QJiinwU IGam Bt^aol IGibrarij 
 
Cornell University Library 
 KF 670.S44 1886 
 
 A treatise on the trial of title to land 
 
 3 1924 018 635 379 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018635379 
 
A TREATISE 
 
 TRIAL OF TITLE TO LAND; 
 
 INCLUDING 
 
 EJECTMENT; TRESPASS TO TRY TITLE; WRITS OF 
 
 ENTRY, AND STATUTORY REMEDIES FOR THE 
 
 RECOVERY OF REAL PROPERTY: 
 
 EMBRACING 
 
 %z&$tX awfl gqaifctfrle gilles uuft gjefettses. 
 
 AETHUE G*"SEDGWICK 
 
 if e 
 AND 
 
 FEEDEEICK S. WAIT. 
 
 SECOND EDITION, 
 
 REVISED AND ENLARGED. 
 
 NEW YOEK: 
 BAKEE, VOOEHIS & CO., LAW PUBLISHEES, 
 
 66 NASSAU STREET. 
 1886. 
 
Copyright, 1886, 
 By Arthur G. Sedgwick and Frederick S. Wait. 
 
 ittl 
 
 Willis McDonald & Co., Printers, 
 2S Park Row, N. Y. 
 
PREFACE TO SECOND EDITION. 
 
 This treatise has been oat of print for a year, and the authors 
 have expended much time and labor upon the present revised 
 and enlarged edition. Four new and important chapters on 
 Plaintiff's Title and Evidence, Defenses, Boundaries, and Eject- 
 ment in Federal Courts, have been written, the thirty chap- 
 ters in the first edition have been carefully revised, a large num- 
 ber of new sections have been added, and some twenty-six hun- 
 dred eases cited and discussed in addition to the thirty-six hun- 
 dred contained in the first edition. It is hoped that the labor 
 bestowed upon this edition may render the book more useful to 
 the profession. 
 
 The authors desire to express their obligations to Messrs. 
 Chaeles M. Da Costa and Frederick H. Man, of the New 
 York Bar, and to the Hon. William P. Ballinger, of the Gal- 
 veston Bar, for important suggestions and criticisms, which have 
 proved of great value in the preparation of this edition. 
 
 New York, January, 1886. 
 
PREFACE TO FIRST EDITION. 
 
 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 existing 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 modern 
 remedies constitute a single general system of procedure, dis- 
 guised under a variety of names. 
 
 In the United States a number of causes have contributed to 
 produce 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 still 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. Al- 
 most every volume of reports contains a considerable number of 
 actions to try title, and we have found ourselves, in the prepara- 
 tion 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, when- 
 ever occasion offered, the principles of law underlying them — 
 principles which, in some of the newer States, are occasionally ob- 
 scured 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, has 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 insuffi- 
 cient for that purpose, have been considered ; and the forms of ac- 
 tion which cannot be substituted for remedies in the nature of 
 ejectment discussed. 
 
Vi PREFACE TO FIRST EDITION. 
 
 The aim of the authors has been to present the questions in- 
 volved in the action to try title in its various stages ; the question 
 of parties ; the attorney's authority to institute the action ; the 
 complaint and answer (embracing a discussion of the rules which 
 govern in pleading and asserting titles or defenses in the modern 
 procedure) ; the description ; the venue ; the verdict ; the effect 
 of, and rights secured by, the judgment ; and the practice under 
 the writ of possession. To this have been added chapters on stat- 
 utory 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 consid- 
 eration of the titles of the different classes of owners of real 
 property — e. g., the rights of co-tenants, vendor and vendee, mort- 
 gagee and mortgagor, landlord and tenant, and municipal corpora- 
 tions. 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 impossi- 
 ble, to point out the principles which, as it seems to them, ought 
 to govern. In this part of the work they have received inval- 
 uable assistance from Mr. Francis 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 orig- 
 inal 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. Ballingek, 
 of the Galveston Bar. 
 
 New York, October, 1882. 
 
TABLE OF CONTENTS. 
 
 OHAPTEE I. 
 
 PAGE 
 
 HISTORY OF THE ACTION OF EJECTMENT, . . .1 
 
 OHAPTEE II. 
 
 SKETCH OF REAL ACTIONS IN THE UNITED STATES.— 
 
 TRESPASS TO TRY TITLE, 33 
 
 OHAPTEE III. 
 
 NATURE OF THE RIGHTS UPON WHICH ACTIONS TO TRY 
 TITLE ARE FOUNDED.— INTERESTS FOR WHICH EJECT- 
 MENT LIES.— WRONGS TO REAL PROPERTY, . . 48 
 
 OHAPTEE IV. 
 
 INTERESTS NOT RECOVERABLE IN EJECTMENT, . . 82 
 
 OHAPTEE V. 
 
 RELIEF PECULIAR TO EJECTMENT NOT TO BE HAD IN 
 
 OTHER ACTIONS, . . ... 94 
 
 OHAPTEE VI. 
 
 PARTIES PLAINTIFF, 113 
 
 OHAPTEE VII. 
 
 PARTIES DEFENDANT, 152 
 
Viii TABLE OF CONTENTS. 
 
 OHAPTBE VIII. 
 
 PAGE 
 
 EJECTMENT BY MUNICIPAL CORPORATIONS FOR STREETS 
 
 AND PUBLIC PLACES, . . . • • -185 
 
 CHAPTER IX. 
 
 EJECTMENT BETWEEN CO-TENANTS AND BY CO-TENANTS 
 AGAINST THD3D PARTLES, . . . .191 
 
 CHAPTER X. 
 
 EJECTMENT BETWEEN VENDOR AND VENDEE, . . 224 
 
 CHAPTER XL 
 
 EJECTMENT BETWEEN MORTGAGEE AND MORTGAGOR, . 238 
 
 CHAPTER XII. 
 
 EJECTMENT BETWEEN LANDLORD AND TENANT, . . 251 
 
 CHAPTER XIII. 
 
 NOTICE TO QUIT AND DEMAND OF POSSESSION, . . 268 
 
 CHAPTER XTV. 
 
 ATTORNEY'S AUTHORITY TO PROCEED, . 293 
 
 CHAPTER XV. 
 
 OF THE COMPLAINT, . . ... 298 
 
 CHAPTER XVI. 
 
 HOW THE LANDS ARE TO BE DESCRIBED 
 
 CHAPTER XVII. 
 
 VENUE.— LOCAL AND TRANSITORY ACTIONS 
 
 . 320 
 
 330 
 
TABLE OF CONTENTS. IX 
 
 OHAPTBE XVIII. 
 
 PAGE 
 
 OF THE PLEA. OR ANSWER, . 340 
 
 CHAPTER XIX. 
 
 OF THE VERDICT, ... .361 
 
 CHAPTER XX. 
 
 OF THE JUDGMENT, ... .369 
 
 CHAPTER XXI. 
 
 WRIT OF POSSESSION, .... .398 
 
 CHAPTER XXII. 
 
 STATUTORY NEW TRTALS, OR SECOND ACTIONS TO TRY 
 
 TITLE, . ........ 417 
 
 CHAPTER XXIII. 
 
 PROVISIONAL REMEDIES AND ANCILLARY RELIEF IN AC- 
 TIONS TO TRY TITLE, . . .440 
 
 CHAPTER XXIV. 
 
 TWO ACTIONS PENDING FOR THE SAME LAND.— CONSOLI- 
 DATION OF EJECTMENTS.— JOINDER OF LEGAL AND 
 EQUITABLE ACTIONS.— MISJOINDER OF ACTIONS— LIS 
 PENDENS, 458 
 
 CHAPTER XXV. 
 
 MESNE PROFITS AND DAMAGES 470 
 
 CHAPTER XXVI. 
 
 IMPROVEMENTS, .517 
 
TABLE OP CONTENTS, 
 
 OHAPTEE XXVII. 
 
 POSSESSION, 
 
 PAGE 
 
 . 545 
 
 OHAPTEE XXVIII. 
 
 ADVERSE POSSESSION UNDER STATUTES OF LIMITATIONS, . 558 
 
 CHAPTER XXIX. 
 
 INTENTION— CLAIM OP RIGHT, . • • 61 * 
 
 OHAPTEE XXX. 
 
 COLOR OF TITLE, ... . . 628 
 
 OHAPTEE XXXI. 
 
 PLAINTIFF'S TITLE AND EVIDENCE, ... 664 
 
 CHAPTER XXXII. 
 
 DEFENSES, . . . 698 
 
 OHAPTEE XXXIII. 
 
 BOUNDARIES, . . • '719 
 
 OHAPTEE XXXIV. 
 
 EJECTMENT IN FEDERAL COURTS, . ... 728 
 
 INDEX, . . 760 
 
TABLE OF CASES. 
 
 [References we to pages.'] 
 
 Abbey v. Merrick, 520, 529. 
 Abbott v. Abbott, 724. 
 
 v. Cromartie, 259. 
 
 v. Pratt, 133. 
 Abeel v. Van Gelder, 155, 158, 181, 182, 
 
 621, 687. 
 Abell v. Douglass, 333. 
 Abercrombie v. Baldwin, 204, 580, 632. 
 Aborn v. Smith, 725. 
 Ackley v. Tarbox, 116. 
 Acton v. Dooley, 727. 
 Adair v. Adair, 225. 
 Adam v. Ames Iron Co. 97, 199. 
 v. Briggs Iron Co. 102. 
 v. Inhabitants of Bristol, 516. 
 v. Kerr, 693. 
 Adams v. Alkire, 723. 
 
 u. Brown, 248. 
 
 ■v. Copper Co. 267. 
 
 v. Emerson, 73. 
 
 v. Frothins-ham, 365, 721. 
 
 v. Goose, 28. 
 
 v. McDonald, 296. 
 
 v. Saratoga & W. R. R. Co. 72. 
 
 v. Swansea, 688. 
 
 v. Wilson, 423. 
 
 v. Woods, 447. 
 Addison v. Crow, 703. 
 
 v. Dawson, 131. 
 v. Otway, 25. 
 Adkins «. Hudson, 605. 
 Adriance v. Sanders, 118. 
 Agate v. Lowenbein, 262. 
 Agee v. Williams, 137. 
 Agnew v. McElroy, 371. 
 Agricultural Bank v. Rice, 735. 
 Aguirre v. Alexander, 211. 
 Ahern v. White, 239. 
 Ahl v. Johnson, 237. 
 Ah Lee, In re, 633. 
 Aiken v. Benedict, 49, 89, 388. 
 Ainslie v. Mayor, <fec, of N. Y., 393, 467. 
 Ainsworth v. Ritt, 88. 
 Akerly v. Vilas, 228. 
 Alabama v. Georgia, 749. 
 Albergottie v. Chaplin, 97. 
 Albertson v. Reding, 163. 
 Alcom v. Morgan, 272. 
 
 Alden v. Grove, 113. 
 Alden's Case, 14. 
 Alderson v. Miller, 257, 258. 
 Aldrich v. Aldrich. 696. 
 Alexander v. Ellison, 540. 
 
 v. Gilliam. 46, 220. 
 v. Herr, 493, 494. 
 v. Kennedy, 203. 
 *. Polk, 580, 599. 
 *. Stewart, 599. 
 v. Wheeler, 343. 
 Alford v. Dewin, 218, 219. 
 
 v. Vickery, 290. 
 Allegheny Co. v. Gibson, 89. 
 Alleley v. Colley, 297. 
 Allen v. Bone, 293. 
 
 v. Bowen, 696. 
 
 v. Brown, 138. 
 
 v. Chatfield, 254. 
 
 v. City of Buffalo, 87. 
 
 v. Davison, 427. 
 
 v. Douglass, 351. 
 
 v. Dunlap, 153, 154, 156. 
 
 v. Gibson, 220. 
 
 v. Green, 293. 
 
 v. Hall, 192, 199, 202. 
 
 v. Hawley, 143. 
 
 v. Holding, 232. 
 
 v. Holton, 586, 627. 
 
 v. Jaquish, 272, 273, 274. 
 
 v. Kellam, 660, 713. 
 
 v. Morse, 699. 
 
 v. Ormond, 83. 
 
 v. Poole, 210. 
 
 v. Ranson, 130. 
 
 »>. JJivington, 648. 
 
 v. Smith, 502. 
 
 v. Suseng, 548. 
 
 v. TJtica, I. & K. R. R. Co. 391. 
 Allie v. Schmitz, 308, 387. 
 Allin v. Robinson, 762. 
 Allison v. C. & N. W. P.. Co. 297. 
 
 n. Elder, 350. 
 Almond v. Bonnell, 306. 
 Almony v. Hicks, 100. 
 Alsop v. Peck, 496. 
 Alston v. Collins, 610. 
 
 v. Wingfield, 226, 508. 
 
Xll 
 
 References] TABLE OP CASES. l«™ te W*»" 
 
 Altemaa v. Campbell, 587. 
 
 Altes v. Hinckler, 411, 509. 
 
 Alton (City of) v. Illinois Transp. Co. 610. 
 
 Alwood v. Mansfield, 253. 
 
 American Co. v. Bradford, 357. 
 
 Ins. Co. v. Oakley, 293. 
 Union Tel. Co. v, Middleton,330, 
 331, 332, 397. 
 Ames v. Beckley, 680. 
 •«. Harper, 158. 
 v. Hilton, 499. 
 Amesti v. Castro, 23, 380, 391. 
 Ammidown v. Granite Bank, 55. 
 Amondson v. Severson, 55. 
 Anderson ads. Darby, 128, 255. 
 v. Fisk, 343, 356. 
 v. Kent, 434. 
 V. Smitb, 158, 257, 668. 
 v. Talbot, 100. 
 Andrews v. Brown, 144. 
 
 v. Hooper, 358, 359. 
 v. Senter, 138. 
 v. Whittingham, 59. 
 Angel v. Smith, 175. 
 Angier v. Agnew, 240. 
 Annan v. Baker, 662. 
 
 v. Merritt, 234. 
 Anonymous (2 Abb. N. C. 56), 139. 
 (2 B. & Dal. 95), 80. 
 (1 Keble, 89), 297. 
 (3 Leon. 210), 56, 321. 
 (6 Mod. 16), 293. 
 (7 Mod. 39), 194. 
 ' (12 Mod. 211). 20. 
 (1 Salt 86), 293, 297. 
 (1 Salt 2601, 25, 359. 
 (2 Sid. 155), 400. 
 Ansonia Brass, &c, Co. v. Babbitt, 91, 411. 
 Apalachicola (City of) v. Apalachieola 
 
 Land Co. 188, 484, 513. 
 Apgar v. Christophers, 748. 
 Applegavth v. Russell, 400. 
 Argent v. Darrell, 417. 
 Argotsinger v. "Vines, 553. 
 Arlington Case, 168. 
 Armstrongs. City of St. Louis, 92, 174. 
 v. DuBois, 55. 
 v. Hinds, 306, 476, 482. 
 v. Jackson, 541, 673. 
 v. Morrill, 580,582,583,596,610. 
 (d. Tinker) v. Peirse, 733. 
 v. Risteau, 609. 
 v. Wheeler, 260. 
 v. "Wilkinson, 288. 
 Arnold v. Arnold, 370, 420. 
 v Stevens, 667. 
 v. Styles, 338. 
 Arnot v. Beadle, 199. 
 Arnsby v. Woodward, 266. 
 Arrington v. Liscom, 565. 
 Arundel v Springer, 508, 616. 
 Ash v. McGill, 414. 
 
 Asher v. Mitchell, 77. 
 
 v. Whitlock, 548. 
 Ashford v. Thornton, 3. 
 Ashley v. Ashley, 643. 
 Askew v. Patterson, 704. 
 Aslinu. Parkin, 5, 27,467,472,483,502,507. 
 Aspinwall v. Balch, 88. 
 Astor v. Hoyt, 240. 
 Ateheson v. Broadhead, 243. 
 Atherton v. Fowler, 510. 
 Atkins v. Hendree, 62. 
 
 v. Lewis, 700. 
 Atkinson v. Morrissy, 539. 
 
 v. Patterson, 636, 663. 
 Atkison v. Henry, 484. 
 Atlantic & P. Tel. Co. v. Balto. & O. R. R. 
 
 Co. 330. 
 Attorney General v. Baliol College, 522. 
 v. Earl of Craven, 536. 
 v. Hallett, 163. 
 v. Kerr, 531. 
 v. Parkhurst, 181 
 Attwood v. Fricot, 646, 650. 
 Atwell v. McLure, 298. 
 Atwood a. Atwood, 322. 
 a. Bearss, 556. 
 v. "Weems, 168. 
 Audley (Lord) v. Pollard, 17. 
 Aurand v. "Wilt, 534. 
 Austin v. Ahearne, 257. 
 
 ^.Bailey, 132, 133, 595. 
 v, Barrett, 210, 601. 
 v. Cambridgeport Parish, 139. 
 v Goodrich, 301. 
 v. Holt, 575, 584, 615. 
 v. Rust, 576. 
 
 v. Rutland R. R. Co. 63, 597. 
 v. Sehluyter, 309. 
 v. Snow, 107. 
 v. Stevens, 530. 
 v. "Wilson, 606. 
 Aventu. Hord, 475, 512. 
 
 v. Read, 44. 
 Averett v. Brady, 494, 504. 
 Averill v. Wilson, 716. 
 Avery v. Hall, 202. 
 Aycock v. Railroad, 697. 
 Ayer v. Phillips, 72, 387. 
 Ayers v. Watson, 723. 
 Ayres v. Bensley, 699. 
 v. Duprey, 349. 
 v. MeOonnel, 299. 
 
 Babcock v. Hoey, 606. 
 v. Lamb, 73. 
 Baca v. Ramos, 223. 
 Backus v. Chapman, 540. 
 Badeau v. Niles, 312. 
 Bader v. Zeise, 626. 
 Bagley v. Morrill, 724. 
 Bagnell v. Broderick, 740, 744, 747. 
 Bagot v. Williams, 370. 
 
Bef&rences] TABLE OP OASES. [«« to pages. 
 
 Xlll 
 
 Bailey ti. Bailey, 153. 
 
 v. Briggs, 95, 176. 
 v. Carleton, 637. 
 v. Fairplay, 375, 502. 
 v. Hilton, 133. 
 v. Hoppin, 715. 
 v. Ryder, 396. 
 v. Stewart, 133. 
 Bailiffs, &c, of Litchfield v. Slater, 368. 
 Baily v. Trammel], 195. 
 Bain v. Matteson, 136. 
 Bainbrigge v. Baddeley, 441. 
 Bains v. Perry, 513. 
 Bakeman v. Talbot, 55. 
 Baker v. Chastang, 307. 
 
 v. Gittings, 227, 283. 
 v. Hale, 594, 596. 
 v. Howell, 104. 
 v. Hunt, 314. 
 v. Nail, 145. 
 v. Ramey, 227. 
 v. Roe, 55. 
 
 v. Swan, 566, 630, 641, 662. 
 v. Whiting, 1 93. 
 Balbec v. Donaldson, 301. 
 Balch v. Jones, 193. 
 Balderidge v. Paterson, 20. 
 Baldwin v. Brown, 726. 
 v. Simpson, 553. 
 ■u. Stark, 755. 
 v. York, 450. 
 Ball v. Oullimore, 276. 
 u. Herbert, 79. 
 v. Palmer, 203. 
 v. Wyeth, 612. 
 Ballance v. Flood, 610. 
 Ballard v. Perry, 701. 
 Balmain v. Shore, 223. 
 Balto. Chem. Mfg. Co. v. Dobbin, 667. 
 Balto. & O. R. R. Co. v. Chase, 67. 
 
 v. Pittsburg, W. <& Ky. R. R. Co. 
 391. 
 Bancroft v. Wardwell, 479. 
 
 v. White, 547. 
 Banister v. Scott, 508. 
 Bank v. Bobo, 362. 
 v. Bridges, 395. 
 v. Carrollton R. R. Co. 154. 
 Bank of America v. Banks, 715. 
 Bank of Augusta v. Earle, 124. 
 Bank of Chenango v. Cox, 449. 
 Bank of the Commonwealth v. Hopkins, 390. 
 Bank of Utica v. Mersereau, 715. 
 Banker v. Banker, 425. 
 Banks v. Carter, 291, 292. 
 v. Ogden, 722. 
 v. Parker, 407. 
 Bannister v. Bull, 220. 
 Banyer v. Empie, 153, 155, 303. 
 Barbee v. Stinnett, 425. 
 Barclay v. Howell, 73, 822, 325. 
 v. Smith, 565. 
 
 Barclay v. Yeomans, 305. 
 Bard v. Nevin, 479. 
 Bargamin v. Clarke, 605. 
 Barger v. Hobbs, 386, 645, 637, 661. 
 Barges v. Hogg, 148. 
 Barker v. Bates, 722. 
 v. Bell, 606. 
 v. Dale, 61. 
 *. Salmon, 40. 
 v. Walbridge, 235. 
 Barlow v. Bell, 527. 
 Barnard v. Hart, 474. 
 Barnes v. Peterson, 321. 
 
 v. Wood, 234. 
 Barney v. Baltimore City, 164, 761. 
 v. Dolph, 747. 
 v. Keokuk, 64,188. 
 Barnitz v. Casey, 194, 368. 
 Barnstable (Inhabs.)u. Thacher, 548. 
 Baron v. Abeel, 298, 483, 502, 507. 
 Barr v. Gratz, 201, 610. 
 Barret v. Coburn, 195. 
 Barrett v. Allegheny Nat. Bank, 564. 
 v. Cocke, 524. 
 v. French, 220. 
 v. Watts, 334. 
 Barrow v. Nave, 218. 
 Barrows v. Kindred. 395, 428, 436, 460„ 
 
 729, 730, 731. 
 Barrs v. Jackson, 370. 
 Barry v. Sonoma Co. 174. 
 Barstow v. Adams, 148. 
 Bartholomew v. Edwards, 547. 
 
 v. Lyon, 127. 
 Bartlett v. Borden, 241, 246. 
 v. Emerson, 683. 
 v. Judd, 350. 
 v. Secor, 347. 
 Bartling v. Brnsuhn, 556. 
 Barton v. Erickson, 680, 
 v. Hamshire, 84. 
 v. Land Co. 522. 
 v. Morris, 715. 
 Barton Coal Co. v. Cox, 497, 504. 
 Barwick v. Fenwood, 25. 
 
 v. Thompson, 253, 254. 
 v. Wood, 681. 
 Basey v. Gallagher, 361. 
 Bass v. Firmen, 428. 
 v. Gilliland, 234. 
 v. Mitchell, 46. 
 v. Sevier, 691. 
 Batchelder v. Moore, 403. 
 Bates 0. Austin, 281. 
 
 v. Campbell, 546. 
 v. Conrow, 259. 
 v. Illinois Cent. R. R. Co. 67. 
 v. Ray, 333. 
 
 v. Rosekrans, 360, 361, 352. 
 v. Sparrell, 8. 
 Bath (Commrs.) v. Boyd, 185, 188. 
 (Earl of) v. Sherwin, 24. 
 
XIV 
 
 References} TABLE OF OASES. [are to pages. 
 
 Batterton v. Yoakum, 140. 
 Battin *. Bigelow, 30, 472. 
 Baucum v. George, 604, 629. 
 Baugh v. Baugh, 372. 
 Baumgarten v. Smith, 227. 
 Baxter v. Drake, 440. 
 
 v. Willey, 333. 
 Bayard v. Colefax, 160, 405, 734. 
 
 v. Inglis, 482. 
 Bay County v. Bradley, 190. 
 Baze v. Arper, 418. 
 Bazemore v. Davis, 139, 539, 601. 
 Beach v. Beach, 145. 
 v. Sutton, 645. 
 Beal v. Gordon, 723, 724. 
 
 v. Harmon, 140. 
 Beam v. Scroggin, 539. 
 Bean v. Bachelder, 613. 
 Bear v. Whialer, 137. 
 Beard v. Federy, 300, 317, 322, 325, 328, 
 476, 744, 756, 757, 759. 
 v. Hall, 112. 
 Beardslee v. Beardslee, 138. 
 
 v. French, 611. 
 Beardsley v. Torrey, 762. 
 Beatty o. Gregory, 85. 
 v. Mason, 570. 
 Beaupland v. McKeen, 575, 577. 
 Bech v. Ruggles, 462. 
 Becker v. Howard, 670. 
 
 v. Sauter, 433. 
 Beckley v. Newcomb, 176. 
 Beckmann v. Henn, 314. 
 Becnel v. Becnel, 539. 
 Bedell v. Constable, 128. 
 
 v. Shaw, 153, 523, 528, 529, 599, 
 603, 615, 616. 
 Bedford v. McElherron, 269, 272, 275. 
 Beebe v. Elliott, 386, 388. 
 Beecher v. Crouse, 123, 127. 
 
 v. Wetherby, 123, 150, 665. 
 Begg v. Begg 341. 
 Belfour v. Davis, 254, 256, 260. 
 Bell v. Barnet, 506, 527. 
 „. Coats, 660, 663. 
 u. Denson, 573, 574, 583, 593. 
 „. Longworth, 630, 645. 
 v, Medford, 317, 491. 
 Bellas v. Houtz, 330, 333. 
 Bellinger v. Martindale, 430, 433. 
 Bellis v. Bellis, 610. 
 Bellows v. Copp, 523. 
 
 v. Jewell, 662. 
 Bender v. Pitzer, 687. 
 Bendernagle v. Cocks, 370, 458. 
 Benedict v. Gilman, 522, 539. 
 Benefiel v. Aughe, 697. 
 Benfey v. Congdon, 279. 
 Benick v. Bowman, 715. 
 Benner v. Benner, 427. 
 Bennetw. Bullock, 201, 487. 
 v. Jenkins, 501. 
 
 Bennet v. Morris, 405. 
 Bennett v. Clemence, 203. 
 
 v. Criswell, 151. 
 
 v. Horr, 700. 
 
 v. Hunter, 168. 
 
 v. Leach, 393. 
 
 v. Robinson, 245. 
 
 v. Walker, 123, 174. 
 Bennington v. Goodtitle, 321. 
 Benson v. Matsdorf, 475. 
 
 a. Stewart, 225, 594, 607. 
 Bentley v. Brownson, 387. 
 Berkeley Peerage Case, 687, 689. 
 Bernal v. Gleim, 630, 662. 
 Bernard *. Elder, 341, 343. 
 Bernstein v. Humes, 243, 344. 
 Berridge v. Ward, 722. 
 Berry v. Donley, 525. 
 v. Keen, 444. 
 v. Whitaker, 319. 
 v. Wright, 724. 
 Berry v. Goodman's Case, 722. 
 Bertholdu. Fox, 193. 
 Bertles v. Nunan, 216. 
 Bertram ». Cook, 253, 256. 
 Best v. Allen, 499. 
 v. Polk, 744. 
 Bethell v. McCool, 194. 
 Betz». Mullin, 52, 153. 
 Beverley v. Fogg, 325. 
 Beverly v. Burke, 631, 659. 
 Bickeli). Polk, 79. 
 Bigelow v. Finch, 716. 
 
 v. Forrest, 763. 
 
 v. Jooes, 104, 475. 
 
 v. WiDSor, 370. 
 Biggers v. Bird, 245. 
 Bigler v. Morgan, 229. 
 Big Mountain Imp. Co.'s Appeal, 705. 
 Billings v. Hall, 618, 542. 
 Billington v. Welsh, 556. 
 Binda v. Benbow, 181. 
 Bindover v. Sindercombe, 57, 320, 321. 
 Bingham v. Barley, 126. 
 Binney v. Chesapeake & O. Canal Co. 299. 
 Birch v. Wright, 239. 
 Birchman v. Noright, 124. 
 Bird v. Decker, 328. 
 
 v. Defonvielle, 288. 
 v. Montgomery, 425. 
 v. Snell, 368. 
 Birmingham Iron Foundry v. Hatfield, 
 
 337. 
 Bisbee v. Evans, 766. 
 Bishop v. Lalouette, 253. 
 Bissell v, N. Y. Central R. R. Co. 722. 
 
 v. Penrose, 747. 
 Bitting v. Ten Eyck, 441. 
 Bixby v. Bent, 715. 
 Black, Ex parte, 405. 
 v. Black, 144. 
 v. Hepburue, 52, 81, 82, 83, 84. 
 
References} TABLE OF OASES. f>'« t° W««- 
 
 XV 
 
 Black v. Tricker, 341. 
 Blackburn v. Crawfords, 690. 
 Blackford v. Loveridge, 428, 427. 
 Blackmore v. Gregg, 198. 
 Blackwell v. Patton, 299. 
 Blair v. Bartlett, 370. 
 v. Blair, 237. 
 o. Claxton, 350, 356. 
 o, Pathkiller, 411, 415. 
 v. Wallace, 108. 
 Blake v. Dennett, 343. 
 v. Foster, 259. 
 v. Freeman, 330, 338. 
 v. Ham, 72. 
 
 v. National Banks, 121. 
 v. Sawin, 175, 177. 
 v. Tucker, 300, 715. 
 Blakeney i>. Ferguson, 202, 253, 254. 
 Blanchard v. Brown, 379, 382, 436, 729. 
 v. Chapman, 613. 
 v. Powers, 112. 
 Blauveltu. Smith, 400. 
 Bledsoe v. Little, 564. 
 
 v. Simms, 143, 348, 546. 
 Blessing v. Edmonson, 422. 
 Blight v. Ewing, 475, 489. 
 
 v. Rochester, 230, 716. 
 Bliss v. Johnson, 50, 568. 
 Bloodworth v. Stevens, 489. 
 Bloomer v. Sturges, 372. 
 Bloomstein v. Clees, 710. 
 Blount v. Horniblea, 148. 
 Blum v. Robertson, 277, 352. 
 Blundell v. Catterall, 79. 
 Blunt v. Aikin, 546. 
 Boardman v. Beckwith, 311. 
 v. Reed, 681, 744. 
 Boatner v. Ventress, 744. 
 Boatright v. Porter, 673. 
 Bobb v. Woodward, 668. 
 Bockes v. Lansing, 104, 106, 108, 109, 318 
 
 464, 474, 475, 480, 486. 
 Bodley v. Gaither, 541. 
 Bogardus v. Parker, 354. 
 Bogey v. Shute, 451. 
 Boggess v. Meredith, 197, 200. 
 Boggs v. Commonwealth, 79. 
 
 v. Merced Min. Co. 710, 711, 744. 
 Bogie v. Bogie, 137, 139. 
 Bogue v. Bigelow, 301. 
 v. Williams, 556. 
 Bohall v. Diller, 228. 
 Boland v. Gillett, 433. 
 Bolard v. Mason, 389. 
 Boles v. Cohen, 159. 
 v. Smith. 393. 
 Boiling v. Lersner, 494, 501. 
 v. Mayor, &c. 72. 73. 
 ■v. Teel, 115. 
 Bolton v. Hamilton, 207. 
 
 v. Landers, 281. 
 Bomberger v. Turner, 522. 
 
 Boner v. Juner, 222. 
 Bonithon v. Hockmore, 248. 
 Bonner v. Greenlee, 153. 
 
 v. Proprietors of Kennebeck Pur- 
 chase, 97. 
 v. Wiggins, 497, 517, 543. 
 Bonsall v. McKay, 276, 499. 
 Boogher v. Neece, 566. 
 Bool v. Mix, 126. 
 Boone v. Armstrong, 715. 
 Boorman v. Sunnuchs, 67, 102, 319. 
 Booth v. Adams, 202. 
 
 v. Clark, 150. 396. 
 v. Goodwin, 124. 
 v. Van Arsdale, 536. 
 Borland v. Box, 257. 
 Bornheimer v. Baldwin, 209. 
 Borough of Chambersburg v. Manko, 190. 
 
 Harrisburg v. Crangle, 367. 
 Borrets v. Turner, 610. 
 Boskowitz v. Davis, 211. 
 BoBt v. Setzer, 556. 
 
 Boston(City of) tr.R,ichardson,720,721,723. 
 Boston Water Power Co. v. Hanlon, 683, 
 
 684, 692. 
 Boston & W. R. R. Co. v. Sparhawk, 715, 
 
 726. 
 Boswell v. Otis, 396. 
 Bottorff v. Wise. 317, 476, 497. 
 Botts v. Shields, 125, 375, 890. 
 Bondette v. Pierce, 274, 275. 
 Boulo v. New Orleans, M. & T.R.R.Co. 608. 
 Bowdish v. Dubuque, 253. 
 Bowen v. Guild. 574, 588, 692. 
 
 v. Preston, 192. 348. 
 Bowers v. Keesecker, 231. 
 
 v. School Com'rs, 150. 
 v. Smith. 95. 
 Bowie v. Brahe. 91, 411. 
 Bowman v. McLaughlin, 693. 
 
 v. Wathen. 86. 
 Bowne v. Potter, 230. 
 Boyd v. Beck, 606. 
 v. Cowan, 477. 
 v. Dowie, 725. 
 v. Olvey, 147. 
 Boylan ads. Meeker, 678. 
 Boyle v. Zacharie, 732. 
 Boynton v. Bodwell, 287, 288. 
 Boyreau v. Campbell, 547, 762. 
 Bozeman v. Browning, 332. 
 Bracken v. Cooper, 211. 
 v. Jones, 569. 
 v. Preston, 104. 
 Brackett v. Persons Unknown, 637. 
 Bradbury v. Cony, 90. 
 Bradford v. Bradford, 372, 375. 
 
 v. Cressey, 722. 
 Bradley v. Ewart, 670. 
 ■u. Harkness, 97. 
 
 „. McDaniel, 181, 475, 484, 485. 
 v. West, 566,568,610,615,649,651. 
 
XVI 
 
 *] TABLE OF OASES. [are to pages. 
 
 Bradshaw v. Emory, 546. 
 BracUtreet, Exparte, 759. 
 
 v. Huntington, 205, 231, 567. 
 v. Supervisors, 148. 
 Brady v. Hennion, 90. 
 
 v. Huff, 633, 639, 640, 649. 
 
 ii. Weeks, 114. 
 Brainard v. Boston & N. Y. Cent. R. B. 
 
 Co. 722. 
 Braintree v. Battles, 211. 
 Brake v. Stewart, 326. 
 Bramble v. Kingsbury, 727. 
 Brandt v. Ogden, 600. 
 Branson v. Wirth, 741, 745. 
 Brant v. Va. Coal & Iron Co. 710, 712. 
 Bratton v. Mitchell, 142, 341. 
 Bray v. Marshall, 718. 
 Breading v. Blocher, 415. 
 Breed v, Osborne, 306. 
 Breeding v. Stamper, 710. 
 Breit v. Yeaton, 391, 529. 
 Bresee v. Stiles, 308. 
 Brevoort v. Brevoort, 391. 
 Brewer v. Beckwith, 502. 
 
 ■v. Boston & W. R. R. Co. 726. 
 v. Browne, 223. 
 Brewster v. Buckholts, 473, 490. 
 Bride v. Watt, 663. 
 Bridgeport Ins. Co. v. Wilson, 394. 
 Bridger v. Pierson, 394. 
 Bridges v. Cundiff, 46, 308, 309, 310. 
 Bridgewater v. Brookiield, 134. 
 Brigate v. Short, 28. 
 Briggs v. French, 762. 
 
 v. Light Boats, 163. 
 
 v. Prosser, 225, 663. 
 
 v. Wells, 386. 
 Bright v. Boyd, 614, 520, 522, 523, 527, 
 
 529, 533, 541. 
 Brimmer v. Prop'rs of Long Wharf,610,649. 
 Brine v. Insurance Co. 333. 
 Brinkerhoff v. Brinkerhoff, 368. 
 Brinkley v. Brinkley, 372. 
 Brinkman v. Jones, 241. 
 Bristoe v. Evans, 523, 580. 
 Bristol v. Carroll Co. 572. 
 Brittin v. Handy, 211, 212, 214. 
 Britton v. Thornton, 436. 
 Broadwell v. Phillips, 715. 
 Brobst v. Brock, 241, 250. 
 Broderick Will Case, 100, 133. 
 Broiestedt v. South Side R. R. Co. 99, 
 
 102, 104, 109, 110, 118, 388, 464. 
 Brolaskey v. Mc.Clain, 583, 589, 620. 
 Brondage v. Warner, 90. 
 Bronson v. Adams, 613. 
 v. Paynter, 132. 
 Brooke v. Bridges, 507. 
 Brookes {d. Mence) v. Baldwyn, 411. 
 Brookhaven (Trustees) v. Strong, 79. 
 Brookings v. Woodin, 646. 
 Brooklyn (City of), Matter of, 64. 
 
 Brooklyn Park Com'rs v. Armstrong, 706. 
 Brooks a. Brooks, 130. 
 
 v. Bruyn, 632, 651. 
 Broome v. Beers, 107. 
 Brothers v. Hurdle, 411, 510. 
 Broughton v. Broughton, 326. 
 Brown v. Anderson. 626. 
 
 v. Bigley, 297. 
 
 v. Bowen, 718. 
 
 v. Brackett, 156. 
 
 v. Bragg, 253. 
 
 v. Brown, 680, 681. 
 
 v. Caldwell, 510. 
 
 „. Chadwick, 60, 86. 
 
 v. Clifford, 244. 
 
 v. Coble, 465. 
 
 v. Cockerel! 622, 625, 626. 
 
 v. Colson, 132, 603. 
 
 v. Crim, 430, 433. 
 
 v. Crump, 261. 
 
 v. Galley, 72. 
 
 v. Galloway, 485, 492. 
 
 v. Homan, 209, 211. 
 
 v. Huger, 166, 167. 
 
 v. Keller, 281. 
 
 v. Leete, 627. 
 
 v. Leigh, 109. 
 
 v. Mayor, &c. 372. 
 
 v McCloud, 136, 489. 
 
 v. Metz, 301. 
 
 v. Miltimore, 344. 
 
 ii. Rose, 673, 578. 
 
 v. Smith, 250, 681. 
 
 v . South Western R. R. Co. 500. 
 
 v. State, 119. 
 
 v. Strickland, 134. 
 
 v. Supervisors, 607. 
 
 v. Volkening, 556. 
 
 v. Warren, 220. 
 
 v. Wells, 657, 662. 
 Browne v. Kennedy, 63. 
 Browning v. Estes, 224. 
 Brownsville v. Cavazos, 22, 423, 429. 
 Bruce v. Kelly, 454. 
 Bruck v. Tucker, 313, 341, 352. 
 Bruckner v. Lawrence, 723. 
 Bruckshaw v. Hopkins, 334. 
 Bruen v. Hone, 371. 
 
 Brumagim v. Bradshaw, 574, 580, 615, 620. 
 Brumbalo v. Baxter, 700. 
 Brundred v. Walker, 715. 
 Brush v. Cook. 393. 
 
 v. Mullen, 454. 
 Bryan v. Atwater, 617, 619. 
 v. Averett, 487. 
 v. Forsyth, 747. 
 v. Manning, 315. 
 Bryce v. Lorillard F. I. Co. 351. 
 Buchan v. Sumner, 223. 
 Buchanan v. Alexander, 164. 
 
 v. King, 209, 600, 602. 
 v. Streper, 49, 304. 
 
References] TABLE OF CASES. [«« to pages. xvii 
 
 Bucher v. Carroll, 422, 430. 
 Buck v. Fischer, 312. 
 
 v. Squiers, 131, 132, 133, 636, 644. 
 Buckley v. Buckley, 144, 223. 
 
 '"■ Taggart, 650. 
 Bucknam v. Bucknam, '722. 
 Budd v. Bingham, 49, 326, 465. 
 
 v. Walker, 512. 
 Buell v. Irwin, 359. 
 
 Buffalo, N. T. & E. R. R. Co. «.Stigeler,724. 
 Bufford v. Hollimao, 132. 
 Buhne v. Chism, 669. 
 Bullen v. Arnold, 703. 
 Bullion Mining Co. v. Croesus Gold & S. 
 
 M. Co. 62, 219. 
 Bullock v. Wilson, 492. 
 Bunce v. Gallagher, 102, 115, 315. 
 Bunge v. Koop, 302. 
 Bunker v. Locke, 453. 
 v. Rand, 703. 
 Buntin v. Doe d. Duchane, 141. 
 Burbank v. Fay, 120, 567, 610, 611. 
 
 v. Payne, 330, 332. 
 Burbury v. Yeomana, 321. 
 Burdell v. Blain, 640. 
 
 v. Burdell, 443. 
 Burden v. Stein, 453. 
 
 v. Thayer, 260. 
 Burdick v. Burdick, 117. 
 
 v. Heivly, 627. 
 Burdyne v. Mackey, 134, 137. 
 Burgess v. Gray, 547, 744, 74 8. 
 •b. Seligman, 729, 730. 
 v. Wheate, 236. 
 Burghardt v. Tan Deusen, 390. 
 Burhans v. Van Zandt, 209, 604. 
 Burke v. Hammond, 553. 
 
 v. Table Mountain Water Co. 343. 
 v. Tregre, 673. 
 Burkholder v. Casad, 311. 
 Burkle v. Ingham Circuit Judge, 523,538.' 
 Burlen v. Shannon, 372. 
 Burlington (City oi)v. B. AM.R.R.Co.611. 
 & M. R. R. Co. v. Harris, 718. 
 Burnet v. Bookstaver, 130. 
 Burnett v. Caldwell, 224, 225, 227,231,283. 
 Burnley v. Steyenson, 396. 
 Burns v. Bryant, 277. 
 v. Byrne, 192. 
 Burr v. Woodrow, 490. 
 Burrows v. Gallup, 587. 
 v. Miller, 430. 
 Burt v. Panjaud, 217, 548, 549, 671. 
 
 v. Sternburgh, 396. 
 Burtners v. Reran, 714, 715. 
 Burton v. Austin, 242. 
 
 v. Burton, 67, 143, 148. 
 v. Sherman, 294. 
 Burwell v. Jackson, 228, 706. 
 Busch v. Huston, 601. 
 Busenius v. Coffee, 343. 
 Bush v. Cooper, 715. 
 B 
 
 Bush v. Glover, 309. 
 
 v. Marshal], 231, 715. 
 v. Phillips, 450. 
 v. Treadwell, 331. 
 Buszard v. Capel, 55. 
 Butcher v. Rogers, 680. 
 v. Stultz, 244. 
 Butler v. Cowles, 479. 
 
 v. Lawson, 605. 
 
 v. Mason, 347. 
 
 v. Mountgarret, 681. 
 
 v. Stevens, 556. 
 
 v. Young, 739. « 
 
 Butler & Baker's Case, 31. 
 Butler University v. Conard, 464. 
 Butman v. Vermont Cent. R. R. 391. 
 Byrane v. Rogers, 291. 
 Byrd v. Chase, 480. 
 Byrne v. Van Hoesen, 127. 
 Byrom v. Chapin, 453. 
 
 Cadiz v. Majors, 350, 362 
 
 Cadwallader v. Harris, 392. 
 
 Cady v. Fitzsimmons, 612. 
 
 Cagger v. Lansing, 127, 375, 384, 388, 481. 
 
 Calm v. Barnes, 716. 
 
 Cahoon v. Coe, 178. 
 
 Cain v. Furlow, 204. 
 
 Cairns v. Chabert, 140. 
 
 Cairo & F. R. R. Co. v. Parks, 302, 811. 
 
 Calderwdod v. Brooks, 394, 557. 
 
 v. Pyser, 410. 
 Caldwell v. Copeland, 60, 577. 
 
 v. Fulton, 61, 82. 
 
 v. Neely, 203, 205, 6 JO. 
 
 v. Parmer, 223. 
 
 v. Walters, 400, 475, 512. 
 California v. McGlynn, 13S> 
 
 (City of) v. Howard, 187. 
 Q. Min. Co. v. Redington, 416. 
 Call ii. Chase, 353. 
 Callan v. McDaniel, 343. 
 Callender v. Sherman, 659. 
 Callis -a. Cogbill, 232. 
 Calvart v. Horsfall, 485. 
 Calvert v. Aldrich, 540.. 
 Camarillo v. Fenlon, 257, 319, 397. 
 Camden v. Haskill, 158, 160, 316, 405. 
 Camden <fc A. Land Co. v. Lippincott,64,67.. 
 Camell v. Clavering,. 81. 
 Cameron v. McRoberts, 760. 
 
