572. overflowing does not generally constitute an ouster, 149. OVERHANGING cornice, remedy for, 156. limbs of trees may be cut oif, 156. Ownership of land, independent from right of easement, 132, 147. PANNAGE, right to, not the basis of ejectment, 148. PARCENERS. See Coparceners. ejectment by, 303. joinder of, 303. ejectment between — ouster must be shown, 295. PAROL evidence admissible to show title adjudicated, 513, 523. may be given to prove deed a mortgage, 337. gift, improvements under, 705. gift, as color of title, 762, 773. color of title cannot rest in, 762. PAROL DISCLAIMER, 369. See Disclaimer. does not forfeit estate for years, 369. dispenses with notice to quit, 369, 387. PAROL NOTICE TO QUIT, 404. See Notice to Quit. PARSON not liable to ejectment, 243. PARTICULAR ESTATES, how pleaded, 441. See Complaint. commencement of, must be shown, 441. PARTIES. See Plaintiffs; Defendants. (i.) Who may prosecute ejectment, 185-230. tenants in common inter sese, 276, 294. tenants in common against third parties, 297, 298, 299. joint tenants and coparceners inter sese, 295. joinder of joint tenants against third parties, 302. of coparceners, 303. (2.) Vendor and vendee, 304, 326. nature of vendor's interest, 309. vendee against vendor, 319. )68 References] INDEX. [«''« i" sections. ^ ARTIE?,— continued. (3.) Mortgagee and mortgagor, 327, 345- mortgagee's rights at common law, 330. ejectment by, prohibited, 331, 332. in what States allowed, 333. mortgagor against mortgagee in possession, 340, 341, 342, 345. (4.) Landlord and tenant, 346, 371, 372, 414. See Landlord and Tenant; Notice to Quit. (5.) Parties defendant, 231, 266. See Defendants; United States. joinder of defendants, 238, 239, 240, 241. (6.) Mesne profits, parties plaintiff, 656. plaintiff must acquire actual possession, 657. parties defendant, 658, 659. co-tenants, 660. executors, 661. 'ARTITION, action of, 166, 167. based on common and not disputed ownership, 166. not a substitute for ejectment, 166. title to land cannot be established in, 166. jreason one of policy, not want of power, 166. adverse title must be disclosed to defeat, 167. objection waived unless promptly urged, 166. defective plea, 482. PARTNERS, right of, to bring ejectment, 221. usually hold as tenants in common, 221. survivor may bring ejectment, 221. cannot mortgage copartner's interest, 221. real estate treated as personalty in equity, 221. 'ARTNERSHIP, real estate, 221. See Partners. 'ARTY WALLS, ejectment for lands covered by, 158. maintainable in England, 158. recovery not allowed in Pennsylvania, 158. allowed in Maine, 158. doubtful in New York, 158. practical objections to ejectment in such cases, 158. 'ASSAGE ROOM, ejectment for, 106. 'ASSAGE WAY, land recoverable subject to, 132. 'ASTURAGE AND HERBAGE, ejectment for, 143. the cases considered, 143. 'AYMENT OF TAXES and incumbrances, 688, 704. 'EACEABLE POSSESSION. See Writ of Possession. may be taken without writ of possession, 549, 657. °EDIS POSSESSIO, 732, 736. See Adverse Possession. References\ INDEX. \_are to sections. 669 PENDENTE LITE, rights of purchaser, 263. buys at his peril, 263. rule as to pleading, 495. PENNSYLVANIA, ejectment for land covered with party wall not al- lowed, 158. claim for improvements not the subject of ejectment, 159, 713. guardian cannot sell ward's real estate, 114, 202. executor with power of sale may bring ejectment, 210. rule as to partnership real estate, 221. ejectment by insolvent debtor, 224. overseer of poor may bring ejectment, 230. joinder of husband and wife as defendants, 255. recovery by tenant in common, 300. estoppel between vendor and vendee, 318. attorney's authority to bring ejectment, 417. coverture shown under general issue, 477. practice as to verdicts, 499. eviction of wife under writ against husband, 559, 560. practice as to new trials, 602. when injunction will be granted, 628. rule as to abatement, 689. PEOPLE, ejectment by, 192. occupy advantageous position as plaintiffs, 192. when they cannot recover, 193. tenants cannot join with, 189. PERISHABLE IMPROVEMENTS, cost of, not allowed, 702. PERMISSIVE POSSESSION not a basis for statute of limitations, 729. PERSONAL ACTIONS, advantages of, over real writs, 2, 7. actions, judgments conclusive, 507. rules governing, retained in ejectment, 54. PERSONAL PROPERTY must be removed under writ of possession, 556, 557- failure to remove does not invalidate execution of writ, 556. PERSONAL REPRESENTATIVES. See Executor, Adminis- trator. generally cannot recover land, 207. nor freehold terms or leases, 209. may recover estates for years, 208. statutory changes, 210. entitled to notice to quit, 399. PETITION OF RIGHT, nature of, 244. lies against the crown, 244. PLACE OF TRIAL. See Venue. actions to recover realty are local, 465-475. residence of the parties immaterial, 466. 670 References\ INDEX. [are to sections. PLAINTIFFS, 185-230. See Parties. who may maintain ejectment, 185. difficulties of classification, 186. statutory remedies cumulative, 186. ( I .) Joinder of plaintiffs. right of possession must exist in all, 187. effect of joinder of too many plaintiffs, 187. rule in trespass by joint tenants, 187. hostile claimants cannot join, 188. executor cannot join with devisees under the will, 189. widow cannot join with heirs in ejectment, 189. widow, if joined, cannot recover alone, 189. towns claiming as tenants cannot join in a writ of entry, 189. the people and those claiming to be their tenants cannot unite to recover land, 189. reversioners must all join, 189, 212. remedy for misjoinder, 189. (2.) The sovereign. ejectment by the king, 191. analogy between State and king, 191. ejectione firmce in early times, 191. right of a State to recover in ejectment, 192. what the State must show, 192. presumption as to ownership, 192. when the people cannot recover, 193. (3.) Corporations may bring ejectment, 195. may sue by comity in foreign states, 195. ejectment by municipal corporations, 139, 267, 275. (4.) Infants as plaintiffs, 196. ejectment by both infant and guardian, 196, 201. security for costs by, 197. must disaffirm conveyance, 198, 451. (5.) Guardian. in socage and general guardian may bring ejectment, 199. may lease his ward's real estate, 199. rule in Michigan, 199. for nurture cannot maintain ejectment, 200. by nature has no power to bring ejectment, 200. ejectment by infant and guardian, 196, 201. (6.) Committee of a lunatic. cannot maintain ejectment, 203. not the trustee of an express trust, 203. may maintain equitable action, 204. References} INDEX. [are to sections. 6 'J I ?LAmTlF¥S—coniimied. (7.) Heirs-at-law, ejectment by, 205. heirs of trustee, 205. hold as tenants in common, 205. (8.) Devisees, ejectment by, 206. cannot join with executor, 189. cannot bring suit to construe will, 163. (9.) Personal representatives. cannot usually maintain ejectment, 207. may recover estates for years, 208. have no interest in freehold terms or leases, 209. when they may sue, 211, 212. (10.) Reversioners, right to bring ejectment, 212, 213, 214, 215. may maintain ejectment after a breach of a condition subse- quent, 212. all the original grantors or their heirs must join, 212. interest of, not a title, 212. cannot eject life tenant for waste, 214. nor for claiming the fee against the reversioner, 214. nor for executing a deed purporting to convey the fee, 214. English rule different, 214. (11.) Life tenant, may have ejectment, 215. married woman may recover a life estate against her husband 215. tenant for years, right to maintain ejectment discussed, 216. tenant at will, right to ejectment, 217. tenant at sufferance cannot maintain ejectment, 218. right to bring trespass, 218. tenant by the curtesy may sue alone, 219. (12.) Married women, right of, to bring ejectment, 220. may recover term for years, 220. may sue for homestead, 220. (13.) Partners, in whose name ejectment should be brought, 221. surviving partner may recover against one having no title, 221. hold real property as tenants in common, 221. (14.) Trustees may recover in ejectment against cestui que trustent, 222. real actions in nature of ejectment must be brought in the name of, 222. (15.) Cestuis que trustent maj maintain equitable title against stranger, 223. remedy usually in equity, 223. (16.) Insolvents, right of, to bring ejectment, 224. ■ may sue for homestead, 224. (17.) Additional illustrations, 225, 226, 227, 228, 229, 230. 672 References^ INDEX. [are to sections. VLP^J^TIFYS— continued. (i8.) Co-tenants, 276, 296. See Co-tenants; Tenants in Common; Ouster. actual ouster must be shown, 277. tenants in common against third parties — joinder, 297, 298, 299. joint tenants, proof of ouster required, 295. joint tenants against third parties, 302. coparceners inter sese, 295. against third parties, 303. (19.) Vendor and vendee, ^oi^, 2,26. iS'*^ Vendor and Vendee. (20.) Mortgagee and mortgagor, 327, 345. (21.) Landlord and tenant, 346, 371. PLEA, 476, 495. See Answer; Not Guilty. PLEADINGS. See Complaint; Answer; Construction. strictness of, in early practice, 2, 3, 5. Sir Matthew Hale's views, 5. effect of strictness of pleading on real writs, 9. advantages of personal actions, 7, 9, 10. influence of practice in trover and assumpsit, 11. early pleadings in ejectment, 37, 53, 56, 422, 423, 424. (i.) Pleadings in real actions, 2, 3, 5, 429, 430, 654. seizin must be averred, 429. declaration in writ of entry in Maine, 430. claim for mesne profits, 654. (2.) Modern complaint, 425, 431-454. See Complaint. names of the parties, 426. written pleadings required, 427. how construed, 428. pleadings alike in the various actions, 92. complaint must aver possession by defendant, 231, 236, 432. must charge wrongful and unlawful withholding of the lands, 433- allegations of title and seizin, 429, 430, 434, 446, 448. pleading tax title, 491. rules as to variance, 436, 437. (3.) Nature of estates, how set forth, 56, 438, 439. general form and character of estate must be averred, 439. evidence not to be alleged, 439, 444, 445. pleading fee simple, 440, 442. particular estates, 441. claim for mesne profits, 654, 655. improvement claim, 714. specific chain of title, 443, 444. muniment of title not to be pleaded, 444, 445. References] INDEX. [are to sections. .673 TL^kJU^G?)