 ». Phillips, 148. 
 Camley v. Stanfield, 259. 
 Camp v. Camp, 259. 
 
 v. Forrest, 375, 377. 
 v. Homesley, 474, 487. 
 Campau v. CampaUj 192. 
 
 v.. Dubois, 207, 602. 
 Campbell v. Arnold, 547. 
 v. Boyreau, 547. 
 V; Brown, 494. 
 ■v. Campbell, 192_ 
 
xviii References] TABLE OF CASES. [are to pages. 
 
 Campbell v. Fetterman.556. 
 v. Galbreath, 295. 
 v. James, 165, 166. 
 v. Johnson, 724. 
 v. Kuhn, 134. 
 v. Shipley, 265. 
 v. Shivers, 192. 
 v. Smith, 667. 
 Canal Appraisers v. People, 722. 
 Bank v. Hudson, 521, 523. 
 Fund Commrs. v. Kempshall, 722. 
 Canavan v. Gray, 96. 
 Oandee v. Burke, 151, 481, 482, 483. 
 v. Hayward, 114. 
 v. Haywood, 283, 286. 
 Canfield v. Ford, 82. 
 tCannon v. Bratne, 371. 
 
 v. Davies, 397, 483. 
 i). Stockmon, 665. 
 fOanteloo v. Doe d. Hood, 45. 
 < Cantey,«. Whitaker, 696. 
 Caperton v. Gregory, 198, 199. 
 
 v. Schmidt, 21, 42. 
 Caplen v. Drew, 548. 
 Capner v. Flemington M. Co. 453. 
 Carey v. Wilcox, ,108. 
 Carleton v. Darcy, 175, 421. 
 Carlisle v. Cooper, 561, 585. 
 Carman v. Beam, 475, 476, 482, 485. 
 v. Johnson, 352. 
 v. Pultz, 229. 
 Carnall v. Wilson, 134. 
 Carnes v. Piatt, 694. 
 Carpenter v. Allen, 294. 
 v. Bowen, 241. 
 v. Carpenter, 239, 242. 
 v. Denoon, 139. 
 v. Doe, 673. 
 «. Gwynn, 448. 
 
 v. Natoma W. & M. Co. 690,591. 
 v. Oswego & S. B. R. Co. 72, 
 
 74, 92, 174. 
 v. Ottley, 235. 
 v. Schermerhorn, 613. 
 Carpentier v. Mendenhall, 198, 200, 368, 
 488. 
 v. Mitchell, 487. 
 v. Small, 543. 
 Carr v. Carr, 244. 
 
 v. United States, 164, 165, 166. 
 Carrol v. Gillion, 570, 576. 
 Carroll v. Ballauce, 239, 242, 285. 
 
 v. O'Conner, 50. 
 Carrow v. Ferrior, 444. 
 Carruthers v. Bailey, 131. 
 Carson v. Baker, 283. 
 
 v. Boudinot, 673, 734. 
 v. Smart, 220. 
 ■a. Smith, 484. 
 Carter v. Carter, 509. 
 
 v. Doe d. Chaudron, 691. 
 ■v. Hoffman, 440. 
 
 Carter v.' Hunt, 155. 
 
 ■v. Montgomery, 688, 689. 
 
 ■a. Robinett, 667. 
 
 v. Roland, 144. 
 
 v. Seaggs, 50, 377. 
 
 v. Spencer, 744. 
 Cartwell v. Menifee, 293. 
 Cartwright v. Culver, 236. 
 Gary v. Edmonds, 589, 591. 
 
 v. Whitney, 610. 
 Casborne v. Scarfe, 239, 241. 
 Casey v. Adams, 171, 331, 396. 
 
 v. Gregory, 259. 
 
 v. Inloes, 63, 79, 667, 675, 692. 
 Casselman v. Packard, 58. 
 Cassidy v. Clark, 96. 
 Castle v. Noyes, 371. 
 
 v. Palmer, 77, 387. 
 Castleberry v. Black, 565, 657, 661. 
 Castleman v. Simpson, 248. 
 Castree v. Kirby, 440. 
 Castrique v. Imrie, 370. 
 Castro v. Gill, 291, 325. 
 
 v. Richardson, 309, 310. 
 Caswell v. Johnson, 79. 
 Cates v. Loftus, 301. 
 Catlin v. Bennatt, 349. 
 
 n. Decker, 604. 
 
 v. Kidder, 202. 
 Caton v. Carter, 678. 
 Catteris v. Cowper, 548, 553. 
 Caufman v. Cong, of Cedar Spring, 685. 
 
 v. Sayre, 241. 
 Caulkins v. Harris, 501. 
 Cauly v. Blue, 672. 
 Cava'lli v. Allen, 235, 351, 353. 
 Cavedo v. Billings, 99, 522. 
 Cavenderj). Smith, 486. 
 Cazenove v. Cutler, 248. 
 Central Pacific R. R. Co. v. Benity, 70, 188. 
 v. Mead, 613. 
 v. Mudd, 224. 
 Chalker v. Chalker, 266, 267, 314. 
 Challefoux v. Ducharme, 191, 201, 204. 
 Challenor v. Thomas, 63, 84. 
 Chamberlain v. Dempsey, 181. 
 ■v. Gaillard, 371. 
 v. Taylor, 118. 
 Chamberlin v. Donahue. 153, 276. 
 v. McCarty,'421, 433. 
 Chambers v. Furry, 73. 
 
 ■v. Handley, 142, 222. 
 v. Watson, 696. 
 Chambersburg (Borough) v. Manko, 190. 
 Chamblee v. Tarbox, 301. 
 Chamier v. Clingo, 483. 
 Champion v. Doughty, 331, 338. 
 
 v. Vincent, 499. 
 Champlain & St. L. R. R. Co. v. Valentine, 
 
 63. 
 Chance v. Branch, 567. 
 Chandler v. Keeler, 703. 
 
References] TABLE OF OASES. [are to pages. 
 
 XIX 
 
 Chandler v. Kent, 291. 
 
 v. McCard, 724. 
 
 11. Ricker, 203, 204. 
 
 v. Rushing, 594, 636, 641, 646. 
 
 v. Simmons, 115, 126. 
 
 v. Spear, 638, 647. 
 Chant v. Reynolds, 394. 
 Chapin v. First Univ. Society, 37, 145. 
 v. Sbafer, 127. 
 v. Walker, 107. 
 Chapman v. Armistead, 68, 375. 
 
 v. Barker, 762. 
 
 v. Dela. L. & W. R. R. Co. 240, 
 246, 307, 741. 
 
 v. Edmands, 685, 722. 
 
 v. Holding, 365. 
 
 v. Phoanix Nat Bank, 143, 300. 
 
 v. Pingree, 708. 
 
 v. Sharpe, 68. 
 
 v Templeton, 636, 651. 
 
 v. Towner, 273, 274. 
 Charlton v. King, 508. 
 Charman v. Charman, 147. 
 Charter Oak L. I. Co. v. Cummings, 407. 
 Chase v. Chase, 706. 
 v. Irvin, 395. 
 v. Peck, 244, 354. 
 v. Second Ave. R. R. Co. 273, 
 Chase's Case, 441. 
 Chastien v. Philips, 662. 
 Chatard v. O'Donovan, 162. 
 Chautauqua Co. Bank v. White, 430, 435. 
 Chautauque Co. Bank v. Risley, 149, 175, 
 
 396. 
 Cheatham v. Plinke, 266. 
 Cheesebrough v. Parker, 422. 
 Cheetham v. Hampson, 261. 
 Cheney v. Cheney, 114. 
 Cherry v. State, 690. 
 Chester v. Dickerson, 69. 
 Chethamw. Williamson, 85, 86. 
 Chew v. Chew, 136, 146. 
 Chicago (City of) v. Wright, 185, 188. 
 Chicago, B. & Q. R. R. Co. a. Knox Col- 
 lege, 174, 271, 272, 702. 
 Chicago & A. R. R. Co. v. Smith, 702. 
 Chicago <fc I. R. R. Co. v. Hopkins, 174. 
 Child v. Chappell, 51, 83, 92, 153, 303. 
 v. Kingsbury, 681. 
 v. Starr, 720. 
 Childress v. Monette, 243. 
 Chiles v. Calk, 119. 
 Chilsont). Buttolph, 155. 
 Chilton v. Niblett, 285. 
 Chiniquy v. Catholic Bishop, 162. 
 Chipman v. Hastings, 220. 
 
 v. Montgomery, 95. 
 Chirac v. Reinicker, 467, 486, 502, 603. 
 Cholmondeley v. Clinton, 52, 567. 
 Chouteau v. Eekhart, 747. 
 
 v. Gibson, 755. 
 Christenbury v. King, 680. 
 
 Christian v. Cabell, 228. 
 Christie v. Bloomingdale, 426. 
 
 v. Gage, 117, 118, 140,605. 
 Christy v. Pridgeon, 729. 
 
 v. Scott, 548. 
 Church v. Burghardt, 620. 
 
 v. Meeker, 548. 
 Church of North Greig v. Johnson, 203. 
 Churchill «. Onderdonk, 152, 301, 556. 
 Cincinnati (City of) v. White, 53, 70, 186. 
 Circassian, (The) Matter of, 91, 411. 
 City of Alton v. Illinois Transp. Co. 610. 
 Apalachicola v. Apalachicola Land 
 
 Co. 188, 484, 513. 
 Boston v. Richardson, 720, 721,723. 
 Brooklyn, Matter of, 64. 
 Burlington v. B. &M.R. R. Co. 611. 
 California v. Howard, 187. 
 Chicago)). WrUrht, 185, 188. 
 Cincinnati v. White, 53, 70, 186. 
 Dubuque v. Maloney, 71. 
 East St. Louis v. Hackett, 362, 387. 
 Hannibal v. Draper, 81, 188. 
 Los Angeles v. Signoret, 312. 
 Marietta v. Emerson, 433. 
 Natchez v. Vandervelde, 415. 
 Racine v. Crotsenberg, 75, 189. 
 St. Louis v. Gorman, 643. 
 v. Newman, 611. 
 Savannah v. Steamboat Co. 185.186. 
 Winona v. Huff, 188. 
 Clagett v. Kilbourne, 734, 737. 
 Clapp v. Bromagham, 97, 201, 205, 391, 
 
 629, 653. 
 Claridge v. Mackenzie, 260. 
 Clark «. Baker, 715. 
 v. Brazeau, 60. 
 v. Byreau, 490. 
 v. Chase, 594. 
 v. Clark, 143, 324. 
 v. Crego, 198, 201, 305. 
 v. Dillon, 301,302. 
 v. Gilbert, 578, 579, 581. 
 v. Graham, 333. 
 v. Holton, 314. 
 ■„. Keliher, 288. 
 v. Lockwood, 669. 
 v. Middlesworth, 140. 
 v. Owens, 691. 
 v. Parkinson, 410. 
 v. Parr, 501. 
 v. Potter, 593. 
 v. Scudder, 331. 
 v. Smith, 276. 
 v. Thompson, 308. 
 v. Tompkins, 513. 
 v. Trinity Church, 691. 
 v. Vaughan, 205, 222. 
 v. Wheelock, 276. 
 Clark's Appeal, 453. 
 Clarke v. Clarke, 253, 259, 344, 549. 
 v. Courtney, 640, 693. 
 
XX 
 
 References-] TABLE OF CASES. [are to pages. 
 
 Clarke v. Cummings, 263. 
 i>. DJgga, 671, 097. 
 v. Gibbons, 143. 
 v. Huber, 717. 
 v. McClure, 604, 615. 
 v. Wagner, 574. 
 Clason v. Bankin, 209. 
 Claussen v. Ray burn, 542. „ 
 Clay v. Edgerton, 302. 
 v. Gurley, 95. 
 v. Ransorne, 54. 
 Clayton v. Blakey, 272. 
 v. Rose, 612. 
 v. School District, 418. 
 v. Yarrington, 418, 425. 
 Clemens v. Clemens. 372. 
 Clement v. Perry, 575. 
 
 v. Youngman, 60, 82, 366. 
 Clerke v. Rowell, 21. 
 Cleverly v. Cleverly, 696. 
 Clewis v. Hartman, 543. 
 Cline v. Catron, 610, 692. 
 Clopton v. Booker, 330, 332. 
 Clooe v. Samm, 651. 
 
 v. Vaux, 25. 
 Clowser v. Joplin Min. Co. 504. 
 Clymer v. Dawkins, 192, 205. 
 
 v. Littler, 41 8. 
 Cobb v. Biddle, 489. 
 v, Zidd, 218. 
 v. Lavalle, 678. 
 v. Stokes, 270, 272. 
 Coburn v. Ames, 64, 119, 531. 
 
 v. Pacific L. & M. Co. 702. 
 Cocbeeo Manfg. Co. v. Whittier, 343. 
 Cochrane v. Faris, 597. 
 Codding, In re, 144. 
 Codman v. Evans, 722. 
 
 v. Winslow, 610. 722. 
 Cody v. Quarterman, 253, 276. 
 Cofer v. Echerson, 444. 
 Coffin v. Cooper, 228. 
 Cohens v. Virginia, 163. 
 Coiron v. Millaudon, 164. 
 Cokert;. Whitlock, 45S. 
 Colburn v. Mason, 202. 
 Colby v. Kenniston, 556. 
 Cold Spring Iron Works v. Inhabitants of 
 
 Tolland, 722. 
 Cole v, Aylott, 322. 
 i>. Gourlay, 704. 
 v. Greene, 261. 
 v. Irvine, 218, 219, 308. 
 v. Johnson, 521, 523, 526, 527. 
 v. Maxfield, 255. 
 v. Parker, 622, 623, 624, 626. 
 Coleman v. Billings, 297, 572, 630, 637,660. 
 v. Coleman, 212. 
 v. Doe d. Tish-ho-mah, 150. 
 v. Henderson, 365. 
 v. Manhattan Beach Imp. Co. 118. 
 «). Pearce, 718. 
 
 Coleman's Appeal, 504. 
 
 Coles v. Coles, 144, 223. 
 
 Colgrove v. Koonce, 1 79. 
 
 Colie v. Jamison, 147. 
 
 Collart v. Fifak, 87. 
 
 Collector v. Day, 163. 
 
 College Corner & R. G. Road Co. v. Moss, 
 
 322, 323. 
 Collier v. Sapp, 441, 446. 
 Collins v. Benbury, 78. 
 
 v. Hasbrouck, 263, 266, 291. 
 i). Johnson, 606. 
 v. Riley, 366. 
 v. Robinson, 246. 
 v. State, 339. 
 Collins Mfg. Co. v. Marcy, 139. 
 Collumb v. Read, 144. 
 Colman v. Clements, 206, 312. 
 
 v. Packard, 239. 
 Colson ii. Lewis, 753. 
 Colston v. McVay, 54. 
 Colvin v. Burnet, 567. 
 
 v. McCune, 577, 660. 
 Combs v. Cooper, 726. 
 
 v. Jackson, 127, 128. 
 Comm'rs of Bath v. Boyd, 185, 188. 
 
 Canal Fundi). Kempshall, 722. 
 Excise, Ac. v. Purdy, 293. 
 Georgetown v. Taylor, 190. 
 Commonwealth v. Alburger,611. 
 v. Andre, 716. 
 v. City of Roxbury, 54, 
 
 665, 721, 722. 
 v. McDonald, 611. 
 v. Moltz, 711. 
 v. Pejepscut Prop'rs, 716. 
 Comparet v. Hanna, 673. 
 Compton v. Randolph, 697. 
 Comyn v. Kyneto, 59, 67. 
 
 ■v. "Wheatly, 59. 
 Congden v. Lee, 443. 
 Conger v. Converse, 680. 
 v. Duryee, 266. 
 v. Parker, 351. 
 Congregation S. H. M. v. Halladay, 229. 
 Congregational Society v. Newington, 604. 
 Conu v. Conn, 210. 
 
 Conn. Mut. Life Ins. Co. v. Schwenk, 689. 
 Conner v. Goodman, 556. 
 
 v. Whitmore, 246. 
 Connolly v. Hammond, 428. 
 Connor v. Bradley, 266. 
 
 v. West, 320, 322. 
 Contreras v. Haynes, 221. 
 Conway v. Starkweather, 273. 
 Conyersw. Crosbie, 149. 
 
 v. Davis, 97. 
 Cooch v. Geery, 496. 
 Cook v. Babcock, 579. 
 v. Burnley, 337. 
 v. C, B. & O. R. Co. 83. 
 v. Creswell, 253, 287, 291. 
 
Bef&renees] TABLE OE CASES. \. a/re *° P a Ses. 
 
 XXI 
 
 Cook v. Dennis, 885. 
 v. Gerrard, 80. 
 v. McClure, 64, 67. 
 v. Rider, 548. 
 
 ii. St. Paul'sChurch, 116,187,138,308. 
 v. Toumbs, 533. 
 v. Travis, 699. 
 v. Wood, 693. 
 Coot County v. Chicago, B.<fcQ.R.R.Co.71. 
 Cooke v. Passage, 430. 
 
 v. Woodrow, 693. 
 Cooley v. O'Connor, 166, 167, 349. 
 Coolidge v. Learned, 561. 
 Cooper v. Austin, 726. 
 v. Davis, 453. 
 ii. Galbraith, 673, 760. 
 v. Lands, 148, 176. 
 11. Ord, 598, 631, 644. 
 ii. Roberts, 744. 
 v. Singleton, 180, 236. 
 v. Smith, 70, 72, 76, 253, 254,304. 
 v. Stower, 262. 
 ■o. Vierra, 727. 
 Cooterti. Baston, 391. 
 Copeland v. Copeland, 711. 
 
 v. Piedmont & A. L. I. Co. 96. 
 v. Sauls, 680. 
 Copley il. Riddle, 739. 
 Copper Hill Min. Co. v. Spencer, 441. 
 Coppinger v. Armstrong, 253. 
 Corbett v. Laurens, 530. 
 Corbleys v. Ripley, 685. 
 Corcoran v. Doll, 447. 
 
 v. Webster, 112. 
 Corder v. Dolin, 231. 
 Corkhill v. Landers, 726. 
 Corleyt). Pentz, 49, 106, 304. 
 Coruelius v. Ivins, 139. 
 Cornell v. Green, 135. 
 Cornell University v. Wis. Ceat. R. R. Co. 
 
 338. 
 Comes v. Minot, 90. 
 Cornet v. Winton, 150, 764. 
 Corning v. Smith, 107. 
 
 v. Troy Iron <fe Nail Factory, 84, 
 104, 118, 388, 625, 627. 
 Corporation of San Patricio a. Mathis, 425. 
 Cortelyou v. Van Brandt, 79. 
 Coryell v. Cain, 313. 
 Coster v. Peters, 58. 
 Costigan v. Wood, 227, 283. 
 Cotheal ads. Moorehouse, 126. 
 Cottingham v. King, 320, 405. 
 Cottle v. Young, 721, 722. 
 Cotton v. Gregory, 695. 
 Couch ii. Turner, 297. 
 Coulter's Case, 520. 
 County of Piatt ii. Goodell, 659. 
 Warren v. Marcy, 467. 
 Courtney v. Turner, 551, 553. 
 v. Woodworth, 228. 
 Courtright v. Burnes, 297. 
 
 Covell v. Dolloff, 247. 
 Covington v Stewart, 192, 203. 
 Cowell v. Colorado Springs Co. 139. 
 
 v. Springs Co. 139, 729. 
 Cowenhoven v. City of Brooklyn.72,92,174. 
 Cowly ii. Monson, 661. 
 Cox v. Clift, 87. 
 v. Cock, 679. 
 v. Dawson, 130. 
 v. Douglass, 449, 452. 
 v. Louisville, &c, R. R. Co. 187. 
 v. State, 681. 
 v. Walker, 145. 
 Craft v. Yeaney, 400. 
 Cragin v. Lovell, 331, 396. 
 Craig v. Leslie, 148. 
 ■a. Taylor, 222. 
 v. Wells, 139. 
 Cramer v. Benton, 351, 352, 353. 
 Crandall v. Gallup, 6, 41. 
 Crane v. Ghirardelli, 156. 
 v. Guthrie, 489. 
 v. Hyde Park, 138, 139, 314. 
 v. Marshall, 691. 
 v. Randolph, 94, 102. 
 Crary v. Goodman, 116, 342, 351, 352, 
 627, 639, 654, 655, 699. 
 v. Smith, 226, 229. 
 Crawford v. Burnham, 759. 
 
 v. Scovell, 130. 
 Crea v. Hertzler, 434. 
 Crease 1i. Barrett, 681. 
 Crecelius v. Mann, 350. 
 Creech v. Jones, 574. 
 Creekmur v. Creekmur, 629. 
 Creighton v. Proctor, 37, 344, 400. 
 Creque v. Sears, 349, 717. 
 Cresap v. Hutson, 28. 
 Crest v. Jack, 712. 
 Crews v. Burcham, 744. 
 Crim v. Handley, 705. 
 Crippen v. Morss, 192. 
 Crispen v. Hannavan, 565, 592, 595, 596, 
 
 598, 610, 640, 643, 651. 
 Criswell v. Altemus, 604. 
 Critehfield v. Humbert, 487. 
 Crocker v. Fothergill, 52, 54, 85, 388. 
 Crockett v. Drew, 176. 
 Cromwell v. County of Sac, 370, 382. 
 
 v. Holliday, 221. 
 Cronin v. Gore, 680, 726. 
 Crook v. Vandevoort, 192, 220. 
 Crooke v. Andrews, 87. 
 Crosby v. Dowd, 612. 
 
 ii. Dracut, 536. 
 Cross v. Carson, 138. 
 v. Martin, 715. 
 v. Robinson, 194. 
 ii. Sabin, 610. 
 Crotty v. Collins, 411. 
 Crouch v. Eveleth, 691. 
 Cruger v. Dougherty, 700. 
 
XX11 
 
 References] TABLE OE CASES. [are to pages. 
 
 Cruger «. Hudson River R. R. Co. 302. 
 ». McClaughry, 220. 
 v. McLaury, 133, 265. 
 Crunkelton v. Evert, 132. 
 Cryer v. Andrews, 205. 
 Cuddy v. Brown, 687. 
 Cudney v. Early, "723. 
 Culberhouse v. Sliirey, 212. 
 Culley v. Doe d. Taylerson, 563. 
 Culver v. Rhodes, 191, 200, 205, 206, 601, 
 602. 
 v. Rodgers, 102. 
 v. Woodruff Co. 339. 
 Camming v. Butler, 343. 
 Cummings v. MeGehee, 499. 
 v. Wyman, 198. 
 Cunningham v. Bradley, 158, 161. 
 
 v. City of Milwaukee, 435. 
 
 *. Frandtzen, 636, 641. 
 
 v. Macon & B. R. R. Co. 172 
 
 173. 
 v. McCollum, 323. 
 v. Morris, 497. 
 Curd v. Lackland, 463, 668. 
 Curran v. Shattuck, 105. 
 Currier v. Barker, 288. 
 v. Esty, 384. 
 v. Gale, 612. 
 v. Perley, 287. 
 Currin v. Spraull. 97. 
 Curtis v. Fox, ] 09. 
 
 v. Francis, 359. 
 v. Gay, 515, 531. 
 v. Sutter, 24. 
 Cushing v. Adams, 83. 
 Custard v. Musgrove, 311, 345, 355. 
 Cutter is. Waddingham, 494, 502. 
 Cutting v. Pike, 37. 
 Cutts v. King. 194. 
 Cythe v. La Fontain, 228, 235, 237. 
 
 Dacres (Lady) Case, 321. 
 Daggett i). Tracy, 524. 
 Dalby v. Booth, 348. 
 Dale v. Frisbie, 341. 
 
 v. Hunneman, 350. 
 
 v. Turner, 718. 
 Dally v. King, 303. 
 Dalston v. Janson, 368. 
 Dalton v. Bank of St. Louis, 555, 661. 
 Dame v. Dame, 57. 
 Dangerfield v. Paschal, 46, 424. 
 Daniel v. Green, 97. 
 Daniels v. Bates, 543. 
 Danner v. Brewer, 333. 
 Darby v. Callaghan, 141, 143. 
 
 v. McCarrol, 631. 
 DArras i>. Keyser, 233. 
 Dart v. Dart, 715. 
 
 v. Hercules, 326, 340. 
 Dater v. Troy Turnpike, &c. Co. 173. 
 Davant «. Cubbage, 220. 
 
 Davenport v. Sebring, 606, 614, 616. 
 
 v. Tnrpin, 726. 
 Davidson v. Barclay, 237, 317. 
 v. Lamprey, 428, 432. 
 v. Phillips, 51. 
 v. Seegar, 87. 
 v. Wallace, 210. 
 Davles' Case, 18. 
 Daviess v. Myers, 212. 
 Davis, The, 163, 146. 
 Davis v. Bowmar, 566, 573, 599, 600, 614, 
 616, 620. 
 v. Carpenter, 131. 
 v. Christian, 144. 
 v. Davis, 253, 679, 711, 717. 
 v. Delpit, 472, 490. 
 v. Easley, 576. 
 v. Gray, 149, 167, 170. 
 v. Higgins, 662. 
 v. Judge, 392. 
 ■v. King, 210. 
 v. Lottich, 193. 
 v. Louk, 505, 520, 628, 540. 
 ■u. McArthur, 346, 565, 596. 
 v. Murphy, 274, 277. 
 v. Powell, 541. 
 v. Smith, 727. 
 v. Strobridge, 236. 
 v. Townsend, 727. 
 v. Wilcoxen, 673. 
 Dawley v. Brown, 22, 35,117,371,386,388, 
 395,413,416,458,459,460. 
 ». Van Court, 660. 
 Dawson v. Hayden, 112. 
 
 v. McGill, 476, 482, 491. 
 v. Mills, 220. 
 v. Shillock, 428, 429. 
 v. Watkins, 303. 
 Day v. Alverson, 546. 
 v. Cochran, 604. 
 v. Howard, 192, 194, 205. 
 v. Solomon, 226, 284. 
 v. Wilder, 598, 620. 
 Dayton v. Dayton, 241. 
 Deacon v. Shreve, 337. 
 Dean v. Comstock, 283. 
 v. Feeley, 516. 
 v. Feely, 507. 
 v. Tucker, 480, 491, 501. 
 Debris Case, 219. 
 lJecharms v. Horwood, 222. 
 Decker v. Adams, 270, 272. 
 DeCourcy v. Stewart, 331, 397. 
 Deep River Gold M. Co. v. Fox, 448. 
 Deere v. Guest, 103. 
 Deerfield (Inhabs.) v. Arms, 66. 
 De Force v. W elch, 64. 
 De Graw v. Taylor, 178. 
 Delacroix v. Chamberlain, 734. 
 De Lancey v. Ganong, 139, 253, 264, 265. 
 Delano v. Bennett, 429,433. 
 Delaplaine v. Hitchcock, 711. 
 
Beferences] TABLE OP CASES, [wre to pages. xxiii 
 
 Delavan v. Duncan, 229. 
 De Laveaga v. Williams, 761. 
 Demaret v. Bennett, 2S6. 
 De Mill v. Lockwood, 114, 116. 
 v. Moffat, 115, 594, 714. 
 De Mott v. Hagerman, 510. 
 Demuth v. Cutler, 335. 
 Den v. Ashmore, 260. 
 
 (A Smallwood) v. Bilderback, 405. 
 (A Hankinson) v. Blair, 279. 
 (A Obert) v. Bordine, 145. 
 (A Farley) v. Craig, 52, 82. 
 (A Hopper) v. Demarest, 715. 
 v. Dimon, 246. 
 ■ii. Drake, 270, 274. 
 v. Fen, 180. 
 
 (A Howell) v. Howell, 276. 
 (A Saxton) v. Hunt, 641, 646, 662. 
 v. Johnson, 405. 
 (d. Stewart) v. Johnson, 463. 
 v. Kimble, 462. 
 v. Lunsford, 483. 
 v. McShane, 299, 502. 
 (d. Phillips) v. Phillips, 323, 329. 
 (d. Price) v. Sanderson, 360. 
 v. Sinnickson, 126. 
 v. Snowhill, 68. 
 
 (A Snowhill) v. Snowhill, 274, 280. 
 v. Steward, 177. 
 v. Stockton, 239. 
 v. Webster, 285. 
 v. Westbrook, 284. 
 v. Wright, 246, 759. 
 Denham v. Cornell, 134. 
 
 v. Hollmau, 585. 
 Denman v. Prince, 540. 
 Denn (A Delatouche) v. Chubb, 507. 
 Dennis v. Kelso, 20. 
 Dennison v. Genesee Circuit Judge, 429. 
 
 v. Read, 253. 
 Dent v. Simmons, 402, 403. 
 Denton v. JSoyes, 293, 297. 
 Department of Parks, Matter of, 116, 225, 
 
 607. 
 De Puy v. Strong, 219. 
 
 v. Williams, 51, 193, 313, 701. 
 Derby v. Jacques, 41. 
 Dermott v. Wallach, 264. 
 De Euyter v. Trustees of St. Peter's 
 
 Church, 556. 
 Despard v. Churchill, 134. 
 
 v. Walbridge, 259. 
 Detroit & M. E. R. Co. v. Brown, 705. 
 Devacht v. Newsam, 269. 
 Deveney v. Gallagher, 725. 
 Devens v. Bower, 343. 
 Devereux v. Devereux, 95. 
 Deyonsher v. Newenham, 24. 
 Devyr v. Schaefer, 225, 603, 613, 625. 
 Dew v. Katz, 318. 
 Dewees' Estate, 703. 
 Dewey v. Bordwell, 726. 
 
 Dewey v. Brown, 220, 221. 
 v. Hoag, 350, 351. 
 v. Lambier, 222. 
 v. McLain, 605. 
 v. Osborn, 474, 492, 499, 502. 
 v. Williams, 138. 
 Dewitt v. Village of Ithaca, 72. 
 De Wolfa. Haydn. 715 
 
 v. Sprague Mfg. Co. 107, 239. 
 Dexter v. Hall, 126, 131. 
 De Toung v. Buchanan, 479. 
 Dezengremel v. Dezengrernel, 347. 
 Dial v. Reynolds, 107. 
 Dibble v. Clapp, 166, 172. 
 Dick v. Hamilton, 531. 
 Dickens v. Miller, 697. 
 Dickerson v. Colgrove, 528, 713, 740, 741 . 
 v. Hendryx, 304. 
 v. Talbot, 715. 
 Dickey v. Armstrong, 114. 
 Dickinson v. Hayes, 372. 
 Dietrick v. Noel, 612, 625. 
 Diggle v. Boulden, 228, 235. 
 Diggs v. Kirby, 236. 
 Dillaye v. Wilson, 158, 358. 
 Dillingham v. Brown, 661. 
 Dillon v. Dougherty, 145. 
 Dilworth v. Fee, 50. 
 Dimick v. Campbell, 502. 
 v. Deringer, 159. 
 Dingey v. Paxion, 546. 
 Disdale v. lies, 276. 
 Divine v. Mitchum, 144. 
 Dixon v. Doe A Porter, 744. 
 
 v. Oliver, 229. 
 Doak v. Wiswell, 372. 
 Doan v. Sloan, 555. 
 Dobbins v. Baker, 472. 
 
 v. Commissioners, 163. 
 Dobson v. Culpepper, 260. 
 v. Dickson, 612. 
 v. Murphy, 632. 
 Dockray v. Milliken, 530. 
 Dodge v. Colby, 331. 
 v. Page, 485. 
 v. Walley, 151. 
 v. Wellman, 244. 
 Doe (A Moore) v. Abernathy, 126. 
 
 (A Earl of Falmouth) v. Alderson, 52, 
 
 60, 85. 
 (A Sheppard) v. Allen, 266. 
 v. Alston, 126. 
 v. Amey, 272. 
 
 (A Queen) v. Archbishop of Tork,387. 
 v. Archer, 287, 288. 
 (A Manton) v. Austin, 253. 
 (A Green) v. Baker, 144, 289. 
 (A Brayne) v. Bather, 396, 459, 460 
 (A Pinlayson) v. Bayley, 276. 
 (A Patrick) v. Beaufort, 138. 
 v. Bell, 272. 
 v. Biggs, 292. 
 
XXIV 
 
 Inferences] TABLE OF CASES. 
 
 [are to pages. 
 
 Doe (d. Nash) v. Birch, 266. 
 
 (d. Hellings) v. Bird, 200, 203. 
 
 (d. Colnaghi) v. Bluck, 56. 
 
 (d. Morgan) v. Bluck, 21, 84, 400. 
 
 (d. Darlington) ^, Bond. 262. 
 
 (d. Harrison) v. Botts, 218. 
 
 v. Bradbury, 134. 
 
 (d. Bather) v. Brayne, 679. 
 
 v. Brewer, 359. 
 
 (d. Winnall) v. Broad, 323, 329. 
 
 (d. Brumfield) v. Brown, 224. 
 
 v. Browne, 274, 289. 
 
 (d. Freeland) v. Burt, 56, 57. 
 
 v. Butler, 115, 299. 
 
 (d. Whayman) u.Chaplin,222,289 290. 
 
 (d. Clun) v. Clarke, 279. 
 
 (d. Mills) v. Clayton, 546. 
 
 (d. Darling-ton) v. Cock. 158. 
 
 ». Coekell, 272. 
 
 (d. Harding) v. Cooke, 549. 
 
 v. Cooper, 180. 
 
 (d. Minister, &c.) v. Cowley, 84. 
 
 (d. Davies) v. Creed, 282. 
 
 (d. Macartney)?;. Crick, 288, 292. 
 
 v. Davis, 508. 
 
 (d. Lloyd) v. Deakin, 691. 
 
 v. Durnford, 292. 
 
 (d. Hughes) v. Dyeball, 548. 
 
 (d. Davis) v. Elsam, 263, 264, 675. 
 
 (d. Poole) v. Errington, 14, 218. 
 
 (d. Farmer) u. Eslava, 593. 
 
 v. Fenn, 222. 
 
 v. Filliter, 508. 
 
 (d. Watson) v. Fletcher, 26. 
 
 v. Forster, 292. 
 
 {d. Bailey) v. Foster, 289. 
 
 v. Franklin, 182. 
 
 (d. Pultney) o. Freeman, 462. 
 
 v. Frowd, 280. 
 
 id. Turner) v. Gee, 96. 
 
 (d. Lyster) v. Goldwin, 287, 289. 
 
 (d. Parker) v. Gregory, 605. 
 
 v. Griffin, 691. 
 
 (d. Henry) v. Gustard, 460. 
 
 Id. Saye) v. Guy, 133. 
 
 (d. Hamilton) v. Hardy, 45. 
 
 v. Hare, 508, 509. 
 
 v. Harlow, 375. 
 
 (d. Hickman) v. Hickman, 336. 
 
 (d. Wawn) v. Horn, 49. 
 
 v. Huddart, 507. 
 
 v. Hughes. 290. 
 
 (d. Godsell) v. Inglis, 272. 
 
 Id. Hudgens) v. Jackson, 45. 
 
 (d. Matthews) v. Jackson, 287. 
 
 (rf. Vickery) v. Jackson, 263. 
 
 (d. Pritchard) v. Jauncey, 563. 
 
 v. Je3son, 691. 
 
 (d. Dalton) v. Jones, 263. 
 
 (d. Jones) v. Jones, 276. 
 
 (d. Bish)ii. Keeling, 263. 
 
 v. Keen, 192, 215. 
 
 Doe (d. Bedford) v. Kightley, 287. 
 
 (d. Cannon) v. Killen, 690. 
 
 (d. Ibbetson) v. Land, 148. 
 
 (d. Williams) v. Lloyd, 336. 
 
 (d. Bennett) v. Long, 280. 
 
 (d. Stephens) v. Lord, 401. 
 
 (d. Roby) v. Maisey, 278, 285. 
 
 (d. Palk) v. Marchetti, 675, 676. 
 
 (d. Harris) v. Masters, 291. 
 
 (d. Atkinson) v. McLeod, 128. 
 
 (d. Davis) v. Minge, 45. 
 
 (d. Manvers) v. Mizem, 289. 
 
 v. Morse, 275. 
 
 (d. Harrison) v. Murrell, 142. 
 
 (d. Butcher) v. Musgrave, 84. 
 
 (<*. Baylor) v. Neff, 319. 
 
 (d. Miller) v. HodeE, 124, 275, 286. 
 
 v. Butt, 68. 
 
 (d. Garrod) v. Olley, 285. 
 
 v. Palmer, 291. 
 
 (d. Dillon) v. Parker, 280. 
 
 (d. Will ams) v. Pasquali, 279, 280. 
 
 v. Pearson, 222. 
 
 {d. Flower) v. Peck, 263. 
 
 (d. Bristow) v. Pegge, 26, 733. 
 
 v. Perkins, 493, 5"7. 
 
 (d. Birch) v. Philips, 329. 
 
 {d. Whitehead) v. Pittman, 280. 
 
 v. Porter, 135, 274, 286. 
 
 (d. Phillips) v. Porter, 724. 
 
 (d. Bixon) »>. Potts, 218. 
 
 (d. Price) v. Price, 276. 
 
 v. Pritchard, 680. 
 
 (d. Griffith) v. Pritchard, 150. 
 
 (d. Fishar) v. Prosser, 192, 193, 199, 
 202, 206. 
 
 (d. Marsack) v. Read, 149, 222, 289. 
 
 v. Reade, 548. 
 
 v. Rees, 266. 
 
 (d. Kennedy) v. Reynolds, 590, 591. 
 
 (d. Rhodes) v. Robinson, 289. 
 
 (d. William IV) v. Roberts, 119. 
 
 v. Robson, 676. 
 
 ■v. Roe (30 Ga. 553), 156. 
 
 v. Roe (31 Ga. 693), 691. 
 
 (d. Barrett) v. Roe, 46. 
 
 (d. Child) v. Roe, 329. 
 
 (d. Cox) ji.Roe, 287. 
 
 (d. Darwent) v. Roe, 19. 
 
 (d. Feldon) v. Roe, 26. 
 
 (d. Gigner) v. Roe, 194. 
 
 (d. Leigh) v. Roe, 163. 
 
 (d. Lloyd) v. Roe, 182. 
 
 (d. Pearson) v. Roe, 180. 
 
 (d. Pitcher; v. Roe, 404. 
 
 (d. Roberts) v. Roe, 323, 329. 
 
 (d. Vernon) v. Roe, 329. 
 
 (</. Williamson) v. Roe, 158. 
 
 ii. Rosser, 108. 
 
 (d. Pitt)?). Shewin, 263. 
 
 {d. Clarke) v. Smaridge, 274 275. 
 
 v. Smith, 286. 
 
Beferences] TABLE OF CASES. [are to pages. 
 
 XXV 
 
 Doe (<?. Bailey) v. Smyth, 27. 
 
 v. Smythe,253, 255. 
 
 v. Somerton, 292. 
 
 (rf. Strickland) v. Spence, 270. 
 
 (d. Clark) v. Spencer, 148. 
 
 v. Spiller, 287, 288. 
 
 v. Spry, 263. 
 
 {d. Gray) v. Stanion, 281. 
 
 v. Staple, 3, 26, 733. 
 
 fl. Staunton, 162. 
 
 Id. Hollingsworth) v. Stennett, 274. 
 
 (d. Bright) v. Stevens, 591. 
 
 {d. Tilt) v. Stratton, 272. 
 
 v. Summersett, 290. 
 
 (d. Reed) v. Taylor, 204. 
 
 v. Terry, 272. 
 
 {d. Davies) v. Thomas, 276. 
 
 v. Turford, 292. 
 
 (d. Saxton) v. Turner, 329. 
 
 (d. Ogle) v. Vickers, 243. 
 
 v. "Walters, 289. 
 
 (d. Forster) v. Wandlass, 411. 
 
 v. "Watt, 253. 
 
 v. West, 547. 
 
 (d. Stace) v. Wheeler, 135. 
 
 v. Whitcnmb, 483. 
 
 (d. Jefferies) v. Whittick, 279. 
 
 v. Williams, 280. 
 
 (d. David) v. Williams, 291. 
 
 (d. Egremont) v. Williams, 329. 
 
 v. "Wilson, 744. 
 
 (d. Drapers Co.) v. "Wilson, 405. 
 
 (d. Upton) v. Witherwick, 411, 509. 
 
 (d. Oldham) v. "Wolley, 691. 
 
 v. Wood, 85. 
 
 v. Woodman, 291. 
 
 v. Wright, 375. 
 
 (d. Matthew son) v. Wrightman, 287. 
 
 [d. Shewen) v. Wroot, 734. 
 
 [d. Elle) v. Young, 146. 
 Dogan v. Seekright, 723. 
 Doggett v. Hart, 145, 146, 725. 
 Dolby v. Miller, 154, 179. 
 Doldet). Vodicka, 726. 
 Dolittle v. Eddy, 53, 225, 231, 283. 
 Doll v. Feller, 324, 332. 
 Dulph v. Barney, 220. 
 Dolton v. Cain, 741. 
 Dominy v. Miller, 546. 
 Donahue v. Gallavan, 646. 
 Donald v. McKinnon, 253. 
 Donaldson v. Waters, 113. 
 Donnelly v. Simonton, 244. 
 Donovan v. Vandemark, 60, 156. 
 Doolittle v. Greene, 302. 
 v. Linsley, 155. 
 Dorland v. Magilton, 606. 
 Dormer v. Fortescue, 513. 
 Dorn v. Beasley, 220. 
 
 ■o. Dunham, 523, 525, 529. 
 Dorr v. School District, 574. 
 Dorrell v. Johnson, 272. 
 
 Doscher v. Blackiston, 517. 
 Doswell v. Buchanan, 715. 
 
 v. De La Lanza, 594. 
 Dothage v. Stuart, 527. 
 Dothard v. Denson, 572. 
 Doty v. Brown, 371. 
 v. Gorham, 57. 
 Doughty v. Conover, 79. 
 Douglas v. Fulda, 258. 
 Douglass v. Scott, 715. 
 
 ii. Tullock, 660. 
 Doulson v. Matthews, 330. 
 Dow v. McKenney, 625. 
 Dowd v. Faucett, 529. 
 
 v. Gilchrist, 132. 
 Downer v. Smith, 352, 
 Downs v. Cooper, 108, 255, 257. 
 Dows v. Congdon, 539. 
 Doyle v. Franklin, 397. 
 
 v. Hallam, 22, 380. 
 Drake v. Curtb, 721. 
 
 v. Root, 715. 
 Draper v. Draper, 69. 
 
 v. Kirkland, 330. 
 
 v. Shoot, 574. 
 Dresel v. Jordan, 228. 
 Dressers. Dresser, 488. 
 Dreux v. Kennedy, 167, 169. 
 Drew v. Drew, 724. 
 
 v. Swift, 554, 724. 
 v. Valentine, 665. 
 Drexel v. Man, 501, 502. 
 Drury v. Conner, 513. 
 
 v. Fitch, 130. 
 Dube v. Smith, 218. 
 Dubois v. Campau, 207, 210. 
 
 v. Cassidy, 149. 
 
 v. Newman, 739. 
 Dubuque (City of) v. Maloney. 71. 
 Duchane v. Goodtitle, 134, 136. 
 Duchess of Kingston's Case, 370, 380. 
 Dudley v. Chanfrau, o 1 . 
 DuSv. Wilson, 211, 260. 
 Duffy v. Donovan, 514, 516, 533. 
 Dugan v. Colville, 235. 
 
 v. Follett, 715. 
 Duke v. Harper, 279, 297. 
 Dummer v. Jersey City, 185, 188. 
 Dumper v. Syms, 267. 
 Duncan v. Campau, 447. 
 
 v. Jackson, 503. 
 Dunckel v. Wiles, 420. 
 Dungan v. Von Phul, 506. 
 Dunham v. Williams, 722. 
 Dunlap v. Stetson, 722. 
 
 v. Wright, 227. 
 
 v. Yoakum, 504. 
 Dunn v. Bagby, 524. 
 
 ii. Clarke, 339, 760. 
 v. Large, 483. 
 
 ii. Miller, 22, 382, 546, 589. 
 Dunning a. Jisher, 132, 240. 
 