— continued. joint title, 449. (4.) Answer, 476, 495. See Answer. equitable defenses, 485. must be distinctly pleaded, 486, 487. elements of, 487. statute of limitations, 482. pleading special title, 492. POOL, ejectment for, 120. POSSESSION. See Adverse Possession; Color of Title; Writ OF Possession. right of, essential to support ejectment, 100, 185, 187. raises a presumption of right, 696, 717. right of, must exist in all the plaintiffs, 187. may be taken by co-tenant by stealth, 276. judgment for, must conform to proof, 237, 525. vendee not entitled to, 304. admitted by interposing general denial, 479. of part of the land, 237. plaintiff must regain to claim mesne profits, 657. not necessary to execute an habere, 549, 657. of one co-tenant is possession of all, 276. complaint must charge possession by defendant, 432. party in possession must be defendant, 231, 234, 236, 432. right of, tried in ejectment, 94. not tried in forcible entry proceedings, 94. (i.) Possession as evidence of title, 717. is a low degree of title, 717. prima facie evidence of seizin in fee, 717. raises a presumption of fact which may be rebutted, 717. possessor presumed to have acquired title of sovereign, 717. tenancy in common of naked possession, 296. (2.) Possession alone sufficient against trespassers or intruders, 718, 719, 720. the rule applicable to writs of entry, trespass, ejectment and trespass to try title, 718. (3.) Character of the possession, 718, 719, 720. proofs sufficient' and insufficient to constitute possession, 7 19, 720. possession which will warrant ejectment against defendant not the test, 721. possessions considered insufficient to support ejectment, 722. (4) Distinction between prior possession and adverse possession, 719, 723. the cases considered, 723. 43 674 References\ INDEX. {are to sections. PRACTICE. See Attorney's Authority; Parties; Complaint; An- swer; Verdict; Judgment; Writ of Possession; Eject- ment; Real Actions. early practice in ejectment, 27, 28, 31, 35, 37, 38. in real actions, 2, 3, 5, 6, 9, 73, 75, 77, 79. as to granting statutory new trials, 576, 609. introduced by Rolle, 35. PRE-EMPTOR of swamp lands, ejectment by, 230. PREMISES, how described in the complaint, 455, 464. PRESCRIPTION AND LIMITATIONS historically considered, 724. theory of prescription, 726. distinction between, 726. PRESUMPTION of title in the State, 192. of title in occupant, 192, 717. that possessor holds by right, 372, 694, 749. of grant not indulged in favor of squatter, 241. of ouster from lapse of time, 289, 750. of law as to ouster not indulged, 289. that attorney had authority to bring ejectment, 415. of grant of incorporeal right, 724, 726. PRIVATE WAY, land recoverable subject to, 132. PRIVILEGE of landing place not the basis of ejectment, 148. appurtenant to land recovered therewith, 102, 527, 676. PRIVITY OF ESTATE required to render notice to quit necessary, 374.'37S- PROFIT A PRENDRE not recoverable in ejectment, 148. fishery is, 142. coal mine not considered, 109. PROJECTING foundation, when it constitutes a disseizin, 157. eaves or cornices not a disseizin, 156. PROSPECT, right to, not sufficient to sustain ejectment, 150. PROVISIONAL REMEDIES, 610-632. provisional relief at common law, 6ii. only obtainable by bill in chancery, 611. reforms effected in modern procedure, 611. forms of provisional relief, 612. (i.) Receivers, 612-621. appointment pendente lite rests in sound discretion of the court, 613. reluctance of the courts to interfere, 614. plain case must be presented, 613. destructive and malicious waste, ground for, 616. some equitable principle must be shown, 616, 618. subject-matter must be in danger, 613. rule in New York, 614, 615. References\ INDEX. Yare to sections. 675 PROVISIONAL REMEDIES— ^<7«//«a^^. receiver not appointed before judgment, 615. theory of the decisions, 614. practice in Georgia, 617, 619. practice in Illinois, 6i8. in California, 621. the cases criticised, 618, 632. receiver after judgment, 619. defendant's right to move for a receiver, 620. (2.) Injunctions against trespass or waste pending ejectment, 622, 632. relief of this character more generally favored, 622. the practice considered, 622, 627. ordinary uses of the land not restrained, 625. when an injunction will be allowed, 622, 623, 624, 628. rule as to cutting timber, 622, 628. malicious and destructive waste, 626. practice in Pennsylvania, 628. mortgagee against mortgagor, 629. " (3.) Executions against the person and orders of arrest, 630. the early practice in New York, 630. execution against the body for costs not granted, 630. order of arrest upheld in statutory action for damages for tres- pass for forcible entry, 630. relief of this character not generally given in ejectment, 630. execution against the person allowed in Wisconsin, 630. (4.) Reasons for granting and withholding provisional relief considered, 631, 632. objections to premature inspection of the title, 631. hardships incident to withholding provisional relief, 632. PUBLIC places, ejectment for, 267-275. squares, ejectment for, 271. easement, ejectment based upon, 139, 267, 268, 270, 271. See Easement; Municipal Corporations. distinguished from private easement, 140, 161. PUIS DARREIN CONTINUANCE, 495. See Answer. plea of, when allowed, 495. PURCHASER may defalk improvements, 706. pendente lite, 263. buys at his peril, 263. not entitled to be made defendant, 263. liability of, for mesne profits, 263, 658. bound by the proceedings, 658. rule as to pleading, 495. 676 References^ INDEX. [are to sections. QUARE CLAUSUM FREGIT. See Trespass. ejectment cannot be substituted for, 93, n, 178. cannot be united with ejectment, 93, n, 641. for pasturage, 143. QUARE EJECIT INFRA TERMINUM, 15. provisions of the writ, 16. against whom the writ lay, 17, 21, 22. QUARE IMPEDIT is a local action, 465. QUARRY defined, iii. ejectment for, in, 150. distinction between and mine, in. right to work, belongs to owner of fee, 134. QUESTION OF FACT. See Jury. must be determined by jury, 170, 496. ouster is, 281. disclaimer is, 388. QUIET TITLE, action to, 154. ejectment not a substitute for, 154. statutory new trial in Indiana, 586. QUITCLAIM DEED, grantee of, may bring ejectment, 230. RAILWAY, injunction to stop running of train, when not allowed, 174. ejectment against, 135, 136, 137, 250. wrongful use of lands by, not protected, 136. REAL ACTIONS, 2, 3, 5, 8, 64, 65, 66, 79. See Ejectment. ancient real writs, 2, 64. only land recovered, 64, 646. difficulties of selecting proper writ, 2. strictness of pleading and practice, 3, 5. power of amendment reluctantly exercised, 3. influence upon, of forcible entry statutes, 4. effect of practice in trover and assumpsit, 11. abuses in early practice, 6. abandonment of real writs, 8. adoption of ejectment, 26. influences leading to the change, 9. (i.) Classification, 65. actions droitural, 65. actions possessory, 65. writs ancestral droitural, 65. (2.) Characteristics, 66. writs of different grades, 66. inferior writs not an estoppel upon writs of higher degree, 66, 67, 509- Seferences] INDEX. [are to sections. d'J'J REAL A.CYlO'i^'&^continued. each writ final for its own purpose, 67. (3.) Writ of right, 69. most important of the real writs, 69. resorted to by the Saxons, 69. only lie for freehold, 69. not for incorporeal hereditaments, 69. judgment final, 67, 69, 509. (4.) Writs of entry, 70. most ancient of possessory writs, 70. only possessory writs adopted in Massachusetts, 70. advantages of, over ejectment, 70. statutory writ retained in Massachusetts, 79. declaration in, 430. (5.) Writs of formedon,"]!. , wholly unsuited to titles in this country, 71. occasionally used, 71. (6.) Real actions in England, 72. the system extinct, 72, 78. objections to the system, 2, 3, 5, 6. opinion of English real property commissioners, 78. (7.) Their adoption in New England, 76. difficulties encountered, 75, 76. radical reforms effected, 75, 76, 77. modern statutory changes, 79. pleading in real actions, 429, 430, 654. judgment, 509. damages, 646. REAL PROPERTY COMMISSIONERS, views of, as to ejectment, 78. as to real writs, 26. REALTY AND PERSONALTY, distinction between, 522. REAL WRITS, 2, 64, 66, 72, 75. See Real Actions. REASONABLE NOTICE to quit, 383. See Notice to Quit. RECEIVERS, 612-621. See Provisional Remedies. appointment of, pendente lite, rests in sound discretion of the court, 613. reluctance of court to interfere with possession, pending real actions, 614. destructive and malicious waste, ground for, 616. some equitable principle must be shown, 616, 618. subject-matter must be in danger, 613. rule in New York, 614, 615. theory of the decisions, 614. practice in Georgia, 617, 619. 678 References] INDEX. \_are to sections. RECEIVERS— c^«/?«a^(/. the cases criticised, 618, 632. receiver after judgment, 619. defendant's right to move for a receiver, 620. in chancery may bring ejectment, 227. must obtain leave of court to sue, 227. may give notice to quit, 406. REDEMPTION, equity of, mortgagee may purchase, 343. conveyances of, to mortgagee, how regarded, 344. RE-ENTRY, right of, must be reserved, 370. otherwise landlord cannot re-enter during term, 160, 370. for breach of condition against waste, 362. for forfeiture, right of, how waived, 371. right of re-entry must be enforced during term, 371. of the owner^tops statute of limitations, 741. statutory regulations as to, 742. REFERENCE in verdict, 499. See Vekdict. certainty of verdict, how established, 499. may refer to deeds, diagrams and monuments, 499. REFORMATION of deed, facts warranting ground of defense, 488. judgment of reformation need not be pronounced, 488. RELIGIOUS CORPORATION, ejectment by, 144, 230. ejectment against, 243. REMEDIES, reasons for mistakes in selecting, 184. • selection of, 162, 184. legal remedy cannot be changed by amendment to equitable, 182. equitable actions cannot be transformed to ejectment, 179. actions to determine conflicting claims changed to ejectment, 181. writs of entry and forcible entry changed to ejectment, 183. legal and equitable relief in same action, 169, 639. election of remedies, 307. RENT RESERVED, not the basis of ejectment, 370. unless right of re-entry is reserved, 160, 370. receipt of, without knowledge of forfeiture, not a waiver, 37iin. judgment against government agent negatives implied promise to pay, 540. demand of, 371, n. REPLEVIN, in the cepit, 683. only maintainable when trespass would lie, 683. title to land held adversely not tested in, 683. mesne profits proper action, 683. REPLY to affirmative defense, 493. RES ADJUDICATA, 506-545. See Judgment. judgment in trespass binding in ejectment, 582. References\ INDEX. [are to sections. 