XXVI 
 
 References-] TABLE OP OASES. [are to pages. 
 
 Dupas t'. Wassell, 716. 
 Du Pont v. Davis, 351. 
 
 v. Ervii), 411, 414 
 Dupuy v. Leavenworth, 144. 
 "Durand v. Sage, 237. 
 Duryee v. M .yor, <tc, of N. Y. 500. 
 Dusenbury v. Dusenbury, 317. 
 
 v. Mutual Un. Tel. Co. 73. 
 Duson v. Dupre', 297. 
 Dutton v. Warschauer, 153, 182. 
 Duty v. Graham, 241. 
 Duvall v. Waters, 262. 
 Dyer v. Toothaker, 250. 
 
 Eagan v. Delaney, 308, 311. 
 
 Eagle Fire Co. v. Lent, 107. 
 
 Eagle Woolen Mills Co. *. Montieth, 680. 
 
 Eakin v. Erewer, 516. 
 
 Earl of Bath v. Sherwin, 24. 
 
 Lonsdale v. Nelson, 89. 
 Sussex v. Temple, 192. 
 Earle v. Hale, 254. 
 
 v. McVeigh, 292. 
 Earley v. Euwer, 693. 
 Early v. Friend, 487, 488, 502. 
 Easterling 0. Blythe, 47. 
 Eastern R. R. 0. Allen, 577. 
 East HarSpton (Trustees) 0. Kirk, 64, 65, 
 
 592. 
 Eastman v. Fletcher, 37. 
 
 0. Linn, 426. 
 East N. Y. & J. R. R. Co. 0. Elmore, 370. 
 Easton n. Salisbury, 744. 
 East St. Louis (City of) 0. Hackett, 362, 
 
 387. 
 Eastwic 0. Saylor, 486. 
 Eaton 0. Freeman, 603. 
 
 0. George, 270, 272. 
 0. Smith, 668. 
 0. Trowbridge, 461. 
 Ebbert's Appeal, 145. 
 Ebbinghaus v. Killian, 605. 
 Eberle 0. Fisher, 148. 
 Eberlein ». Abel, 276. 
 Eberly 0. Lehman, 676. 
 Eberts v. Eberts, 524. 
 Eberwine v. Cook, 270, 279. 
 Echelkamp v. Schrader, 104. 
 Edgar v. Galveston City Co. 423. 
 Edgerton v. Bird, 630, 634, 660. 
 ». Peckham, 237. 
 1). Powell, 464. 
 Edmonson 11. Kite, 480. 
 Edmunston v. State, 300. 
 Edsall i). Merrill, 488. 
 Edwards v. Bishop-, 194,197,202,203,317. 
 v. demons, 272. 
 v. Fry, 235. 
 11. Morgan, 677, 739. 
 0. Roys, 392. 
 i). Wray, 246. 
 Edwardsville R. R. Co. v. Sawyer, 75,174, 
 
 Egan V. Walsh, 442. 
 
 Ege v. Kille, 474, 504, 511, 530. 
 
 v. Medlar, 574, 633, 638, 650. 
 Ehle v. Haller, 466. 
 Ehrhardt ®. Hogeboom, 111. 
 Eicbart 1>. Bargas, 291. 
 Eisenhart ». Slaymaker, 292. 
 Ela «. Pennock, 37. 
 Elam 1). Parkhill, 523, 536. 
 Elder u Allison, 350. 
 1>. Bradley, 564. 
 v. Dwight Mfg. Co. 336. 
 v. Hilzheim, 332. 
 Eldred v. Oconto Co. 345. 
 Eldridge v. Hill, 375. 
 Elgin v. Marshall, 755. 
 Ellen * Ellen, 695. 
 Ellicott «. Mosier, 57, 69, 153, 305. 
 
 ». Pearl, 573, 638, 681. 
 Elliott v. Gibbons, 354. 
 Ellis 0. Davis, 100, 133, 743. 
 •0. Jeans, 365. 
 0. Murray, 346. 
 0. Paige, 272, 274. 
 Ellsworth 0. Hale, 567. 
 0. Potter, 499. 
 Elmendorf 11. Taylor, 766. 
 Elwell 0. Birmingham Canal Nav. 611. 
 Ely 11. Lo'wenstein (No. 2), 331. 
 
 0. Supervisors of Niagara Co. 89. 
 11. Wilcox, 556. 
 Emeric 0. Penniman, 37, 668. 
 Emerson v. Emerson, 357. 
 0. Sansome, 395. 
 0. Spicer, 128. 
 0. White, 691. 
 Emerson & Wall's Appeal, 445. 
 Emery 0. Grocock, 705, 706. 
 Emig 0. Deihl, 366. 
 Emlen 0. Hoops, 182. 
 Emmons 0. Bishop, 418, 433. 
 Emory 0. Keighan, 246. 
 Emrich 0. Ireland, 317, 472, 477, 493, 496. 
 Enders 0. Sternberg!], 691. 
 England 0. Slade, 146, 260. 
 English 0. Breunan, 722. 
 0. Johnson, 645. 
 Ensign 0. McKinney, 691, 692. 
 
 0. Sherman, 309. 
 Equator Co. 0. Hall, 380,419.436, 729. 
 Equator Min. &. S. Co. 0. Hall, 21. 
 Erhart 0. Bass, 47. 
 
 Erickson 0. Mich. Land & Iron Co. 85. 
 Erwin 0. Olmsted, 224, 262. 
 Esley 0. People, 293. 
 Espy 0. Fenton, 480. 
 Estell 0. Cole, 180, 236, 533. 
 Estes 0. Long, 604. 
 Estrada 0. Murphy, 352. 
 Esty 0. Baker, 276. 
 Etcheborne 0. Auzerais, 717. 
 Etheridge 0. Doe d. Malempre, 119. 
 
References] TABLE OF CASES. [are to pages. xxvii 
 
 Etz v. Daily, 72, 74. 
 Evans ». Ashby, 673. 
 
 ». Bidwell, 257. 
 
 ®. Erie Co. 611. 
 
 V. Haefner, 391. 
 
 V. Millard, 431. 
 
 «. Welch, 473, 516. 
 
 v. Womack, 302. 
 Evansville H. & N. R. R. Co. ■». Grady. 174. 
 Evelyn v. Evelyn, 447. 
 Evetts e. Tendiek, 506. 
 Evill v. Conwell; 51. 
 Evitts v. Roth, 610. 
 Ewald v. Corbett, 194, 414. 
 Ewalt ». Gray, 474, 512, 520. 
 Ewer v. Lovell, 202, 204. 
 Ewing®. Burnet, 573, 574, 576, 577,615. 
 
 ®. Ewing, 696. 
 
 v. Handley, 236, 505, 536. 
 Excise Comm'rs v. Purdy, 293. 
 Eysaman v. Eysaman, 270. 
 Eyton v. Jones, 263. 
 
 Fagan v. Barnes, 465. 
 v. Rosier, 659. 
 Fain v. Garthright, 296. 
 Fairchild v. Fairchild, 69, 144, 223. 
 Fairclaim. v, Shackleton, 192. 
 
 (<£ Fowler) v. Shamtitle, 20, 26 
 180, 182. 
 Faircloth v. Jordan, 680. 
 Fairfield v. County of Gallatin, 729. 
 Fales v, Thompson, 147. 
 Falkner v. Beers, 292. 
 v. Jones, 182. 
 Farishu. Coon, 599, 615. 
 Farley v. Craig, 151, 265. 
 Farmers L. & T. Co. v. Kursch, 394. 
 Farmers' Nat. Bank v. Fletcher, 467. 
 Farnsworth v. Fowler, 406. 
 Farnum v. Peterson, 117. 
 Farrar v. Clark, 391. 
 
 v. Fessenden, 694. 
 Farris v. Hayes, 49, 97, 546. 
 Farrow v. Bullock, 565. 
 Farwell v. Rogers, 400. 
 Faasett v. Tallmadge, 454. 
 Fassit v. Richard, 405. 
 Favour v. Sargent, 49, 152. 
 Fay «. Taft, 41, 109. 
 
 v. Valentine, 708. 
 Feig v. Meyers, 685. 
 Felmster v. McRorie, 680, 681. 
 Feirbaugh v. Masterson, 546. 
 Felger v. Coward, 234. 
 Fellows *. Wise, 680. 
 Felton v. Smith, 234. 
 Fenn v. Holme, 737. 
 Fenner v. Sanborn, 396. 
 Fenwick v. Gravenor, 177. 
 v. Grosvenor, 417. 
 Ferguson v. Bartholomew, 589, 591. 
 
 Ferguson v. Bobo, 705. 
 
 *. Crawford, 294, 352. 
 v. Kennedy, 662. 
 v. Kumler, 109, 426. 
 v. Miles, 345, 703. 
 v. Peden, 674. 
 Fernander v. Dunn, 501. 
 Ferrer's Case, 22, 23, 35, 370. . 
 Ferris v. Brown, 52. 
 v. Irving, 557. 
 v. Wilcox, 240. 
 Ferrissw. North Amer. F. I. Co. 301. 
 Ferry Co. v. Barker, 86. 
 Fetters v. Humphreys, 55. 
 Fidelity, The, 163, 164. 
 Fiedler v. Carpenter, 344. 
 Field v. Boynton, 661. 
 
 v. Columbet, 476,477, 493, 496, 512, 
 
 527. 
 v. Hawley, 42, 49, 152. 
 v, Jackson, 452. 
 v. Lownsdale, 762. 
 v. Ripley, 150. 
 v. Schieffelin, 128. 
 Fielder o. Childs, 192. 
 Fields v. Fowler, 130. 
 
 v. Lamb, 762. 
 Filbert v. Hoff, 2U6. 
 Filbey v. Carrier, 131. 
 Filesv. Watt, 179. 
 Finch v. Finch, 340, 354. 
 v. Houghton, 447. 
 v. Rhodes, 140. 
 Findlay v. Artope, 145, 146. 
 
 v. Keim, 459. 
 Fink v. Allen, 184. 
 Finlay v. Cook, 646, 660. 
 Finn v. Sleight, 69. 
 
 Finnegan v. Carraher, 29, 153,181,393,394. 
 First Bapt. Soc. v. Grant, 83. 
 
 v. Hazen, 145. 
 First Presb. Soc. v. Smithers, 150. 
 Fischer v. Eslaman, 673. 
 Fisher v. Hepburn, 159. 
 v. Larick, 326. 
 ■o. Smith, 722. 
 Fisk v. Baker, 432. 
 v. Flores, 46. 
 a. Miller, 46, 432. 
 Fitch v. Boyer, 593. 
 
 v. Cornell, 312, 356, 357. 
 Fitzgerald, In re, 130. 
 
 v. Marshall, 321. 
 v. Spain, 231. 
 Fitzhugh v. Croghan, 667. 
 Fitzpatrick v. Fitzgerald, 145. 
 Flagg v. Mann, 211, 694. 
 Flanagan v. Pearson, 266. 
 Flanigen v. City of Philadelphia, 324. 
 Flanniken v. Lee, 156. 
 Fleet *. Younas, 300. 
 Fletcher v. Holmes, 241. 
 
xxviii References] TABLE OF OASES. l aret0 
 
 Fletcher ?;. Wilson, 228. 
 Flinn v. McKinley, 210. 
 Flint v. Douglass, 514. 
 
 ... Steadman, 502. 
 Flock v. Wyatt, 206. 
 Florence v. Hopkins, 97, 201, 602. 
 
 v. Paschal, 87. 
 Florida v. Georgia, 749, 750. 
 Fogarty v. Horrigan, 345. 
 
 v. Sparks, 410, 411. 
 Fogg v. Hill, 503. 
 
 v. Moulton, 697. 
 Foley v. Kirk, 521. 
 Follett v. Heath, 351. 
 Folsom v. Clark, 530. 
 Fonda v. Sage, 138, 314. 
 
 v. Van Home, 128. 
 Foot v. Edwards, 339. 
 Foote v. Colvin, 733. 
 Forbes v. Balenseifer, 83. 
 Ford v. Belmont, 547, 556. 
 v. Doyle, 301, 410. 
 v. Grey, 192. 
 v. Harrington, 148. 
 „. Holmes, 566, 606. 
 v. Holtoo, 519, 529, 543. 
 v. Knapp, 539. 
 v. Olden, 248. 
 v. Sampson, 342. 
 v Steele, 242. 
 v. "Wilson, 572, 616. 
 Forder v. Davis, 97, 391. 
 Forest v. Jackson, 581, 638, 662. 
 Forsaith v. Clark, 694. 
 Forsyth v. Rowell, 306. 
 v. Wells, 504. 
 Forsythe v Van Winkle, 431,436. 
 Fortune v. Center, 184. 
 Fort Wayne, M.<fc C.K.R.Co.«.Mellett,l75. 
 Foscalina«). Doyle, 359. 
 Fosgate v. Herkimer Mfg. Co. 158, 181, 
 
 358, 393, 691. 
 Foster v. Elliott, 302. 
 
 v. Evans, 372, 377, 386, 395. 
 ■u. Mora, 737. 
 v. Morris, 258. 
 v. Perkins, 606. 
 v. Townshend, 149. 
 v. Wood, 371. 
 Foster's Appeal, 144. 
 Fouke v. Kemp, 325. 
 
 Foulke v. Bond, 192, 193, 195, 204, 580, 
 601, 602, 603, 619, 636, 641, 
 653, 656. 
 v. Stockdale, 625. 
 Foust v. Trice, 282. 
 Fowke v. Darnall, 548. 
 Fowler v. Fowler, 540. 
 v. Lindsey, 749. 
 a. Miller,*749. 
 v. "Whiteman, 564. 
 Fox v. Brissac, 91, 253. . 
 
 Fox v. Southack, 148. 
 v. Widgery, 715. 
 Fox's Appeal, 99. 
 Foxcroft v. Barnes, 391. 
 Frakes v. Brown, 673. 
 Fraley v. Peters. 725. 
 Franklin v. Merida, 257, 258, 402, 416. 
 v. Palmer, 260. 
 v. Talmadge, 300. 
 Fraser v. Hunter, 662, 685. 
 
 a, Weller, 435. 
 Fraser Inst. v. Moore, 175. 
 Frazier v. Crowell, 365. 
 Frear v. Hardenbergh, 519. 
 Frederick v. Gray, 203, 206. 
 Freeholders of Gravesend v. Voor'ds, 329. 
 Freel v. Buckley, 216. 
 Freeman v. Freeman, 234, 235, 677. 
 v. Headley, 284. 
 v. Sprague, 346. 
 Freer v. Stotenbur, 465. 
 Frelinghuysen v. Colden, 107. 400. 
 Fremont v. Crippen, 411. 
 French, Ex parte, 104. 
 v. Burns, 244. 
 v. Edwards, 220, 319. 
 v. Grenet, 531. 
 v. Lancaster, 716. 
 v. Pcarce, 615, 619, 623, 626. 
 v. Spencer, 740, 747. 
 Frentz v. Klotsch, 209, 212. 
 Frey v. Eamsour, 680. 
 Friend v. Wise, 759. 
 Frink v. Branch, 107. 
 Frisbee v. Timanus, 441, 445. 
 Frisbee's Appeal, 99. 
 Frisbie v. Whitney, 546, 746. 
 Frieby v. Withers, 610. 
 Frische ". Kramer, 243. 
 Frost ads. Brown, 44, 418, 420. 
 v. Cloutman, 37, 40. 
 v. Duncan, 465. 
 Fry v. Shehee, 242. 
 Fugate v. Pierce, 579, 637, 640, 644, 648, 
 
 651. 
 Fulcher v. Griffin, 130 
 Fulham v. McCarthy, 115, 315. 
 Fulkerson v. Brownlee, 607. 
 Fuller v. Carr, 724. 
 
 v. Wadsworth, 239, 285. 
 Fullerton v. Fitzgerald, 454. 
 
 v. McCurdy, 244. 
 Funk v. Haldeman, 61, 86. 
 
 v. Newcomer, 209, 715. 
 Furguson v. Coward, 112. 
 Furlong v. Garrett, 616, 663. 
 Fussell v. Gregg, 101. 
 v. Hughes, 102. 
 
 Gadsby v. Dyer, 610. 
 Gage v. Pumpelly, 758. 
 
References] TABLE OF CASES. [<w« *" 
 
 XXIX 
 
 Gaillard o. Smart, 297. 
 Gaines v. Buford, 218. 
 
 ■o. City of New Orleans, 478, 487, 
 
 499. 
 v. Kennedy, 531, 533. 
 v. New Orleans, 680. 
 Galbraith v. Gedge, 144. 
 
 v. Zimmerman, 695. 
 Galbreath v. Estes, 1 80. 
 Gale v. Hines, 193, 194, 199, 203. 
 Gallagher v. Bennett, 257, 258, 259. 
 
 v. McNutt, 340, 341. 
 Galletley v. Williams, 423. 
 Galloway v. Finley, 231. 
 
 v. Ogle, 2D3. 
 Gamble v. Horr, 665. 
 Games v. Stiles, 694. 
 Gano v. Aldridge, 323. 
 Garber v. State, 691. 
 Gardiner v. Schuylkill Bridge Co. 402. 
 
 v. Tisdale, 74. 
 Gardner v. Collins, 436, 729. 
 v. Gardner, 181. 
 v. Granniss, 331, 490, 512. 
 v. Heart, 557. 
 v. Kersey, 509. 
 «. Keteltas, 141. 
 v. Ogden, 396, 466. 
 Garner v. Hannah, 273. 
 v . Jones, 476. 
 
 •„. Marshall, 163, 155, 156, 303. 
 v. McCullough, 317. 
 Garrett v. Adrain, 657, 661. 
 v. Clark, 274. 
 v. Lyle, 680. 
 Garrison v. Savignac, 410. 
 Gates v. Butler, 622. 
 v. Green, 88. 
 v. Preston, 370, 372. 
 v. Smith, 235. 
 Gatton v. Tolley, 512. 
 Gaven v. Hagen, 224. 
 Gay v. Hamilton, 244. 
 v. Kingsley, 260. 
 v. Mitchell, 162. 
 v. Parpart, 98, 390. 
 Gaylord v. Van Loan, 612. 
 Geiger v. Braun, 273, 276. 
 Gelpeke v. Mil. & H. K. R. Co. 410. 
 Genin v. Ingersoll, 42. 
 Georgetown (Comm'rs) v. Taylor, 190. 
 Georgia v. Grant, 750. 
 Gernet v. Lynn, 605. 
 Gerring v. Barfield, 611. 
 Gerrish v. Clough, 67. 
 Gerry v. Holford, 205. 
 Gibbons v. Dayton, 272. 
 
 v. Martin, 159, 160, 161. 
 Gibert v. Peteler, 139, 234, 236. 
 Gibson v. Bishop of Bath, 297. 
 v. Bogy, 724. 
 ■o. Chouteau„352, 377, 611. 
 
 Gibson v. Manly, 435. 
 
 ». Vaughn, 202. 
 Gidney v. Earl, 73. 
 Gilbert v. Thompson, 372. 
 Gilchrist v. Kamsay, 194. 
 Giles v. Ebsworth, 259. 
 Gill v. Fauntleroy, 205. 
 v. Gill, 503. 
 v. Patten, 474. 
 Gillaspie v. Osburn, 199. 
 Gilleland v. Martin, 130, 732. 
 Gillespie, Ex parte, 293. 
 ■a. Bailey, 127. 
 v. Sawyer, 696, 740. 
 Gillette Balcom. 411. 
 v. Eaton, 246. 
 
 v. Gaffney, 210, 216, 217, 546. 
 v. Stanley, 115, 199, 342, 
 v. Treganza, 146, 449, 668. 
 Gilliam v. Bird, 56, 57, 158, 680, 681. 
 Gillis v. Bailey, 139. 
 Gilman v. Judge of Wayne Circuit, 427, 
 
 433, 437. 
 Gilmer v. Poindexter, 670, 734. 
 Girard, Ex parte, 762. 
 Girdler v. Carter, 108. 
 Gitt v. Watson, 301. 
 Gittens v. Lowry, 631. 
 Glass v. Doe, 176. 
 Glen v. Gibson, 255. 
 Gloucester Parish v. Beach, 611. 
 Glover v. Manhattan Ry. Co. 118, 187. 
 Goddard v. Foster, 500. 
 
 ■v. Hall, 4', 9. 
 Godeffroy v. Caldwell, 537. 
 Godwin v. Stebbins, 272. 
 Goerges v. Hufschmidt, 410. 
 Golden v. Snellen, 429. 
 Golden Fleece Co. v. Cable Con. Co. 645. 
 Goldham v. Edwards, 301. 
 Golding v. Golding, 137. 
 Goldsmith v. Jones, 89. 
 Gomber v. Hackett, 266. 
 Goodale v. Fifteenth Dist. Court, 447. 
 Goodman v. Kine, 453. 
 
 v. Winter, 113, 
 Goodnough v. Sheppard, 407. 
 Goodrich v. Jones, 36. 
 Goodright v. Cordwent, 291. 
 
 v. Rich, 153, 323, 329. 
 u. Swymmer, 60. 
 v. Vivian, 262. 
 
 (rf.Duke of Montague) ii.Wrong, 
 20. 
 Goodtitle v. Alker, 70, 72, 73, 90, 364, 387. 
 (d. Parker) v. Baldwin, 667. 
 v. Braham, 679. 
 v. Clayton, 418. 
 v. Jones, 145. 
 (d. Hart) v. Knott, 146. 
 v. Lammiman, 331. 
 v. North, 492, 508. 
 
XXX 
 
 References] TABLE OF CASES. [.are to pages. 
 
 Goodtitle v. Tombs, 472, 483, 487, 491,493. 
 (d. Miller) v. Wilson, 53. 
 v. Woodward, 290. 
 Goodwin v. Appleton. 334. 
 Goodwyn v. Myers, 497, 542. 
 Gordinier's Appeal, 22. 
 Gordon v. Pearson, 203. 
 
 v. Sizer, 72. 
 Gorliam v. Arnold, 241. 
 v. Gorham, 131. 
 v. Jones, 334. 
 Gosser v. Hickenlooper, 340. 
 Gossom v. Donaldson, 211. 
 Gotham v. Gotham, 715. 
 Gough v. Bell, 715. 
 Gould v. Bennett, 337. 
 Goundie v. Northampton Water Co. 390. 
 Gourley v. Kinley, 116, 178. 
 Gouverneur v. Lynch, 556. 
 Gower v. Quinlan, 195, 590. 
 Grable v. McCulloh, 241. 
 Graham v. Anderson, 1 1 2. 
 
 *. Columbus & 1. C. Ry. Co. 74. 
 v. Moore, 254. 
 v. Peat, 420, 545, 548, 553. 
 i). Whitely, 329. 
 Granby v. Amherst, 128. 
 Grand Rapids v. Whittlesey, 189. 
 Grand Surrey Canal Co. v. Hall, 611. 
 Grant v. Birdsall, 300. 
 v. Fowler, 614. 
 v. McKee, 755. 
 v. Van Schoonhoven, 115. 
 v. White, 253. 
 Grattan v. Wiggins, 606. 
 Graves v. AmoskeagMfg. Co. 34, 343, 671. 
 v. Berdan, 88. 
 i>. Joice, 502. 
 v. McKeon, 330. 
 v. Walls, 264. 
 v. White, 226. 
 Gravesend (Freeholders) v. Voorhis, 329. 
 Gravier v. Ivory, 97. 
 Gray v. Bartlett, 611. 
 j,. Bates, 205. 
 
 „. Blanchard, 139, 755, 758. 
 ■v. Coan, 302. 
 ■a. Givens, 219, 220. 
 v. Johnson, 881. 
 v. Payne, 668. 
 v. Tyler, 99, 102. 
 Graybeal v. Powers, 723. 
 Graydon v. Ejector, 404. 
 Great Falls Co. v. Worster, 684, 685. 
 Greeley v. Thomas, 344. 
 Green v. Armstrong, 56. 
 
 v. Biddle, 396, 471, 473, 483, 513, 
 
 520, 522, 523, 525, 541, 542. 
 v . Butler, 248. 
 •</. Chelsea, 133, 683, 721. 
 v. Dixon, 526, 538. 
 v. Finin, 235. 
 
 Green v. Glynn, 391. 
 Green, 126. 
 v. Harman, 84. 
 v. Lamb, 248. 
 v. Liter, 40, 344, 760. 
 Mizelle, 607. 
 Neal, 436, 729, 730. 
 Turner, 606. 
 Watkins, 40. 
 Winter, 149. 
 Greene v. Greene, 69, 144. 
 Geeenfield v. Camden, 690, 695. 
 Greenleaf v. Dubuque & S. C. R. R. Co. 690. 
 Greenwalt v. Duncan, 87. 
 v. Tucker, 761. 
 Greenwich (Inhabs.) v. Easton <fe A. R. 
 
 R. Co. 188. 
 Greer v. McClelland, 416. 
 
 v. Mezes, 160, 161, 300, 734. 
 v. Smith, 296. 
 v. Tripp, 200, 209, 282. 
 Gregg v. Sayre, 650. 
 
 v. Tesson, 140, 142. 
 v. VonPhul, 227, 229, 269, 272,283. 
 Gregory v. Crab, 259. 
 
 v. Gregory, 441, 448. 
 v. Haynes, 467. 
 v. Jacksons, 366. 
 v. Lincoln, 419. 
 v. Tozier, 154, 179. 
 Griffin v. Lovell, 244. 
 
 v. Stamper, 661. 
 Grim v. Dyar, 201. 
 Grimes v. Wilson, 513. 
 Grimm v. Curley, 623. 
 Grimstone v. Burgers, 462. 
 Grisar v. McDowell, 166, 167, 169. 
 Griscom v. Evens, 696. 
 Grissler v. Stuyvesant, 458. 
 Griswold v. Bragg, 31, 520, 525, 528, 529, 
 535, 536, 542, 543. 
 v. Sweet, 454. 
 Groft v. WeaMand, 583, 590, 592. 
 Grogan v. Town of Hayward, 611. 
 Grosholz v. Newman, 565, 716. 
 Gross v. Wei wood, 153, 247, 566. 
 Grotz 4>. Lehigh <fe W. B. Coal Co. 59. 
 Grout v. Cooper, 512. 
 Grove v. City of Fort Wayne, 89. 
 Groves v. Marks, 307. 
 Grubb v. Bayard, 85. 
 
 v. Grubb, 85, 279, 28,0. 
 Grube *. Wells, 615, 622. 
 Grundin v. Carter, 260. 
 Gubbins v. Massy, 55. 
 Gudger v. Barnes, 231. 
 v. Hensley, 584. 
 Guernsey v. Powers, 442, 443. 
 Guest v. City of Brooklyn, 87. 
 Guild v. Richards, 137. 
 Gulliver v. Burr, 286. 
 Gunderson v. Cook, 106. 
 
References] TABLE OE OASES. [are to pages. xxxi 
 
 Guthrie v. Pugsley, 801, 502. 
 Gutzweiler v. Lackmann, 134. 
 Guy v. Hanly, 343. 
 Gwint) v. Smith, 248. 
 Gynn v. Kirby, 296. 
 
 Hackett v. Carter, 333. 
 Hagar v. Brainerd, 242. 
 Hagey v. Detweiler, 367, 726. 
 Haggin v. Clark, 499, 530. 
 Haigh v. Jnggar, 444, 451. 
 
 v. Paris, 396, 460. 
 Haight v. Lucia, 449. 
 Haines v. Haines, 235. 
 
 v. Thomson, 244. 
 Haire v. Baker, 352. 
 Hairston v. Jaudon, 228. 
 Hale v. Darter, "724. 
 a. Glidden, 627. 
 v. Hord, 693. 
 v. Wilkinson, 237. 
 Halford v. Tetherow, 194, 208, 209. 
 Hall v. Austin, 356, 734. 
 v. Bell, 358, 359. 
 v. Butler, 258. 
 v. Dexter, 410, 411, 412. 
 v. Dodge, 220, 371. 
 v. Greenly, 100. 
 v. Hall, 142. 
 v. Law, 630. 
 v. Mayo, 683. 
 v. McLeod, 561. 
 v. Myers, 274. 
 v. Russell, 546. 
 v. Savill, 606. 
 v. Stevens, 201, 604. 
 v. Wadsworth, 287. 
 v. Wells, 415. 
 v. White, 181. 
 Hallett v. Eslava, 700. 
 v. Hastie, 293. 
 ■v. Wylie, 88. 
 Halsey v. McCormick, 722. 
 Ham v. Ham, 334, 715. 
 Hamblin v. Bank of Cumberland, 230. 
 Hamer v. Raymond, 330. 
 Hamilton v. Boggess, 604. 
 v. Cummings, 87. 
 v. Third Ave. R. R. Co. 498, 499. 
 v. Wentworth, 306. 
 v. Wright, 117, 293, 297,632,633, 
 639, 660. 
 Hammond v. Fuller, 84. 
 
 v. Railroad Co. 138, 139. 
 v. Stoy, 326. 
 Hamond v. Toulman, 508. 
 Hampson v. Fall, 179, 302. 
 Hancock v. Walsh, 167. 
 
 v. W entworth, 72. 
 Hanks v. Price, 182. 
 Hanna v. Phillips, 492. 
 
 v. Renfro, 132,661. 
 
 Hannah v. Collins, 715. 
 Hannay v. Thompson, 245, 24fi. 
 Hannibal (City of) v. Draper, 81, 188. 
 
 & St. J. R. R. Co. v. Clark, 621, 
 
 646, 651, 661. 
 & St. J. R. R. Co. v. Knudson, 
 312. 
 Hanrick v. Thompson, 556. 
 Hansel v. Mead, 347, 348. 
 Hanson v. Armstrong, 155, 407, 413. 
 
 v. Johnson, 563. 
 Harden v. Hays, 537. 
 Harder v. Harder, 262. 
 Hardie v. Young, 504. 
 Hardin v. Barrett, 662. 
 
 v. Crate, 661, 662. 
 
 v. Gouveneur. 651. 
 
 v. Kirk, 308, 462. 
 Harding v. Elzey, 696. 
 
 v. Parshall, 234. 
 Hardwick v. Jones, 246. 
 Hardy v. DeLeon, 148. 
 
 v. Johnson, 220, 359. 
 Hare v. Fury, 487, 488. 
 Harebottle v. Placock, 59. 
 Hargrave v. Hargrave, 447. 
 Harker v. Whitaker, 479, 480. 
 Harkey v. Houston, 158. 
 Harkness o. Hyde, 396. 
 
 v. Mclntire, 494. 
 Harlan v. Haynie, 311. 
 
 v. Howard, 691. 
 Harland v. Eastman, 690. 
 Harle v. McCoy, 228. 
 Harlow v. Fisk, 722. 
 
 v. Lake Superior Iron Co. 85. 
 Harman v. Gartman, 202. 
 Harmon v. James, 198. 
 Harnage v. Berry, 621. 
 Harney v. Lamborn, 299. 
 
 v. Morton, 400. 
 Harpur's Case, 81. 
 Harral v. Leverty, 601. 
 
 v. Wright, 204. 
 Harrall v. Gray, 476. 
 Harrington v. Conolly, 501. 
 v. Libby, 458. 
 v. Slade. 181. 
 v. Watson, 88. 
 Harris v. Bannon, 453. 
 
 v. Bell, 233. 
 
 v. Catlin, 224. 
 
 v. Dennie, 163. 
 
 v. Elliott, 55. 
 
 ». Equator M. & S. Co. 59, 577. 
 
 v. Frink, 225, 278. 
 
 v. Mason, 294. 
 
 v. Smith, 180. 
 
 v. Vinyard, 352, 354. 
 
 v. Waite, 430. 
 Harrisburg (Borough) v. Crangle, 367. 
 Harrison v. Castner, 525. 
 
XXXU References] TABLE OF CASES. {are to pages. 
 
 Harrison v. Harrison, 193, 210. 
 o. Middletou, 276, 279. 
 v. Parker, 73. 
 v. Pool, 604. 
 v. Stevens, 306, 307. 
 v. Taylor, 208, 282. 
 Harrison, N. T. &c. Turnpike Go. v. Rob- 
 erts, 703. 
 Hart v. Bostwick, 570, 600, 607. 
 v. Fitzgerald, 193. 
 v. Giles", 710. 
 v. Gregg, 201. 
 v. Lindiey, 276. 
 v. Kobertson, 219, 220. 
 Hartley v. Brown, 352, 669. 
 v. Fen-ell, 670, 672. 
 Hartung v. Witte, 727. 
 Hartz v. St. Paul & S. C. E. R. 105. 
 Harvey v. Mitchell, 694. 
 v. Morris, 231. 
 v. Tyler, 155, 566, 570. 
 Harvin v. Hodge, 194, 203. 
 Hasbrouck i>. Bunce, 219. 
 Haskell v. Allen, 724. 
 Haslett v. Crain, 533, 535. 
 Hass v, Plautz, 727. 
 Hassam v. Barrett, 244. 
 
 v. Day, 97. 
 Hassell d. Walker, 715. 
 Hastings v. Livermore, 83. 
 Hatch v. Bullock, 253. 
 v. Dwigbt, 722. 
 Hatcher v. Briggs, 520, 526, 527, 529. 
 Hatchett v. Conner, 537. 
 Hatfield v. Bushnell, 339, 760. 
 Hathaway v. Valentine, 134. 
 Hathorne v. Haines, 334, 335. 
 Hauxburst v. Lobret, 278. 
 Haveriy v. Alcott, 469. 
 Hawes v. Marchant, 711. 
 v. Eyder, 301. 
 V. Shaw, 253, 254. 
 Hawesville (Trustees) v. Hawes, 76. 
 Hawk v. Senseman, 201. 
 Hawkins v. Brown, 494, 520. 
 v. Hayes, 375. 
 v. Hudson, 574. 
 v. King, 505. 
 
 v. Reichert, 153, 162, 303. 
 Hawley v. James, 333. 
 v. Simons, 396. 
 v. Twyman, 364. 
 Hawthorne, In re, 396. 
 Hayden v. Merrill, 488. 
 v. Stewart, 179. 
 Hayes v. Bernard, 703. 
 
 v. Harmony Grove Cemetery, 132. 
 ■0. Livingston, 713. 
 v. Mutual Prot. Ass'n, 718. 
 v. Tabor, 715. 
 Haynes v. Boardman, 594, 597. 
 v. Onderdonk, 467. 
 
 Haynes v. Young, 723. 
 
 Hays i'. Carr, 232, 391. 
 
 Haythorn v. Margerem, 99, 142. 
 
 Hayward v. Sedgley 553. 
 
 Headlam v. Hediey, 720. 
 
 Headman v. Eose, 69. 
 
 Heard «. City of Brooklyn, 74. 
 
 Heaston v. Board of Comm'rs, &c. 314. 
 
 Heath v. Ross, 675. 
 
 v. Whidden, 335. 
 v. Williams, 553. 
 Heatherley v. Weston, 28, 218. 
 Hebrard v. Jefferson Min. Co. 191. 
 Hecht v. Boughton, 680. 
 
 v, Colquhoun, 99, 476. 
 Heck v. Fisher, 538. 
 Hedgepetb v. Robertson, 499. 
 Hedger v. Ward, 691. 
 Heermans v. Robertson, 146. 
 Hefner v. Downing, 726. 
 Heft v. McGill, 124. 
 Heifner v. Porter, 326. 
 Helfenstein v. Leonard, 161. 
 Hellreigel v. Manning, 705, 706. 
 Hemphill v. Giles, 274, 275. 
 Hems v. Stroud, 322. 
 Henderson v. Dickey, 668. 
 
 v. Eason, 488, 489. 
 
 v. Griffin, 586, 729. 
 
 v. Kenner, 434. 
 
 ■v. McPike, 523. 
 
 u.Morrill, 705. 
 
 v. N.Y. Central R.RCo. 92,187. 
 
 v. Ownby, 533, 534. 
 
 v. Scott, 356. 
 
 v. Tennessee, 341, 754. 
 Hendrick v. Cannon, 272. 
 v. Lindsay, 361. 
 Hendricks v. Kelly, 713. 
 
 v. Rass'on, 159, 160, 608. 
 
 v. Snediker, 530. 
 Hendrickson ». Hinckley, 705. 
 Hendy v. Stephenson, 310. 
 Henley v. Branch Bank, Mobile, 123. 
 v. Hotaling, 244. 
 *. Wilson, 301, 325, 638, 663. 
 Hennesy v. Farrell, 246. 
 Henry v. Henry, 741. 
 
 v. Reichert, 678, 680, 681, 699,716. 
 Henshaw v. Bissell, 711. 
 Henwoo'd v. Cheeseman, 331. 
 Hepburn v. Dunlop, 228. 
 Herbert v. Hanrick, 632. 
 v. King, 671. 
 v. Laughluyn, 77, 83. 
 Herr v. Herr, 391. 
 
 Flerrell v. Sizeland, 270, 274, 276, 278,279. 
 Herrick v, Hopkins, 724. 
 Herrington v. Santa Clara Co. 301. 
 
 v. Williams, 349, 350. 
 Hestres v. Brannan, 552". 
 Hetzel v. Barber, 259. 
 
Beferenees] TABLE OE CASES. [are to pages, xxxiii 
 
 Hewlett v. Cock, 691. 
 
 v. "Wood, 133, 362, 391, 
 Hewlins v. Shippam, 82, 83. 
 Hiatt v. Kirkpatrick, 625, 626. 
 Hibbard i>. Foster, 220. 
 Hickey v. Stewart, 735. 
 Hickman v. Cooke, 100. 
 
 v. Dale, 407, 468. 
 Hieks v. Lovell, 224, 226. 
 v. Marshall, 301. ' 
 ■u. Rogers, 219. 
 v. Sheppard, 351. 
 Higbee v. Rice, 194, 343. 
 Higginbotham v. Higginbotham, 406, 407. 
 Higgins is. Highfield, 482. 
 
 v. Turner, 257, 259. 
 v. Woodward, 451. 
 Higinbotham v. Stoddard, 116, 724. 
 Hildretb v. Thompson, 405. 
 Hill «. Allison, 301, 311. 
 
 v. Bailey, 348. 
 
 v. Billingsly, 705. 
 
 v. Cooper, 613. 
 
 v. Crosby, 561, 594. 
 
 v. Draper, 216 
 
 v. Epley, 710, 711. 
 
 v. Giles, 321. 
 
 v. Hill, 56 343. 
 
 v. Kricke, 155. 
 
 v. Meeker, 107. 
 
 v. Meyers, 512. 
 
 ii. Payson, 250. 
 
 v. Proctor, 725. 
 
 v. Spear, 46, 525. 
 
 v. Still, 234. 
 
 v. United States, 163. 
 
 v. West, 715. 
 
 v. Winn, 226, 231, 235. 
 Hillegass v. Hillegass, 176. 
 Hiller v. Shattuck, 436, 729. 
 Hillingsworth v. Brewster, 26, 81, 163. 
 Hillman v. Baumbach, 46, 497. 
 Hills v. Loomis, 244. 
 i>. Parker, 175. 
 v. Sherwood, 370. 
 Himes v. Keighblingher, 695. 
 Hines v. Trantham, 220. 
 Hinkley v. Greene, 205. 
 
 11. Wheelwright, 248. 
 Ilinman v. Warren 64. 
 Hinton v. McNeil, 400. 
 Hipp v. Babin, 101, 743. 
 Hiscock ii. Phelps, 223. 
 Hitchin v. Campbell 371. 
 Hitchings v. Morrison, 627. 
 Hit-tuk-ho-mi v. Watts, 744. 
 Hlawacek v. Bohman, 447. 
 Hoadley ii. San Francisco, 611, 762. 
 Hoag v. Hoag, 147, 246, 259. 
 Hoboken Land & Imp. Co. «. Mayor, &o. 
 
 75, 186, 187. 
 Hobson 11. McArthur, 312. 
 
 C 
 
 Hodges v. Eddy, 610, 636, 641,644. 
 
 v. Perine, 104. 
 Hodgkins v. Price, 39, 41, 51. 
 Hodgson «. Gascoigne, 411, 509. 
 Hodson v. Van Fossen, 177. 
 Hoey v. Furman, 610. 
 Hoffman 1>. Beard, 97. 
 
 v. Riehl, 724. 
 Hogan v. Kurtz, 300, 346, 379, 382, 612, 
 729, 730, 731. 
 ». Page, 763. 
 v. Smith, 22, 382. 
 Hogans 11. Carruth, 692. 
 Hogg v. Link, 341. 
 Holbrook ii. Moore, 339. 
 
 •». Nichol, 678. 
 Holcomb •». Holcomb, 107. 
 Holdfast ». Sbepard, 582, 585. 
 Holdridge v. Gillespie, 248. 
 Holford ii. Bailey, 78. 
 
 11. Dunnett, 261. 
 Holladay v. Littlepage, 612. 
 Hollenbeck v. Rowley, 722. 
 Holley v. Hawley, 198, 206, 570, 602, 604. 
 Hollingsworth ». Holshousen, 356. 
 
 11. Spaulding, 134. 
 Hollinshead v. Nauman, 593. 
 Hollis v. Burns, 276. 
 Hollister ii. Young, 616, 620. 
 Holman v. Elliott, 343. 
 Holmes v. Bell, 447. 
 
 11. Bellingham, 722. 
 
 v. City of Carondelet, 375, 377. 
 
 v. Coryell, 691,693. 
 
 v. Dav'is,317,430,475,481,495,498. 
 
 v. Holmes, 229. 
 
 «. Seely, 127, 306, 307, 308, 387. 
 
 ». Stout, 556. 
 
 v. Williams, 465, 477. 
 Holt v. Miers, 372. 
 
 . v. Rees, 246,306, 314. 
 Holton v. Whitney, 597. 
 Holtzapple v. Phillibaum, 587,588,739. 
 Holyoke v. Adams, 360. 
 Home Manfg. Co. v. Gough, 226. 
 Homestead Co. n. Valley R. R. 514,533.. 
 Homer n. Cilley, 694. 
 Hood v. Hood, 136. 
 
 n. Palmer, 589. 
 Hoofnagle v. Anderson, 744. 
 Hooper ». Bridgewater, 358, 359.. 
 v. Cummings, 138. 
 «. Hall, 220,233. 
 v. Scheimer, 737, 744. 
 v. Winston, 149. 
 Hopkins v. McLaren, 375» 
 
 v. Myers, 365. 
 
 *. Noyes, 220. 
 
 v. Stephens, 145; 
 
 v. Ward, 146. 
 Hoppough v. Struble, 351,352.. 
 Hord v. Baugh, 693. 
 
XXXIV 
 
 TABLE OF CASES. [<*** to pages. 
 
 Hord 8. Walker, 333. 
 Horn ». Cole, 708. 
 
 8. Keteltas, 244. 
 Hornback ». Cincinnati & Z. E. R. Co. 139. 
 Horncastle 8. Cliarlesworth, 217, 647. 
 Home 8. Howell, 204, 602. 
 Horner 8. Chicago, M. & St. P. Ry. Co. 
 137, 139. 
 ■8. Leeds, 259, 274. 
 Horsefall 8. Mather, 261, 262. 
 Horsey 8. Horsey, 271, 279. 
 Horsley 8. Garth, 334. 
 Horton 8. White, 446, 449. 
 Hosford v. Ballard, 265, 291. 
 jHostetter 8. Hykas, 253. 
 JHotaling v. Hotaling, 283. 
 JHotchkiss 8. Auburn & K. E. R. Co. 465, 
 
 476,484,489,490. 
 'Hough 8. Hammond, 395. 
 Houghton Co. 8. Comm'ra of State Land 
 
 Office, 767. 
 Houpes 8. Aldereon, 55, 73. 
 House «. McCormick, 715. 
 Houston ii. Jordan, 37. 
 Houston & T. Ry. Co. 8. Eyan, 336. 
 