679 RESCISSION OF CONTRACT must be in toto, 311. offer of title at trial good defense to bill to rescind, 311. notice of, when necessary, 312. RESERVATION IN DEED OF RIGHT OF ENTRY, 99. will support ejectment, 99. RESIDENCE OF THE PARTIES, not material in ejectment, 466. RESTITUTION, writ or order of, 60, 568, 575. See Writ of Possession. when allowed, 60, 575. order for, in New York, 568, 575. injunction in order for, not proper, 568. applicant must make clear case, 575. RETURN DAY of writ of possession, 551. not usually required in the writ, 551. writ may be executed after, 551. REVERSION, ejectment by assignee of, 212. REVERSIONERS, right to bring ejectment, 212, 213, 214, 215. all original grantors or heirs must join, 189, 212. interest of, is not a title, 212. cannot eject life tenant for waste, or claiming the fee, 214. RHODE ISLAND, mortgagor regarded as tenant at sufferance, 335. ejectment by execution purchaser, 335. RIGHT of way not the basis of ejectment, 148. to a road not recoverable, 148. RIGHT, WRIT OF, 67, 69, 509. See Real Actions; Writ of Right. most important of the real writs, 69. judgment final, 69, 509. RIGHTS APPURTENANT TO LAND recoverable in ejectment, 102, 102, n, 527, 676. RIPARIAN PROPRIETORS, ejectment by, 119. RIVULET OR POOL, ejectment for, 120, 149. ROAD, land not touching upon, recovered in ejectment, 127, 572. land subject to right to maintain, recovered in ejectment, 131, 132. abandoned road bed, recovered by owner, 138. ROLLE.lCHIEF JUSTICE, practice introduced by, in ejectment, 35. ROOM, ejectment for, 105, 155. when identity of, is lost, not recoverable, 155. recoverable without grant of the land, 105. SALT BOILERY, ejectment for, 126. grant of, passes the soil, 126. SAW MILL AND SITE, 675. income of, included in mesne profits, 675. 680 References^ INDEX. {are to sections. SCHOOL HOUSE, condition against, valid, 213. SEA, land swallowed by, title to, 123. SECOND TRIALS, 576-609. See Statutory New Trials. what title tried on, 597. must be in same court, 606. SECRET POSSESSION not the basis of adverse possession, 735. SECTIONS OF TOWNSHIP, lands described by, 462. SECURITY FOR COSTS, by infant, 197. SEIZIN. See Complaint. right of possession follows, 446. but one actual seizin of an estate, 728. not usually awarded by judgment in ejectment, 510. rule as to pleading, 429, 439, 446. incorporeal hereditaments not capable of, 146. SELECTION OF REMEDIES, 162. reasons for mistakes, 184. the cases reviewed, 162-184. SERVANTS OR EMPLOYEES not liable to ejectment, 242. act in another's right, 242. rule in New York, 242, n. SERVICE of notice to quit, 412. See Notice to Quit. how served, 413. how proved, 414. SET OFF, widow's dower not subject to, 489. improvements against mesne profits, 690, 691. between vendee and vendor, 322. SHERIFF. &^Writ of Possession. duties of, in executing writ of possession, 555, 557, 561, s66> 567- has no judicial powers, 566. may exact bond of indemnity, 565, 566. burden upon, to excuse non-execution of writ, 561, 567. SHORE LINE divisions must be settled in equity in New Jersey, 151. SOUTH CAROLINA, introduction of trespass to try title in, 81. reasons for the change, 85. aversion to real actions, 86. trespass to try title abolished in, 87. statutory real actions substituted, 87. SPECIAL PLEA, necessary to deny possession, 479. may be interposed, though defenses were available under gen- eral issue, 492. SPECIFIC PERFORMANCE, when not maintainable, 165, 306. statutory new trial not granted in, 595. vendee may require, as to part, 321. References')^ INDEX. \are to sections. 