 & T. C. R. R. Co. 8. McGefcee,422. 
 Houx 8. Batteen, 626. 
 .Howard n. Carpenter, 278. 
 11. Fessenden, 67. 
 8. Cosset, 301. 
 8. Howard, 294, 293, 654. 
 11. Kennedy, 407, 410, 468. 
 8. Massengale, 526, 700. 
 v. Moot, 123,150. 
 v. Railway Co. 151,410. 
 v. Rawson, 295. 
 11. Reedy, 622. 
 11. Shaw, 225. 
 ii. Throckmorton, 489. 
 Howards v. Davis, 227. 
 Howe 8. Butterfield, 405. 
 
 11. Rochester Iron Mfg. Co. 451. 
 8. Russell. 480. 
 8. Wildes, 306, 318. 
 8. Willson, 332. 
 Howell ii. Eldridge, 416. 
 
 11. Leavitt, 247, 432. 
 Howland i). Needham, 454. 
 
 11. Newark Assoc'n, 598, 654. 
 Howse v. Moody, 110. 
 Hoyle 8. Stowe, 114, 218, 316. 
 Hoyt, In re, 147. 
 
 11. Dimon, 715. 
 
 11. Sprague, 124. 
 
 ii. Wright, 761. 
 
 Hubbard n. Little, 547. 
 
 Hubbell v. Fowler, 357. 
 
 11. Lerch, 115, 300, 315, 316, 464. 
 8. Moulson, 247, 539. 
 Hudgins v. Kemp, 487. 
 Hudson v. Putney, 98, 200, 606. 
 Huenermund 8. Erie Ry. Co. 3S1. 
 
 Huerstal v. Muir, 407. 
 Huerstel 8. Lorillard, 443. 
 Hueston ii. Eaton & H. R. R. Co. 391. 
 Huff 8. Walker, 128. 
 Huffell 8. Armitstead, 270. 
 Huftalin v. Misner, 499. 
 Huggins 11. Ketchum, 158. 
 Hughes 8. Devlin, 216, 546. 
 v. Edwards, 240. 
 11. Hazard, 663. 
 11. Holliday, 362. 
 8. Israel, 631, 640, 644, 662. 
 ii. Lane, 311,313,357. 
 8. United States, 370, 748. 
 v. Watt, 673. 
 Hukill 8. Page, 146. 
 Hulce 8. Thompson, 465. 
 Hulett 8. Nugent, 272. 
 Hull & Selby Railway, In re, 65. 
 Huls D. Buntin, 660. 
 Hulsecamp 11. Teel, 760. 
 Humbert 8. Trinity Church, 174,175,192, 
 203, 564, 615, 619, 629, 634, 635, 
 640, 654. 
 Humble 8. Spears, 700. 
 Humphrey v. Hurd, 248. 
 Humphreys ii. Newman, 617. 
 8. Taylor, 134. 
 Humphries 8. Huffman, 159, 672, 574, 638, 
 
 662. 
 Hunnicutt D. Peyton, 610, 682. 
 Hunt 8. Beeson, 314. 
 
 11. Campbell, 306, 307, 309, 310. 
 8. Crawford, 146. 
 «. Guilford, 592. 
 11. Haven, 467. 
 8. McClanahan, 297. 
 11. McFarland, 327. 
 v. O'Neill, 137, 396, 508. 
 8. Pond, 496, 530. 
 v. Thompson, 143, 176. 
 8. Turner, 356. 
 8. Wickliffe, 610, 766. 
 Hunter 8. Cochran, 700. 
 8. Field, 119. 
 8. Middleton, 75. 
 8. Morse, 46, 328. 
 8. Osterhoudt, 267. 
 8. Rice, 108. 
 ii. Starin, 549, 554. 
 8. Trustees of Sandy Hill, 53. 
 Huntington 8. Asher, 83, 85. 
 
 11. Cotton, 241. 
 Hurd 11. Miller, 331. 
 8. Tuttle, 156. 
 Hurley 8. Cox, 179. 
 
 8. Street, 670. 
 Hursh «. St. Paul <fe P. R. E. Co. 535. 
 Hurst 8. McNeil, 762. 
 Hurt v. Blackburn, 345. 
 8. Evans, 682. 
 v. Hollingsworth, 743. 
 
Seferenees] TABLE OF OASES. [*»"« *° WW 6 *- XXXV 
 
 Husband 8. Aldrich, 539, 540. 
 
 Huston 8. Wickersham,30,493,494,496,502. 
 
 Hutchins 8. Bacon, 46, 525, 543. 
 
 Hutchinson 8. Puller, 57, 321. 
 
 Hyde D. Hyde, 69. 
 
 Hyndman s. Hyndman, 248. 
 
 Hynes 8. McDermott, 487. 
 
 Ibgrave 8. Lee, 25. 
 Icehour 8. Rives, 685. 
 Ihmsen 8. Ormsby, 391. 
 Indiana v. Milk, 716. 
 
 Indianapolis, P. & C. R. R. Co. 8. Ross, 617. 
 & St. L. R. R. Co. 8. Horst, 
 731. 
 Ingalls 8. Eaton, 314. 
 iDge v. Garrett, 323. 
 Inglis 8. Trustees of Sailor's Snuff Harbor, 
 
 36, 40, 148. 
 Ingraham 8. Baldwin, 279. 
 8. Wilkinson, 66. 
 Inhabitants of Barnstable 8. Thacher, 548. 
 Deerfield 8. Arms, 66, 
 Greenwich 8. Easton & A. 
 
 R. R. Co. 188. 
 North Brookfield 8. Inhab- 
 itants of Warren, 688. 
 Stockbridge 8. Inhabitants 
 of West Stockbridge,693. 
 Inloes 8. Harvey, 18], 467. 
 Inman 8. Mead, 672. 
 Insurance Co. 8. Bangs, 176. 
 Ipswich Petitioners, 722. 
 Ireland 8. Nichols, 266, 442, 444. 
 Irish 8. Scovil, 153. 
 Irvine 8. Adler, 624. 
 8. Hanlin, 479. 
 8. McRee, 100. 
 Isham is. Sehafer, 538. 
 Mer 8. Foy, 254. 
 Israel 8. Israel, 488. 
 Ive v. Scott, 503. 
 Ives 8. Leet, 433. 
 
 8. Sawyer, 680. 
 Ivey v. Blum, 45, 46. 
 Izon 8. Gorton, 88. 
 
 Jacks v. Chaffin, 565. 
 8. Dyer, 490. 
 8. Moore, 331. 
 Jackson 8. Allen, 153, 267. 
 
 8. Ayers, 231, 232. 
 
 8. Babcock, 180. 
 
 8. Bard, 231, 675. 
 
 8. Blanshan, 691. 
 
 8. Boston & W. R.R. Co.548,722. 
 
 8. Bradford, 715. 
 
 8. Bradt, 218, 274, 278, 613. 
 
 8. Brink, 201. 
 
 8. Brownson, 261. 
 
 (d. Livingston) 8. Bryan, 274. 
 
 Jackson 8. Buel, 52, 53. 
 8. Burton, 604. 
 8. Carswell, 241. 
 8. Chew, 436, 729. 
 8. Christman, 691. 
 8. Coe, 426, 427. 
 8. Colden, 239. 
 8. Dains, 338. 
 8. Davenport, 485. 
 8. Davis, 256, 260, 605, 691. 
 8. Demont, 359. 
 8. Denniston, 194. 
 8. Dickenson, 418. 
 8. Dieffendorf, 374, 375. 
 8. Etz, 691. 
 8. Flint, 180. 
 8. Foster, 663. 
 8. Frost, 630. 
 8. Fuller, 270. 
 8. Gager, 108. 
 8. Graham, 703. 
 8. Hakes, 304. 
 8. Hammond, 693. 
 8. Harder, 253. 
 8. Harper, 253. 
 8. Harrington, 678. 
 8. Harrison, 264, 266. 
 8. Hathaway, 55, 73, 722. 
 8. Haviland, 21, 400, 590. 
 8. Hawley, 402, 403. 
 8. Hazen, 548. 
 8. Hills, 486. 
 1). Hinman, 254. 
 8. Hotchkiss, 231, 
 8. Hubble, 715. 
 8. Hudson, 118, 123, 700. 
 8. Johnson, 225. 
 8. Laird, 418. 
 8. Laughhead, 285. 
 8. Lawton, 744. 
 8. Leek, 142, 194, 258. 
 8. Leggett, 358, 733. 
 8. Leonard, 586, 594. 
 8. Lodge, 336. 
 
 8. Loomis, 474, 505, 529, 534. 
 8. Ludeling, 236, 517, 518, 530. 
 8. Luquere, 691. 
 8. Lyons, 194. 
 8. Matsdorf, 733. 
 8. May, 52, 55, 89. 
 8. McGinness, 231, 232, 235. 
 8. McLeod, 253. 279. 
 8. Miller, 227, 269, 278. 
 8. Moncrief, 227, 283. 
 8. Morse, 733. 
 8. Nestles, 123. 
 8. O'Donaghy, 68. 
 8. Oltz, 59. 
 v. Parker, 600. 
 {d. Kemp) v. Parker, 693. 
 (d. Van Cortlandt) 8. Parkhurst, 
 279. 
 
XXXVi References] TABLE OF CASES. [are to pages. 
 
 Jackson 8. Perkins, 695. 
 
 8. Pike, 49, 106. 
 
 (d. Sparkman) 8. Porter, 217, 546, 
 766. 
 
 8. Ramsay, 359. 
 
 8. Rathbone, 405, 411. 
 
 8. Richmond, 54. 
 
 8. Rightmyre, 546. 
 
 8. Robins, 112. 
 
 8. Rowland, 259. 
 
 8. Rumsey, 133. 
 
 ». Sample, 222, 291. 
 
 8. Scbauber, 462. 
 
 8. Sclover, 54. 
 
 8. Sheldon, 266. 
 
 8. Sidney, 68. 
 
 8. Stewart, 231, 293. 
 
 8. Stiles, 175, 182, 360, 415, 416, 
 462. 
 
 8. Stoetzel, 577. 
 
 8. Stone, 509. 
 
 8. Striker, 55. 
 
 8. Thomas, 567. 
 
 8. Thompson, 232. 
 
 8. Tibbits, 193, 201. 
 
 8. Tuttle, 375, 407, 467. 
 
 8. Van Antwerp, 394. 
 
 8. Vanderheyden, 68, 715. 
 
 8. Vredenbergh, 600. 
 
 8. Waldron, 715. 
 
 8. Walker, 231, 282. 
 
 v. Waltermire, 547. 
 
 8. Warren, 239, 242, 285. 
 
 8. Wheat, 614. 
 
 (d. Bradt; 8. Whitbeck, 206. 
 
 8. Widger, 723. 
 
 8. Wilsey, 278. 
 
 8. Winslow, 119, 715. 
 
 8. Wood, 299, 473, 501, 512. 
 
 8. Woodruff, 628, 639, 647. 
 
 8. Woods, 68, 160. 
 Jacobs 8. Seward, 204. 
 Jamaica Pond Aqueduct Corp. v. Chand- 
 ler, 722. 
 James 8. Beesly, 134. 
 8. Belding, 253. 
 8. Dean, 276. 
 8. Tait, 340. 
 James River <fe Kan. Co. ■». Thompson, 119. 
 Jamison 8. Petit, 727. 
 
 8. Smith, 305. 
 Janes 8. Patterson, 647. 
 Jarboe 8. Smith, 390. 
 Jarvis 8. Hamilton, 50. 
 
 8. Pike, 357. 
 Jeffery 8. Hursh, 245. 
 Jeffries 8. Zane, 486. 
 Jemut v. Cooly, 142. 
 Jenckes v. Cook, 257. 
 Jenkins v. Bradford, 297. 
 n. Dalton, 348. 
 v. Fahey, 56, 228. 
 
 Jenkins v. Means, 511. 
 
 v. Van Schaak, 97. 
 Jenney v. Potts, 359. 
 Jerome v. Ross, 104. 
 Jesser v. Gifford, 140. 
 Jester 8. Overseers, (fee. 150. 
 Jewell v. Porter, 715. 
 Jewett v. Hamlin, 250. 
 Jinkins v. Noel, 148. 
 Johns v. McDanie), 271. 
 
 v. Whitley, 266, 310. 
 Johnson v. Adleroan, 341, 346. 
 
 v. Albany & S. R. R. Co. 386. 
 
 8. Anderson, 722. 
 
 *. Britt, 390. 
 
 v. Brown, 627, 727. 
 
 ■a. Bryan, 537. 
 
 v. Byler, 349. 
 
 8. Chely, 257. 
 
 v. Cooper, 100. 
 
 v. Dixon, 262. 
 
 v. Elliot, 250. 
 
 v. Fullerton, 177, 407, 408. 
 
 8. Futch, 474, 483, 496, 511, 536, 
 
 546. 
 v. Gorham, 617, 620. 
 8. Gresham, 517, 529. 
 8. Gurley, 91, 253. 
 8. Harrelson, 533. 
 8. Hauser, 656. 
 v. Houston, 243, 246. 
 8. Long, 236. 
 8. Mcllwain, 405. 
 8. Mcintosh, 123, 665, 765. 
 v. McMillan, 723. 
 8. Monell, 762. 
 
 8. Kevin, 304, 320, 323, 327, 405 
 v. Newman, 397. 
 v. Phillips, 606. 
 8. Simpson, 724. 
 ii. SMUman, 83. 
 ■v. Tilden, 220. 
 8. Timmons, 691, 692, 700. 
 v. Toulmin, 206. 
 v. Towsley, 744. 
 8. Walter, 696. 
 8. Watts, 680. 
 8. Whitman, 440. 
 Johnston v. Manns, 394. 
 Jolly v. GhtTing, 326. 
 Jones 8. Billstein, 131. 
 8. Bivins. 565. 
 u. Boston Mill Corp. 108. 
 8. Boyd, 97, 450. 
 8. Brinker, 350. 
 8. Burget, 410. 
 v. Burgett, 724. 
 8. Carwithen, 20. 
 8. Chiles, 168. 
 8. DeGraffenreid, 375. 
 8. Dove, 253, 254, 696. 
 v. Easley, 546. 
 
References] TABLE OF OASES. ["re to pages, xxxvii 
 
 Jones v. Emery, 69. 
 
 v. Fox, 99. 
 
 v. Freed, 605. 
 
 v. Hartley, 159. 
 
 v. Hockman, 567. 
 
 ■v. Hollopeter, 68. 
 
 v. Hooper, 400. 
 
 v. Johnson, 528. 
 
 v. Jones, 565. 
 
 v. League, 766. 
 
 v. Manly, 350. 
 
 (d. Griffiths) v. Marsh, 292. 
 
 v. Massey, 487, 488. 
 
 v. Parker, 307. 
 
 v. Perkins, 194. 
 
 v. Perry, 87, 100. 
 
 v. Shaekleford, 234. 
 
 v. Smith, 627, 723. 
 
 v. Soulard, 722. 
 
 v. Sullivan, 700. 
 
 v. Weathershee, 84, 194, 203, 215, 
 216. 
 
 v. Wilson. 605. 
 Jordan v. Deaton, 726, 727. 
 v. Poillon, 96. 
 v. Record, 309. 
 v. Stevens, 343. 
 t>. Van Epps, 371. 
 v. "Ward, 286. 
 Jory v. Orchard, 292. 
 Joslyn v. Jostyn, 489. 
 Joy v. Berdell, 306. 
 Joyce v. Williams, 627, 726. 
 Judd v. Leonard, 82. 
 Judge v. Houston, 343. 
 Judson v. Macon Co. 760. 
 
 Kahn v. Old Telegraph Min. Co. 302, 341, 
 
 350, 352, 359, 699. 
 Kansas City Elevator Co. v. Union Pac. 
 
 Ey. Co. 266. 
 Kansas Pac. Ry. Co. v. McBratney,309,668. 
 Karker v. Haverly, 229. 
 Karns v. Tanner, 61, 141. 
 Kathan v. Rockwell, 193, 601, 602. 
 Kaul v. Lawrence, 318, 327. 
 Kean v. Connelly, 488. 
 Keane v. Cannovan, 508. 
 Keay v. Goodwin, 202. 
 Keech v. Hall. 26, 239, 285. 
 Keeler v. Davis, 267. 
 Keen v. Jordan, 693. 
 Keenan v. Cavanangh, 723. 
 Keene v. Angel, 428. 
 Keener v. Goodson, 630. 
 Keil v. Healey, 126. 
 Keith v. Johnson, 405. 
 
 v. Keith, 545, 546, 605. 
 Kelgour v. Wood, 151. 
 KeEer v. Auble, 209. 
 Kelley v. Meins, 115. 
 Kellogg v. Forsyth, 182, 394. 
 
 Kellogg v. Groves, 27'2. 
 
 v. Kellogg, 308, 318. 
 v. Mullen, 723. 
 v. Smith, 726. 
 v. Wood, 715. 
 Kellum, Matter of, 133. 
 v. Smith, 727. 
 Kelly v. Fritz, 410. 
 
 v. Hendricks, 713. 
 v. Mack, 549. 
 v. Owen, 69, 148. 
 *. Sheehy, 50. 
 v. Tate, 338. 
 Kelsey ». "Ward, 371. 
 Kenada v. Gardner, 257. 
 Kendall v. Lawrence, 556. 
 Kenege v. Elliott, 91, 265. 
 Kennehunkport v. Smith, 611. 
 Kennedy v. Campbell, 43. 
 v. Daniels, 307. 
 v. Fury, 146. 
 ■ v. Green, 556. 
 v. McCartney, 715. 
 Kenner v. Amer. Contract Co. 137. 
 Kenney v. Browne, 526. 
 v. Phillipy, 686. 
 Kenniston v. Hannaford, 55, 71, 90, 356, 
 
 414. 
 Kent v. Agard, 244. 
 v. Harcouit, 638. 
 v. Lasley, 244, 393. 
 v. Waite, 594. 
 Kentfield v. Hayes, 350, 351, 359. 
 Kentucky River Nav. Co. v. Common- 
 wealth, 253, 264, 266. 
 Keon v. Keon, 336. 
 Kercheval v. Ambler, 405, 415. 
 Kerley v. Kerley, 37. 
 
 v. Richardson, 501. 
 Kerr v. Hitt, 572. 
 
 ■v. Merchants Exch. Co. 88, 160. 
 v. Moon, 333. 
 Kerrains v. People, 162. 
 Kerrich v. Bransby, 133. 
 Kersey v. Garton, 297. 
 Kershaw v. Thompson, 399. 
 Kershner v. Kerstmer, 363. 
 Ketchum v. Schicketanz, 680. 
 Key v. Jennings, 236. 
 Keys v. Mason, 46. 
 Keyser v. Evans, 202. 
 Kibbe v. Ditto, 729. 
 Kidd v. Dennison, 447. 
 
 v. Emmett, 366. 
 Kidder v. Barr, 235. 
 
 v. Rixford, 540. 
 v. Stevens, 304, 313. 
 Kiersted v. Orange & A. R. R. Co. 479. 
 Kilburn v. Adams, 594. 
 Kile v. Tubbs, 54. 
 Kilgour v. Gockley, 153. 
 Kille v. Ege, 327, 474, 494, 523, 695. 
 
XXXViii References] TABLE OK CASES. [are to pages. 
 
 Killen v. Compton, 344. 
 Kimball v. Blaisdell, 716. 
 
 o. Schoff, 718. 
 Kimbrough v. BeDton, 672. 
 Kiramel v. Benna, 22, 376, 377, 382, 386. 
 Kineaid v. Dormey, 726. 
 i>. Perkins, 605. 
 King v. Bill, 466. 
 ■a. Boyd, 131. 
 v. Connolly, 277. 
 v. Dickerinan, 290. 
 v. Fowler. 691. 
 v. Fraser, 331. 
 v. French, S57. 
 v. Harris, 401. 
 v. Hunt, 337. 
 
 v. Inhabitants of Hollington, 80. 
 v. Inhabitants of Mellor, 53. 
 v. Inhabitants of OaHey, 127. 
 v. Inhabitants of Old Alresford, 78. 
 v. Inhabitants of Sedgley, 60. 
 v. Inhabitants of Whixley,. 80. 
 v. Kent, 344. 
 v. King, 140. 
 v. La Grange, 1 67. 
 v. Little, 489. 
 v. Portis, 334. 
 v. Rea, 715. 
 v. Rowan, 212. 
 v. St. Michael, 239. 
 v. Stevens, 700. 
 v. Warrington, 244. 
 King of Spain v. Oliver, 118. 
 Kings Co. Fire Ins. Co. v. Stevens, 721. 
 Kingsdale v. Mann, 406. 
 Kingston v. Lesley, 561, 667. 
 Kingston's (Duchess of) Case, 370, 380. 
 Kinna v. Smith, 239. 
 Kinoey v. Doe, 259. 
 
 v. Farnsworth, 682. 
 v. Harrett, 128. 
 v. Slattery, 1 92, 204, 602, 603. 
 v. Vinson, 342, 565, 619, 651. 
 Kinsey v. Satterthwaite, 727. 
 
 v. Sensbongh, 296. 
 Kipp v. Delamater, 462. 
 Kirby v. Harrison, 228. 
 Kirk v. Carr, 136. 
 
 v. Hamilton, 713, 740, 741. 
 v. Lynd, 763. 
 Kirkland v. Cox, 145. 
 
 v. Thompson, 156, 340. 
 Kirtland v. Pounsett, 331. 
 Kissell v. St. Louis Public Schools, 747. 
 Kitchen v. Campbell, 35. 
 v. Herring, 325. 
 v. Wilson, 300, 610. 
 Kittredge v. Locks & Canals, &c 204,205. 
 Klein v. Argenbright, 744. 
 
 v. New Orleans, 164. 
 Kline v. Beebe, 127. 
 
 v. Johnston, 549, 652. 
 
 Kline v. Moulton, 137. 
 Klingensmith v. Faulkner, 327. 
 Klinkener v. School Directors, 188. 
 Klohs v. Reifsnyder, 130. 
 Knapp v. Burton, 97. 391. 
 Knickerbocker Ins. Co. v. Tolman, 336. 
 Knight v. Heal on, 611. 
 
 v. Mutual Life Ins. Co. 718. 
 v. Thayer, 714. 
 Knipe v. Palmer, 130. 
 Knolls v. Barnhart, 98, 178, 209, 211. 
 Knouff v. Thompson, 712. 
 Knowles v. Hull, 271. 
 
 v. Toothaker, 627. 
 Knowlton v. Smith, 626. 
 Knox v. Cleveland, 178. 
 
 v. Herod, 216,646. 
 
 ■v. Jones, 333. 
 Koiner v. Rankin, 610. 
 Koon v Nichols, 392. 
 Kortright v. Cady, 240, 606. 
 Krause v. Means, 527. 
 Krevet v, Meyer, 50. 
 Kribbs v. Downing, 49, 153. 
 Kron v. Dennis, 450. 
 Krumm v. Beach, 226, 233. 
 Kruse v. Wilson, 680, 660. 
 Kuhns v. Bowman, 497, 602. 
 Kunzie v. Wixom, 136, 279,280. 
 Kurkel *. Haley, 72, 90. 
 Kyser v. Cannon, 348. 
 
 Lacustrine Fertilizer Co. v. Lake Guano 
 
 & F. Co. 104, 448, 452. 
 Ladd v. Dubroca, 660. 
 
 v. Hildebrant, 434. 
 Lady Dacres' Case, 321. 
 Lady Windsor's Case, 104. 
 Laflin v. Herrington, 418, 420. 
 La Frombois v. Jackson, 614,630,634,663. 
 Lahiffe v. Hunter, 325. 
 Lair v. Hunsicker, 648. 
 Lamb v. Archer, 20. 
 
 v. Davenport, 547. 
 Lammers v. Nissen, 67. 
 Lamont v. Cheshire, 351. 
 Lamson v. Clarkson, 253, 254, 259. 
 Lanahan v. Sears, 147,244. 
 Lancashire v. Mason, 260. 
 Land Co. v. Saunders, 723. 
 Landes v. Brant, 747. 
 Lane v. Harrold, 487. 
 
 ■a. Kennedy, 611. 
 
 v. King, 411, 509. 
 
 v. Schermerhorn, 130. 
 
 v. Thompson, 140. 
 Lang v. Ropke, 426, 430. 
 Lange v. Jones, 107. 
 Langendyck v. Burhans, 194,487. 
 Langford v. Love, 165. 
 v. Poppe, 665. 
 v. United States, 396. 
 
References] TABLE OF OASES. [we to pages, xxxix 
 
 Langley v. Chapin, 139. 
 
 v. Jones, 678. 
 Lankford v. Green. 480. 
 Lannay v. Wilson, 667. 
 Lanning v. Dolph, 759. 
 Lansing v. North River S. B. Co. 452. 
 Lapeyre v. Paul, 601, 602, 603. 
 Lapish v. Bangor Bank, 722. 
 Laroo v. Casaneuava, 811. 
 Larkin v. Avery, 274, 277. 
 v. Saffarans, 114. 
 v . Wilson, 434. 
 Larman v. Huey, 205, 209. 
 Larned v. Hudson, 277, 278, 317, 397, 480, 
 
 482, 483. 
 Larrabee v. Lmnbert, 479, 480, 482. 
 Larreau v. Davignon, 120. 
 Larriviere v. Madegan, 734. 
 Larwell v. Stevens, 492, 614. 
 Lattin v. McCarty, 99, 110, 463, 669. 
 Laub v. Buckmiller, 100, 110,463. 
 Laverty u. Moore, 627, 726. 
 Law v. Jackson, 462. 
 
 v. Patterson, 205. 
 Lawrence v. Ball, 607. 
 
 ■v. Ballou, 157. 
 v. I)u Bois, 331. 
 v. Hunt, 386. 
 v. Kenney, 345. 
 v. Webster, 209. 
 Lawry v. Williams, 715. 
 Lawson v. Cunningham, 198. 
 Lay v. Lawson, 346. 
 Lea v. Hernandez, 552. 
 
 ■a. Polk County Copper Co. 662. 
 v. Slatterly, 340. 
 Leach v. Koenig, 256. 
 
 v. Thomas, 262. 
 League v. Egery, 729. 
 Learned v. Copley, 527, 529, 543. 
 Leary v. Langsdale, 322, 332. 
 Leasure v. Union Mut. L. I. Co. 124. 
 Ledgerwood v. Pickett, 732. 
 Ledyard v. Ten Eyck, 63. 
 Lee v. Bowman, 496, 527. 
 v. Clary, 715. 
 v. Cook, 700. 
 v. Ejector, 404. 
 v. Fox, 211. 
 v. Kaufman, 168. 
 v. Norris, 119. 
 v. Simpson, 99, 305. 
 Leeds v. Lockwood, 327. 
 Leeper v. Baker, 572. 573, 574, 577. 
 Leesev. Clark, 410, 411. 
 Le Fevre v. Le Fevre, 82. 
 v. Murdock, 143. 
 Leffingwell v. Warren, 565, 730. 
 Le Franc v. Richmond, 220. 
 Le Guen v. Gouverneur, 371. 
 Lehigh Valley R. R. Co. v. McFarlan, 560, 
 564. 
 
 Lehmberg v. Biberstein, 331. 
 Leitch v. Wells, 467. 
 Leland v. Hathorne, 331. 
 
 v. Tousey, 393, 467, 475, 480, 502, 
 508, 547. 
 Lenox v. Clarke, 673. 
 
 v. Notrebe, 441, 444. 
 Lent v. Howard, 489. 
 Le'onard v. Leonard, 594. 
 
 v. White, 55. 
 Leport v. Todd, 260. 
 Les Bois v. Bramell, 747. 
 Lesher v. Sherwin, 231. 
 Leslie v. Leslie, 358 
 Lessem v. Wilson, 301. 
 Lestrade v. Barth, 352. 
 Letchford v. Cary, 77, 387. 
 Levi v. Engle, 304. 
 Lewis v. Adams, 254. 
 v. Brewster, 177. 
 v. Cocks, 100, 522. 
 v. Lewis, 723. 
 v. McFarland. 136. 
 v. Phillips, 673. 
 v. Ringo, 134, 271. 
 v. San Antonio, 190, 432. 
 Lick v. Ray. 87. 
 Lienow v. Ellis. 331. 
 Lillianskyoldt v. Goss, 192, 216, 392. 
 Lincoln v. French, 145. 
 Lincoln & K. Bank v. Drumrnond, 314. 
 
 Co. v. Magruder, 123, 174. 
 Lindsey v. Danville, 500. 
 v. Lindsey, 314. 
 Linehan v. Anthony, 404. 
 Linker v. Benson, 202, 206. 
 Linthicum v. Ray, 55. 
 
 v. Thomas, 523. 
 Lion v. Burtis, 472, 483. 
 Lippett v. Kelley, 497. 
 Listowel v. Gibbings, 60. 
 Litchfield (Bailiffs, <Scc.) v. Slater, 368. 
 Liter v. Green, 36. 344, 358. 
 Littlejohn v. Attrill, 104. 
 Littlewort v. Davis, 244. 
 Livingston v. D'Orgenoy, 165. 
 v. Hayes, 240, 242. 
 v. Jefferson. 330, 331, 339. 
 v. Livingston, 104, 448. 
 v. Peru Iron Co. 618, 630,638, 
 
 654. 
 v. Reynolds, 262. 
 ■b. Stickles, 264. 
 v. Tanner, 269. 270, 271, 273, 
 279, 286, 317, 476, 480, 
 482, 483. 
 Lloyd v. Bunce, 612. 
 
 v. Giddings, 700. 
 v. Lynch, 210. 
 v. Passingham, 443. 
 v. Peell. 508. 
 Locke v. Coleman, 703. 
 
si 
 
 References} TABLE OP CASES. [are to pages. 
 
 Locke v. Motley, 79. 
 Lockman v. Reilley, 96. 
 Loekridge v. Daggett, 703. 
 Lockwood v. Drake, 153, 303. 
 v. Fox, 462. 
 v. Mills, 295. 
 Lodge v. Barnett, 723. 
 Loeb v. Mathis, 330. 
 Logan v. Goodall, 220, 221, 540. 
 v. Jelks, 661. 
 v. Moore, 715. 
 v. Steele, 715. 
 Lokeru. Rolle, 99. 522. 
 Lombard v. Cowham, 350, 351. 
 London v. Greyine, 261. 
 
 (Mayor of) v. Cole, 330, 331, 368. 
 Londonderry v. Andover, 688. 
 Long v. Colton, 683, 685, 687. 
 
 v. Higginbotham, 640, 644. 
 
 v. Kasebeer, 449. 
 
 v. Linn, 364. 
 
 v. Mast. 201, 604. 
 
 v. Morton, 407. 
 
 v. Neville, 374, 384, 411, 467. 
 
 v. Stapp, 205. 
 Longfellow v. Longfellow, 253. 
 Longwell, v. Bentley, 97. 
 Longworth v. Wolfington, 541. 
 Lonsdale v. Rigg, 80. 
 
 (Earl of) v. Nelson, 89. 
 Lord v. Comm'rs of Sydney, 722. 
 
 v. Dearing, 317," 476, 484. 
 
 v. Sawyer, 610. 
 
 v. Steamship Co. 64. 
 
 Audley v. Pollard, 17. 
 Lorillard v. Clyde, 302. 358. 
 Lorymer v. Hollister, 297. 
 Los Angeles (City of) v. Signoret, 312. 
 Louisiana v. Jumel, 172. 
 Louks v. Kenniston, 726. 
 Lounsbery v. Snyder, 272. 
 Love v. Edmonston, 142, 231, 233. 
 
 v. Gates. 681. 
 
 v. Law, 253, 260. 
 
 v. Powell, 509. 
 
 v. Shartzer, 491, 501, 527. 
 
 v. Shields, 652. 
 
 v. Simms, 29, 341, 342, 678, 754. 
 
 v. Watkins, 235, 353. 
 Lovell v. Frost, 585, 592, 613. 
 Lovely v. Speisshoffer, 317. 
 Low«. Elwell, 193, 278. 
 
 v. Holmes, 447. 
 
 v. Purdy, 495, 501. 
 Lowe v. Emerson, 255, 256, 393. 
 Lower v. Winters, 537. 
 Lowes v. Lusb, 706. 
 Lownsdale v. Parrish, 758. 
 Lowry v. Cady, 693. 
 
 v. Jenkins, 402, 416. 
 ». Tew, 234. 
 Lozier v. N. Y. Central R. R. Co. 72. 
 
 Lucas v. Brooks, 253. 
 
 v. Johnson, 153, 155, 163, 174. 
 ii. King, 98. 
 Luckett v. 'Williamson, 228. 
 Lucy v. Lucy, 134. 
 Ludlow v. Johnson, 134. 
 v. McBride, 546. 
 Lum v. Reed, 394, 549. 
 Lunquest v. Ten Eyck. 517, 518, 527. 
 Lunsford v . Turner, 258. 
 Lunt v. Holland, 722. 
 Lyell v. Kennedy, 329. 
 
 v. Supervisors, <fec. ] 74. 
 Lyle v. Rollins, 153. 
 Lyles v. Murphy, 253. 
 Lyman v. Mower, 286. 
 Lynch v. Bailey, 759. 
 
 v. Bernal, 675. 
 
 v. Withers, 43. 
 Lynde v. Hough, 264. 
 
 v. McGregor, 538. 
 v. Williams, 680, 584, 646. 
 Lyon v. Gormley, 73. 
 
 v. Kain, 306. 
 
 v. Mottuse, 36. 
 Lyons v. Gregory, 693. 
 Lytle v. Burgin, 179. 
 
 v. State of Arkansas, 746. 
 
 Macduncoh v. Stafford, 320. 
 Machin ■«. Geortner, 551, 553, 575. 
 Mackall v. Chesapeake <fe O. Canal Co.lll, 
 
 676. 
 Macklot v. Dubreuil, 566. 
 Mactier v. Frith, 677. 
 Maddon v. White, 124, 286. 
 Madison Ave. Bapt. Ch. v. Oliver St. Bapt. 
 
 Ch. 108, 240, 246, 247, 248. 
 Madland v. Benland, 514. 
 Magaw v. Cannon, 27 1. 
 Magee v. Chadoin, 422, 426, 432. 
 
 v. Magee, 567. 
 Magruder v. Peter, 128. 
 Magwire v. Labeaume, 496. 
 
 v. Tyler, 668. 
 Mahoney v. Middleton, 157, 160, 384. 
 
 v. Van Winkle, 395. 
 Main v. Killinger, 626, 727. 
 
 v. Payne, 427. 
 Makepeace v. Bancroft, 724. 
 Malcolm v. Rogers, 218. 
 Malin v. Rose, 425. 
 Malins v. Brown, 234. 
 Mallett v. Foxcroft, 390. 
 Malloy v. Bruden, 583, 686. 
 Malone v. Marriott, 181, 453. 
 v. Stretch, 497, 542. 
 Man ii. Drexel, 374, 502. 
 Manchester College ». Isherwood, 462. 
 Mandeville v. Reynolds, 352. 
 Mann ». Falcon, 241, 245, 349. 
 
References] TABLE OF CASES. [cm to pages. 
 
 xli 
 
 Mann v. Rogers, 395. 
 v. Young, 7 15. 
 Manning ». Dove, 364. 
 Manny v. Smith, 150. 
 Mansfield v. Dyer, 528. 
 Mantle v. Wollington, 28, 218. 
 Mapes v. Scott, S36, 444, 456. 
 Marable t. Jordan, 538. 
 Marble Co. •«. Ripley, 85. 
 Marcy v. Darling, 57. 
 
 v. Marcy, 201. 
 Marietta (City of) v. Emerson, 433. 
 Marion v. Ellis, 761. 
 Markal's Case, 34. 
 Marlow v. Adams, 520. 
 
 v. Wiggins, 258. 
 Marquat v. Marquat, 317. 
 Marquez v . Frisbie, 744. 
 Marrett v. Murphy, 223. 
 Marriot v. HaraDtcn, 372. 
 Marsh v. Brooks, 150, 754, 764, 765. 
 
 v. Burt, 722. 
 
 v. City of Brooklyn, 87. 
 Marshall v. Shafter, 306, 309, 380. 
 v. Steam Nav. Co. 78, 79. 
 v. Wing. 176. 
 v. Wood, 316. 
 Marsteller v. MeClean, 115. 
 Marston v. Hobbs, 314. 
 Martin v. Boosack, 610. 
 
 v. Brewster Iron Min. Co. 55. 
 
 v. Davis, 163. 
 
 v. Dwelly, 715. 
 
 v. Fridley, 246. 
 
 v. Judd, 572. 
 
 v. Kennedy, 35, 370. 
 
 v. Martin, 334, 367, 401, 544. 
 
 v. O' Conner, 541. 
 
 v. Porter, 499. 
 
 v. Rector, 153, 416. 
 
 v, Taylor, 760. 
 
 v. Thompson, 511. 
 
 v. Waddell, 63, 721. 
 
 v. Wayman, 432, 435. 
 Marvin v. Dennison, 158, 180, 182, 183, 
 242, 392. 
 
 v. Lewis, 514. 
 
 v. Marvin, 427. 
 Marx v. McGlynn, 133, 149. 
 Mason v. Libbey, 693. 
 
 v. Lord, 141. 
 
 ■o. Walker, 132. 
 
 v. Wallace, 235. 
 '«. Warner, 331. 
 Massey v. Trantham, 43. 
 Massie v. Long, 124, 218. 
 
 v. Sebastian, 715. 
 Masten v. Olcott, 370, 386, 420. 
 Masters v. Eastis, 44. 
 Masterson v. Cheek, 700. 
 v. Hagan, 483. 
 Mathers. Ministers of Trinity Church, 666. 
 
 Mathews v. Horlbeck, 362. 
 Mathewson v. Thompson, 276. 
 Matson v. Cook, 553. 
 Matthews v. Bliss, 213. 
 
 v. Ward, 145. 
 Mattox v. Helm, 407. 
 Mauck v. Mauck, 144. 
 Maul v. Rider, 210. 
 Maus v. Montgomery, 359. 
 Maxwell v. Levy, 761. 
 v. Paine, 549. 
 May v Calder, 128. 
 v. Le Claire, 528. 
 v. Slade, 219. 
 Mayer v. Ramsey, 349, 717, 718. 
 Mayhew v. Norton, 70, 721. 
 Maynard v. Cable, 227. 
 Mayne v. Jones, 407. 
 Mayor a. Coffin, 333, 462. 
 Mayor &c. v. Ewart, 330. 
 
 v. Groshon, 104. 
 
 v. North Shore S. I. F. Co. 87. 
 
 v. Union Ferry Co. 86. 
 
 v. Ward, 84. 
 
 of London v. Cole, 330, 331, 
 368. 
 
 of N. Y. vi. Mabie, 86. 
 
 ofN. Y. v. Smith, 314. 
 Mays v. Lewis, 715. 
 v. Rose, 441. 
 McAfferty v. CoDover, '627. 
 McAlexander v. Wright, 293. 
 McAllen'jj. Woodcock, 116. 
 McAllister v. Devane, 609, 610. 
 McAlpin v. Lee, 237. 
 McArthur v. Henry, 726. 
 
 v. Porter, 308. 
 McAnlay v. Western Vt. R. R. Co. 702. 
 MeBain v. McBaiu, 390. 
 McBee v. Johnson, 46. 
 McBurney v. Cutler, 681. 
 
 v. Wellman, 244. 
 McCabe v. McCabe, 488, 489. 
 McCall v. Carpenter, 98. 
 
 v. Neely, 632, 643, 650. 
 v. Webb, 206. 
 McCallum v. Boswell, 209. 
 McCamy v. Higdon, 657, 661. 
 McCann v. Rathbone, 41. 
 McCanna v. Johnston, 272, 281, 291. 
 McCarman v. Cochran, 305. 
 McCarron v. Cassidy. 244. 
 McCarthy v. Mann, 715. 
 
 *. Yale, 313. 
 McCarty v. Holman, 79. 
 
 v. Roberts, 357. 
 MeCaslin v. State, 269, 270. 
 McCaughal v. Ryan, 120. 
 McCauley v. Fulton, 223, 350. 
 
 v. Gilmer, 303, 340, 354. 
 McCansland v. Fleming, 692. 
 McChesney v. Wainwright, 360. 
 
xlii 
 
 References] TABLE OF CASES. [are to pages. 
 
 McChord v. McClintock, 410. 
 
 McClain !>. Todd, 553. 
 
 McClanahan v. Barrow, 283. 
 
 McClaneti. White, 283, 342. 
 
 McClellan v. Kellogg, 639. 
 
 McClelland v. Dickenson, 137. 
 
 McClennan v. McCleod, 343. 
 
 McClintock v. Bryden, 59. 
 
 McClinton v. Pittsburg, F. W. &c. Ry.Co. 
 
 92. 
 McCIung v. Echols, 278, 285. 
 
 1). Ross, 201, 204, 580. 
 McCIure v. McCIure, 272, 390. 
 McClurg v. Wilson, 145. 
 McComb v. Wright, 691. 
 McConnel v. Reed, 346. 
 MeConnell v. McConnell, 632, 659, 662. 
 
 v. Wilcox, 167. 
 McCool v. Smith, 113. 
 McCoon v. Smith, 176. 
 McCormick v. Barnum, 627. 
 
 v. Nixon, 450, 451. 
 v. Sullivant, 333. 
 McCorry v. King, 605. 
 McCourt v. Eckstein, 89, 204. 
 McCown v. Hannah, 179. 
 MeCracken v. City of San Francisco, 616, 
 652. 
 v. Clarke, 107. 
 *. MeCracken, 131. 
 McCravey v. Remson, 254. 
 McCrea ». Haraszthy, 133, 137. 
 McCready v. Guardians, <fec. 486. 
 
 v. Virginia, 64, 79. 
 McCreary v. Marston, 254, 258. 
 McCreery v. Allender, 149. 
 
 v. Duane, 347. 
 
 v. Everding, 407, 573. 
 
 V. Sawyer, 347. 
 McCrubb v. Bray, 484, 491, 501. 
 McCullough v. Guetner, 297. 
 v. Wall, 66, 584. 
 McDaniel v. Wailes, 299. 
 McDearman v McCIure, 540. 
 McDermott v. Davison, 294. 
 McDevitt v. Sullivan, 259. 
 McDonald v. Schneider, 700. 
 
 v. Smalley, 761. 
 McElmoyle v. Cohen, 564. 
 McEntire v. Brown, 178. 
 McEowen v. Lewis, 723, 724. 
 McEvoy v. Loyd, 639. 
 McFarland v. Goodman, 53. 
 McFarlane v. Kerr, 611. 
 McGary v. City of Lafayette, 499. 
 McGlasson v. Bradford, 302. 
 McGlynn v. Moore, 266. 
 McGo'on v. Scales, 330, 333. 
 McGrath v. Sinclair, 144, 216, 546. 
 McGregor v. Brown, 261, 262. 
 McGuffie v. Carter, 260. 
 McHan v. Stansell, 227, 283, 284. 
 
 Mcllwrath v. Hollander, 467, 469. 
 Mclndoe v. Morman, 235. 
 McKay v. Freeman, 69. 
 
 v. Speak, 300. 
 McKee v. Lineberger, 672, 673, 678. 
 
 v. Pfout. 140. 
 McKeighan v. HopkinB, 662. 
 McKenzie v. L'Amoureux, 114. 
 McKillip v. McKillip, 130, 131. 
 McKinlay v. Tuttle, 483. 
 McKinly v. Holliday, 520, 528. 
 McKinny v. Kenny, 627. 
 McKnight v. Dunlop, 386. 
 McLane v. Bovee, 359, 395. 
 
 v. Spence, 372. 
 McLaughlin v. Barnum, 522. 
 
 v. Kelly, 342. 
 McLaurin v. Wilson, 696. 
 McLean v. Bovee, 411, 609. 
 
 v. Macdonald, 136, 146. 
 McLenan v. Chisholm, 697. 
 McLendon v. West Point & A.R.R. Co.465. 
 McLeod v. Bullard, 248. 
 McLeran v. McNamara, 407. 
 McMahan v. Bowe, 117, 495. 
 McMahon v. Russell, 241, 243. 
 McMannus v. Smith, 309, 310. 
 McManus v. O'Sullivan, 610. 
 McMasters v. Carothers, 97. 
 McMechan v. GrifHng, 556. 
 McMillan v. Richards, 241, 243. 
 
 v. Solomon, 88. 
 McMinn v. Mnyes, 410, 511, 517. 
 