68 1 SQUATTERS, ejectment against, 241. rule as to joinder of, 241. possession of, not the basis to presume a grant, 241. STABLE, condition against, valid, 213. STANDING PLACE, right to, will not support ejectment, 98. STATE, ejectment by, 192. trespass to try title by, 191. presumptively the owner of land within its borders, 192. STATUTE OF FRAUDS, lease void as to, 379. conveyance void as to, 344. contract void as to, will not sustain claim for improvements, 708. STATUTE OF LIMITATIONS. See Adverse Possession; Con- structive Possession; Color of Title; Answer. rule as to pleading in ejectment, 482. in mesne profits, 686. adverse possession under, 724, 753. historically considered, 724. applicable to real actions, 725. theory of prescription and limitations, 726. purpose and policy of, 727. STATUTORY NEW TRIALS, 576-609. See New Trials. STATUTORY REMEDIES, cumulative, 186. STIPULATION, waiving statutory new trial valid, 604. STRANGERS not entitled to statutory new trial, 601. STREET NUMBERS, description by, 460. STREETS, ejectment for, 161, 267, 271, 275. See Municipal Corporations. rights of the owner of the fee, 134. occupied by railroad company recoverable in ejectment, 135. SUMMARY PROCEEDINGS, ejectment prior to introduction of, 346, 348. title not involved in, 349. statutes not considered, 349. by administrator, 164. not proper when title is in issue, 164. SUPPLEMENTAL ANSWER, 495. See Answer. SUPREME COURT of the United States, practice as to writ of error, 175- defendants may sue out writ of error together, 175. defendants may separately apply for a stay, 175. TACKING POSSESSIONS, 746, 747, 748. See Adverse Possession. term " tacking of possessions " criticised, 746. possession must be continued in the same right, 746. 682 References^ INDEX. [are to sectisns. TACKING POSSESSIONS— ^(7«A»K^^. unconnected possessions cannot be tacked, 746. what possessions tacked, 747. landlord and tenant, 747. ancestor and heir, 747. the test stated, 747. various illustrations, 748. TANGIBLE, subject-matter of ejectment must be, 97. TAX DEED, grantee of, may be made defendant, 235, 257. TAX TITLE, rule as to pleading, 491. will not support claim for improvements, 708. TAXES AND ASSESSMENTS, payment of, by disseizor, 688. rule as to allowance, 688. TENANT, 346, 371. See Landlord and Tenant; Notice to Quit. cannot dispute landlord's title, 351, 352. may show that landlord's title has expired, 358. disclaimer by, 388. holding over entitled to notice to quit, 380. notice to quit to landlord, 400. See Notice to Quit. at sufferance cannot bring ejectment, 218. rule as to notice to quit, 385. not entitled to notice at common law, 385. at will cannot bring ejectment, 217. has no estate which he can convey, 217. writ of entry against, 258. rule as to notice to quit, 384. by the curtesy, right of, to bring ejectment, 219. for years may bring ejectment, 216. imperfect remedies of, in early times, 14, 18. of the freehold, writ of entry against, 233. TENANTS IN COMMON. See Co-tenants; Ouster. (i.) Ejecttnent between co-tenants, 276-296. trespass between, 157, 286. possession of one is possession of all, 276, 280. actual ouster must be shown, 277, 286. must be averred in complaint, 453. ouster the principal question, 276. how distinguished from ouster in other cases, 278, 279, 280, 750. more difficult of proof, 278. burden of proof, 282. evidence of ouster must be positive, 281. ouster must be found by jury, 281. forcible expulsion not necessary, 283. effect of claim of the fee, 284. References] INDEX. [are to sections. 68? TENANTS IN COMMQ-i^— continued. denial must be unequivocal, 284. denial of title by answer, 283. presumption of ouster from lapse of time, 289, 750. notice to quit, 409. See Ouster. (2.) Against third parties,*2()i, 298, 299, 301. common law rule, 297. not allowed to join, 297. rule in America different, 297, 298. towns claiming as, cannot join, 189. one or all must sue in New York, 299. authority of attorney to sue for, 419. what interest recovered, 300, 301. (3.) Title of co-tenants, 291, 292, 293, 294. sustain a relation of trust, 276. cannot dispute common title, 291. lien for incumbrances paid by one, 291. outstanding title, purchase of, 292, 293, 294. esteemed to.be for the common benefit, 291, 292, 293. limitations upon the rule, 292, 293. limited in some cases to titles acquired under same instrument, 293- the distinction considered, 293. may assert adverse title, 292, 361. (4.) Writ of possession. execution of, between tenants in common, 570. defendant not expelled, 570. plaintiff put in possession with the defendant, 570. (5.) Mesne profits. rule between co-tenants, 660. recovery limited to period of adverse occupancy, 660. not for periods when possession was not adverse, 660. (6.) Improvements. rule as to, 711. imperfect statutory regulations, 711, 711, n. TENDER of deed by vendor; 313. objections to form of deed, must be stated, 313. when not necessary, 314. of payment by vendee, when not necessary, 314, n. unnecessary when vendor has broken agreement, 314, n. TENNESSEE, executor with power of sale cannot sue for mesne profits, 210. school commissioners may bring ejectment, 230. ejectment for lands in several counties, 468. 