 ■v. O'Connor, 355, 359. 
 McMullin ii. Erwin, 651. 
 McMurray v. Oneal, 363. 
 McNair v. Schwartz, 479. 
 
 v. Toler, 175. 
 McNamee v. Moreland, 615, 620. 
 McNeely^. Langan, 546, 598. 
 McNeil v. Bright, 400. 
 McPherson v. Cox, 297. 
 McPike v. Wells, 134. 
 McQuade v. Emmons, 416. 
 McQueen v. Ivey, 661, 663. 
 McQuiddy v. Ware, 601. 
 McRae v. McDonald, 137. 
 McRea v. Central Nat. Bank, 56, 511. 
 McSorley v. Larissa, 538. 
 McStay v. Friedman, 755. 
 McTeague v. Coulter, 99, 463. 
 Meacham v. Dudley, 297. 
 Mead v. Leffingwell, 629. 
 
 v. Mitchell, 391. 
 Meade v. Lawe, 345. 
 Meadow Val. Min. Co. v. Dodds, 452. 
 Meeklem v. Blake, 314. 
 Medbury v. Swan, 360. 
 Medlicot v. Bruester, 462. 
 Medlin v. Wilkins, 585, 726. 
 Meegan v. Gunsollis, 176. 
 Meehan v. Forrester, 244, 245. 
 
References] TABLE OF OASES, [we to pages. 
 
 xliii 
 
 Meehan v. Williams, 566. 
 Meek v. Breckenridge, 184. 
 Meeker v. Place, 2*72. 
 
 v. Wright, 216. 
 Meeks v. Kirby, 54. 
 Meigs v. McClung, 166, 167, 169, 170. 
 Meldrum v. Sarvis, 837. 
 Melentbin v. Keith, 234, 741. 
 Mellingtoh v. Goodtitle, 81. 
 Melton v. Lambard, 59, 62, 220. 
 Melvin v. Prop'rs of Locks, &c. 586, 595. 
 
 v. Waddell, 565, 605. 
 Menifee v. Hamilton, 428. 
 
 ■a. Menifee, 137. 
 Menkens v. Blumenfchal, 698. 
 Meraman v. Caldwell, 387. 
 Merced Min. Co. v. Fremont, 452. 
 Mercer v. Doe, 673. 
 
 v. Selden, 612. 
 Merchants' Bank of St. L. v. Harrison, 681 . 
 Mercier v. Mercier, 295. 
 Merest v. Harvey, 499. 
 Mericlo, Matter of, 133. 
 Meriden Britannia Co. v. Whedon, 306. 
 Merrell v. Smith, 28. 
 Merrill v. Bullock, 41, 109. 
 
 v. Dearing, 303. 
 
 v. Hilliard, 523. 
 Merriman v. Russell, 725. 
 Merritt v. Campbell, 389 
 
 v. Carpenter, 454. 
 
 v. Lyon, 149. 
 
 v. O'Neil, 486. 
 
 v. Scott, 529, 530, 536. 
 
 v. Thompson, 18U. 
 Merry v. Hallet, 56. 
 
 Merryman v. Bourne, 256, 258, 391, 395. 
 Mersey, &a., Nav. Co. v. Douglas, 330. 
 Messenger v. Armstrong, 272. 
 Metcalfe v. Brandon, 695. 
 
 v. McCutchen, 623. 
 Meth. Epis. Ch. v. Council of Hoboken, 
 187, 188. 
 v. Stewart, 145. 
 Home v. Thompson, 565. 
 Meth. Society v. Bennett, 145: 
 Metters v. Brown, 134. 
 Mexico v. Arrangois, 293. 
 Meyer v. Campbell, 246. 
 
 v. Metzler, 89. 
 Mickey v. Stratton, 546, 680. 
 Mickles v. Dillaye, 522, 538, 539. 
 
 v. Townsend, 715. 
 Middlebury College v. Cheney, 715. 
 Middleton v. Low, 767. 
 Middleton's Case, 20. 
 Miles v. Caldwell, 378, 382, 385, 419, 436, 
 
 729 
 Mill v. Hill, 531. 
 Millard v. McMullin, 601. 
 Miller v. Adsit, 394. 
 
 v. Ball, 225, 234, 676 
 
 Miller v. Bledsoe, 315. 
 
 v. BoDsadon, 257. 
 
 v. Brenham, 441. 
 
 v. Brownson, 162, 537. 
 
 v. Bryan. 724. 
 
 v. Casselberry, 57, 364, 365. 
 
 ■a. Chandler, 344. 
 
 v. Covert, 372. 
 
 v. Downing, 557, 671. 
 
 v. Ewer, 670. 
 
 v. Hardin, 680. 
 
 v. Havens, 266. 
 
 v. Henry, 502. 
 
 v. Hoberg, 137. 
 
 v. Ingram, 606. 
 
 v. Jamison, 100. 
 
 ■v. Lancaster Bank, 755. 
 
 v. Lang, 260. 
 
 v. Long Island R. R. Co. 551, 553, 
 557, 575, 642, 647. 
 
 v. Manice, 370. 
 
 v. Mann, 55. 
 
 v. McBrier, 257. 
 
 s.'McIntyre, 357, 766. 
 
 v. Melehor, 475, 484. 
 
 v. Miller, 104, 205. 
 
 v. Myers, 192, 200, 209, 488. 
 
 u. Piatt, 201. 
 
 v. Sherry, 396. 
 
 v. Shields, 261. 
 
 v. Shriner, 305. 
 
 ii. Swift, 227, 232. 
 
 v. Trets, 362. 
 
 ■u. Wilson, 673. 
 Millhollin v. Jones, 350. 
 Milliner v. Robinson, 222. 
 Million v. Riley, 667. 
 Mills v. Graves, 358. 
 
 v Hamilton, 256. 
 v. Peirce, 343, 344. 
 Milne v. Cummings, 222. 
 Milner v. Wilson, 50 
 Milton v. Haden, 258. 
 Miner v. Clark, 394. 
 Minier v. Minier, 538. 
 Mining Co. v Taylor, 62, 192, 234. 
 Minke v. McNamee, 374. 
 Minnesota v. Grant, 1 1 9. 
 Minot v. Brooks, 662. 
 Minto v. Delaney, 67. 
 Miss. & Mo. R. R. Co. ».Ward, 219, 331,339. 
 Tenn.R. R. Co. «.Devaney,650,660. 
 Missouri v. Iowa, 749. 
 
 v. Kentucky, 339. 
 Mitchell v. Baratta, 182. 
 
 v. Barnes, 130, 443, 463. 
 
 v. Berry, 612. 
 
 v. Bogan, 239. 
 
 v. Carder, 546. 
 
 v. Davis, 50. 
 
 v. Freedley, 508. 
 
 v. McMullen, 236. 
 
xliv 
 
 Beferences] TABLE OF CASES. [are to pages. 
 
 Mitchell v. Mitchell, 475. 
 
 v. Shanley, 51. 
 Mithoff v. Dewees, 673. 
 Mizell v. Simmons, "724. 
 Moak v. Bryant, 227. 283. 
 Mobley v. Bruner, 220, 221, 222. 
 Moffat v. Strong, 258. 
 Mohr v. Porter, 116. 
 Moitigona Coal Co. v. Blair, 640. 
 Molineux v. Molineux, 77. 
 Mollan v. Torrance, 339. 
 Molton v. Henderson, 659, 662. 
 
 v. Mumford, 486. 
 Monarque v. Monarque, 391. 
 Montague v. Selb, 212. 
 Montclair v. Dann, 361. 
 Montgomery v. Carlton, 351. 
 v. Craig, 280. 
 ■u. Dorion, 148. 
 v. Gorrell, 312. 
 v. Spect, 244. 
 v. Tutt, 400. 
 v. Whiting, 395. 
 Monumoi Beach v. Rogers, 349. 
 Mooberry v. Marye, 343. 
 Moody v. Farr, 37. 
 
 v. Moody, 118. 
 
 V. Seaman, 291. 
 Mooers v. Bunker, 690. 
 
 v. Wait, 447. 
 Mooney v. Cooledge, 573, 574. 
 
 v. Olsen, 546. 
 Moor v. Seaton, 423. 
 Moore v. Armstrong, 613. 
 
 v. Burnet, 145. 
 
 v. Cable. 248, 505, 539. 
 
 v. Cord, 87. 
 
 v. Esty, 138. 
 
 v. Fur'sden, 28, 218. 
 
 v. Goodright, 25. 
 
 v. Griffin, S23 722. 
 
 v. Hawkins, 359. 
 
 ■i). Xcssler, 459. 
 
 v. Lavvder, 279. 
 
 i). Morrow, 147. 
 
 v. Pitts, 138. 
 
 v. Rake, 715. 
 
 v. Robbins, 744. 
 
 v. Small, 677. 
 
 v. Thompson, 573, 577, 580. 
 
 v. Woodall, 210, 211. 
 Moores v. Lehman, 302. 
 
 v. National Bank, 730. 
 Mooring v. Campbell, 603. 
 Moran v. Jessup, 375. 
 
 v. Palmer, 223. 
 Morange v. Morris, 229. 
 Mordecai ». Oliver, 155. 
 More v. Deyoe, 127. 158. 
 v. Maasini, 446, 452. 
 v. Smedburgh, 235. 
 Moreau v. Detchemendy, 464. 
 
 Morehead v. "Watkyns, 272. 
 Murenhaut v. Wilson, 351. 
 Moreton's Case, 134. 
 Morewood v. Wood, 681. 
 Morgan v. Bishop, 355, 357. 
 v. Casey, 610. 
 „. Herrick, 210. 
 v. Moore, 72, 75, 83. 
 v. Morgan, 339, 760. 
 u. Plumb, 371. 
 v. Thorne, 125. 
 „. Varick, 480, 484, 497, 5C9. 
 Morrill v. Mackman, 82. 
 v. Menifee, 134. 
 Morris v. Beebe, 45, 303, 344, 475, 479, 486. 
 v. Brooke, 66. 
 v. Hayes, 548. 
 v. McKay, 541. 
 v. Tinker, 504, 532. 
 Morrison v. Bassett, 253. 
 v. Hays, 595. 
 
 v. Robinson, 474, 491, 494, 496, 
 520, 523, 524, 527, 533, 535. 
 v. Underwood, 715. 
 Morrow v. Whitney, 666. 
 Morse v. Emery, 692. 
 v. Gilman. 302. 
 v. Marshall, 420. 
 i). Sleeper, 53. 
 Morton v. Manhattan Beach Imp. Co. 66. 
 v. Moore, 611. 
 v. Nebraska, 744. 
 v. Weir, 263. 
 Moseley v. Moseley, 681. 
 Mosely v. Miller, 524. 
 Moser v. Cochrane, 132. 
 Mosher v. Yost, 134. 
 Moss v. Hanson, 228. 
 v. Scott, 585. 
 v. Shear, 359, 543. 
 Mostyns). Fabrigas, 171, 331, 332. 
 Mott v. Palmer, 56. 
 Mountnoy v. Collier, 257. 
 Mowry v. Wood, 238. 
 Moyer v. Hinman, 556. 
 Muldrow v. Muldrow, 227. 
 Mulry v. Norton, 64, 67, 448. 
 Mumford v. Wardwell, 64. 
 
 v. Whitney, 53, 225. 
 Mundy v. Jolliffe, 234. 
 
 v. Monroe, 242. 
 Munro v. Merchant, 619, 647, 654, 660. 
 Munroe v. Luke, 104. 
 Munson v. Munsun, 192, 194, 323. 
 Murdock v. Little, 338. 
 
 v. Ratcliff, 134. 
 Murphy v. Barnett, 681. 
 v. Campau, 159. 
 v. Gulon, 484. 
 v. Loomis, 234, 240, 546. 
 ■a. Norton, 64, 104. 
 v. Orr, 115,308. 
 
fiefwences] TABLE OF CASES. [are to pages. 
 
 xlv 
 
 Murphy v. Welder, 566. 
 . v. Williamson, 272, 279. 
 
 Murray v. Ballou, 468. 
 
 v. Blackledge, 668. 
 
 v. Fitchburg R. R. Co. 174, 474. 
 
 ■v. Gouverneur, 474. 
 
 v. Harway, 266, 267. 
 
 v. Hay, 114. 
 
 v. N. ?. L. & W. R. R. Co. 696. 
 
 v. Spencer, 683, 723. 
 
 v. Walker, 244, 352. 
 Muskett v. Hill, 85. 
 Mutual L. I. Co. v. Baleh, 88. 
 
 v. Bigler, 446, 453. 
 Myers v. Koenig, 50. 
 
 v.Phillips, 421.429, 433. 
 
 v. Reed, 212. 
 
 v. Sanders, 502, 
 
 Nagle v. Macy, 112, 549. 
 
 v. Power, 126. 
 Napton v. Leaton, 514. 
 Nash v. Cutler, 390. 
 v. Spofford, 715. 
 
 v. Wilmington & W. R. R. Co. 723. 
 Natchez (City of) v. Vandervelde, 415. 
 Nation v. Cameron, 301. 
 National Bank v. Matthews, 111, 123. 
 Natoma Water & M. Co. v. Clarkin, 111, 
 
 123, 450. 
 Nave v. Berry, 261. 
 Neal v. Gregory, 712. 
 Neale v. Cripps, 449. 
 
 v. Hagthrop, 505, 538. 
 Neatherly v. Ripley, 236. 
 Neave v. Avery, 349. 
 Neddy v. State, 347. 
 Needham v. Branson, 316. 
 Neely v. Neely, 203, 603. 
 Neill v. Keese, 350. 
 Nellis v. Munson, 83. 
 Nelson v. Allen, 484. 
 
 v. Brodhack, 348. 
 
 V. Clay, 540. 
 
 v. Couch, 370. 
 
 v. Davis, 348. 
 
 v. Pinegar, 453. 
 Nepean v. Doe d. Knight, 563. 
 Neves v. Scott, 730, 732. 
 Nevitt v. Gillespie, 449, 452. 
 Newark Sav. Inst, v, Jones, 228. 
 Newbegin v. Langley, 344. 
 Newbold ». Brown, 262. 
 v. Smart, 488. 
 Newby v. Jackson, 227, 284. 
 Newell »•. McLarney, 697. 
 «. Newell, 109. 
 
 v. Sanford, 418. 
 1>. Woodruff, 42, 195, 199, 282. 
 New Eng. Jewelry Co. v. Merriam, 247. 
 Newhall v. Ireson, 722. 
 
 New Jersey v. New York, 749. 
 Newmans. Holdmyfast, 54, 81. 
 
 v. NewtOD, 357, 389. 
 Newmarket Mfg. Co. -o. Pendergast, 662. 
 New Orleans v. Gaines, 475, 491, 496, 501, 
 
 512, 513, 522. 
 Newport Bridge Co. v. Douglass, 241. 
 Newsom v. Pryor, 723. 
 Newsome v. Williams, 350. 
 Newton v. Bronson, 331, 337, 396. 
 
 v. Hook, 372. 
 
 v. McKay, 248. 
 New York v. Connecticut, 750. 
 N. Y. Dry Dock e. Hicks, 124. 
 N. Y. & Harlem R. R. Co. v. Kip, 74. 
 Nicely v. Boyles, 390. 
 Nichols v. Kingdom Iron Ore Co. 693. 
 
 v. Lewis, 52, 63. 
 
 v. Todd, 548. 
 
 v. Turney, 724. 
 Nicholson v. Caress, 317, 348. 
 Nicloson v. Wordsworth, 235, 
 Nicoll v. Fash, 355. 
 
 i). N. Y. & Erie R. R. Co. 138, 139, 
 
 265, 314. 
 v. Walworth, 145, 147. 
 Niles v. Patch, 722. 
 Nims v. Sherman, 256, 714. 
 Ninety-nine Plaintiffs v. Vanderbilt, 293. 
 Nivin 11. Stevens, 723. 
 Nixon v. Porter, 505, 692. 
 Noble v. Biddle, 532. 
 
 o. McFarland, 194, 209. 
 Nobles v. McCarty, 231. 
 Noe v. Card, 156, 344. 
 Nolan v. Skelly, 98. 
 
 v. Sweeny, 367. 
 Nolen v. Royston, 253. 
 Noonan v. Lee, 117, 236, 732. 
 Norcross v. Widgery, 558. 
 Norcum v. Gaty, 715. 
 Norfleet 1>. Hutchins, 641. 
 Norris v. Dunn, 195. 
 
 v. Hoyt, 149, 537. 
 
 v. Russell, 609. 
 
 v. Sullivan, 194, 202. 
 Norris' Appeal, 605, 724, 725. 
 North v. Henneberry, 715. 
 North Brookfield (Inhabs.) v. Inhabitants 
 
 of Warren, 688. 
 Northern Cent. Ry. Co. v. Canton Co. 54. 
 Northern Ind. R. R. Co. v. Mich. Cent R 
 
 R. Co. 330, 339. 
 Northern Turnpike Co. v. Smith, 82,83,84. 
 North Noonday Min. Co. v. Orient Min. 
 
 Co. 546, 547. 
 North Penna. Coal Co. v. Snowden, 99. 
 North v. Wright, 206. 
 Northrup v. Romary, 425. 
 Northy v. Northy, 606. 
 Norvell v. Camm, 744. 
 Norway v. Rowe, 447. 
 
xlvi 
 
 References'] TABLE OF CASES. [are to pages. 
 
 Norwood v. Marrow, 681. 
 Nowler v. Coit, 533. 
 Nowlin v. Reynolds, 607. 
 Nudd v. Burrows, 731. 
 Nutting v. Herbert, 724. 
 
 Oaksmith v. Johnston, 546, 666, 748. 
 
 Oates v. Brydon, 194. 
 
 Oatman v. Fowler, 548, 663. 
 
 Oberich v. Gilman, 519, 537. 
 
 O'Blinskie v. Judge of Kent Co. 434, 435. 
 
 O'Brien v. Joyce, 538. 
 
 v. Wetherell, 232. 
 O'Byrne v. Feeley, 124. 
 O'Connor v. Bernard, 126. 
 Odell v. Montross, 241, 244, 246, 248. 
 Odingsal v. Jackson, 322. 
 Odlea. Odle, 102. 
 O'Donnell t>. Kelsey, 725. 
 O'Dougherly v. Aldrich, 97. 
 Oetgen v. Ross, 181, 376, 393, 413, 428, 
 
 429. 
 Ogden v. Jennings, 55. 
 
 v. Lee, 123. 
 O'Gorman v. Arnoux, 358. 
 O'Halloran v. Fitzgerald, 253. 
 O'Hara v. Richardson, 588. 
 Oh Chow *. Hallett, 312. 
 Okeson v. Patterson, 595. 
 Olcott v. By n urn, 333. 
 v. Carroll, 302. 
 v. Wood, 108. 
 Oldham v. Pfleger, 239, 242, 246. 
 Olendorf v. Cook, ] 34, 141, 328. 
 Olevinefl. Holman, 583. 
 Olinger v. Shepherd, 50. 
 Olive v. Adams, 45. 
 v, Bevil, 594. 
 Oliver v. Loye, 331. 
 v. 'Piatt, 528. 
 Olmsted v. Elder, 241. 
 
 v. Harvey, 151. 
 Olney v. Sawyer, 209. 
 Onderdonk v. Ackerman, 136. 
 O'Neal v. Boone, 660. 
 O'Neill v. Capelle, 244. 
 Opdyke v. Stephens, 724. 
 Oram v. Rothermel, 696. 
 Ord v. Chester, 282. 
 
 v. De La Guerra, 198. 
 Oregon Cus. R. R. Co. v. Oregon Steam 
 
 Nav. Co. 549. 
 Ormond v. Martin, 607. 
 Orr v. Hadley, 727. 
 Ortiz v. De Benavides, 693. 
 Ortley v. Messere, 131. 
 Orton v. Noonan, 345, 387, 401. 
 Osborn v. Bank of the U. S. 167, 170. 
 
 v. Storms, 534. 
 Osbourn v. Osbourn, 472. 
 
 *. Rider, 28. 
 Osgood v. Abbott, 1 37. 
 
 Osgood v. Pollard, 247. 
 Ostrander v. Hasbrouck, 416. 
 
 v. Kneeland, 329. 
 Otis v. McMillan, 253, 259. 
 
 v. Smith, 57. 
 
 v. Spencer, 695. 
 Ould v. Stoddard, 240. 
 Outcalt v. Ludlow, 607. 
 Outram v. Morewood, 35, 373, 380. 
 Overing v. Russell, 148, 175, 348. 
 Overton v. Woolfolk, 98. 
 Owen v. Cooper, 132. 
 v. Fowler, 153. 
 v. Homan, 441. 
 Oxnard v. Prop'rs, Kennebeck Purchase, 
 
 115. 
 Oxton v. Groves, 722, 723. 
 
 Pace v. Chadderdon, 246. 
 
 Pacific Coast Min. & M. Co. v. Spargo, 
 
 744, 747. 
 Packard v. Agawam Mut. F. I. Co. 715. 
 
 v. Johnson, 198, 205. 
 Packer v. Roch. & S. R. R. Co. 240. 
 Packet Co. v. Sickled, 372, 386. 
 Pacquette v. Pickness, 497, 641. 
 Padgett v. Lawrence, 300, 704. 
 Padwicko. Piatt, 115. 
 Page v. Foster, 108. 
 v. Tucker, 137. 
 v. Waring, 147, 467. 
 i. Webster, 210. 
 Palmer v. Anderson, 727. 
 v. Bowker, 254. 
 v. Mead, 107. 
 v. Parkhurst, 181. 
 v. Wright, 691. 
 Pangburn v. Miles, 727. 
 Park Dept., Matter of, 116, 225, 607. 
 Parker v. Banks, 599, 606. 
 
 v. Constable, 276, 286. 
 v. McCluer, 703. 
 
 v. Prop'rs of Locks, &c, 204, 641. 
 v. Shackelford, 499. 
 v. Staniland, 80. 
 Parkinson v. McQuaid, 727. 
 Parkison v. Bracken, 744. 
 Parks v. Barkley, 340. 
 
 v. Hardey, 69. 
 Parmelee v. Oswego & S. R. R. Co. 263. 
 Parr v. Van Horn, 304, 309. 
 Parrill v. McKinley, 705. 
 Parrott „. Knickerbocker Ice Co. 500. 
 Parsons v. Brown, 50. 
 
 v. Moses, 517, 518. 
 *, Welles, 250. 
 v. Winslow, 530. 
 Partheriche v. Mason, 78. 
 Partridge v. Ball, 123. 
 
 v. Luce, 722. 
 Paschal v. Acklin, 396. 
 Paschall v. Hinderer, 605. 
 
References] TABLE OF OASES. [are to pages. xlvii 
 
 Pashley v. Mayor, &c, of Birmingham, 
 
 337. 
 Patch *. Keeler, 180. 
 Patrick v. Roach, 236. 
 v. Ruffners, 86. 
 v. Sherwood, 139, 140. 
 v. Young, 866. 
 Patten v. Moore, 656. 
 v. Patten, 135. 
 Patterson v. Brown, 534. 
 
 v. Ely, 1 59, 342, 476. 
 v. Kreig, 341. 
 v. Stewart, 502. 
 v. Tatum, 744. 
 v. United States, 362. 
 ■a. Winn, 744. 
 *. Yeaton, 248. 
 Paul v. Fries, 675. 
 Paull v. Eldred, 91, 530, 543. 
 Pawlet (Town of) jr. Clark, 753. 
 Payne v. Atterbury, 444. 
 v. Becker, 69. 
 v. Blackshear, 660. 
 v. Harris, 134. 
 v. Hook, 219. 
 
 v. Tread well, 17, 300, 303, 313. 
 Payne's Case, 119. 
 Peaceable v. Read, 192. 
 Pearce v. Colden, 316. 
 
 v. Ferris, 158, 159, 316. 
 Pearsall v. Mayers, 350. 
 Pease v. Hannah, 811, 356. 
 
 v. Pilot Knob Iron Co. 243. 
 Peck v. Curmichael, 418, 700. 
 v. Cary, 131. 
 v. Elder, 114. 
 v. Newton, 37, 307. 
 v. Smith, 71, 73. 
 v. "Ward, 202, 204. 
 Pederick v. Searle, 586, 590. 
 Poll ». Ulmar, 241. 
 Pelletreau v. Jackson, 715. 
 Peltz v. Clarke, 246. 
 Pember v. Congdon, 696. 
 Pemble v. Sterne, 81, 83. 
 Penn v. Hayward, 396. 
 
 v. Klyne, 415, 739. 
 Penniman v. Rodman, 108. 
 Pennoyer v. Neff, 396. 
 Penna. Coal Co. v. Central Iron Works,181 . 
 Penny v. Cook, 342, 699. 
 
 v. Walker, 171. 
 Penny Pot Landiug Case, 611. 
 Pentz v. Kuester, 259. 
 People v. Alberty, 261, 450. 
 
 v. Ambrecht, 153, 162, 164, 166,172. 
 
 t). Arnold, 120. 
 
 v. Batchelder, 554. 
 
 v. Board of Assessors, 58. 
 
 v. Burdock, 693. 
 
 v. Central R.R. Co. 330. 
 
 v. Comm'rs of Highways, 300. 
 
 People!). Conklin, 119. 
 
 v. Cook, 300. 
 
 v. Cooper, 21,400,402,405,406,413. 
 
 v. Barling, 273. 
 
 v. Davidson, 64. 
 
 v. Denison, 119, 120. 
 
 ■i). Dennison, 163. 
 
 v. Dwinelle, 403. 
 
 v. Folsom, 148, 149. 
 
 v. Fulton Fire Ins. Co. 691. 
 
 v. Gilbert, 558. 
 
 v. Herbel, 715. 
 
 v. Kerr, 75. 
 
 v. Livingston, 119, 744. 
 
 v. Mauran, 63. 
 
 v. Maynard, 716. 
 
 v. Mayor, &c. of N. Y. 116, 173, 
 305, 309, 442, 466. 
 
 v. McAdam, 134. 
 
 v. N. Y. Central R. R. Co. 51. 
 
 v. N. Y. & M. B. Ry. Co. 121. 
 
 v. Paulding, 274. 
 
 „. Pope, 611. 
 
 v. Reed, 51. 
 
 u. St. Clair Circuit Judge, 423. 
 
 v. Schackno, 274, 276. 
 
 v. Snyder, 122. 
 
 v. Society, &c. 716. 
 
 v. Trinity Chureh, 119, 120, 547, 
 665, 678. 
 
 v. Van Nostrand, 60. 
 
 v. Van Rensselaer, 119, 120. 
 Pepper v. O'Dowd, 615, 636, 648. 
 Perkins v. Oxford, 722. 
 ■i). Raitt, 343. 
 *. Towle, 499, 686. 
 Perrine v. Bergen, 84. 415. 
 Perry v. Dickerson, 370. 
 
 v. Ensley, 427. 
 
 v. Hall, 708. 
 
 ir. New Orleans &c. R. R. Co. 188. 
 
 v. Pratt, 725. 
 
 v. Weeks, 549, 557. 
 Pershing v. Caufield, 231, 236. 
 Pers n v. Warren, 130. 
 Peter v. Hargrave, 476. 
 Peters v. Clements, 227. 
 
 v. Jones, 613. 
 
 v. Porler, 696. 
 Peterson v. Laik, 208. 
 
 v. McCullough, 574. 
 v. Orr, 232. 
 Petrie v. Shoemaker, 130, 131. 
 Pettibone v. Hamilton, 114. 
 Petts v. Gaw, 724. 
 Petty v. Graham, 284. 
 Pey toe's Case, 134. 
 Peyton v. Rose, 99, 100, 463, 668. 
 Pfiffner v. Stillwater & StP.R. R. Co. 235. 
 Phelan v. Kelly, 201, 209, 646. 
 Phelps v. McDonald, 396. 
 Phila. W. & B. R. R. Co. v. Howard, 717. 
 
Xlviii Beferencesl TABLE OF OASES. [are to pages. 
 
 Philips v. Bank of Lewiatown, 606. 
 Phillippi v. Thompson, 356, 637. 
 Phillips v. Blair, 717. 
 v. Bowers, 722. 
 v. Chamberlain, 506. 
 v. Covert. 262,278. 
 v. Croft, 244. 
 ;;. DeGroat, 547. 
 
 v Dunkirk, W. & P. R. R. Co. 75. 
 v. Gorham, 99, 350, 351,463, 669. 
 v. Gregg, 192, 202. 
 v. Rollings, 280. 
 v. Van Schaick, 718. 
 Phillpotts v. Blasdel, 22, 389. 
 Philly v. Saunders, 715. 
 Philpot v. Bingham, 126. 
 Phinney v. Watts, 722. 
 Phipps v. Kent, 99. 
 
 v. Mansfield, 336. 
 Phoenix Ins. Co. v. Doster, 361. 
 Phoenix Lead Min. Ac. Co. v. Sydnor,540. 
 Phyfe v. Ma->terson, 418, 430. 
 
 v. Riley, 246. 
 Physio-Medical College v. WilkinsoD, 423. 
 Piatt v. Oliver, 144, 
 Piatt Co. v. Gondell, 659. 
 Pickering v. Pickering, 696. 
 Pickett!). Doe, 328. 
 
 v. Doe d. Pope, 327, 567, 605. 
 v. Legerwood, 732. 
 Pico v. Columbet, 488, 489. 
 
 v. Gallardo, 245. 
 Picot v. Page, 211. 
 Pierce v. Brown, 239, 242, 286. 
 v. Burroughs, 140. 
 v. Ferris, 181. 
 ■v. Jaquith, 5. 
 v. Keator, 82. 
 v. Nichols, 228. 
 v. Oliver, 390. 
 v. Pierce, 479. 
 v. Strickland, 482. 
 v. Tuttle, 226, 235, 283, 353. 
 v. Wanett, 368. 
 Piercy v. Crandall, 723. 
 Pignolet v. Bushe, 448. 
 Pike v. Galvin, 716. 
 ii. Munroe, 722. 
 v. Robertson. 573. 
 Pilford's Case, 33, 399. 
 Pilling o. Armitage, 519. 
 Pillow v. Roberts, 635, 661. 
 Pillsworth v. Hopton, 4.12. 
 Pinckney v. Burrage, 605. 
 Pindell v. Maydwell, 298. 
 Pipkin v. James, 228. 
 Pitcher *. Livingston, 501. 
 Pitkin v. Yaw, 306. 
 Pitts v. Booth, 537. 
 
 v. Wilder, 620. 
 Pixley v. Huggins, 87. 
 
 v. Rockwell, 87, 178, 397. 
 
 Platto v. JaDte, 304, 315. 
 Plimpton v. Plimpton, 528. 
 Plumb v. Fluitt, 556. 
 v. Tubbs, 1 39. 
 Plume v. Seward, 552. 
 Plummer v. Walker, 303. 
 Plympton v. Baker, 34. 
 
 v. Boston Dispensary, 140. 
 Poffenberger v. Blackstone, 341, 346. 
 Poignand v. Smith, 606. 
 Poillon v. Lawrence, 357. 
 Poiudexter v. Cherry, 479, 480. 
 Polack v. Mansfield, 162, 167, 169. 
 v. McGrath, 555. 
 v. Shafer, 415. 
 Polk v. Wendal, 436, 729, 744. 
 Pollard v. Baylors, 376. 
 v. Hagan, 64. 
 v. Hanrick, 359. 
 v. Melvin, 694. 
 v. Shively, 723. 
 v. Tait, 596. 
 P<jllen v. Brewer, 50, 276. 
 Pomeroy v. Mills, 71, 72, 150, 185. 
 Poole v. Fleeger, 219. 
 Poor v. Carleton, 453. 
 «. Larrabee, 605. 
 Pope v. Allen, 556, 696. 
 1). Cole, 350. 
 v. Hanmer, 627, 639. 
 v. Harkins, 253. 
 v. Macon, 541. 
 Poppe v. Langford, 755. 
 Porter v. Bleiler, 129, 218. 
 v. Garrissino, 179. 
 v. Lazear, 148. 
 v. McGrath, 154, 177, 657. 
 1). Robinson, 178. 
 v. Wells, 319. 
 v. Williams, 149. 
 Posey v. James, 67. 
 Post v. Hover, 95. 
 
 v. Moran, 430, 443. 
 v. Post, 277. 
 Postens v. Postens, 502. 
 Poston v. Henry, 484. 
 Potter v. Baker, 41. 
 
 v. City of New Haven, 49, 106. 
 v. Gracie, 533. 
 v. Jacobs, 237. 
 v. Kitchen, 314. 
 v, Knowles, 547. 
 Potts v. Coleman, 225, 569. 
 v. Cullum, 523. 
 v. Gilbert, 582, 585. 
 Powell v. Davis, 523, 643, 537, 648. 
 
 v. Lawson, 410, 413. 
 Power v. Hollman, 147. 
 
 v. Lester, 240. 
 Powers v. Armstrong, 349, 350 
 Pownal v. Myers, 145. 
 Powys v. Blagrave, 450, 
 
TABLE OF OASES. [are to pages. xlix 
 
 Pralus v. Jefferson G. & S. Min. Co. 557. 
 Pratt v. Bank of Bennington, 242. 
 
 v. Pratt, 605, 715. 
 Pray v. Pierce, 570. 
 Prentice v. Wilson, 227, 283. 
 Presbrey v. Presbrey, 51. 
 Presbyterian Congregationi).Wifliams,181. 
 Presbyterian Soc'y, <fec. v. Smithers, 112. 
 Prescott v. Jones, 142. 
 
 v. Severs, 195, 201, 205. 
 Presley v. Holmes, 46, 220. 
 Presstman v. Silfjacks, 260. 
 Preston v. Bowmar, 546, 723. 
 v. Evans, 715. 
 v. Walsh, 167. 
 Prevot v. Lawrence, 253, 258. 
 Price v. Blount, 236. 
 v. Karnes, 244. 
 v. Osborne, 54. 
 i>. Strange, 706. 
 Prickhardt v. Robertson, 300, 312. 
 Prindle v. Anderson, 267, 291. 
 Pringle v. Gaw, 68, 116. 
 Prior v. Ongley, 292. 
 Pritchard v. Young, 727. 
 Proctor v. Pool, 325. 
 
 Proprietors of Liverpool Wharf v. Pres- 
 cott, 726. 
 Proprietors of Locks, &c. v. Nassau & L. 
 
 R. R. Co. 55, 82. 
 Prout v. Roby, 266. 
 Prouty v. Mather, 715. 
 Provident Inst, v. Burnham, 55, 82, 344, 
 
 388, 481. 
 Provolt v. Chicago, R. I. & P.R. R. Co.702. 
 Pryor v. Madigan, 354. 
 Pryzbylowicz v. Mo. River R. R. Co. 174, 
 
 702. 
 Pugh v. Bell, 484. 
 v. Reat, 433. 
 v. Youngblood, 660. 
 Pulaski Co. v. State, 528, 567, 599. 
 Pullen v. Bell, 57. 
 
 v. Hopkins, 576. 
 Purcell v. Wilson, 198. 
 Putnam v. Bond, 330. 
 
 v. Ritchie, 520, 522, 523. 
 Free School v. Fisher, 49, 637. 
 
 Quadring v. Downs, 127. 
 Queen's College v. Hallett, 140. 
 Quicksilver Min. Co. v. Hicks, 155, 553. 
 Quimby v. Dill, 139, 140. 
 Quinn v . Eagleston, 686. 
 v. Quinn, 461, 637. 
 
 Racine (City of) v. Crotsenberg, 75, 189. 
 Radford v. Folsom, 458, 459. 
 Ragan v. McCoy, 488, 489. 
 Ragsdale v. Gohlke, 349, 523, 543. 
 Railroad Co. v. Robbins, 106. 
 D 
 
 Railroad & B. Co. v. District of Columbia, 
 
 54. 
 Railsback v. Walke, 428. 
 Railway Co. v. McShane, 746. 
 ■o. Whitton, 762. 
 Rainer v. Huddleston, 536. 
 Raines v. Walker, 694. 
 Raley v. Ross, 232. 
 Ralph v. Ejector, 26. 
 Randolph v. Carlton, 259. 
 Rank v. Levinus, 158. 
 Rannels v. Rannels, 631, 643. 
 Ransom, In re, 144. 
 
 v. Anderson, 342. 
 v. Lewis, 588. 
 v. Stanberry, 718. 
 Ratcliff's Case, 128. 
 Ratcliffe v. Cary, 726. 
 Raw ii. Stevenson, 410. 
 Rawley v. Brown, 545. 
 Rawlings v. Bailey, 309, 364, 662. 
 Rawson v. Fox, 660, 662. 
 
 v. Maynard, 57, 321. 
 v. Taylor, 306. 
 Ray v. Ayers, 140. 
 
 v. Gardner, 510. 
 Rayburn v. Elrod, 326. 
 Raymond v. Andrews, 481, 494. 
 
 v. Coffey, 724. 
 Raynor v. Timerson, 342, 717. 
 Reade v. Kennedy, 125. 
 
 v. Reade, 146. 
 Reading's Case, 201. 
 Reavis v. Reavis, 705. 
 Reckhow v. Schanck, 142, 278. 
 Reddick v. Gressman, 242. 
 Redfield v. Utica & S. R. R. Co. 84, 153, 
 
 173, 303. 
 Reece v. Allen, 112, 145. 
 
 v. Roush, 350. 
 Reed v. Calderwood, 159, 395. 
 ■a. Crapo, 358. 
 «..Farr, 726. 
 ■n. Jones, 488. 
 v. Loucks, 426. 
 v. McCourt, 625, 726. 
 v. Newton, 357. 
 v. Reed, 278, 531. 
 v. Tyler, 163. 
 Reeder v. Purdy, 50, 499. 
 
 v. Sayre, 272, 289, 291. 
 Rees v . City of Chicago, 435. 
 v. Lawless, 86. 
 v. Perrot, 288. 
 Reeside v. Walker, 163. 
 Reformed Church v. Schoolcraft, 54, 72, 
 
 387, 414, 598. 
 Reg. v. Bedfordshire, 681, 684. 
 v. Board of Works, 722. 
 v. Hartington, 372. 
 Rehoboth v. Hunt, 81, 116. 
 Reichart v. Felps, 755. 
 
References] TABLE OF CASES. [<w« to pages. 
 
 Eeid v. Stanley, 484. 
 Eeily v. Lancaster, 359. 
 Eeimer v. Johnke, 449. 
 Eeinheimer v. Carter, 143, 
 Beinholdt v. Alberti, 297. 
 Eemington Paper Co. v. O'Dougherty, 87. 
 Renick v. Boyd, 510. 
 Eeniaon v. Ashley, 99. 
 Benneker v. Warren, 610. 
 Eenner v. Muller, 442. 
 Eensselaer Glass Factory v. Eeid, 500. 
 Bepublic of Mexico v. Arrangois, 293. 
 Eequa v. Guggenheim, 301. 
 Eevere v. Leonard, 722. 
 Eex v. Harris, 337. 
 v. Hudson, 561. 
 v. Newman, 300. 
 v. TJnitt, 298. 
 Eeynolds, Ex parte, 405, 416. 
 v. Darling, 136. 
 v. Pitt, 2B3. 
 Ehine v. Eobinson, 694. 
 Bhoades v. Selin, 339. 
 Ehode Island v. Massachusetts, 610, 749. 
 Ehodes v. Crutchfield, 490, 516. 
 Eicard v. Williams, 217, 546, 549. 
 Eice v. Auditor General, 375. 
 v. Bixler, 428. 
 
 v. County of Worcester, 722. 
 v. King, 370. 
 Eich ■>: Baker, 510. 
 *. Bolton, 274. 
 v. Keyser, 272. 
 v. Maples, 473. 
 Eichards v. Elwcll, 235, 353. 
 *. Manson, 223. 
 i. Richards, 691. 
 Eichardson v. Harvey, 253, 255. 
 *. McNulty, 670, 701. 
 ■v. Eichardson, 128, 480. 
 v. Thornton, 142, 233. 
 o. Welcome, 335. 
 Richmond v. Bronson, 500. 
 
 v. City of Milwaukie, 756. 
 Eiddle v. Bickerstaff, 700. 
 
 v. Murphy, 680, 
 Eidgely v. Stillwell, 274. 
 Eidler v. Ridler, 131. 
 Eiehl v. Bingenheimer, 308. 
 Eiemer v. Johnke, 449. 
 Eigg v. Cook, 715. 
 Eiggs v. Fuller, 583, 594, 596, 602, 659. 
 
 v. Tayloe, 693. 
 Eight v. Beard, 227, 278, 283, 284. 
 
 {d. Fisher) v. Cuthell, 288, 289. 
 v. Darby, 269, 270, 272, 274. 
 Eigler v. Cloud, 695. 
 Eigor v. Frye, 663. 
 Eingx. McCoun, 331. 
 Einghouse v. Keener, 465, 475, 482 491 
 
 512, 514. 
 Eingo v. Woodruff, 583. 
 
 Rippetoe v. Dwyer, 212, 349. 
 Ritter v. Barrett, 325. 
 v. Worth, 460. 
 Rivas v. Solary, 55. 
 Rivers v. Foote, 311, 355, 700. 
 
 v. Thompson, 576. 
 Eivier v. Pugh, 364. 
 Roach v. Damron, 330. 
 Robbins v. Bunn, 744. 
 Eoberti v. Atwater, 368, 544. 
 Eoberts v. Cooper, 117. 
 v. Heim, 372. 
 v. Moore, 200. 
 v. Morgan, 198, 205. 
 v. Stanton, 691. 
 v. Sutherlin, 246. 
 v. Thorn, 212. 
 Eobertson v. Gaines, 715. 
 v. Hayne, 336. 
 v. Pickrell, 333, 716. 
 v. Eobertson, 51. 
 v. Sharpton, 715. 
 v. Wilson, 715. 
 Eobidoux v. Cassilegi, 192, 199, 206. 
 Robie v. Smith, 276^ 
 Robinson v. Campbell, 730, 731, 738, 740. 
 v. Ferguson, 693. 
 v. Gunnis, 90. 
 v. Kime, 262, 724. 
 v. Lake, 568. 
 v. McDonald, 539. 
 v. Miller, 139, 140. 
 v. Phillips, 593. 
 v. Pittsburg R. E. Co. 174. 
 v. Eidley, 522. 
 W.Roberts, 144, 220. 
 v. White, 722. 
 D. Willoughby, 108. 
 Robson v. Osborn, 537. 
 Roch v. Plumpton, 20. 
 Rochdale Canal Co. v. Radeliffe, 611. 
 Eockford, E. I. & St. L. E. E. Co. v. Cop 
 
 pinger, 336. 
 Eockwell v. Bradley, 239, 285. 
 
 v. Saunders, 225. 
 Eodgers v. Bell, 153, 303, 413. 
 
 i>. Rodgers, 140. 
 Roe v. Dawson, 400. 
 
 v. Doe d. Neal, 688. 
 (d. Leak) v. Doe, 20. 
 (d. Gregson) v. Harrison, 266. 
 v. Harvey, 670. 
 
 (d. Wrangham) v. Hersey, 132. 
 v. Kersey, 631. 
 (d. Eaper) v. Lonsdale, 222. 
 v. Pierce, 288, 290. 
 (d. Burlton) v. Eoe, 462. 
 (d. Langdon) v. Eowlston, 192. 
 (d. Blair) *. Street, 411. 
 (d. Bendall) v. Summerset, 135. 
 v. Ward, 272. 
 Eogers v. Boynton, 255, 256. 
 
References] TABLE OE OASES. [are to pages. 
 
 Rogers v. Bracken, 637. 
 ii. Marshall, 444. 
 v. Moore, 139. 
 v. Parish, 410. 
 v. Park, 293. 
 v. Shannon, 301. 
 v. Sinsheimer, 77, 90, 309,364, 387, 
 
 392. 
 v. Turley, 218. 
 v. Walker, 130, 530. 
 Rollins v. Bishop, 182. 
 
 v. Henry, 306, 307, 350. 
 1,. Moody, 277. 
 v. Rollins, 179. 
 Eomero v. Munos, 102, 403, 404. 
 Bomie v. Casanova, 755. 
 Eoome v. Phillips, 136. 
 Roosevelt v. Hungate, 680. 
 Boot v. MeFerrin, 614, 636. 
 Boper v. Holland, 146. 
 Rose v. Bell, 176. 
 v. Browu, 538. 
 v. Davis, 254. 
 v. Watson, 236. 
 Boseboom v. Roseboom, 488. 
 Rosierz v. Van Dam, 350. 
 Boss v. Adam3, 715. 
 
 v. Cobb, 128, 217, 547. 
 v. Doe d. Barland, 740, 742, 747, 755. 
 v. Ejector, 329. 
 v. Gould, 621. 
 v Henderson, 223. 
 v. Irving, 541. 
 v. McJunkin, 147. 
 o. Pleasants, 433, 461. 
 v. Van Aulen, 284. 
 v. Wood, 371. 
 Bothery v. N. Y. Rubber Co. 84. 
 Eothschild v. Hatch, 662. 
 Roth well v. Dewees, 211. 
 Bouutree v. Talbot, 429, 433. 
 Eowan v. Kelsey, 51, 54, 57, 87, 88. 
 
 ■a. Lytle, 273. 
 Eowe v. Beckett, 307. 
 
 v. Thompson, 612. 
 Eowell v. Mitchell, 250. 
 Eoyston v. Eccleston, 321. 
 Euch v. Bock Island, 137, 138, 139. 
 Euckman v. Astor, 247. 
 Buggies v. Sands, 582. 
 Rung v. Shoneberger, 611. 
 Bunyan v. Mersereau, 240. 
 Eupert v. Mark, 306. 
 Russell v. Allard, 259. 
 v. Allen, 193. 
 v. Blake, 410, 517, 539. 
 v. Conn, 327. 
 v. Davis, 599. 
 v. Defrance, 544. 
 v. Ely, 240, 247, 248. 
 v. Erwin, 137, 328. 
 v. Fabyan, 279. 
 
 Russell v. Mallon, 394. 
 v. Maloney, 365. 
 v. Mandell, 657. 
 v. Mann, 355. 
 v. Marks, 215. 
 v. Nelson, 423. 
 c Prat, 134. 
 v. Southard, 248. 
 v. Stansell, 755. 
 Rust v. Boston Mill Corp. 722. 
 
 v. Rust, 200. 
 Rutherford v. Aiken, 497. 
 v. Jones, 447. 
 ii. Raburn, 672. 
 v. Tracy, 726. 
 Ryan v. Bindley, 730. 
 v. Carter, 666. 
 v. Jackson, 335. 
 «. Mlpatrick, 610. 
 Ryder v. Mansell, 259. 
 Ryerss v. Rippey, 389, 392, 393. 
 Rynd v. Rynd Farm Oil Co. 61. 
 
 Sacia v. O'Connor, 431. 
 
 Sacket v. Wheaton, 56. 
 
 Sacramento Val. B. R. Co. v. Moffatt, 105. 
 
 Sadler v. Evans, 104. 
 
 Safford v. Hyods, 352. 
 
 Sage ii. Sherman, 223. 
 
 Sahlersi. Signer, 246. 
 
 Sailor v. Hertzogg, 664, 569, 620. 
 
 St. Clair Co. v. Lovingston, 67. 
 
 St. Croix v. Sands, 40. 
 
 St. John v. Commyn, 320. 
 
 v. Northrup. 131, 326. 
 o. Pierce, 115,316, 464. 
 v. Quitzow, 260. 
 St. Johnsbury v. Morrill, 547. 
 St. Louis (City of) v. Gorman, 643. 
 v. Newman, 611. 
 St. Louis Smelting & Ref g Co.».Green,741. 
 St. Louis A. & T. H. R. R. Co. v. Karnes, 
 
 699. 
 St. Louis J. & C. R. R. Co. v. Thomas, 334. 
 St. Luke's Hospital v. Barclay, 146. 
 St. Vincent Orphan Asylum v. City of 
 
 Troy, 610. 
 Sale v. Crutchfield, 522. 
 Salisbury v. Morss, 181. 
 Salmon v. Clagett, 453. 
 Saltmarsh v. Crommelin, 632. 
 Saltonstall v. Prop'rs of Long Wharf, 721, 
 
 722. 
 Sample v. Eobb, 327. 
 Sampson v. Henry, 50. 
 
 v. Ohleyer, 413. 
 v. Shaeffer, 104, 480. 
 Samson v. Rose, 509. 
 Samuels v. Borrowscale, 680. 
 Sanchez v. Hart, 137. 
 Sanderlin v. Baxter, 83. 
 
lii 
 
 References] TABLE OP CASES. [are to pages. 
 
 Sanders v. Patridge, 67. 
 Sandford v. Ballard, 447. 
 v. Tucker, 348. 
 Sands v. Davis, 541. 
 
 v. Hughes, 53, 117, 603, 605, 653, 
 
 665. 
 v. St. John, 347. 
 v. Smith. 762. 
 Sandys v. Sandys, 691. 
 Sanford v. Cloud, 231. 
 
 v. Ellithorp, 696. 
 
 „. Sanford, 221. 
 
 San Francisco v. Calderwood, 83. 
 
 v. Fulde, 584, 586, 595. 
 v. Randall, 300. 
 v. Sullivan, 188. 
 Sankey v. Noyes, 551, 552. 
 San Patricio (Corporation) v. Mathis, 425. 
 Santler v. Heard, 334. 
 Sapphire, The, 118. 
 Sapsford v. Fletcher, 509. 
 Saratoga, The, 121. 
 Sargent v. Ballard, 695. 
 Sartain v. Hamilton, 625. 
 Sartwell v. Field, 440. 
 Sasser v. Herring, 682. 
 Satterlee v. Bliss, 407. 
 
 v. Mathewson, 258. 
 Satterwhite v. Rosser, 583. 
 Saulet v. Shepherd, 67. 
 Saumarez j>. Saumarez, 115. 
 Saunders v. Moore, 258. 
 v. Robinson, 51. 
 V. Wilson, 529. 
 Saunderson v. Ballance, 708. 
 Savage v. Allen, 705. 
 Savannah(City of )v. Steamboat Co.185,186. 
 Sawyer v. Chambers, 159, 353. 
 
 v. Kendall, 592, 595, 596, 597. 
 v. Newland, 155. 
 v. Skowhegan, 145. 
 Scales v. Anderson, 479, 480. 
 
 v. Cockrill, 696, 640. 
 Scanlan v. Wright, 694. 
 Schaeffner's Appeal, 95. 
 Schaffer v. Lavretta, 147. 
 Schauber v. Jackson, 342. 
 Schenck v. Kelley, 248. 
 Schermerhorn v. Buell, 262. 
 Schmitt v. Schmitt, 428. 
 Schneider v. Botsch, 623. 
 Schofield v. Iowa Homestead Co. 314. 
 Schomp v. Schenck, 297. 
 School Directors of St. Charles v. Goerges, 
 
 611. 
 School District v. Lynch, 679. 
 
 ofWinthrop y.Benson,565, 
 Schrack v. Zubler, 594. 
 Schuff«. Ransom, 130. 
 Schulenberg v. Harriman, 138. 
 Schultz v. Arnot, 257, 549. 
 Schuyler v. Leggett, 272. 
 
 Schuyler v. Marsh, 153, 303. 
 
 v. Smith, 273. 
 Scilly v. Dalby, 310. 
 Scoffins v. Grandstaff, 715. 
 Scofield v. Whitelegge, 482. 
 Scorpion S. M. Co. v. Marsano, 557- 
 Scott v. Battle, 143, 622. 
 
 v. Delany, 576, 646, 648. 
 *. Elkins, 645. 
 v. Elmore, 149. 
 ■a. Guernsey, 488, 539. 
 v. Mather, 529, 541. 
 v. McLeod, 209. 
 ■o. Onderdonk, 87. 
 v. Reese, 544. 
 Scruggs v. Blair, 144. 
 Scudder v. Union Nat. Bank, 441. 
 Seabury v. Stewart, 225, 231. 
 Seaman v. Hogeboom, 723, 724. 
 
 v. "Vawdrey, 706. 
 Searcy v. Reardon, 513. 
 Sears v. Eastburn, 731. 
 v. Munson, 539. 
 v. Taylor, 62, 153, 305, 546. 
 Seaton v. Davis, 125, 127, 129, 286, 482. 
 
 v. Son, 205, 307. 
 Secombe v. Railroad Co. 391. 
 Second Nat. Bank of Titusville's Appeal, 
 
 145. 
 Secretary v. McGarrahan, 767. 
 Secrist v. Zimmerman, 390. 
 Seeley v. Manning, 607. 
 Segelken v. Meyer, 129. 
 Sellers v. Hayes, 227. 
 ». Sellers, 95. 
 Sellick v. Addams, 108. 
 Semayne's Case, 405. 
 Semmes v. United States, 277. 
 Semple v. Bank of British Columbia, 514. 
 v. Cook, 609, 610. 
 v. Hagar, 755. 
 Seneca Nation v. Knight, 722. 
 Seneca Road Co. v. Auburn & R. R. R. 
 
 Co. 83. 
 Sepulveda v. Sepulveda, 657. 
 Serrano v. United States, 610. 
 Sessions v. Jones, 87. 
 Seward v. Jackson, 324. 
 Seymour v. Carli, 627. 
 
 v. Creswell, 548, 627. 
 v. De Lancey, 566. 
 Shaokleford v. Bailey, 638, 662. 
 Shadwick v. McDonald, 483. 
 Shaffer v. Whelpley, 557. 
 Shaler v. Magin, 541. 
 Shand v. Hanley, 534. 
 Shanks v. Klein, 144, 223. 
 
 v. White, 296. 
 Sharon v. Davidson, 220. 
 Sharp v. Blankenship, 565. 
 v. Daugney, 342, 347. 
 v. Ingraham, 194, 199. 
 
References] TABLE OF OASES. [are to pages. 
 
 liii 
 
 Sharpe v. Kelly, 604. 
 
 v. St. Louis & S. E. Ry. Co. 74. 
 Shattuck v. Tucker, 299. 
 Shaver v. McGraw, 154, 162. 
 Shaw v. Bayard, 405, 415. 
 ■u. Lindsey, 376. 
 v. McMaren, 428. 
 v. Millsaps, 353. 
 v. Wise, 37. 
 Sbawhan v. Long, 342. 
 Shawmut Nat. Bank v. Boston, 88. 
 Sheafe ». Gerry, 606. 
 Shearer v. Shearer, 223. 
 v. Winston, 97. 
 .Shearon v. Henderson, 467. 
 Sheean v. Shaw, 210. 
 Sheehan v. Hamilton, 669. 
 Sheets v. Seldon, 138. 
 Sheffield v. Griffin, 715. 
 Sheirburn v. Cordova, 737. 
 
 v. Hunter, 356, 700. 
 Shelby v. Guy, 436, 729. 
 Sheldon v. Rice, 134. 
 Shellhammer ;;. Ashbaugh, 677. 
 Shelton v. Alcox, 108. 
 Shepard v. Ryers, 193. 
 Shepherd v. Orchard, 297. 
 v. Thompson, 684. 
 v. TouDg, 752. 
 Shepley v. Cowan, 744, 746. 
 
 v. Rangely, 24. 
 ■Sheridan v. Andrews, 388, 389, 393, 467. 
 v. Jackson, 482. 
 *. Linden, 388, 389. 
 Sherman v. Abbot, 246. 
 v. Buick, 744. 
 
 v. Champlain Transp, Co. 605. 
 v. Clark, 760. 
 
 v. Dilley, 375, 380, 386, 395. 
 v. Kane, 185, 601, 604, 605, 611, 
 
 716. 
 v. Savery, 225, 516. 
 v. Wright, 127. 
 Sherrid v. Southwick, 279. 
 Sherrill v. Sherrill, 708. 
 Sherry v. Denn, 703. 
 
 v. Frecking, 89. 
 v. State Bank, 542. 
 Sherwood v. St. Paul & C. Ry. Co. 535. 
 Shewalter v. Pirner, 724. 
 Shields v. Barrow, 154. 
 
 v. Hunt, 355, 700. 
 Shiels v. Lamar, 662. 
 v. Stark, 488. 
 Shipp v. Miller, 436, 729. 
 Shoemaker v. Shoemaker, 195. 
 Shook v. Pate, 681. 
 Shopland v. Ryoler, 1 27. 
 Shriver v. Shriver, 565, 705, 706. 
 Shucraft v. Davidson, 423. 
 Shuffleton v. Nelson, 594. 
 Shuman v. Gavin, 423. 
 
 Shumway v. Phillips, 549. 
 
 v. Shumway, 420, 424, 427. 
 Sbutte v. Thompson, 681, 684, 685. 
 Sibley v. Holden, 722. 
 Sicard v. Davis, 318, 327. 
 Siglar v. Van Riper, 194, 200, 201, 203. 
 Silloway v. Brown, 202, 540. 
 Silly v. Dally, 309, 310. 
 Silsby v. Allen, 276. 
 Silver Mining Co. v. Fall, 693. 
 Silvey v. Summer, 253, 254, 259. 
 Simar v. Canaday, 464. 
 Simers v. Saltus, 260. 
 Simmons v. Brown, 243, 359. 
 v. Lane, 663. 
 v. Lillystone, 368. 
 v. Ogle, 546, 737, 738, 744, 748. 
 v. Robertson, 256. 
 ■o. St. Paul & C. Ry. Co. 336. 
 v. Wagner, 742, 746. 
 Simms v. Richardson, 153, 242. 
 Simplot v. City of Dubuque, 611. 
 Simpson v. Dix, 155, 234, 300, 315. 
 v. Downing, 599. 
 v. Hawkins, 1 80. 
 v. Robinson, 523. 
 Sims v. Everhardt, 127, 612. 
 v. Irvine, 736, 739. 
 v. Kelsay, 519. 
 v. Meacham, 610. 
 v. Thompson, 326. 
 Singer v. Scott, 460. 
 Singleton v. Touchard, 734. 
 Sinnard v. McBride, 479. 
 Siren, The, 164. 
 Sisk v. Almon, 134. 
 Skinner v. Crawford, 622. 
 
 v. Starner, 715. 
 Slade's Case, 134. 
 Slater v. Rawson, 547. 
 Slaughter v. Glenn, 143. 
 v. Swift, 223. 
 Sledge v. Swift, 344. 
 Slevin v. Brown, 377. 
 Sloan v. Biemiller, 51. 
 ■v. Martin, 572. 
 Slocum v. Clark, 301. 
 Sloper v. Cottrell, 146. 
 Smales v. Dale, 192. 
 Small v. Haskins, 420. 
 v. Proctor, 230. 
 Smart v. Portsmouth & C. R. R. 703. 
 Smelting Co. v. Kemp, 744. 
 Smiley v. Dixon, 213. 
 Smiliew. Biffle, 612. 
 Smith, Matter of, 673. 
 v. Anderson, 435. 
 v. Barrett, 67. 
 v. Benson, 58. 
 ■u. Blaisdell, 253. 
 v. Burtis, 42, 201, 554, 610. 
 v. Chapin, 582, 595, 598, 608. 
 
liv 
 
 Beferenees] TABLE OF CASES. [are to pages. 
 
 Smith v. Chicago, A. & St. L. E. R. Co. 
 174, 702. 
 
 v. City Council of Rome, 71. 
 
 v. Coffin, 148. 
 
 v. Countryman, 302. 
 
 v. Cox, 309. 
 
 v. Crabh, 462. 
 
 v. Death, 706. 
 
 v. Dodds, 134. 
 
 v. Doe d. Carson, 45. 
 
 v. Forrest, 684, 685. 
 Gardner, 112. 
 
 v. Gayle, 394, 413. 
 , Hamilton, 727. 
 , Hemstreet, 370. 
 . Hollenback, 50. 
 
 o. Hornback, 400, 402. 
 
 v. Hutchinson, 679. 
 
 v. Jenks, 367. 
 
 v. Kernochen, 762. 
 
 ■a. Lawrence, 671, 697. 
 
 v. Littlefield, 269, 272, 279. 
 
 v. Long, 118, 296, 318. 
 
 ■v. Lorillard, 523, 546, 593. 
 
 v. Low, 325. 
 
 v. Mayor, &c, 54, 55. 
 
 v. McAllister, 627. 
 
 v. McCann, 37, 145, 735. 
 
 n. McCluskey, 88. 
 
 u. McKay, 625, 626. 
 
 „. McNeal, 370. 
 
 ■a. Morrow, 627. 
 
 u. Mosier, 740. 
 
 u. Osborne, 211. 
 
 v. Pipe, 112. 
 
 v. Pretty, 410, 415. 
 
 v. Roberts, 619, 649. 
 
 v. Robertson, 128, 131, 533. 
 
 v. Sherwood, 375, 376. 
 
 v. Slocomb, 722. 
 
 v. Smith, 703. 
 
 o. State of Maryland, 64, 79. 
 
 v. Tome, 350. 
 
 v. Trabue, 410, 467, 591, 756. 
 
 v. Vaughan, 299, 318. 
 
 ■0. Walker, 156. 
 
 v. Webster, 232. 
 
 v. Wbitbeck, 266. 
 
 v. "White, 406. 
 
 v. Wiggin, 82, 92, 174. 
 
 v. Wilson, 449. 
 Smoot v. Smoot, 236. 
 Snapp v. Spengler, 325. 
 Snedeker v. Warring, 54. 
 Sneed v. Ewing, 333. 
 Snook, Petition of, 300. 
 
 v. Sutton, 128. 
 Snyder v. Canal R. R. Co. 322. 
 v. Hopkins, 449, 450. 
 v. Warford, 83. 
 Society, &c. a. Town of Pawlet, 231, 615. 
 v. Wheeler, 123. 
 
 Sohier v. Eldredge, 530. 
 
 Somerset?'. Pogwell, 78. 
 
 Somerville v. Donaldson, 424, 427. 
 
 Somes ii. Skinner, 4. 
 
 Sopp v. Winpenny, 501, 602. 
 
 Soto v. Kroder, 132. 
 
 Soule v. Barlow, 570, 579, 627. 
 
 Souter v. Codman, 193. 
 
 v. La Crosse R. R. 240, 241. 
 
 Southard v. Sutton, 708. 
 
 South Beach Land Ass'n «.Christy,410,415. 
 
 Southmayd v. Henley, 553. 
 
 South & North Ala. R.R. Co. i>.Henlein,370. 
 
 Sowder v. McMillan, 333. 
 
 Sower v. Weaver, 350. 
 
 Sowers v. Peterson, 221. 
 
 Spafford v. Woodruff, 359. 
 
 Spalding v. Chelmsford, 536. 
 
 Sparhawk v. Allen, 489. 
 
 v. Bullard, 547. 
 
 Sparrow v. Hovey. 571. 
 
 v. Kingman, 69, 230, 547, 716. 
 v. Strong, 758. 
 
 Sparry's Case, 35. 
 
 Spear v. Cutter, 453. 
 
 v. Downing, 302. 
 
 Spears v. Mayor, <fec. 360. 
 
 Spect v. Gregg, 326. 
 
 Spellman v. Curtenius, 663. 
 
 Spence v. McGowan, 46, 380, 419, 422,. 
 425, 439. 
 
 Spencer v. Carr, 710. 
 
 v. Tobey, 224, 225. 
 
 Sperling v. Isaacs, 96. 
 
 Sperry v. Pond, 139. 
 
 Spigener v. Cooner, 43. 
 
 Spiller v. Scribner, 726. 
 
 Spitts v. Wells, 176. 
 
 Splabn v. Gillespie, 673. 
 
 Spratt v. Price, 346, 350, 359, 675. 
 
 Spring v. Sandford, 132. 
 
 Spurlock ii. Dougherty, 555. 
 
 Squires v. Clark, 203. 
 v. Huff, 277. 
 
 Staats v. Bristow, 69. 
 
 v. Ten Eyck, 501. 
 
 Stackhouse v. Reynolds, 283. 
 
 Stackpole v. Healy, 72, 73. 
 
 Stafford v. Clark, 372. 
 v. King, 723. 
 
 Staffordshire & W. Canal ISTav. v. Birming- 
 ham Canal Nav. 611. 
 
 Stagg v. Eureka Tanning Co. 254. 
 
 Stall v. Wilbur, 489. 
 
 Stalnaker v. Morrison, 350. 
 
 Stamm v. Bostwick, 449. 
 
 Stamper v. Griffin, 614, 661, 662, 663. 
 
 Stancel v. Calvert, 140. 
 
 Stancill v. Calvert, 484. 
 
 Stanford v. Lyon, 55. 
 
 Stansbury v. Taggart, 225. 
 
 Stanton v. Embrey, 450. 
 
References] TABLE OF OASES. [are to pages. 
 
 lv 
 
 Stanwood v. McLellan, 726. 
 Stark v. Barrett, 220, 304. 
 u. Brown, 246, 844. 
 *. Burr, 330. 
 ■o, Starr, 356, 513, 515, 516, 523, 529, 
 
 532, 632, 633. 
 v. Starrs, 21, 24, 436, 557, 746. 
 Starke v. Smith, 145. 
 State v. Arledge, 119. 
 v. Bachelder, 744. 
 v. Bailey, 716. 
 v. Canterbury, 722. 
 v. Jackson, 334. 
 v. Martin, 300. 
 v. Meagher, 352. 
 v. Newark, 112. 
 v. Stark, 119. 
 v. Wilson, 86. 
 
 of Alabama v. State of Georgia, 749. 
 of California v. MeGlynn, 133. 
 of Georgia v. Grant, 750. 
 of Indiana v. Milk, 716. 
 of Minnesota v. Grant, 119. 
 of New Jersey v. State of New York, 
 
 749. 
 of New York v. State of Connecticut, 
 
 750. 
 of Ebode Island v. State of Massachu- 
 setts, 749. 
 Staton v. Bryant, 708. 
 Steam Stone Cutter Co. v. Jones, 102, 742. 
 Stearns v. Palmer, 145, 146. 
 Stebbins v. Duncan, 301, 693. 
 
 v. Miller, 77, 387. 
 Stedman v. Gassett, 278, 285. 
 v. Mcintosh, 269, 274. 
 v. Smith, 90, 204. 
 Steel v. Gold Lead M. Co. 351. 
 
 v. Smelting Co. Ill, 523, 712. 
 Steeple v. Downing, 117. 
 Steffens v. Earl, 270, 276. 
 Steinbach v. Relief F. I. Co. 370, 371. 
 Steinback v. Fitzpatrick, 306, 553. 
 Steinbeck v. Stone, 46. 
 Steinhauser v. Kuhn, 280. 
 Steinkuhl v. York, 100, 730, 762. 
 Steinruck's Appeal, 244. 
 Stephaniw.Catholic Bishop of CMcago,513. 
 Stephens v. Leach, 579. 
 v. Mattox, 295. 
 v. Westwood, 366. 
 Stephens & C. Transp. Co. v. Central R. R. 
 
 Co. 301. 
 StephenBon v. Doe d. Wait, 663. 
 Stepney v. Biddulph, 526. 
 Stevens v. Brooks, 636, 637. 
 ■it. Church, 425. 
 ■v. Dennett, 82. 
 v. Erie Ry. Co. 103. 
 v. Griffith, 343. 
 v. Hauser, 347, 557. 
 v. Hollingsworth, 77. 
 
 Stevens v. Hollister, 610. 
 
 v. Hughes, 373, 375, 380, 382, 385. 
 
 v. Reed, 694. 
 
 v. Raggles, 221. 
 
 v. Thompson, 539, 540. 
 
 ■v. Webb, 327. 
 
 v. Whistler, 720. 
 Stewart v. Beck, 718. 
 
 v. Carleton, 726. 
 
 v. Crosby, 243. 
 
 v. Davis, 246. 
 
 v. Patrick, 158, 177. 
 
 v. Speer, 366. 
 
 ii. Stewart, 293, 294. 
 Stiles v. Curtis, 70. 
 
 v. Jackson, 176. 
 Stinson v. Dousman, 755. 
 
 a. Stinson, 489. 
 Stivwell v. Williams, 441. 
 Stockbridge v. West Stockbridge, 691. 
 
 (Inhabs.) v. Inhabitants of 
 West Stockbridge, 693. 
 Stockham v. Browning, 86, 725. 
 Stockwell v. Hunter, 88, 160. 
 v. Marks, 272. 
 v. Phelps, 510. 
 Stoddarda.Chambers.677,707, 740,744, 747. 
 Stokes v. Morrow, 414. 
 Stone v. Grubbam, 141. 
 v. Sprague, 351. 
 Stonestreet v. Doyle, 198, 199. 
 Storch v. Carr, 400, 483. 
 Storer v. Freeman, 722. 
 Storey v. Flanagan, 692. 
 Storm v. Mann, 452. 
 Starrs v. Barker, 709, 710. 
 Story v. Bishop, 694. 
 
 v. N. Y. Elevated R. R. Co. 187. 
 v. Saunders, 194. 
 Stott v. Rutherford, 253. 
 Stoughton v. Baker, 610. 
 Stoughton's Appeal, 61, 129. 
 Stout v. McPheeters, 306, 307. 
 v. Merrill, 256. 
 v. Woodward, 108. 
 Stovall v. Carmichael, 192, 221. 
 Stover v. Cory, 210. 
 Stow v. Russell, 699. 
 Stowell v. Buswell, 696. 
 
 v. Chamberlain, 35, 370, 371,459. 
 Strang v. Moog, 370. 
 Stratton v. Lyons, 56. 
 Strauss v. Meertief, 386. 
 Street v. Anderton, 447. 
 Strepey v. Stark, 670. 
 Strettell v. Ballou, 217, 547, 730, 732. 
 Stribling v. PrettymaD, 182. 
 Strickland v. Draughan, 697. 
 
 v. Kirk, 227. 
 Strike v. Dikes, 20. 
 Stringer ». Young, 744. 
 String-fellow v. Alderson, 358. 
 
hi 
 
 References] TABLE OF CASES. [are io pages. 
 
 Strode v. Swim, 411. 
 
 Strong «, City of Brooklyn, 72, 74, 92, 153, 
 174. 
 v. Garfield, 497. 
 v. Hunt, 540. 
 v. Waddell, 231. 
 v. Waterman, 123. 
 Strother v. Lucas, 24, 375, 738, 763. 
 Stroud v. Springfield, 343, 349, 682. 
 Stuart «. Coalter, 107, 316. 
 Stubblefield v. Borders, 346, 657, 659,660. 
 Stump v. Hornbeck, 536. 
 Sturdevant v. Murrell, 44. 
 Sturdy v. Jackawav, 22, 370, 379, 382, 
 
 436, 729. 
 Sturgeon v. Douglas, 149. 
 Sturgis v. Holliday_, 533. 
 Stuyvesant v. Davis, 263. 
 
 i). Tompkins, 547. 
 Styles v. Gray, 342. 
 Suffern v. Townsend, 224, 225, 262. 
 Sullivan v. Davis, 151. 
 
 v. Sullivan, 97, 391. 
 Sullivane v. Seagrave, 57, 321. 
 Sulphine v. Dunbar, 708. 
 Summers v. Brady, 329. 
 Sumner v. Hampson, 69, 223. 
 v. Stevens, 631, 643. 
 Supervisors v. Herrington, 258, 260. 
 Sussex (Earl of) v. Temple, 192. 
 Sutlive v. Jones, 114. 
 Suttle v. Richmond, F. & P. R. R. Co. 349, 
 
 350, 669, 717. 
 Sutton v. Aiken, 307. 
 
 v. Casseleggi, 605. 
 v. Mason, 245. 
 v. McLeod, 700. 
 Swafford v. Whipple, 314. 
 Swamscott Machine Co. v. Perry, 99. 
 Swan v. Stephens, 77, 343, 387. 
 Swann v. Lindsey, 610. 
 Swartzel v. Rogers, 425, 427. 
 Swasey v. North Carolina R. R. Co. 167, 
 
 170, 171. 
 Swayze t>. Burke, 737, 739. 
 Swett v. Patrick, 219. 
 Swettenhamu. Leary,621, 623, 627,639, 687. 
 Swift v. Dean, 257. 
 
 v. Livingstone, 40. 
 Swink v. French, 690. 
 Sydnor v. Palmer, 427, 637. 
 Sykes v. Hayes, 161. 
 Sylvester v. Ralstou, 479. 
 Symonds v. Page, 507. 
 
 Table Mountain Tunnel Co. v. Stranahan, 
 
 234. 
 Tabler v. Wiseman, 390. 
 Tabor v. Richardson, 89. 
 Tacey v. Irwin, 168. 
 Talbot v. Scott, 444, 451. 
 Taliaferro v. Gay, 241. 
 
 Tamm v. Kellogg, 626. 
 Tanner v. Hicks, 227. 
 Tappan v. Tappan, 344. 
 Tapscott v. Cobbs, 131. 
 Tarbel «. Bradley, 223. 
 Tarbell v. West, 144. 
 Tarver v. Smith, 116, 135, 220. 
 Tate v. Southard, 631. 
 Tatum v. McLellan. 505, 523, 524. 
 Tayloe v. Dusger, 225. 
 Taylor v. Armstrong, 71. 
 v, Baldwin, 539. 
 v. Barnes, 233, 394. 
 v. Castle, 371. 
 v. Crane, 153, 304, 305. 
 *, Davis, 695. 
 ij. Gerrish, 566. 
 *. Gladwin, 55, 82, 83, 388. 
 u. Hill, 194, 198, 368. 
 v. Horde, 54, 345, 374, 375, 400 
 v. Stockdale, 191. 
 ■a. Sutton, 418. 
 *. Taylor, 114, 315, 513. 
 v. Trask, 297. 
 v. Whiting, 315, 533. 
 v. Zamira, 509. 
 Taylors v. Huston, 301. 
 Teabout v. Daniels, 216, 546, 632. 
 Teal v. Collins, 87. 
 
 v. Terrell, 114, 315. 
 Tebbets v. Estes, 672. 
 Tefft v. Munson, 715. 
 Tegarden v. Carpenter, 341, 346. 
 Ten Broeck v. Orchard, 350, 353. 
 Ten Eyck v. Craig, 248. 
 Tenn. & Coosa R. R. Co. v. East Ala. Ry. 
 
 Co. 138, 696. 
 Terre Haute & S. E. R. R. Co. v. Rodel, 
 
 70, 74, 187, 189. 
 Terrell v. Allison, 399, 410. 
 v. Cunningham, 488. 
 Territory v. Lee, 148. 
 Territt v. Cowenhoven, 253. 
 Tesmond v. Johnson, 28. 
 Tessier v. Wyse, 176. 
 Tetherow v. Chambers, 304. 
 Tevis v. Ellis, 410, 416. 
 v. Hicks, 409, 414. 
 Tewksbury v. Magraff, 263, 255. 
 Texas Land Co. v. Turman, 50, 259. 
 
 v. Williams, 646, 651 
 Thacker v. Henderson, 128. 
 Thatcher v. Powell, 436, 729. 
 Thayer v. Bacon, 726. 
 
 v. McLellan, 640. 
 
 Thomas, Ex parte, 530. 
 
 v. Babb, 622. 
 
 v. Garvan, 97. 
 
 v, Geiger, 423. 
 
 v. Hatch, 722. 
 
 v. Kelly, 680. 
 
 v. Malcom, 536 
 
Beferences'] TABLE OP OASES. [are to pages. 
 
 lvii 
 
 Thomas v. Marshfield, 568, 608, 611. 
 v. Newton, 760. 
 v. Orrell, 343. 
 v. Pickering, 205. 
 v. Sanford S. S. Co. 277. 
 v. Scott, 223. 
 v. Thomas, 527. 
 v. Wright, 274, 275. 
 Thompson v. Bower, 473, 479. 
 
 v. Burhans, 545, 550, 555, 673, 
 
 638, 639, 646, 647, 660. 
 v. Clark, 393, 467, 502. 
 v. Cragg, 632. 
 v. Crocker, 331. 
 v. Green, 142. 
 v. KeDdrick, 753. 
 v. Maberly, 275. 
 v. McCay, 369. 
 v. Mylne, 372. 
 v. O'Sullivan, 260. 
 v. Pioche, 569, 579. 
 v. Red, 359, 360. 
 v. Reynolds, 297. 
 v. Schuyler, 153. 
 v. Sherrard, 442, 
 v. Thompson, 523, 524. 
 v. Williams, 451. 
 v. Wolf, 50. 
 v. Woolf, 690. 
 Thomson v. Wooster, 732. 
 Thornton v. Dixon, 223. 
 v. Grant, 725. 
 v. Ramsden, 705. 
 v. York Bank, 192. 
 Thorp v. Raymond, 612. 
 Thouvenin v. Lea. 537. 
 Thrale v. Cornwall, 334. 
 Thrall v. Omaha Hotel Co. 259. 
 Thrash v. Johnson, 44. 
 Throckmorton v. Burr, 218. 
 Thropp v. Field, 266. 
 Thrustout v. Troublesome, 459. 
 Thunder v. Belcher, 239, 285. 
 Thurber v. Conners, 51, 141. 
 v. Dwyer, 272, 274. 
 Thurman v. Anderson, 351. 
 Thyn v. Thyn, 81. 
 Tibbs v. Clarkson, 126. 
 Tibeau v. Tibeau, 235, 353. 
 Tice v. School Dist. Mo. 18, 730. 
 Tichenor o. Knapp, 557. 
 Tilghman v. Little, 259. 
 Tillman v. Spann, 225. 
 Tillmes v. Marsh, 70, 76, 99, 101, 387, 725. 
 Tillotson v. Doe d. Kennedy, 281. 
 Tilton v. Beecher, 328. 
 
 ■o. Cofield, 181, 371, 466. 
 Timmins v. Rowlinson, 288. 
 Timon v. Whitehead, 710. 
 Tintsman v. National Bank, 755. 
 Tioga R. R. v. Blossburg & C. R. R. 729. 
 Tisdale v. Tisdale, 211, 212. 
 
 Tisher v. Beckwith, 695. 
 Tison v. Yawn, 257. 
 Titswortha. Stout, 211. 
 Todd v. Davis, 242. 
 Toles v. Gardner, 370. 
 Tolson v, Mainor, 697. 
 Tompkins v. Snow, 253, 254. 
 v. White, 466. 
 v. Williams, 226. 
 Tonnele v. Hall, 121. 
 Toole v. Peterson, 681. 
 Toomey v. Kay, 566. 
 Tormey v. Pierce, 315. 
 Torrey v. Torrey, 286. 
 Torriano v. Young, 262. 
 Torry v. Black, 127. 
 Touchard v. Crow, 219. 
 Towle v. Ayer, 42, 49, 152. 
 
 v. Dewitt, 424. 
 
 a. Remsen, 138. 
 Town of Pawlet v. Clark, 753. 
 Venice v. Breed, 342. 
 Towne v. Butterfield, 264. 
 
 v. Campbell, 270. 
 Townsend v. Davis, 263, 254. 
 v. Downer, 342. 
 v. Little, 556. 
 v. Mayor, <fec. 87. 
 v. Shipp, 518, 522, 623. 
 Townsend & Pastor's Case, 204. 
 Tracy v. Atherton, 595. 
 
 v. Kelley, 341. 
 
 v. Newton, 627. 
 
 v. Norwich <fe W. R. R. Co. 66 
 Trammell v. Simmons, 233. 
 Traphagen v. Traphagen, 235, 351. 
 Trapnall v. HU1, 194. 
 Traver v. Baker, 390, 716. 
 Treaster v. Fleisher, 232. 
 Treat v. McMahon, 4. 
 Treftz v. Pitts, 386. 
 Trego v. Lewis, 327. 
 Tremain v. Sands, 84. 
 Trenouth v. Gilbert, 195. 
 
 v. Gordon, 700. , 
 Trenton Banking Co. v. Duncan, 710. 
 Tribble v. Anderson, 258. 
 Trimm v. Marsh, 240, 241. 
 Tripp v. Ide, 239. 
 Triscony v. Orr, 301. 
 Tritt v. Roberts, 648. 
 Trittipo v. Morgan, 391. 
 Troost v. Davis, 522. 
 Trotter v. Cassaday, 585. 
 
 v. Simpson, 90. 
 Trousdale v. Maxwell, 705. 
 Troy & B. R. R. Co. v. Boston, H. T. < 
 
 W. Ry. Co. 92, 104, 174. 
 Trubee v. Miller, 474, 475, 483, 486, 508. 
 Truehart v. McMichael, 220. 
 Truitt v. Truitt, 423, 427. 
 Trull v. Granger, 141. 
 
lviii 
 
 References] TABLE OP OASES. \. are to 
 
 Trull v. Skinner, 248. 
 
 Truss v. Old, 127, 553. 
 
 Trussel v. Lewis, 627, 727. 
 
 Trustees of Brookhaven v. Strong, 79. 
 
 Church of North Greig v. John- 
 son, 203. 
 East Hampton v. Kirk, 64, 65, 
 
 592. 
 Hawesville v. Hawes, 76. 
 Meth. Ep. Ch. v. Council of 
 
 Hoboken, 187, 188. 
 Wadsworthville School v. 
 Meetze, 280. 
 Tryon v. Carlin, 366. 
 
 ■„. Munson, 243, 246. 
 Tucker v. Hamilton, 342. 
 v. Moreland, 126. 
 v. Vance, 114, 142, 315. 
 a, "Whitehead, 256. 
 Tufts v. Charlestown, 577. 
 Tulloch v. Worrall, 203. 
 Tully v. Bauer, 703. 
 Tupper v. Wise, 759. 
 Turberville v. Long, 363. 
 Turner, Ex parte, 762. 
 v. Davis, 294. 
 v. Doe d. Bennett, 276. 
 v. Duchman, 159, 179, 462. 
 v. Ferguson, 311. 
 u. Hall, 572, 573, 574, 578, 581. 
 v. Marriott, 236, 
 ■v. Reynolds, 59. 
 v. Thomas, 256. 
 Turney v. Chamberlain, 646. 
 Turnipseed v. Fitzpatrick. 3S2, 518. 
 
 v. Hudson, 718. 
 Turpin v. Brannon, 631. 
 
 v. Saunders, 267, 579, 580. 
 Turrell v. Warren, 241. 
 Tuttle v. Reynolds. 281. 
 Tutwiler v. Munford, 695. 
 Twyman v. Hawley, 227, 283, 284. 
 Tyler v. Canaday, 360. 
 v. Fickett, 236. 
 v. Hammond, 722. 
 v. Heidorn, 265. 
 Tyson v. Britton, 612. 
 
 TJfford v. Wells, 310. 
 
 Uhling v. Garrison, 716. 
 
 Uhrieh v. Beck, 131. 
 
 Ulsh v. Strode, 343. 
 
 Underbill v. Saratoga & W. R. R. Co. 138. 
 
 Underwood v. Sims, 43. 
 
 Unger v. Mooney, 192, 571. 
 
 Union Canal Co. v. Young, 82. 
 
 College v. "Wheeler, 240. 
 
 House v. Rowell, 83. 
 
 Petroleum Co. v. Blivin Petroleum 
 Co. 61, 85. 
 
 R. R. <k T. Co. v. Traube, 371. 
 
 Sav. Bank v. Taber, 601. 
 
 United States <*. Athens Armory, 241. 
 „. Beebee, 547. 
 „. Bostwick, 261. 
 ji. Castillero, 59. 
 v. Central Pacific R. R. Co. 
 
 154. 
 ■v. City of Alexandria, 610. 
 v. Clarke, 163. 
 v. Commissioner, 767. 
 v. Cook, 123, 150, 665. 
 v. Crosby, 333. 
 v. Dawson, 339. 
 v. Eekford, 163. 
 v. Fox, 119, 333, 729. 
 v. Gear, 453. 
 v. Hart, 171. 
 v. Hoar, 610. 
 v. Howland, 732. 
 v. Kirby, 171. 
 v. Kirkpatrick, 610. 
 v. Lee, 170, 173. 
 v. Lowry, 405. 
 v. Parrott, 453. 
 v. Schurz, 767. 
 v. Slaymaker, 402. 
 v. Spiel, 610. 
 v. Stone, 744. 
 v. Thompson, 558, 610. 
 v. Throckmorton, 371. 
 v. Union Pacific R. R. Co. 
 
 121. 
 v. Williams, 610. 
 University of Vermont v. Reynolds, 666, 
 
 667. 
 Unversaw v. Myers, 327. 
 Updegraff v. Trask, 131, 132. 
 Upton v. McLaughlin, 348. 
 Utica Ins. Co. v. Bloodgood, 612. 
 Utterback v. Terhune, 390. 
 Utterson v. Vernon, 473. 
 
 Valentine ». Belden, 1 36. 
 
 v. Mahoney, 394. 
 
 v. Piper, 667, 721. 
 Valle v. Fleming, 527. 
 Van Alen v. Rogers, 483, 490. 
 Van Alstine v. McCarty, 104, 480. 
 Van Alstyne v. Spraker, 307. 
 Vanatta v. Brewer, 91, 253. 
 Van Auken ». Decker, 77. 
 Van Bibber v. Frazier, 199. 
 Van Brunt i). Applegate, 69. 
 Vance ». Olinger, 460. 
 
 ». Schroyer, 113, 804. 
 Vandergriff v. Piercy, 693. 
 Vanderpoel ». Smith, 88. 
 
 v. Van Valkenburgh, 133. 
 Vanderslice v. Knapp. 453. 
 Vanderwerker ». People, 334. 
 Van Deusen v. Sweet, 99, 110, 130, 443, 
 463. 
 8. Young, 224, 226. 
 
Beferences] TABLE OP OASES. [>« &> pages. 
 
 lix 
 
 Van Deuzen 0. Trustees, tfec. 81. 
 
 Vandever v. Freeman, 831. 
 
 Vandevoort 0. Gould, 817, 475, 476, 477, 
 
 491, 495, 501. 
 Van Dyck 0. Van Beuren, 206, 207. 
 Van Fossen 0. Pearson, 364. 
 Vanhorn v. Cbesnut, 739. 
 Van Home 0. ETerson, 153. 
 
 0. Fonda, 211, 212. 
 Van Name 0. Van Name, 69. 
 Van Ness v. Bank of the U. S. 732. 
 Van Pelt 0. McGraw, 453. 
 Van Rensselaer v. Ball, 91, 265. 
 
 v. Barringer, 1 33. 
 
 v. Hayes, 135. 
 
 0. Hays, 265. 
 
 ii. Jewett, 91, 253, 265, 
 266. 
 
 ». Owen, 485. 
 
 0. Slingerland, 265. 
 
 v. Witbeck, 4i>3. 
 Van Sehuyver 0. Mulford, 97. 
 Van Valkenbergh 0. Den d. Rahway Bank, 
 
 284. 
 Van Valkenburg v. Huff, 192. 
 Van Vliet v. Olin, 370. 
 Van Voorhis 0. Brintnall, 69. 
 
 0. Budd, 300. 
 Van Winkle 0. Hinckle, 279. 
 Van Wyck 0. Brasher, 131. 
 Varney v. Stevens, 212. 
 Vasquez 0. Ewing, 350. 
 Vaughan 0. Bacon, 192. 
 Vause 0. Woods, 441, 443, 444. 
 Veal v. Robinson, 630. 
 Venable v. Beauchamp, 211. 
 Venice (Town of) 0. Breed, 342. 
 Venner 0. Underwood, 360. 
 Vermilya 0. Beatty, 334. 
 Vermont & M. R. R. Co. 0. Oreutt, 331. 
 Vernam 0. Smith, 253. 
 Verplanck 0. Verplanek, 448. 
 