684 References] INDEX. [art to sections. TEXAS, trespass to try title in, 91. exclusive remedy to test title in that State, 91. pleadings liberally construed, 428. general allegations of ownership sufficient, 442. plea to jurisdiction too late after plea to the merits, 470. special plea does not qualify genera? denial, 481. " not guilty " admits all defenses but the statute of limitations, 483- reply to affirmative defense, 493. foreign judgment, effect of, 542. form of judgment, 543. construction of statutes awarding new trials, 584. who considered bona fide occupant, 695. defendant may prove deed a mortgage, 338. when holder of paramount title may be brought in, 260. title remains in vendor until purchase-money is paid, 308. damages, 91. TIDE LANDS may be recovered in ejectment, 122. are lands covered and uncovered by the tide, 122. TIN BOUNDS, ejectment for, no. description of, no. not a mere easement, no. not recoverable eo nomine, no, 150. TITHES, ejectment for, 145. TITLE, plaintiff must have present subsisting title, 98, 185. mere license will not support ejectment, 98. right of possession must be of some duration and exclusive, 98. right to a standing place insufficient, 98. reservation of right of entry in deed will support ejectment, 99. owner of easement not vested with title to soil, 146. legal title usually prevails, 58. rule the same in the various actions, 92. claim of, to warrant ejectment, 161. generally, 185-230. lease, entry and ouster, 34. investigated on second trial, 597. equitable title will not support ejectment bill, 168, 169, 170, 171. conflicting titles not tried in assumpsit, 176. trial of title in condemnation proceedings, 177. title of receivers, 227. title admitted by answer, 490. which will support improvement claim, 708. after-acquired title, judgment not conclusive upon, 541. See Outstanding Title. References^ INDEX. [are to sections. _ 685 lllUE— continued. (i.) Of municipal corporations- vest with fee, 267. public easement, 267, 268. rights incident to, enlarged in modern cases, 270. have title to support ejectment for streets and public places, 271, 275- (2.) Tenants in common. under the same instrument, 293, J294. common title cannot be disputed, 291. See Tenants in Common. (3.) Vendor and vendee. title of vendor, 308, 309. nature of the relationship, 315. rules governing landlord and tenant not applicable, 316. See Vendor and Vendee. (4.) Mortgagee and mortgagor. mortgagee's interest at common law, 330. modern practice, 331. mortgage regarded as a lien, 331, 332. title after default, -^jfi. See Mortgagee and Mortgagor. (5.) Landlord and Tenant. ejectment between, 346-371. landlord's proof, 350. estoppel against the tenant, 351. See Landlord and Tenant. (6.) Possession. title by, 717. is low degree of title, 717. possession evidence of title, 717. prior possession sufficient against trespasser, 718. character of the possession, 719, 720, 721, 722. distinguished from adverse possession, 723. (7.) Adverse possession. • general principle of possession, seizin and ouster, 728. what constitutes adverse possession in general, 729-731. entry and ouster, effect and requisites of, 730. possession must be actual, 732. must be open and notorious, 735. continuous, 737, 738, 739. hostile, 749. exclusive, 752. must be accompanied with an adverse intent, 754. 686 References'\ ■ INDEX. [are to sections. TITLE — continued. intent the essence of adverse possession, 755. See Adverse Possession. (8.) Color of title. defined, 761. instances of what held to be color of title, 780. what held insufficient to constitute, 781. See Color of Title. TORT cannot be waived to try title to land in assumpsit, 176. actions of, joinder of too many plaintiffs ground for nonsuit, 187. ejectment, being action of, lies against infant, 254. TOWN COMMON, ejectment for, 271. TRANSITORY ACTIONS. See Venue. local actions, 465, 475. TREATY, lands reserved to Indians by, recoverable in ejectment, 228. TRESPASS on land insufficient to support ejectment, 80, 93, 178. distinction between, and ejectment, 93, 178. statutory new trial not granted in, 595. cannot be substituted for ejectment, 93, n. may be brought for land subject to public use, 134. general issue in, 484. is a local action, 465, 466, 475. lies for interruption of an easement, 147. for projecting eaves or gutters, 156. between tenants in common, 157, 286. actual ouster must be shown, 157, 286. threatened commission of, may be restrained in equity, 1 73, 1 74, n. all the plaintiffs must be competent to sue, 187. guardian in socage may bring, 199. judgment in res adjudicata in ejectment, 582. only maintainable when possession is disturbed, 603. trespass vi et armis for assault and battery, 649, n. for injuries after verdict and before writ, 669. action of, as assertion of ownership, 758. TRESPASS TO TRY TITLE, origift of, 83. originally an action of trespass, 81, 83. no fictions employed, 81. proof of disseizin not required, 82. cutting or blazing a tree sufficient, 82. introduction in South Carolina, 81. reasons for the change, 84, 85. abolished in South Carolina, 87. introduction in Alabama, 88. principle relating to ejectment applicable to, 88. Refennces'\ INDEX. \_are to sections. . 687 TRESPASS TO TRY IITIJE.— continued. statutory changes, 89. abolished in Alabama, 89. only action to try title in Texas, 91. ejeclsment never adopted in that State, 91. indorsement of the writ, 91. general principles governing all the actions the same, 92. for street, by municipal corporation, 275. TRESPASS QUARE CLAUSUM FREGIT. See Trespass. TRESPASSER cannot show outstanding title, 58, 477, 718, 722. proof of prior possession sufficient against, 718. character of possession sufficient to recover against, 719, 720. rule as to joinder of, as defendants, 241. not entitled to notice to quit, 377. ejectment by vendor or vendee against, 320. not allowed for improvements, 694. TROVER, influence of practice in, upon ejectment, 11. TRUSTEE, ejectment by, 222. may recover in ejectment against cestui que trust, 222. heirs of, may bring ejectment, 205. action by, to construe will, 163. as defendant, 243. when not allowed for improvements, 694. UNAUTHORIZED USE, ejectment for lands applied to, 135. UNCERTAIN TENANCIES, rule as to notice to quit, 381. constructively held to be tenancies from year to year, 381. UNCERTAINTY IN PLEADINGS must be reached by motion, 428. not by demurrer, 428. UNITED STATES, ejectment against, 244, 245, 246, 247, 248, 249. petition of right against the crown in England, 244. government cannot be sued, 244. cannot be divested of property to which it has title, 244. may consent to be sued, 245. cannot be sued indirectly, 245. rule as to ejectment against officers and agents, 246, 247. Supreme Court decisions, 246, 247. Arlington case considered, 248, 249. jurisdiction through the instrumentality of the property or the agent, 249. opposing cases in New York noticed, 249, n. when vested with legal title bill in equity not maintainable against occupant, 171. 688 References] INDEX. [are to sections. UNOCCUPIED LANDS, parties defendant in cases of, 234. acts of trespass considered acts of possession, 234. USE AND OCCUPATION, action for, distinguished from mesne profits, 652. USQUE AD CCELUM ET AD INFERNOS, 105, 115- VARIANCE, rule in real actions, 3. See Complaint. under claim of fee simple, life estate not recoverable, 436. nor fee tail, 436. equitable title cannot be shown under complaint on legal title, 437- avoidance of, by amendment, 187, 189, 240, 464. VAULTS, ejectment for, 107. VEIN, or lode, ejectment for, 115. recovery of, gives no right to surface improvements, 115. VENDOR AND VENDEE, 304-326. ejectment between, 304. nature of the relationship, 315. rules governing landlord and tenant not applicable, 316. right of possession remains in vendor, 304. vendee holds as licensee, 305, 394. vendee's possession not adverse, 305. '■ at least until purchase-money is paid, 305, 751. (i.) Remedies of vendor, election of, 307. may sue for purchase-money, 307. bring specific performance, 307. or ejectment, 307. ejectment in certain cases maintainable when covenant or spe- cific performance cannot be brought, 306. rule as to parties, 325. waiver of forfeiture, 326. (2.) Nature of vendor's interest, in Georgia title remains in vendor until payment of purchase money, 308. • rule in Texas, 308. regarded as mortgage in Mississippi, 309. in Alabama vendor is trustee for vendee, 309. (3.) Demand of possession and notice to quit, not generally necessary, 310, 394, 395' 396. after default vendee's possession becomes tortious, 394. immediate right of action against him, 394. demand necessary in England, 394. English rule adopted in Virginia, 394. possession under void contract, 396. References\ INDEX. \are to sections. 68o VENDOR AND N'£:^Y)Y.'E— continued. (4.) Rescission of contract, must be i7i toto, 311. on bill to rescind, title offered at trial must be accepted, 311. notice of, rescission, 312. (5.) Tender of deed, objections to form of must be stated, 313. otherwise vendee is estopped, 313. when tender not necessary, 314. (6.) Estoppel, vendee in default cannot dispute vendor's title, 317, 318. basis of the estoppel, 317, 318. (7.) Vendee against vendor, in Georgia may bring ejectment after pay- ment or tender, 319. rule in Pennsylvania, 319. general rule, 319. vendee or vendor against trespasser, 320. vendee may assert equitable rights, 322, 486. rule as to, stated, 322. may insist upon part performance and damages, 321. asserting defective title must surrender possession, 323. allowance for improvements in such cases, 323. must show that title has failed, 324. judgment against vendee not binding on vendor, 536. VENUE— LOCAL AND TRANSITORY ACTIONS, actions for re- covery of realty are local, 465. must be brought in the county and State where the lands are situated, 465. county and State must be disclosed, 467. difference between local and transitory actions, 465, 470. the distinction very ancient, 465. illustrations, 465, n. action to declare a deed a mortgage is local, 465, n. so is action to compel conveyance, 465, n. so is action to restrain erection of a bridge, 465, n. so is an action for nuisance, 475, n. does not depend on difference between equitable and common law jurisdiction, 465. rule is the same in real actions, 465. also applies to mixed actions, 465 . ejectment a proceeding in rem, 249, 465. residence of the parties need not be stated, 466. distinction between actions local by nature and actions local by statute, 470. (i.) Local actions not maintainable in foreign jurisdictions, 465, 467, 542. no action maintainable for possession of lands in another county, 467. 44 6qO References^ INDEX. \