 0. Wright, 262. 
 Verplank 0. Caines, 441. 
 Very 0. Watkins, 240. 
 Vice 0. Thomas, 60. 
 Vickers 0. Sisson, 235. 
 Vicksburg 0. Marshall, 611. 
 Viele v. Judson, 712. 
 
 v. Troy & B. R. R. Co. 235. 
 Villa 0. Rodriguez, 244. 
 Vincent v. Corbin, 274, 279. 
 
 v. Parker, 448. 
 Virginia v. West Virginia, 749. 
 Vischer 0. Conant, 329. 
 Von Schrader 0. Taylor, 176, 177. 
 Voorhees v. Burchard, 55, 388. 
 Voorhies 0. Voorhies, 126, 316. 
 Vosburgh 0. Teator, 726, 727. 
 Vreeland v. Blauvelt, 705. 
 Vrooman 0. Jackson, 49, 89, 109, 388. 
 0. Weed, 115. 
 
 Waddy v. Newton, 77. 
 Wade 0. Baker, 127. 
 
 v. Doyle, 342, 346. 
 v. Lindsey, 715. 
 0. Malloy, 140, 262. 
 Wadsworthville School v. Meetze, 280. 
 Wager v. Schuyler, 501. 
 
 0. Troy Union R. R. Co. 72, 465. 
 0. Wager, 133, 391. 
 Waggener 0. Lyles, 231. 
 Wagner 0. Railway Co. 104. 
 Wait 0. Richardson, 202. 
 Wake 0. Tinkler, 145. 
 Wakeley 0. Nicholas, 355. 
 Wakeman 0. Banks, 239. 
 Walbrunn 0. Ballen, 626. 
 Walcop v . McKinney, 286. 
 Walden 0. Bodley, 253, 370. 
 0. Craig, 27, 299. 
 0. Gratz, 560. 
 Waldron v. Waldron, 696. 
 Wales v. Coffin, 523, 528. 
 Walker v. Armour, 420. 
 0. Cox, 427. 
 0. Emerson, 227. 
 0. Greenlee, 693. 
 0. Hitchcock, 497. 
 0. Howard, 47. 
 
 v. Humbert. 488, 520, 540, 541. 
 a. Millard, 228. 
 0. Mitchell, 476. 
 Powers, 115,315. 
 v. Quigg, 524. 
 0. Sharpe, 51,291,292. 
 0. Sherman, 56. 
 0. Zorn, 444. 
 Walkup v. Zehring, 461. 
 Wallace 0. Harris, 98. 
 
 0. McConDell. 359. 
 v. Swinton, 670. 
 Wallen v. Huff, 181 , 407, 411, 413. 
 Walls?). McGee, 610. 
 
 0. Smith, 631,641. 
 Wain 11. Shearman, 178. 
 Walrath 0. RedHeld, 500. 
 Wals v. Grosvenor, 87. 
 Walsh 0. Wilson, 530, 543. 
 Walter v. Greenwood, 539. 
 
 0. Lockwood. 305, 308, 309. 
 Walton v. Johnson, 453. 
 
 v. Jordan, 510. 
 Ward 0. Chamberlain, 742. 
 0. Dewey, 87. 
 v. Drouthett, 423. 
 0. Herrin, 584. 
 v. Mcintosh, 230, 547. 
 j;. Parks, 156, 303, 553. 
 v. Petifer, 80. 
 v. Swift, 149. 
 v. Ward, 427. 
 v. Warren, 192. 
 Warden v. Eichbaum, 131. 
 
lx 
 
 References] TABLE OF CASES. [are to pages. 
 
 Warden's Cage, 322. 
 Warder v. Baldwin, 718. 
 Ware v. Jackson, 227. 
 v. Pereival, 371. 
 Warfield v. Lindell, 195, 19V, 198, 199, 
 
 200, 206. 
 Waring v. Crow, 02. 
 
 «. Somborn, 351 
 Warner v. Bennett, 139. 
 
 v. Hardy, 28, 678. 
 v. Southworth, 722. 
 o.Turner, 319. 
 Warren v. Chambers, 67. 
 v. Kelly, 335. 
 v. Tobey, 137. 
 v. Wakeley, 321. 
 v. Webb, 330, 331. 
 Warren Co. v. Marcy, 467. 
 Warwick v. Mayo, 72. 
 Washabaugh v. Entriken, 584, 715. 
 Washburn v. Burnham, 87. 
 
 *. Cutter, 576, 615, 633, 636, 
 
 641, 660. 
 v. Great Western Ins. Co. 371. 
 Washington v. Conrad, 210, 258, 261. 
 Washington Bank v. Brown, 343. 
 Washington Co. v. Matteson, 725. 
 Waterhouse v. Martin, 652. 
 Waterman v. Andrews, 114, 198. 
 v. Johnson, 724. 
 v. Smith, 391. 
 Waters v. Butler, 270. 
 v. Perkins, 353. 
 v. Stewart, 240/ 
 Wathen v. English, 218. 
 WatMns v. Brunt, 312. 
 
 v. Holman, 26, 231, 732, 734 
 
 735. 
 v. Peck, 129. 
 Watrous v. McGrew, 692. 
 Watson v. Brainard, 479, 480. 
 ■v. Fletcher, 266. 
 </. Hunter, 449. 
 v. Jones, 459. 
 v. Sutherland, 44 S. 
 v. Tindal, 649. 
 v. Wilcox, 328. 
 Watts v. Kinney, 330, 332, 397. 
 v. Owens, 211, 637, 652. 
 Wattson v. Bowling, 407. 
 Weakly (d. Yea) v. Bucknell, 26. 
 Weaver v. Crenshaw, 68. 
 v. Field, 459. 
 v. Norwood, 522. 
 v. Wible, 209, 415. 
 Webb ii. Buckelew, 372. 
 
 v. Goddard, 331, 335. 
 v. Richardson, 584. 
 Webber v. Eastern R. K. Co. 722. 
 v. Lee. 77, 85. 
 v. Williams College, 612. 
 Weber v. Anderson, 598, 618, 629. 
 
 Webster v. Bond, 153, 159, 179, 350, 351, 
 352, 353. 
 v. Mann, 227. 
 v. Stewart, 542. 
 v. Vandeventer, 217. 
 v. Webster, 132. 
 Weed v. Root, 95. 
 Weems v. Mackall, 124, 125. 
 Weese v. Barker, 220. 
 Weicbselbaum v. Curlett, 259. 
 Weide v. Gehl, 244. 
 Weidersuin v. Naumann, 102, 126. 
 Weisbrod v. Chicago & N. W. Ry. Co. 74. 
 Weisinger v. Murphy, 205. 
 Weiskoph v. Dibble, 346. 
 Weiss v. Jackson Co. 104. 
 Welborn v. Anderson ,633,636,646,650,660. 
 Welch v. Winterburn, 454. 
 Welland Canal Co. v. Hathaway, 718. 
 Wellborn v. Finley, 715. 
 Wells v. Atkinson, 159. 
 
 v. Iron Co. 574, 637, 640, 646, 661, 
 
 693, 694. 
 v. Mason, 259. 
 v. Morrow, 244. 
 v. Rice, 243, 246. 
 v. Riley, 525. 
 Wendell v. Moulton, 536, 543. 
 
 v. People, 119, 120, 723. 
 i>. Van Rensselaer, 710. 
 Wentworth v. Barnum, 458. 
 Wernke v. Hazen, 543. 
 West v. Fitz, 333. 
 West Covington v. Freking, 189. 
 Western R. R. Co. v. Nolan, 145. 
 Western Union Tel. Co. v. Rogers, 757. 
 West Hartford Eccles. Soc. v. First Bap. 
 
 Church, 725. 
 West Point Iron Co. «. Reymert, 104, 448, 
 
 450, 452. 
 Wetherbee ». Dunn, 724. 
 0. Green, 245. 
 Wetmore v. Tracy, 1 14. 
 Whaley i>. Dawson, 390. 
 Wharton v. Moore, 522. 
 Whatley v. Newsom, 672. 
 Wheelan «. Fish, 96. 
 Wheeler «. Ladd, 546, 613, 670. 
 v. Moody, 594. 
 v. Spinola, 554, 584. 
 ■v. Standley, 236. 
 v. Toulson, 80. 
 ». Tracy, 228, 706. 
 Wheelock v. Warschauer, 259, 303. 
 Wheelwright v. Freeman, 179. 
 Whipple v. Shewalter, 288. 
 Whissenhunt v. Jones, 254, 282, 491, 501, 
 
 680. 
 Whitaker «. Bramson, 372. 
 ». Hawley, 88. 
 v. McClung, 426. 
 White 1). Brooks, 219. 
 
References'] TABLE OF CASES. [are to pages. 
 
 lxi 
 
 White v. Clack, 507. 
 
 V. Coatsworth, 370. 
 v. Cronkhite, 673. 
 v. Damon, 706. 
 v. Den d. "Woodruff, 826, 362. 
 v. Hapeman, 366. 
 v. Kyle, 375. 
 v. Liming, 724. 
 v. Patten, 715. 
 1). Pickering, 160, 218, 316. 
 V. Poorman, 418. 
 v. Reid, 584. 
 v. Rittenmyer, 243. 
 v. Rowland, 474. 
 V. Sabariego, 148. 
 v. St. Guirons, 44. 
 D. Sanborn, 331. 
 «. Tucker, 501. 
 v. White, 56. 
 v. Williams, 723. 
 v. Wilson, 425. 
 White's Bank of Buffalo v. Nichols,64,722, 
 Whitehall Transp. Co. v. N.J. S.B. Co.600. 
 Whiteside v. Haselton, 180. 
 v. Jackson, 231. 
 1). Singleton, 662. 
 Whiting 11. Edmunds, 263, 256, 569, 603. 
 •». Taylor, 604. 
 ». Wellington, 729. 
 Whitledge ». Wait, 497, 531. 
 Whltlock v. Willard, 137. 
 Whitman v. Pisher, 95. 
 11. Willis, 705. 
 Whitney «. Buckman, 325, 447. 
 v. Cotten, 144. 
 v. Gordon, 287. 
 n. Kirtland, 297. 
 D. Marshall, 178. 
 n. Nelson, 395. 
 v. Richardson, 623, 526. 
 11. Wright, 548. 
 Whitteroore v. Shaw, 391. 
 Whittier v. Stege, 228. 
 Whittingham v. Andrews, 59, 60. 
 Whittington v. Flint, 604. 
 
 1). Wright, 610. 
 Whittuck v. Waters, 688. 
 Wickham v. Freeman, 547. 
 Wicks v. Smith, 342, 346, 356. 
 Widdowson v. Earl of Harriogton, 303. 
 Wigg v. Wigg, 253. 
 Wiggin v. Wiggin, 254, 259. 
 Wiggins v. Holley, 615. 
 Wight v. Shaw, 715. 
 Wilbur v. Ripley, 37. 
 Wilcox v. City of Oakland, 105. 
 
 v. Jackson, 166, 167, 742, 747. 
 «. Moudy, 334. 
 v. Wilcox, 144, 488. 
 Wilcoxon v. Osborn, 716. 
 Wild v. Holt, 499. 
 Wilder v. Wheeldon, 614. 
 
 Wiles v. Peck, 108. 
 Wilie v. Brooks, 523, 633, 636. 
 Wilkes v. Lion, 485. 
 Wilkins v. French, 239. 
 Wilkinson v. Colley, 289, 
 ». Flowers, 607. 
 v. Pearson, 534. 
 v. Wilkinson, 262, 447. 
 Wilklow v. Lane, 82, 84, 92. 
 Williams v. Ackerman, 272. 
 v. Ayrault, 396. 
 v. Barnett, 349. 
 v. Cash, 280, 604. 
 ■u. Currie, 499. 
 v. Deriar,-275. 
 v. Fitzhugh, 396. 
 v. Garrison, 256. 
 v. Gibbes, 521. 
 v. Hartshorn, 45. 
 v. Higgins, 599. 
 v. Kenney, 73. 
 v. Kitland, 729. 
 v. McAliley, 254. 
 v. McMichael, 256. 
 v. Murphy, 235, 354. 
 v. Nelson, 594. 
 
 v. N. Y. Central R. R. Co. 187. 
 o. Rawlins, 116, 461. 
 v. Robinson, 140. 
 ■u. Sherman, 503. 
 v. Suffolk Ins. Co. 335. 
 v. Sutton, 192, 219. 
 v. Talliaferro, 100. 
 •</. Wallace, 575, 582, 584. 
 u. Wiggand, 217, 547. 
 Williamson v. Doe d. Crawford, 156. 
 v. Fontain, 144. 
 ■a. Paxton, 227, 284, 460 
 v. Williams, 686. 
 Willingham v. Long, 181, 486, 535, 536. 
 Willink v. Miles, 736. 
 Willis v. Corlies, 441, 443. 
 v. Matthews, 677. 
 v. Row, 147. 
 Willison v. Watkins, 231, 279, 281, 580, 
 Willoughby v. Jenks, 73. 
 Wills v. Dillinger, 423. 
 v. Noyes, 193. 
 v. Stradling, 234. 
 Willson v. Betts, 691. 
 Wilmington v. Burlington, 688. 
 Wilmont v. Meserole, 467. 
 Wilson v. Allen, 147. 
 <;. Arentz, 142. 
 ■v. Chandler, 221. 
 v. Collishaw, 206. 
 v. Cox, 234. 
 v. Garaghty, 143, 176. 
 v. Glenn, 646, 548, 591. 
 11. Guthrie, 158. 
 v. Hall, 414. 
 v. Henry, 22. 
 
lxii 
 
 References] TABLE OF CASES. [are to pages. 
 
 Wilson v. Hodges, 691. 
 
 v. Hooper, 239, 242, 285, 286. 
 v. Inloes, 724. 
 v. James, 263, 255. 
 •v. Jar-vis, 461. 
 v. Kilciinnon, 631, 652. 
 i,. McEwan, 574, 715. 
 v. Merrill, 277. 
 v. Palmer, 546, 549. 
 v. Polk, 400. 
 v. Ring, 250. 
 
 v. Spring, 672, 673, 674, 694. 
 v. Stoner, 666. 
 v. Williams, 636. 
 v. Woddel, 16. 
 Wilton v. Tazwell, 211. 
 Wimmer ». Ficklin, 713. 
 Winchester v. Cain, 670. 
 
 ■B. Cleaves, 433. 
 Windham v. Chisholm, 150. 
 Windsor's (Lady) Case, 104. 
 Wing v. Disse, 149. 
 
 V, Hall, 570, 679, 587, 636, 645, 649. 
 Wingler v. Simpson, 627. 
 Winona (City ot) v. Huff, 188. 
 Winona & St. P. K. R. Co. v. Denman, S^S. 
 Winpenny v. Winpenny, 676. 
 Winship v. Pitts, 261. 
 Winslow v. Cooper, 713. 
 v. King, 722. 
 i). Newell, 535. 
 v. Patten, 721. 
 Winter ». Eckert, 69, 144. 
 
 e. Quarles, 301. 
 Winterink v. Maynard, 257. 
 Wintermute v. Montgomery, 348. 
 Winthrop v. Auburn, 565. 
 ». Grimes, 220. 
 Winton v. Cornish, 88, 160. 
 Wirth v. Branson, 741, 745, 746. 
 Wisdom v. Williams, 359. 
 Wise 1). Metcalfe, 262. 
 v. Wheeler, 182. 
 Wiseman v. Penland, 304. 
 Wiswallu Sampson, 175. 
 Witbeck v. Van Rensselaer, 21, 400 402 
 
 403, 406. 
 Witham v. Witham, 193. 
 Witherinton v. McDonald, 744. 
 Withers v. Burkett, 516. 
 Withrow v. Biggerstaff, 208, 414. 
 Witmer's Appeal, 453. 
 Witt «. Mayor, &c. 269. 
 
 v. Trustees of Grand Grove, 524. 
 Wittkowski v. Watkins, 242. 
 Woleott v. Robbins, 724. 
 
 v. Townsend, 506. 
 Wolf i>. Goddard, 290. 
 V. Johnson, 259. 
 Wolfe b. Doe d. Dowell, 680. 
 
 v. Scarborough, 725 
 Wolffe «. Wolff, 273. 
 
 Wood v. Coghill, 401. 
 «. Drouthett. 578. 
 v. Foster, 687. 
 v. Jackson, 386. 
 v. Leadbitter, 83. 
 v. McGuire, 161, 358, 362. 
 V. Morton, 281, 306. 
 v. Ostram, 717, 718. 
 v. Phillips, 193, 278, 702. 
 v. Truckee Turnpike Co. 82, 84. 
 v. Wilcox, 479. 
 
 v. Wood, 140, 143, 270, 271, 520 
 523, 528, 638. 
 Woodbridge v. Banning, 1 33. 
 Woodbury v. Swan, 494. 
 Wooden Ware Co. v. United States, 496. 
 Woodhull v. Rosenthal, 62, 68, 317, 416, 
 475, 485, 491, 496, 498, 511, 520, 522 
 523, 524, 528, 529, 533. 
 Woodman v. Coolbroth, 694. 
 Woodruff v. Garner, 497. 
 v. Garnor, 341. 
 Woods v. Banks, 549, 550, 555. 
 v. Hilderbrand, 246. 
 v. Lane, 546. 
 v. Woods, 250. 
 Woodward v. Blanchard, 631, 659, 660. 
 v. Brown, 37, 253, 270, 304. 
 ». Phillips, 531,539. 
 v. Rodgers, 236. 
 v. Sloan, 358. 
 Woolever «. Knapp, 488. 
 Woolley v. Newcombe, 314, 676. 
 Woolsey v. Morss, 206, 602. 
 Worcester ». Clark, 148. 
 v. Lord, 622. 
 Workman v. Guthrie, 591. 
 Worrall v. Beck, 68. 
 
 v. Munn, 465. 497, 498, 501, 613. 
 Worthington v. Etcheson, 271. 
 Wray v. Chicago, B. & Q. R.R. Co.662,663. 
 Wright v. Atkyns, 453. 
 u. Carter, 72. 
 •i. Doe d. Tatham, 375. 
 v. Hollingsworth, 732. 
 v. Howard, 720. 
 8. Jackson, 696. 
 v. Mattison, 630, 631. 
 v. McCormick, 301. 
 v. Milbank, 418, 430, 433. 
 1). Moore, 225, 227, 283. 
 v. Saddler, 148. 
 11. Sperry, 212. 
 v. Thompson, 233, 
 ii. Wallbaum, 112. 
 v. Wheatley, 25. 
 n. Wood, 556. 
 v. Young, 234. 
 Wrotesley v. Adams, 26. 
 Wyman v. Brown, 154, 303. 
 
 v. Kilgore, 328. 
 Wynn v. Cory, 668. 
 
References] TABLE OF CASES. [we to pages. 
 
 lxiii 
 
 Wynne v. Lord Newborough, 149. 
 Wythe v. Myers, 357, 543, 766. 
 
 Taneey v. Greenlee, 220. 
 
 Yates v. Yates, 546, 549. 
 
 Yetzer v. Thoman, 627. 
 
 Yocum <o. Morice, 700. 
 
 York Buildings Co. v. Mackenzie, 531. 
 
 York Co. Sav. Bank v. Roberts, 244. 
 
 Yosemite Valley Case, 746. 
 
 Youmans ». Youmans, 95. 
 
 Young v. De Bruhl, 192, 194. 
 
 v. Dunn, 734, 737. 
 
 v. Griffith, 192. 
 
 v. Holmes, 1 33. 
 
 v. Irwin, 225, 
 
 v. Montgomery, 235, 353. 
 
 Young v. Porter, 99, 101, 522. 
 
 v. Rummell, 386. 
 
 v. Smith, 272. 
 
 v. Young, 466. 
 Younge v. Guilbeau, 679, 695. 
 Yount v. Howell, 304, 520, 528. 
 
 Zeigler v. Fisher, 340, 346. 
 
 Zeilin v. Rogers, 346. 
 
 Zellera. Eckert, 197, 198,200, 201,601,604. 
 
 Zimmerman v. Eshbach, 474, 484. 
 
 ■o. Marchland, 423. 
 
 v. Shreeve, 140. 
 Zinc Co. v. Franklinite Co. 57, 59, 452. 
 Zouch v. Parsons, 124. 
 Zuchtmann v. Roberts, 711. 
 
ftrtctl of Ettle to £anl>. 
 
 CHAPTER I. 
 
 HISTORY OF THE ACTION OF EJECTMENT. 
 
 § I. Origin of the action. 
 
 2. Real writs and personal actions. 
 
 3. Practice in real actions. 
 
 4. Influence of the statute concerning 
 
 forcible entries. 
 
 5. Strictness of pleading. 
 
 6. Abuses in practice under real writs. 
 
 7. Advantages of personal actions. 
 
 8. Abandonment of real writs. 
 
 9. Influences leading to the change 
 
 10. Advantages of ejectment. 
 
 11. Influence of practice in trover and 
 
 assumpsit. 
 
 12. Ejectione Firma. 
 
 13. Freehold estates. 
 
 14. Imperfect remedies of tenant for 
 
 years. 
 
 15. Quare ejecit infra terminum. 
 
 16. Provisions of the writ. 
 
 17. Against whom the writ lay. 
 
 18. Additional remedies of tenants for 
 
 years. 
 
 19. Sketch of ejectione firmce. 
 
 20. Requisites of the writ. 
 
 21. Defined by Blackstone. 
 
 22. When it issued. 
 
 23. Recovery in ejectione firma. 
 
 24. Term not recoverable in early prac- 
 
 tice. 
 
 25. Extension of recovery to the term. 
 
 26. Adoption of ejectment and disuse of 
 
 real actions. 
 
 27. Early practice in ejectment. 
 
 28. A valid lease necessary. 
 
 29. Actual ouster not requisite. 
 
 30. Injustice of the rule. 
 
 31. Abuses in early practice in ejectment. 
 
 32. Notice to the tenant in possession. 
 
 § 33. Inconvenience attending the for- 
 malities. 
 
 34. Title, lease, entry, and ouster. 
 
 35. Practice introduced by Chief Justice 
 
 Rolle. 
 
 36. Consent rule. 
 
 37. Practice while fictions prevailed. 
 
 38. Nonsuit. 
 
 39. Judgment by default. 
 
 40. Writ of habere facias possessionem. 
 
 41. Effect of the judgment. 
 
 42. Judgment not conclusive. 
 
 43. ) Policy in America as to the judg- 
 
 44. \ ment. 
 
 45. Lord Coke's opposition to ejectment. 
 
 46. Injunctions against further eject- 
 
 ments. 
 
 47. Strother v. Lucas. 
 
 48. Establishment of ejectment. 
 
 49. Practice as to abatement. 
 
 50. Confusion resulting from caprice of 
 
 the judges. 
 
 51. Introduction of equitable principles 
 
 by Lord Mansfield. 
 
 52. Lord Kenyon's influence. 
 
 53. Liberal view of fictions by the courts. 
 
 54. Rules governing personal actions re- 
 
 tained. 
 
 55. Legislative changes. 
 
 56. Requisites of the complaint. 
 
 57. General principles. 
 
 58. Legal title must prevail. 
 
 59. Judgment. 
 
 60. Writ of possession. 
 
 61. Damages. 
 
 62. Mesne profits. 
 
 63. Improvements. 
 63a. Utility of fictions. 
 
 § 1. 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 ac- 
 
 1 
 
O HISTOKY OF EJECTMENT. [§ 2. 
 
 tion of trespass brought by a lessee or tenant for years to 
 redress the injury inflicted upon him by ouster or amotion 
 of 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 ac- 
 tion, in which neither lands nor tenements were recovera- 
 ble, as opposed to a real action, in which a freehold interest 
 in land was recovered or possession awarded. 
 
 The remedy of ejectment, as subserving the. uses of a 
 real action, in which important character we are about to 
 consider it, has been termed "a modified action of tres- 
 pass," but more accurately speaking, the change effected 
 was an enlargement of the original remedy rather than a 
 modification of it. 
 
 § 2. Real writs and personal actions. — The common law 
 furnished an endless number of real writs to determine the 
 rights of property in, or possession of, a freehold estate. 1 
 The highest technical skill and learning were requisite to 
 comprehend and define the nature and purposes of these 
 various writs, the distinctions between which were refined, 
 abstruse, and often scarcely perceptible.* In personal ac- 
 tions, 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 expe- 
 rienced practitioner, exercising the utmost care, frequent- 
 ly sued out a real writ of the wrong degree, class, or na- 
 ture, thereby rendering the proceeding of no avail, and fre- 
 quently 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 in- 
 conveniently long, tedious, and costly, and the resources 
 for delays so numerous, that the judgment when obtained 
 was often a tardy and inadequate remedy. 3 
 
 1 See chap. II. 5 See gg % ^ 6 
 
 8 See § 45. Booth on Real Actions, p. 159. 
 
 Trial by battle.— A few centuries ago title to and right of possession of land was 
 still determined through the instrumentality of " trial by battle." See 3 Bla. Com. 
 
§§ 3, 4.] HISTORY OP EJECT1TEKT. 3 
 
 § 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. 1 Great technical skill and ingenuity were requisite 
 to select, frame, and adopt the count to the nature and cir- 
 cumstances of each particular case. A variance of scarcely 
 a hair-breadth between the writ and the count (or plead- 
 ing), or between the count and the evidence, was fre- 
 quently fatal to the demandant. Equal precision and 
 nicety of statement were required to interpose a meri- 
 torious plea, or to defend or defeat the action ; while the 
 power of amendment as understood and permitted in mod- 
 ern times was wholly unknown, and even the limited 
 power which the courts possessed was exercised with re- 
 luctance. "At common law," says Baron Gilbert, "there 
 was very little room for amendments." 2 
 
 § 4. Influence of the statute concerning 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 recover possession of land, 3 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, Richard III, and Henry VII. 4 It is the gen- 
 
 338. Booth on Real Actions, 99, 100. The last proceeding in which trial by wager 
 of battle was sought in England was instituted in 1817, but though the right was 
 conceded by Lord Ellenborough, C. J., to still exist, the case never went to judgment ; 
 Ashford v. Thornton, 1 Barn. & Aid. 405, 460, and the following year Parliament 
 abolished wager of battle in writs of right. 59 Geo. Ill, c. 46. Trials by battle 
 upon writs of right were abolished in New York, February 6, 1786. 1 Rev. Laws, 
 N. Y. 50. 
 
 The issue of battle in controversies over land prevailed in the law of the Bava- 
 rians, in the Saxon law, also in the Ripuarian law, and among the Alamanni, the 
 Lombards, and other German peoples. See Early History of Land-holding among 
 the Germans, by Denman W. Ross, Ph. D. " The possession of land was, in the 
 early time, secured by appropriation and maintained by force." — lb. p. 23. 
 
 1 Doe d. Hodsden v. Staple, 2 T. R. 684, per Lord Kenyon. See Stearns on Real 
 Actions, p. 149; Reeves' Hist. Eng. Law (ed. 1880), vol. 4, p. 241. Mr. Reeves says: 
 "The precision of the proceeding in real actions, where the matter in question was 
 thoroughly canvassed in pleading, and reduced to a simple point before it was 
 trusted to a jury, is thought to be ill changed for the present course, (by ejectment,) 
 where the whole question is at once sent in the gross to trial upon the general issue, 
 without any previous attempt to simplify or decide it with less circuity and expense." 
 Reeves' Hist. Eng. Law, vol. 4, p. 241. 
 
 2 Gilbert's Hist, and Prac. Common Pleas, p. 107. 
 
 3 See § 94. 4 Hale's Common Law (ed. 1794), p. 301. 
 
4 HISTORY OF EJECTMENT. [§ 5, 
 
 eral belief that the idea of giving ejectment the effect of 
 a real action originated from the practice and procedure 
 under this statute concerning forcible entries. We may 
 observe that 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 in real actions. — The same dis- 
 tinguished writer 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 intelli- 
 gible, and to bring the matter to judgment with a conveni- 
 ent certainty, began to degenerate from its primitive sim- 
 plicity, and the true use and end thereof, and to become a 
 piece of nicety and curiosity." x Much prolixity and re- 
 petition in pleading, and the miscarriage of important 
 causes resulted by reason of small mistakes or trivial re- 
 finements 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 ; 2 or if by mistake too 
 many demandants had been joined ; 3 or if the tenant 
 pleaded non-tenure where the demandant claimed more 
 land than the tenant was possessed of ; 4 or if the demand- 
 ant had by mistake declared on the seizin of his father 
 instead of his grandfather. 5 Nor could the demandant 
 abridge his demand, 6 though he might enter a nolle pro- 
 sequi as to a distinct part of the claim. 7 The substantial 
 merits or justice of the cause were frequently overlooked 
 or disregarded by the judges, and the action or defense 
 
 ' Hale's Common Law, p. 301. 
 
 2 Stearns on Real Actions (2d ed.), pp. 86-134 ; Booth on Real Actions (Am. ed., 
 >oa), p. 2. 
 
 3 See Treat v. McMahon, 2 Greenl. (Me ) 120. 
 
 4 See Stearns on Real Actions (2d ed.), p. 181 [208]. 
 
 5 Ibid, p. 186 [215]. 
 
 6 Com. D., title Abridgment A, 2. 
 
 ' Somes v. Skinner, 16 Mass. 348, 357 
 
§§ 6, 7.] HISTORY OF EJECTMENT. 5 
 
 "wrecked by some frivolous variance or captious objection 
 bearing no relation to the merits of the controversy. 
 
 It must be remembered that some real actions "were 
 to be brought in a particular court ; some lay only between 
 particular persons ; others, for and against those only who 
 had particular estates, with various other circumstances 
 that were requisite antecedent to bringing the action." x 
 It was an era of critical precision in pleading and practice, 
 substance being sacrificed to form. This is what led Lord 
 Mansfield to observe that the modern action of ejectment 
 was "invented under the control and power of the court, 
 for the advancement of justice in many respects ; and to 
 force the parties to go to trial on the merits, without being 
 entangled in the nicety of pleadings on either side." 2 
 
 § 6. Abuses in practice under real ivrits. — 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 cre- 
 ated and fostered. Real writs 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, 3 demanding view, 4 and 
 praying aid, 5 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 necessary. 6 
 
 § 7. Advantages of personal actions. — We can, therefore, 
 easily imagine with what eagerness both court and counsel 
 availed themselves of the loophole which was at length 
 
 1 Reeves' Hist. Eng. Law, vol. 4, p. 6g. ! Aslin v. Parkin, 2 Burr. 665, 668. 
 
 3 Calling in a grantor who had warranted the title to defend the action. 
 
 4 This consisted in the issuance of a writ requiring the sheriff to cause the ten- 
 -ant to have view of the land in dispute, which the demandant was required to point 
 out to the tenant, indicating the metes and bounds. 
 
 * This was a petition for help, as, for instance, calling in a reversioner or other 
 interested party, to aid in the defense of the writ. 
 6 See Pierce v. Jaquith, 48 N. H. 231. 
 
6 HISTOBY OF EJECTMENT. [§ 8, 
 
 discovered, by means of which the questions ordinarily 
 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. By this means the title to real estate 
 was tried in a proceeding "shaped and moulded by the 
 court in such a manner as to relieve it from many of the 
 technical difficulties which encumbered, the ancient real 
 actions." 1 The change was probably too radical and. went 
 too far. While it relieved the plaintiff of many embarrass- 
 ments it sent the unfortunate tenant to trial without spe- 
 cific knowledge of the character of the title which was to 
 be proved, against him. 
 
 § 8. Abandonment of real ivrits. — 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, 3 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." All the other writers upon ejectment are 
 singularly silent upon the subject. 
 
 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 con- 
 sented to try titles to the freehold in a personal action,, 
 originally devised to protect the precarious estates of the 
 inferior tenantry. 
 
 ' See Crandall v. Gallup, 12 Conn. 366, 371. 
 
 'Adams on Ejectment (4th Am. ed. 1854, by Waterman), p. io, *o. We 
 have, in writing this chapter, made use of Mr. Adams' excellent work on Eject- 
 ment. This book is the highest authority as to the early practice and procedure in 
 the remarkable action of which it treats, but its usefulness has been superseded in 
 America by the radical changes effected by modern legislation in our system of 
 remedial law more especially by the abolition of the fictions. Cole on Ejectment 
 (bweet, London), appeared in 1857. The learned author observes in his preface, 
 that the Common Law Procedure Acts of 1852 and 1854, and the New Rules, 
 have rendered all previous Treatises of Ejectment of little or no value " in England. 
 Longfield on Ejectment 2d ed. Dublin, 1846, treats of the remedv in the Superior 
 Courts of Ireland. These books are of very little practical value in this country. 
 
§§ 9-11.] HISTORY OP EJECTMENT. 7 
 
 § 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, 
 who maintained that the assortment of real writs was so 
 varied and complete that a demandant could suffer no 
 injury and sustain no wrong, which there was not a real 
 writ exactly 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 perfection of the ancient forms. "And, in- 
 deed," he continues, "1 know not whether it is a greater 
 credit to our laws to have such a provision contained in 
 them, or not to have occasion, 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. 
 
 § 10. 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 substi- 
 tution of ejectment for real actions, the change must be 
 regarded as part of the general struggle for supremacy go- 
 ing on at about the same period between exact and general 
 forms of procedure, specific and general pleading. 
 
 § 11. Influence of practice in trover and assumpsit. — In 
 the personal actions of trover and assumpsit, both of 
 which assumed their modern form about the time that 
 ejectments came into common use, a system of general 
 pleading prevailed. This fact undoubtedly had an im- 
 portant influence in forming and popularizing ejectments. 
 
 3 Bla. Com. p. 1 8 
 
8 HISTORY OF EJECTMENT. [§§ 12, 13. 
 
 Suitors quickly discovered the advantages to a complain- 
 ant of a remedy which enabled him to prove any title that 
 he could produce at the trial, without the dangers incident 
 to a variance, and which practically deprived the defend- 
 ant of the right to vouch over, demand view, or pray aid. 1 
 
 § 12. Ejectione firmce. — The writ of ejectione firmce (prob- 
 ably modeled after ejectione custodies), out of which the mod- 
 ern action of ejectment has gradually grown into its present 
 form, is not of any great antiquity. 3 In this action 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 lucra- 
 tive practice of the Common Pleas. 8 
 
 § 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, 4 or agreement between the lord and 
 the tenant. The termor was considered as a bailiff to the 
 
 1 See § 6. i See § ig. 
 
 3 It seems an anomalous condition of affairs that jealousies existing between the 
 different courts and their respective practitioners should have exerted any influence 
 in formulating remedies. Mr. Baron Gilbert observes that in 14 H. 7 " it began to 
 be resolved that an habere facias possessionem would lie to recover the term itself. 
 It seems that about this time long terms had their beginning; and that since lessees 
 for years could not by law recover the land itself, they used, when molested, to go 
 into equity against the lessors for a specific performance; and against strangers, for 
 perpetual injunctions, to quiet their possessions. This, drawing the business into 
 the courts of equity, induced the courts of law to resolve, that they should recover 
 the land itself by an habere facias possessionem:' Gilbert on Ejec. pp. 3, 4. See- 
 8 l8 - 
 
 4 See Bates v. Sparrell, 10 Mass. 323; 2 Bla. Com. p. 140. 
 
§§ 14-16.] HISTORY OE EJECTMENT. 9 
 
 freeholder or reversioner, or mere pernor of the profits, 1 and 
 his term was regarded merely as a chattel. 
 
 § 14. Imperfect remedies of tenant for years. — The tenant 
 was not made a party to controversies over the title to the 
 freehold, and if a recovery was had against his lord, 
 whether oonaflde or covinous, the freehold was discharged 
 of the term. 3 The lessee was remediless 3 until the statute 
 of 21 Henry VIII, c. 15, allowed him to falsify fraudulent 
 recoveries. 4 If the tenant was evicted by his lessor, he had 
 a writ of covenant against him by which, under the old 
 practice, he recovered the term as well as damages ; 5 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 his only recovery 
 was damages. He did not regain the term or possession. 6 
 Such a remedy was obviously inadequate, and the lessee 
 frequently recovered nothing on his judgment. 7 
 
 § 15. Quare ejecit infra terminum. — During the reign of 
 Henry III, however, a writ was- introduced by Walter de 
 Merton or William Mo reton, 8 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 plaint- 
 iff 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 
 
 1 See Dorsey on Ejectment, p. 9. 
 
 8 See Stearns on Real Actions (2nd ed.), p. 116; Dorsey on Ejectment, p. 9. 
 
 3 Stearns on Real Actions, p. 116. 
 
 4 Reeves' Eng. Law (ed. 1880), vol. 4, p. 349. 
 
 6 3 Bla. Com. p. 200. 6 Ibid, p. 200 ; Reg. Brev. p. 227. 
 
 ' Baron Gilbert, after observing that formerly estates for years were only " a 
 precarious possession," says of the tenants that " if they were ousted by strangers, 
 they could only have recovered damages for the loss of their possessions ; and if 
 they were ousted by their lessors, they could only seek a remedy from their cove- 
 nants." Gilbert on Ejectment, by Runnington, p. 3. 
 
 8 Reg. Brev. p. 227. " Provision was made," says Bracton, " de consilio curia!' 
 (Bracton, f. 220). 
 
10 HISTORY OF EJECTMENT. [§ 17. 
 
 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 
 defendant had ejected the plaintiff. 1 
 
 The writ was drawn either as a, praecipe or a si tefecerit se- 
 curum. When first introduced the former was considered 
 the better form, 3 but in the time of Edward III the latter 
 was universally adopted. 3 
 
 § 17. 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 defendant 
 claimed under the lessor, for the writ would not lie against 
 a stranger who ejected the lessee, and who, in so doing, 
 did not rely upon any privity of title or estate with the 
 lessor. 4 
 
 Mr. Reeves 5 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. 6 
 The ancient authorities seem to be overwhelming in sup- 
 port of the view that the lessee must show that the defend- 
 ant claimed under the lessor. 7 
 
 1 Reg. Brev. p. 227; F. N. B. p. 197. 
 
 2 Bracton, f. 220; Reeves' Hist. Eng. Law (Am. ed. 1880), vol. 2, p. 137. 
 
 3 Reeves' Hist. Eng. Law (ed. 1880), vol. 3, p. 232. 
 
 4 18 Edw. II, f. 599. 
 
 5 Reeves' Hist. Eng. Law (ed. 1880), vol. 2, p. 136 ; Bracton, f. 220. 
 
 6 See Adams on Ej. (4th ed. 1854) p. 7, *4, where Mr. Reeves' interpretation of 
 Bracton is shown to be erroneous, 
 
 1 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, dimi- 
 sit B, decern acras terne ad terminum decern annorum, & ide A, durante termino 
 illo vendit eandem terram C, in feodo, occasione cujus venditionis durante adhuc 
 termino prsedicto, idem C, ipsum B, de pnedicta terra ejecit. ' ■ ' Fuit hoc 
 breve inventum per discretum virum Wilhelmum de Merton ut terminarius recupe- 
 ret catalla sua versus feoffatum." See, also, 18 Edw. II, f. 599; Hil. Term, 46 
 Edw. Ill, f. 4, pi. 12; Gilbert on Ejectment (2nd ed.), p. 123 ; also, Roscoe on Ac- 
 tions 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 ejectione firmaz. F. N. B. II, p. 197 ; 19 Henry VI, 
 p. 56, f. 19; 21 Edw. IV, pp. io, 30, per Choke, J.: "Quare Ejecit, &c, lieth where 
 one is in by title, ejectione Jirmce, where one is in by wrong." See Reeves' Hist. 
 Eng. Law (1880), vol. 3, p. 232, note (a). 
 
§§ 18-20.] HISTORY OF EJECTMENT. 11 
 
 Furthermore, it is difficult to imagine any reason for the 
 introduction of the writ of ejectione firmce more than half 
 a century after quare ejecit was devised, if the latter writ 
 would run against a stranger. 
 
 § 18. Additional remedies of tenants for years. — The title 
 of a lessee or tenant for years was not, as yet, of sufficient 
 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 redress, as against a stranger, was to induce the 
 lord to institute 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, 1 and as against strangers for a per- 
 petual injunction to quiet the possession. 2 
 
 § 19. Sketch of ejectione firmm. — During the reign of Ed- 
 ward II, or the early part of the reign of Edward III, a new 
 writ made its appearance, which gave the termor or tenant 
 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. 3 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. 4 
 
 § 20. Requisites of the writ. — The writ required the defend- 
 ant to show wherefore, with force and arms, he entered 
 
 'Gilbert on Ejectment, p. 2; Stearns on Real Actions (2nd ed.), p. 56 [54]; 
 Runnington on Ejectment, p. 5. 
 
 2 See § 12, note. 
 
 3 " 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. 
 
 4 See S 12. 
 
12 HISTOEY OF EJECTMENT. [§§ 21, 22. 
 
 upon certain lands which 0. has demised to plaintiff for a 
 term not yet expired, and ejected the said plaintiff from 
 his farm. There was usually a clause, charging that the 
 defendant had carried off the plaintiff's goods and chattels, 
 and often a clause declaring that he had occupied the 
 premises for a long time. 1 The process, as upon all writs 
 of trespass, was by attachment, distress, and outlawry. 
 
 § 21. Defined ly Blaclcstone. — Blackstone says, that, 
 ''For this injury (i. 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 situation of the wrong-doer : the writ of ejectione firmm, 
 which lies against any one — the lessor, reversioner, remain- 
 derman, or any stranger, who is himself the wrong-doer 
 and has committed the injury complained of; and the writ 
 of quare ejecit infra terminum, which lies not against the 
 wrong-doer or ejector himself, but his feoffee or other 
 person claiming under him." 2 This distinction is not war- 
 ranted by the authorities, and the commentator's position 
 is not sustained by the form of the writ quare ejecit infra ter- 
 minum, which alleges an ejectment % the defendant. The 
 entry 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 was 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.* 
 
 % 22. When it issued. — The writ of ejectione firma issued 
 in all cases except that where the ejector claimed under 
 the lessor resort was usually had to the older writ of quare 
 ejecit infra terminum. Even the grantor was liable to be 
 sued on this writ, notwithstanding the old doctrine that a 
 man could not enter, vi et armis, into his own freehold. 4 
 
 1 Reg. Brev. f. 227, 228. 
 
 2 3 Bla. Com. p. 199. 
 
 _ 3 Mr. Reeves falls into the same error. " The second (sc. quare ejecit infra ter- 
 minum) lay only against the alienee of the ejector." Reeves' Hist. Eng. Law 
 (1880), vol. 4, p. 237. See Bel. p. 159. 
 
 * Reeves' Hist. Eng. Law (ed. 1880), vol. 3, p. 233. 
 
§§ 23-25.] HISTORY OP EJECTMENT. 13 
 
 § 23. Recovery in ejectione ftrrnce. — In the action of 
 ejectione firmm, the plaintiff at first only recovered damages, 
 as in any other action of trespass. The remedy of dam- 
 ages was, however, often inadequate. The courts, conse- 
 quently following, it is said, in the footsteps of the courts 
 of equity, 1 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 recover the term, and a writ of posses- 
 sion thereupon. Possibly the change was inspired by 
 jealousy of the chancery courts. 3 
 
 § 24. Term 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 firm<& 
 the plaintiff could no more recover his term than in 
 trespass he could recover damages for a trespass to be 
 done. 8 The decision shows that the point was then de- 
 bated. The same doctrine was held in 1455 by one of the 
 judges.* 
 
 '§ 25. Extension of recovery to the term. — But in 1468 it 
 was agreed by opposing counsel that the term could be 
 recovered, as well as damages. 5 The earliest reported 
 decision to this effect was in 1499, 6 and is referred to by 
 Mr. Eeeves as the most important adjudication rendered 
 
 1 Reeves' Hist. Eng. Law (ed. /i88o), vol. 4, pp. 237, 238; 3 Bla. Com. p. 200. 
 The nature of this equitable jurisdiction cannot be clearly denned. 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 chan- 
 cellor and the Counsell del Marches could quiet possessions, but had not the power 
 to determine the title. The same equitable jurisdiction is exercised in some of the 
 courts of the United States. 
 
 2 See Dorsey on Ejectment, p. 10 ; Gilbert on Eject, p. 4. See § 12, 
 
 3 Bel. p. 159. 
 
 4 Mich. 33, Henry VI, f. 42, pi. 19. 
 
 5 7 Edw. IV, f. 5-10. Per Fairfax: si home port ejectione firma, le Plaintiff 
 recovera fon terme qui est arrere, si Hen come in quare ejecit infra terminum; et, 
 ei nul soit arrere, donques tout m Damages. (Bro. Abr. tit. Quare ejecit infra term- 
 inum, pi. 6.) See Gilbert on Eject, p. 4. See, also, 21 Edw. IV, f. n ; Jenk. 
 Cent. p. 67, case 26, 
 
 6 14 Henry VII; Rast. Ent. f. 252. 
 
14 HISTORY OF EJECTMENT. [§§ 26, 27. 
 
 during the reign of Henry VII, 1 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 ejectment 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. Eeal 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 
 ejectment. 2 Eeal writs gradually sank into disrepute, 
 and at length were chiefly resorted to by speculators and 
 unprincipled practitioners of the law to defraud persons 
 of low condition of their substance under pretense of re- 
 covering for them large estates to which they had no color 
 of title. 8 
 
 The Massachusetts Commissioners observe, (1834), i that 
 " the real actions provided by the common law have been 
 very little used in England for the last three centuries. 
 Hence it has followed that the law relating to these 
 actions has long ceased to be familiar to the members of 
 the profession; and was to be sought for when wanted, in 
 books which at first view appeared to many readers unin- 
 teresting and even repulsive." 
 
 § 27. Early practice in ejectment. — Blackstone describes 
 the practice under this new writ as follows: 5 "The better 
 
 1 Reeves' Hist. Eng. Law (ed. 1880), vol. 4, p. 235. Mr. Gilbert observes that 
 it " is a question, which has been much agitated, whether the term was recoverable 
 in ejectment, prior to the reign of Henry VII. . . . Ejectment was NEVER 
 laid with a continuando; consequently the plaintiff in such action could never 
 recover damages for the mesne profits. Hence it may be inferred that the term 
 was recoverable in ejectment, even prior to the reign of Hen. VII ; for else, the 
 plaintiff not recovering damages, the action must have been nugatory." Gilbert on 
 Eject, p. 4. 
 
 Alden's Case, 6 Rep. 105 (1601). Plea to a writ of ejectione firmm was ancient 
 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 debate. 
 "And forasmuch as at this day all titles of lands are for the greatest part tried in 
 actions of ejectments, 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, 1 Ad. & El. 750; especially the learned note at page 756. 
 
 8 Report of the English Real Property Commissioners, p. 42. 
 
 4 Report of the Commissioners to Revise the General Statutes of Mass., part 
 3. P- 154, "• 
 
 6 3 Bla. Com. p. 201. 
 
§§ 28, 29.] HISTORY OE EJECTMENT. 15 
 
 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 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 possession 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 premises. This lessee is to stay upon 
 the land till the prior tenant, 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 recover back 
 his term and damages." 
 
 § 28. A valid lease necessary. — 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. Indeed, it was doubted at first whether this occa- 
 sional possession, taken merely for the purpose of convey- 
 ing the title, excused the lessor from the legal guilt of 
 maintenance. 1 
 
 § 29. Actual ouster not requisite. — An actual ouster, by 
 the tenant in possession was not requisite, for, if, after 
 
 1 3 Bla. Com. p. 201 ; I Chanc. P.ep. App. p. 39 [*76] ; see Stat. 32 Henry 
 VIII, c. 9, s. 2. Mr. Gilbert says: "The ancient practice was, that leases 
 of ejectment, to try the title, should be actually sealed and delivered ; because 
 otherwise the plaintiff could maintain no title to the term ; and they were also to 
 be sealed on the land itself, it being maintenance to convey out of possession." 
 Gilbert on Ejectment, p. 7. 
 
16 
 
 HISTORY OP EJECTMENT. [§§ 30-32. 
 
 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. 1 
 
 § 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 
 opposing a change of possession. It was held in 1608, that 
 the servant of the tenant in possession was a sufficient 
 ejector ; 3 but the line was not drawn even here. Any one 
 who came upon the land by chance after the sealing and 
 delivery of the lease, with no intention of disturbing the 
 possession of the lessee, was considered a sufficient ejector 
 to be made defendant. 8 
 
 § 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 
 establishment of a rule that no plaintiff should proceed 
 in ejectment to recover the land against a casual ejector, 
 unless notice of the suit was first given to the tenant in 
 possession, if any there were. 4 The courts refused to sign 
 judgment against the casual ejector unless proof of such 
 notice was produced. 5 The tenant in possession was uni- 
 formly admitted to defend upon his undertaking to indem- 
 
 1 Lill. Prac. Reg. p. 674. 
 
 * Wilson v. Woddel, 1 Brownl. 143 ; Yelv. p. 144. 
 
 3 Lill. Prac. Reg. p. 673. 
 
 4 3 Bla. Com. p. 202. 
 
 5 Rules B. R. Trin. 14 Car. II ; Cooke's Rules and Orders. 
 
§§ 33-35.J HISTORY OF EJECTMENT. 17 
 
 nify the defendant against the cost of the suit. The de- 
 livery to the tenant of the declaration, being the process 
 for summoning the interested party into court, resembled 
 the service of a writ, and as it constituted the only warning 
 of the claimant's proceedings which the tenant in posses- 
 sion received, the courts were careful to see that a proper 
 service or delivery was made. 1 
 
 § 33. 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 considered nec- 
 essary to execute separate leases upon the premises of the 
 different tenants, and to commence a separate action upon 
 each lease. 2 The remedy was as yet scarcely so simple and 
 expeditious as to fully satisfy practitioners who were seek- 
 ing relief from the entanglements of real writs. 
 
 § 34. Title, lease, entry, and ouster. — If a defense was in- 
 terposed, the plaintiff was obliged to establish four points 
 to maintain the action, viz., title, lease, entry, 3 and oust- 
 er. 4 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, 
 that the defendant ejected him. 
 
 § 35. Practice introduced by Chief Justice Bolle. — To put 
 the question of title to land solely in issue, and to elimi- 
 nate all other controversies which might arise under this 
 practice, a new feature was ingrafted upon the action by 
 Lord Chief Justice Eolle, 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 ten- 
 ant in possession to defend the ejectment suit only as a 
 matter of favor. The courts could, therefore, couple with 
 
 1 See Longfield on Ejectment, p. 33. 
 
 2 Adams on Ejectment (4th ed.), p. 17 [*I4]- 
 
 3 An actual entry was necessary to avoid a fine. Lord Audley v. Pollard, Cro. 
 Elk. 561 ; see 4 H. VII, c. 24. 
 
 4 See Payne v. Treadwell, 5 Cal. 310. 
 
 2 
 
18 HISTORY OF EJECTMENT. [§§ 36, 37. 
 
 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 defend- 
 ant broke this engagement at the trial he should pay the 
 costs of the suit, and allow judgment to be entered against 
 the casual ejector. This rule was considered highly rea- 
 sonable because when the plaintiff had sealed the lease 
 upon the land any person who came thereon animo possi- 
 dentis was, in strictness of law an ejector, and, therefore, 
 when any other ejector was placed in his stead it was 
 proper that the courts should not allow him to exact proof 
 of an actual entry, demise, and ouster ; these being nothing 
 more than mere forms devised to bring up the question of 
 title, and which it would have been unnecessary for the 
 plaintiff to establish against the casual ejector who would 
 have allowed judgment by default. 1 It is the general 
 belief that this novel practice was introduced about the 
 year 1656, but we find it referred to in a case in Styles' 
 Eeports, 2 decided in 1652 in 0. B., and as the practice was 
 first established in the Upper Bench the proper date must 
 be somewhat earlier. 
 
 § 37. Practice ivhile fictions prevailed.— The introduction 
 of imaginary or fictitious persons as parties followed, 3 and 
 was finally adopted as the universal practice, though rep- 
 
 1 See Gilbert on Ejec. p. 8. 
 
 5 Styles' Reports, p. 368. " If one move that the title of land doth belong unto 
 him, and that the plaintiff hath made an ejector of his own, and thereupon prays 
 that, giving security to the ejector to save him harmless, he may defend the title, this 
 court will grant it." &c. The practice is mentioned in the Court Rules in 1662 ; 
 Cooke s Rules and Orders, B. R. Trin. 14 Car. II, and was continued under Charles 
 II ; See Davies Case, 1 Keb. 28, P, 13, Car. II. 
 
 3 See Cooke's Rules and Orders, B. R. Mich. 1654. We find a rule forbidding 
 any attorney from acting as lessee in an ejectment, which shows that the lessee was 
 not then an imaginary person. 
 
§ 37.] HISTOKY OF EJECTMENT. 19 
 
 robated by Blackstone, 1 cbiefly on the trivial ground that 
 the defendant could not collect his costs from an imagi- 
 nary person. This objection was overcome by framing 
 the consent rule so that in the event of judgment for de- 
 fendant 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 declara- 
 tion in ejectment, in which John Doe (or Good title) and 
 Eichard Eoe (or Badtitle) were respectively plaintiff and 
 defendant. John Doe declared on a fictitious lease or de- 
 mise 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 Eichard Eoe. The title of 
 the action then stood John Doe in the demise of A. against 
 Eichard Eoe. To the declaration was annexed a notice 
 signed by Eichard Eoe and directed to B., informing him 
 as " a loving friend " that he (Eoe) had been sued as a 
 casual ejector, and advising B. to appear and cause him- 
 self to be made a defendant in his stead, otherwise he, 
 Eichard Eoe, would suffer judgment to be entered by de- 
 fault, and B. would be turned out of possession. 2 The 
 latter part of the notice, to the effect that unless the ten- 
 ant defended his title he would be turned out of posses- 
 sion, was considered material, 3 for if the notice did not suf- 
 ficiently apprise him of the consequences of his default 
 the courts would probably have restored the tenant to the 
 possession if he had been irregularly deprived of it by 
 such a proceeding. As under the former practice, proof 
 of service of the declaration and notice on B. was an es- 
 sential prerequisite to the entry of judgment against the 
 casual ejector. If there was no tenant in possession judg- 
 ment could not be entered. Consequently in cases of 
 vacant possession the old practice was followed, under 
 which notice was required only in cases where there was a 
 tenant. The plaintiff, on resorting to the old practice, 
 
 1 3 Bla. Com. p. 203. The parties were imaginary in many cases in 1678. See 
 Addison v. Otway, 1 Mod. 250-252. 
 
 8 See Archbold's Practical Forms (N. Y. 1828), p. 363. 
 3 Doe d. Darwent v. Roe, 3 Dowl. 336. 
 
20 HISTORY OF EJECTMENT. [§ 38-40. 
 
 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 
 appearing and entering into the consent rule, B. was sub- 
 stituted 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 necessarily nonsuited, because the fictitious lease, 
 entry, and ouster were not susceptible of proof. 
 
 § 39. Judgment oy default.— By indorsing this cause of 
 nonsuit on the postea the plaintiff was entitled to judg- 
 ment against the casual ejector, 1 according to the condi- 
 tion imposed upon the tenant when he entered into the 
 consent rule. A judgment against the casual ejector 
 would be stricken out even after the lapse of several 
 terms, upon the application of the real defendant if the 
 latter was guiltless of laches, and made the application as 
 soon as he had actual notice of the suit. 2 Though the 
 declaration was served only on the tenant in possession, 
 the landlord was admitted to defend 3 with the tenant, 
 and not in his stead. 4 After the statute, 11 Geo. II, c, 19, 
 § 13, the landlord was admitted to defend instead of, as 
 well as with, the tenant in possession. "Who was a land- 
 lord so as to be entitled to defend, was a subject of much 
 contention in the courts, 5 though the term was ultimately 
 held to include every person whose title was connected 
 and consistent with the possession of the occupier. 6 
 
 § 40. Writ of habere facias possessionem. — If the plaintiff 
 recovered judgment either by default or after contest aDd 
 
 1 Middleton's Case, I Keb. 246. 
 
 8 Dennis' Lessee v. Kelso, 28 Md. 337. 
 
 ' Styles' Rep. 368 ; Roch v. Plumpton, 1 Keb. 706 ; Anon., 12 Mod. 211 ; Roe 
 d. Leak v. Doe, Barnes, 193. 
 
 4 Balderidge v. Paterson, Barnes, 172 ; Goodright d. Duke of Montague v. 
 Wrong, Barnes, 175 ; see Fairclaim d. Fowler v. Sliamtitle, 3 Burr. 1290, especially 
 the learned argument of Mr. Harvey, one of the counsel, and Lord Mansfield's 
 admirable statement of the nature of ejectment. 
 
 6 See Lamb v. Archer, Comb. 208 (5 W. & M.) ; Jones v. Carwithen, Comb. 
 339 (7 Will. Ill) ; Strike and Dikes, Comb. 332. 
 
 6 See Fairclaim d. Fowler v, Shamtitle, 3 Burr. 1290, per Lord Mansfield. 
 
§§ 41, 42.] HISTORY OF EJECTMENT. 21 
 
 verdict, a writ habere facias possessionem was issued to the 
 sheriff to put him in possession. This writ subserved in 
 ejectment somewhat similar functions to an habere facias 
 seisinam in a real action, or a writ of assistance in equity. 1 
 
 § 41. Effect of the judgment. — The judgment, however, 
 did not establish the title or right of property of the. 
 plaintiff 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 tres- 
 passer, 8 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 be- 
 tween the parties. 8 The action could be repeated and the 
 same questions retried indefinitely, 4 because there was no 
 privity between the successive fictitious plaintiffs, and the 
 record and judgment, unlike a real action, did not reveal 
 the nature of the title that had been established upon the 
 former trial. Each successive ejectment was founded upon 
 a new lease, entry, and ouster. The title was never for- 
 mally or directly in issue, but was tried collaterally, or 
 brought in question obliquely. 5 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 posses- 
 sion in a third, a judgment for the possession did not nec- 
 essarily 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 
 
 1 See Chap. XXI. 
 
 2 See Jackson v. Haviland, 13 Johns. (N. Y.), 229-234 ; Witbeck v. Van Rens- 
 selaer, 64 N. Y. 27-31 ; People ex rel. Scudder v. Cooper, 20 Hun (N. Y.), 486 ; 
 Dor d. Morgan v. Bluck, 3 Campb. 447; Equator Mining & Smelting Co. v. Hall, 
 106 U. S. 86 ; s. c. 5 Mor. Trans. 92. 
 
 3 Clerke v. Rowell, I Mod. 10. 
 
 4 Stark v. Starrs, 6 Wall. 409. See Chap. XX. 
 
 5 See Caperton v. Schmidt, 26 Cal. 500. 
 
22 HISTORY OF EJECTMENT. [§§ 43-45. 
 
 were reluctant to hold that he must stake his possession 
 upon the results of a single trial, but inclined to afford 
 him ample and repeated opportunity to exhibit his title 
 and prove his rights. 
 
 § 43. Policy in America as to the judgment.— When this 
 question of the conclusiveness of the judgment in eject- 
 ment came up in the Supreme Court of the United States, 
 it was decided that, where the fictitious scaffolding 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. 1 Evi- 
 dently the conclusion the court reached was that the in- 
 conclnsiveness of the judgment was attributable to the 
 fictions. The principles of this case, though undoubtedly 
 sound, have not been universally acknowledged. 3 
 
 § 44. The general policy in America has been to make 
 the judgment in ejectment conclusive upon the title by 
 statute, the defeated party being allowed one new trial as 
 of right, and in some States still another trial in the dis- 
 cretion of the court for cause shown. This latter feature 
 is peculiar to ejectment, and may be traced back to 
 the old feudal idea of the sanctity of the tenure of real 
 property. The policy is attributable either to distrust of 
 the certainty of absolute justice in the courts, or to a dis- 
 inclination to force, the owner of land to risk his rights to 
 his possessions upon a single trial. 3 
 
 § 45. Lord Coke's opposition to ejectment. — Lord Coke 
 strenuously opposed the adoption of ejectments, 4 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 
 
 Sturdy v. Jackaway, 4 Wall. 174. This subject is discussed at length in 
 Chapter XX, 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; Brownsville v. Cavazos, 100 U. S. 138 ; Gordinier's Appeal, 
 89 Pa. St. 528 ; Amesti v. Castro, 49 Cal. 325. 
 
 • Kimmel v. Benna, 70 Mo. 52; Hogan v. Smith, 11 Mo. App. 314 ; Dunn?. 
 Miller, 8 Mo. App. 467. rr 
 
 3 See Chap. XXII. 
 
 4 Ferrer's Case, 3 Coke, 274. 
 
§ 46.] HISTORY OF EJECTMENT. 23 
 
 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 excellency of the common 
 law, for the receding from the true institution of it intro- 
 duces many inconveniences, and the observation thereof 
 is always accompanied 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, and, as was decided in the case just 
 cited, 1 did not bar new actions of a higher degree or nature. 
 If ejectments could be repeated infinitely, a single real ac- 
 tion could be prolonged for a lifetime. That the excessive 
 technicalities incident to real writs tended to merge the 
 end in the means, can be well illustrated by an extract 
 from an accurate and highly respectable writer on real 
 actions. Speaking of writs of formedon, Mr. Booth said, 
 "I shall here at least give some light how long these ac- 
 tions may be regularly delayed before any judgment can 
 be given in them, which is much for the advantage of the 
 tenant, who ordinarily desires to keep the possession as 
 long as he can." 2 The learned writer keeps his promise 
 by a recital of the dilatory methods employed, and then 
 states that "if there be many tenants and vouchers to be 
 vouched over, it makes the delay possibly as long as the 
 parties live, though the suit continue many years." s 
 
 Even the opinion of so distinguished and able a lawyer 
 as Coke concerning the transcendent merits of real writs 
 cannot be accepted against this unfavorable recital of the 
 abuses connected with the system. 
 
 § 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 
 
 1 Ferrer's Case, 3 Coke, 274. 
 
 2 Booth on Real Actions, p. 156 ; See Humphrey's Observations on Real Prop- 
 erty, p. 134. 
 
 3 Booth on Real Actions, p. 159. 
 
24 HISTORY OF EJECTMENT. [§§ 47, 48. 
 
 ejectment supposes a new demise, and the costs were a 
 recompense for the trouble and expense to which the pos- 
 sessor had been put. 1 The House of Lords, upon appeal, 
 granted an injunction in the case of Earl of Bath v. Sher- 
 win, 2 against, further ejectments after five verdicts, in as 
 many successive ejectments, had been rendered in three 
 different counties in favor of the defendants. 
 
 § 47. Stroiher v. Lucas. — An instructive and curious case 
 in our own reports bearing upon this subject is Strother v. 
 Lucas, 3 decided in the Supreme Court of the United States 
 in 1838. The controversy was before the same court in 
 1832. 4 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 property, 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 unsettled." The court 
 then proceeds to clear the way for a perpetual injunction 
 against further ejectments by discussing and deciding in 
 all their bearings the various questions involved. This 
 decision, it should be observed, was made before the ques- 
 tion was raised as to the conclusiveness of the judgment, 
 where the issue is between the real parties in interest, in 
 their own names. 
 
 §48. Establishment of ejectment.— Though the general 
 form of proceeding in ejectment was settled in the time of 
 
 1 Runnington on Ejectment (ed. 1806), p. 12. 
 
 5 4 Bro. P. C. 373. 
 
 Suits to qimt title— The statutes in force in many States permitting persons in 
 possession to maintain a suit in equity, against any party claiming an interest in the 
 land adverse to the possessor, for the purpose of determining such claim and quiet- 
 ing the itle confer ' a jurisdiction beyond that ordinarily exercised by courts of 
 equity to afford relief in the quieting of title and possession of real property. By 
 the ordinary jurisdiction of those courts a suit would not lie for that purpose/unless 
 the Possession of the plaintiff had been previously disturbed by legal proceedings on 
 till ■ °l d f ef ^ant and the right of the plaintiff had beer? sustained by si* 
 Sh^lV g R , n ^ faVOT - Fie,d ' J- in Stark "■ Stan* 6 Wall. 409, citing 
 K,!;., 8 *' B ™ ls < 2 42 ; Devonsher v. Newenham, 2 Schoales & Lef. 
 208 , Curtis v. Sutter, 15 Cal. 259. 
 
 3 12 Peters, 410. 
 ' See 6 Peters, 763. 
 
§§ 49, 50.] HISTORY OF EJECTMENT. 25 
 
 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. The 
 changes which the remedy has undergone both at the hands 
 of the courts and of the legislatures demonstrate that it 
 never could have been regarded as an entirely satisfactory 
 form of procedure. 
 
 §49. Practice as to abatement. — The courts adopted an 
 arbitrary system of regulating the action by permitting 
 persons 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 
 person, it was held that his death did not abate the action, 
 for the lessor was really the interested party, and the ab- 
 surd suggestion that there lived a man of the same name 
 in the county was considered sufficient. 1 The plaintiff was 
 not allowed to release the costs, and was held in contempt 
 for sp doing f and an attorney who assigned for error the 
 death of the plaintiff in ejectment was adjudged in con- 
 tempt. 3 
 
 §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 
 decisions in particular instances 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 ac- 
 tion of trespass ; that the damages constituted the princi- 
 pal recovery, the restoration of the term and possession 
 being merely an incident. 4 Other cases were decided by 
 analogy to real actions. 5 Thus it was held that the subject 
 of the action must be demisable, and that the plaintiff 
 
 1 Addison v. Otway, I Mod. 250-252. 
 
 * Anon. Salk. 260. Such release was void. Close v. Vaux, Comb. 8. 
 
 3 Moore v. Goodright, Stra. 899. 
 
 4 Wright v. Wheatley, Cro. Eliz. 854; Ibgrave v. Lee, Dyer, 116, b. (71). 
 6 Barwick v. Fenwood, Comb. 250. 
 
26 HISTORY OP EJECTMENT. [§ 51. 
 
 must have power to demise. 1 On the other hand again an 
 ejectment for a rectory was upheld. 2 
 
 § 51. Introduction of equitable principles ly Lord Mans- 
 field. — The action underwent important changes in the time 
 of Lord Mansfield, who declared 8 "that he had it at 
 heart to have the practice upon ejectments clearly settled 
 npon large and liberal grounds for 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 
 remedy, calculated to subserve the ends of individual jus- 
 tice, rather than as a legal action governed by fixed and 
 positive rules and principles. The judges in his time prob- 
 ably felt at liberty to exercise an equitable jurisdiction 
 over the remedy as applied to land controversies because it 
 was peculiarly their own creation. Thus a fresh ejectment 
 for the same lands would be stayed until the costs of a for- 
 mer unsuccessful action had been paid. 4 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 reach the rents and profits of the 
 estate. 5 Nor could the legal estate of a trustee be set up 
 against the cestui que trust, 6 and an agreement for a lease 
 was held tantamount to a lease as a defense in ejectment. 7 
 These cases have been overruled in England and in the 
 United States. 8 
 
 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 
 
 1 Adams on Ejectment (4th Am. ed.), p. 20 [18.] 
 
 * Doe d. Watson ». Fletcher, 8 B. & C. 25 ; Hillingsworth u. Brewster, Salk. 
 256. See Wrotesley v. Adams, Plowd. 187, 199. 
 
 3 Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1290, 1295. 
 
 4 Doe d. Feldon v. Roe, 8 T. R. 646; Ralph, Lessee, v. Ejector, 3 Ir. Law Rec. 
 N. S. 141. 
 
 5 See note to Keech v. Hall, Doug. 21, 23. 
 
 6 Bull. N. P. no ; Doe d. Bristow v. Pegge, t T. R. 758 n. 
 
 1 Weakly d. Yea v. Bucknell, Cowp. 473. 
 
 8 See Doe d. Hodsden v. Staple, 2 T. R. 684, per Kenyon, Ch. J.; Watkinsw 
 Holman, 16 Peters 25, 58. 
 
§§ 52, 53.] HISTORY OF EJECTMENT. 27 
 
 since his time, introduced by statute. The common law 
 has gained fresh vitality and enriched qualities from the 
 transfusion of equitable principles into it. This is espe- 
 cially true with reference to the remedy of ejectment. 
 
 § 52. Lord Kewyon's influence. — Lord Kenyon established 
 the action upon what the common law student would con- 
 sider a sounder basis. Since his day, when not otherwise 
 controlled by statute, the courts have generally held that 
 the plaintiff's lessor must establish a legal title. The 
 claimant 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 un- 
 necessary, yet the right of entry must exist, for that is the 
 question to be tried. 
 
 g 53. Liberal view of fictions iy the courts. — The courts 
 have generally looked beyond the fictitious form of the ac- 
 tion, and have taken judicial notice that the real contro- 
 versy is between adverse claimants to the possession of 
 land ; that the plaintiff's lessor and the tenant in possession 
 (or landlord, if he be made defendant) are the real parties in 
 interest ; a that the legal title must prevail, and that, as the 
 fictions were " fabricated 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 was unnec- 
 essary to allege the day of the ouster. 3 The practice be- 
 came common to allow amendments enlarging the term 
 laid in the declaration when it expired pending the action, 
 Chief Justice Marshall in granting such a motion -remark- 
 ing that there was ' ' every reason for allowing amendments 
 in matters of mere form." 3 The courts, recognizing the 
 fictions as necessary to this form of action, were careful to 
 see that no wrong or prejudice to the parties resulted from 
 
 1 Aslin v. Parkin, 2 Burr. 665, per Lord Mansfield. See note to Doe d. Bailey 
 v. Smyth, Anthon's Nisi Prius, 242, 244. 
 
 2 Woodward v. Brown, 13 Peters I, 
 
 8 Walden v. Craig, 9 Wheat. 576. " Amendments are allowed rather more lib- 
 erally in ejectments than in other actions." Longfield on Ejectment, p. 96. 
 
28 HISTOKY OF EJECTMENT. [§§ 54-56. 
 
 the novel character of the procedure. 1 Though ejectment 
 actions were in point of form pure fictions, yet in substance 
 and effect they were " serious realities." 2 Even in the time 
 of James I a liberal spirit guided the courts, and minute 
 technical objections to the entry and ouster were disre- 
 garded. 3 
 
 § 54. Rules governing personal actions retained. — In many 
 respects the rules applicable to real actions have been 
 adopted, 4 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, unless some statute controls, 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 portion, of the premises for 
 which he declares. 
 
 § 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 
 declaration, both to inform the sheriff of what he is to 
 deliver possession, and to apprise the defendant of the 
 extent of the plaintiff's claim. The nature of the estate 
 or interest in the land which the plaintiff demands, whether 
 in fee, for life, or for years, must generally be specified in 
 the complaint, and whether he claims the entire estate or 
 an undivided share or interest. 
 
 1 Cresap's Lessee v. Hutson, 9 Gill (Md.) 274 ; Warner v. Hardy, 6 Md. 525. 
 : Cole on Ejectment, p. 1. 
 
 3 Longfield on Ejectment, p. 25 ; citing Adams v. Goose, Cro. Jac. 96 ; Tesmond 
 v. Johnson, Cro. Jac. 42S; Osbourn v. Rider, Cro. Jac. 135; Brigate v. Short, Cro 
 Jac. 154; Merrell v. Smith, Cro. Jac. 311. 
 
 4 Heatherley d. Worthington v. Weston, 2 Wils. 232 ; Moore v. Fursden, I Show 
 342 ; Mantle v. Wollington, Cro. Jac. 166. 
 
§§ 57-59.] HISTORY OP EJECTMENT. 29 
 
 § 57. General principles. — It is also a fundamental rule 
 that the plaintiff must recover upon the strength of his 
 own title, and not on the weakness or imperfections of the 
 defendant'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 
 imperfections in the plaintiff's title, or may, unless es- 
 topped, defeat the action by proving an outstanding title 
 in a third person with which the defendant is wholly un- 
 connected. 1 
 
 § 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 defend- 
 ant can, by statute, 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 redress. As against a naked trespasser, 
 having neither claim nor color of title, proof of prior undis- 
 turbed possession is sufficient. Nor can a trespasser show 
 an outstanding title in a third person. The principles of 
 the action remain 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. 2 As the action retains many of its ancient charac- 
 teristics, it is important to study its origin and to remem- 
 ber 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 
 of the land, and maintain him therein, though it now gen- 
 erally specifies the nature of the controverted title, and 
 closely resembles the final adjudication upon an ancient 
 writ of right. Some of the valuable features of the system 
 of real writs have been ingrafted into the modern remedy. 
 
 Love v. Simms, 9 Wheat. 515. 
 1 Finnegan v. Carraher, 47 N. Y. 493. 
 
30 HISTOKT OF EJECTMENT. [§§ 60-63. 
 
 § 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. The duties of the officer and the rights of the 
 respective parties, as regards the enforcement! of this 
 important writ or final process, by which the fruits of the 
 judgment are secured to the successful party, are else- 
 where fully considered. 1 
 
 § 61. Damages. — The damages given for the injury suf- 
 fered 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 fic- 
 tions were introduced, and the practice of making others 
 than the tenants ejectors prevailed. 2 It has been decided 
 in some of the cases, however, that even while the fictions 
 were continued the plaintiff might recover his real dam- 
 ages by giving notice of his intention to proceed therefor, 8 
 but this practice was much questioned, 4 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. 5 
 
 § 62. Mesne profits. — The successful plaintiff in eject- 
 ment formerly brought an action of trespass for mesne 
 profits against the person who had withheld the posses- 
 sion. The claims for damages and mesne profits are now 
 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. The mesne profits are measured by the rental 
 or annual value of the land. 5 
 
 § 63. Improvements. — The defendant is permitted in 
 some States to set off against the mesne profits the value 
 
 1 See § 40, and Chap. XXI. 
 
 2 Reeves' Hist. Eng. Law (ed. 1880), vol. 4, p. 241. 
 
 3 Battin v. Bigelow, 1 Peters' C. C. 452. 
 
 " Huston v. Wickersham, 2 W. & S. (Pa.) 308. 
 b See Chap. XXV. 
 
§ 63«.] HISTOEY OF EJECTMENT. 31 
 
 of permanent and useful improvements made in good 
 faith. 1 In other States a oona fide occupant can recover 
 for improvements even in excess of the mesne profits. 
 The constitutionality of the statutes allowing an occupant 
 the value of improvements has been assailed, but the right 
 so to do is now generally conceded both upon legal and 
 equitable grounds. What are to be considered improve- 
 ments upon land has also provoked much controversy, and 
 the subject is deemed worthy of treatment in a separate 
 chapter. 3 
 
 § 63a. Utility of fictions. — We have thus carefully traced 
 the history of ejectment through its many changes. It is 
 manifestly a remedy of the highest importance. In no 
 other single form of action have so many valuable rights 
 been adjudicated. The sudden introduction and con- 
 tinued popularity of the remedy, and the remarkable 
 revolution wrought by its adoption, which swept away the 
 cumbersome network of real actions, constituting over 
 one-third of the ancient learning of the law, demonstrates 
 that fictions accomplished highly beneficial results as 
 applied to this form of action. Bentham, it is true, as- 
 sailed the use of a fiction of law with great bitterness and 
 impatience as "a willful falsehood, having for its object 
 the stealing legislative power, by and for hands which 
 could not, or durst not, openly claim it ; and, but for the 
 delusion thus produced, could not exercise it." 3 
 
 Blackstone, on the other hand, considers fictions 
 "highly beneficial and useful," 4 while Lord Coke observes 
 that "the law will never make any fiction but for necessity, 
 and in avoidance of a mischief." 6 
 
 So eminent an authority as Professor Maine 6 declares 
 that at a particular stage of social progress fictions " are 
 invaluable expedients for overcoming the rigidity of law." 
 Again he observes, " to revile them as merely fraudulent 
 
 1 See Giiswold v. Bragg, 18 Bla. C. C. 202, and cases cited. 
 
 ' See Chap. XXVI. 
 
 8 Fragment on Government, Bentham's Works, Vol. I, (Ed. Bowring), p. 243. 
 
 4 3 Bla. Com. 43. B Butler v. Baker's Case, 2 Coke, 79 (3 Rep. 30, a.) 
 
 6 Maine's Ancient Law, pp. 25, 26. 
 
32 HISTORY OE EJECTMENT. [§ 63«. 
 
 is to betray ignorance of their peculiar office in the histor- 
 ical development of law." 
 
 Mr. Adams observes, 1 that the action of ejectment 
 stands prominently forward among legal fictions, and that 
 "in tracing this remedy through its several gradations, it 
 will be found continually moulding itself to the condition 
 of the times, and extending its uses and powers as the 
 progress of civil society rendered necessary or conven- 
 ient." In studying the rise and progress of the remedy of 
 ejectment we can discover no trace of the great evils 
 which Bentham considered inhered in the use of fictions. 
 Modern writers must, we think, concur in the judgment 2 
 that the development of ejectment by the aid of fictions 
 conferred a substantial and permanent benefit upon man- 
 kind. 
 
 1 Adams on Ejectment, p. 3. 
 
 2 See The Origin and Use of Legal Fictions, by W. D. Lewis, Esq., Juridical 
 Society Papers, Vol. 1, p. 360. 
 
CHAPTER II. 
 
 SKETCH OF REAL ACTIONS IN THE UNITED STATES.— 
 TRESPASS TO TRY TITLE. 
 
 § 64. Real actions. 
 64a. Real and personal actions distin- 
 guished. 
 
 65. How real actions are classified. 
 
 66. Characteristics. 
 
 67. Judgment in real actions. 
 
 68. In personal actions. 
 
 69. Writs 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. Unpopularity in England. 
 
 79. Modem changes. 
 
 5 80. Classes of injuries affecting realty. 
 
 81. Trespass to try title. Its introduc- 
 
 tion in South Carolina. 
 
 82. What plaintiff must prove. 
 
 83. Nature 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 in that State. 
 
 90. Fictions in ejectment retained in 
 
 Alabama and Delaware. 
 
 91. Trespass to try title in Texas. 
 
 92. General principles the same in the 
 
 various actions. 
 
 § 64. Beat actions. — Real or feudal actions were the 
 ancient remedies by which the right of property, or of 
 possession, in freehold estates or hereditaments was de- 
 termined, and the seizin recovered or possession restored. 1 
 The complainant, or party deforced, was called the de- 
 mandant ; the defendant, or party in possession the ten- 
 ant. The name real action was used in contradistinction 
 to personal actions, founded upon tort or contract, such 
 as trover, assumpsit, or debt. At common law, in purely 
 real actions, the demandant counted for and recovered the 
 seizin of land, or an interest in realty, and rarely pro- 
 ceeded for compensation in damages or for personal prop- 
 erty. 3 The right to recover damages in real writs was, in 
 some instances, added by statute. 
 
 The foundation of a real action is the alleged wrongful 
 
 1 See §§ 2, 3, 5, 6. 
 
 2 Booth on Real Actions, pp. 74, 75 ; Pilford's Case, 10 Rep. 115, b. (5 Coke, 
 459); Stearns on Real Actions (2d ed.), pp. 346 (389), 90 (94) ; Jackson on Real Ac- 
 tions, p. 99. 
 
 3 
 
34 REAL ACTIONS IN THE UNITED STATES. [§§ 64«-66. 
 
 occupation and withholding of the demandant's land by 
 the tenant. 1 
 
 § 64a. Beal and personal actions distinguished. — In real 
 actions the demandant claims title to lands, tenements, or 
 hereditaments, in fee simple, fee tail, or for a term of 
 life, 2 by writ of right, entry, etc., hence they are said by 
 Blackstone to " concern real property only." Chief Justice 
 Shaw considered that the terms real and personal actions 
 were not used in the statute of Massachusetts regulating 
 costs in the sense contemplated by the common law, and 
 as defined by Blackstone. He said : " The broad distinc- 
 tion which runs throughout the statute, is that between 
 actions in which rights to real estate may be brought 
 in question and tried, and those which affect personal 
 rights." 3 
 
 § 65. Sow real actions are classified. — Real actions were 
 classified according to the nature of the demandant's title, 
 into actions 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 subdivided into writs droitural, founded 
 upon the demandant's own seizin, and writs ancestral droit- 
 ural, founded upon the demandant's claim in respect of a 
 mere right which had descended to him from an ancestor. 
 Possessory actions were likewise subdivided into actions 
 founded upon the demandant's own seizin, and actions 
 predicated upon the seizin of an ancestor. 4 
 
 § 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 controversy. Unless the plaintiff submitted to a non- 
 suit, withdrew a juror, or obtained leave to discontinue the 
 
 J Graves v. Amoskeag Mfg. Co., 44 N. H. 462. 
 " 3 Bla. Com. 117. 
 
 2 Plympton v. Baker, 10 Pick. (Mass.) 474. See §§ I, 64. 
 4 Roscoe on Actions Relating to Real Property, p. 2 ; Stearns on Real Actions 
 (2d ed.), p. 83 [84] ; Markal's Case, 6 Rep. 3 b. (3 Coke, 264.) 
 
§§ 67, 68.] BEAD ACTIONS IN THE UNITED STATES. 35 
 
 action the only redress for the defeated party was by writ 
 of error, appeal, or motion for a new trial in the same ac- 
 tion. It has been supposed that a different rule prevailed 
 in real actions, because if the demandant was barred by 
 judgment on a verdict or demurrer rendered upon an in- 
 ferior 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 estop - 
 pel to an action between the same parties brought upon 
 a writ of a higher degree. 1 
 
 § 67. Judgment in real actions. — Lord Coke 2 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 
 the higher writ ; but this was not true. Each writ, as was 
 shown by Lord Ellenborough in the case of Outram v. 
 Morewood, 3 was final for its own purpose and object, and 
 the judgment was conclusive as to the injury complained 
 of, or the particular right claimed. Possessory writs settled 
 disputed questions of possession. The higher writs, while 
 including all that was adjudicated on the trial under the 
 possessory writs, went further and established the whole 
 right to the land, both of property and of possession. 
 " Placitwm per oreve de recto utrumque ; jus, tarn possessions 
 quam proprietatis compreliendat." 4 
 
 § 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. 5 Thus 
 a judgment in assumpsit bars an action of debt for the 
 same demand. This important principle of the common 
 
 1 Ferrer's Case, 6 Rep. 7 b. (3 Coke, 271) ; Stearns on Real Actions, p. 84 ; 
 Booth on Real Actions, p. 1. See § 509. 
 
 2 Ferrer's Case, 6 Rep. 7 b. 
 
 s 3 East, 346, and cases cited. 
 
 4 Bracton, f. 328. 
 
 * Kitchen v. Campbell, 3 Wils.304 ; S. C. 2 W. Bla. 827 ; Martin v. Kennedy, 
 2 Bos. & P. 71, per Lord Eldon. See Sparry's Case, 5 Rep. 61 (3 Coke, 124); Daw- 
 ley v. Brown, 79 N. Y. 390 ; Stowell v. Chamberlain, 60 N. Y. 272, and cases cited. 
 See Chap. XX 
 
36 REAL ACTIONS IK THE UNITED STATES. [§§69, 70. 
 
 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 con- 
 ferred by the judgment under a possessory writ. 
 
 § 69. Writs of right. — The most important of the real 
 writs was the Writ of Eight. 1 This writ was resorted to in 
 the time of the Saxons to recover the right of property in 
 land ; the jus proprietatis, or jus tn&rum? It would not lie 
 for incorporeal hereditaments, or for any estate less than a 
 fee simple, 3 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- 
 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 
 prosecute one of an inferior grade. 4 The tenant in this 
 writ might give in evidence the title of a third person for 
 the purpose of disproving the demandant's seizin ; and the 
 demandant was permitted to recover a less quantity than 
 the entirety. 5 
 
 § 70. Writs of entry. — Of the possessory actions writs 
 of entry only were adopted in Massachusetts. 6 These were 
 of various kinds, according to the nature of the injuries in- 
 tended to be redressed, 7 and were supposed by Blackstone 
 to be the most ancient of possessory actions. Whether or 
 not all the writs of entry were ingrafted into the law of 
 that Commonwealth is a moot question which it is unnec- 
 essary now to discuss. 8 Mr. Justice Jackson says, 9 that 
 writs of entry, as conducted in the courts of his State, were 
 
 1 3 Bla. Com. p. 193 ; Fitz. N. B. I. 
 
 2 Gil. Ten. [47]. See Roscoe on Actions Relating to Real Property, p. 19. 
 
 3 Jackson on Real Actions, p. 276 ; Lyon v. Mottuse, 19 Ala. 463 
 
 4 Booth on Real Actions, p. 1. For distinction between a writ of right patent 
 and a writ of right close, see Liter v. Green, 2 Wheat. 311. 
 
 K Inglis v. Trustees of Sailor's Snug Harbor, 3 Pet. 99. See § 509. 
 1 6 Jackson on Real Actions, p. 2. 
 ' Roscoe on Actions Relating to Real Property, p. 88. 
 8 See Judge Jackson's article on this subject, 2 Am. Jur. p. 65. 
 " Jackson on Real Actions, p. 12. 
 
§ 71.J REAL ACTIONS IN THE UNITED STATES. 37 
 
 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 posses- 
 sion. This opinion was subsequently approved by the 
 Massachusetts Commissioners. 1 
 
 An equitable estate, we may here observe, will not sup- 
 port a writ of entry ; 2 and consequently a party sued in 
 this writ cannot defend against the legal title of the plaint- 
 iff by showing that he has purchased and paid for the land, 
 and is entitled to a conveyance of the legal estate. 3 The 
 remedy for the protection of an equitable interest in land 
 is by bill in equity and not by writ of entry, 4 or action at 
 law. In Massachusetts this writ may issue in the form of 
 an original summons or in that of a summons and attach- 
 ment, 5 and can only be maintained against a tenant of the 
 freehold. 6 
 
 § 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, 11 were not infre- 
 quent in some States. A writ of formedon was sometimes 
 cbaracterized as a writ of right of an inferior character. 
 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 learn- 
 edly discussed by court and counsel. 8 Writs of this char- 
 acter are, however, wholly unsuited to try titles in this 
 
 1 Report of the Comrs. to Revise the General Statutes of Mass.; Part 3, p. 
 154 n. 
 
 2 Chapin v. First Universalist Soc, 8 Gray (Mass.), 580, per Shaw, C. J.; East- 
 man v. Fletcher, 45 Me. 302. Compare s. P. in Ejectment, Smith &■. McCann, 24 
 How. 398; Emeric v. Penniman, 26 Cal. 119; Peck v. Newton, 46 Barb. (N.Y.) 173. 
 
 8 Ela v. Pennock, 38 N. H. 154 ; s. P. Moody v. Farr, 33 Miss. 192 ; but com- 
 pare Cutting v. Pike, 21 N. H. 347. See Chap. XVIII. 
 
 4 Eastman v. Fletcher, 45 Me. 305 ; s. P. Houston v. Jordan, 35 Me. 520 ; Shaw 
 v. Wise, 10 Me. 113. 
 
 * Wilbur v. Ripley, 124 Mass. 468. 
 
 6 Kerley v. Kerley, 13 Allen (Mass.), 286. See Creighton v. Proctor, 12 Cush. 
 (Mass.) 438. 
 
 ' Stearns on Real Actions, p. 321 ; Booth on Real Actions (1st Am. ed.), p. 138. 
 
 8 Frost v. Cloutman, 7 N. H. 9 
 
38 REAL ACTIONS IN THE UNITED STATES. [§§ 72, 73. 
 
 country. The delays and abuses produced by these writs 
 have already been noticed. 1 
 
 § 72. Real actions in England.— The system of real ac- 
 tions is now extinct in England. But an inquiry into the 
 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. 
 Indeed without some acquaintance with ancient real writs 
 it would be impossible to thoroughly comprehend the mod- 
 ern actions which have supplied their places. We can af- 
 ford here only the slightest reference to this curious and 
 obsolete branch of our ancient remedial law, and discuss 
 so much of the learning affecting the system as will illus- 
 trate 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 
 abandonment of these ancient remedies have been consid- 
 ered in part in tracing the history of the action of eject- 
 ment. 2 
 
 § 73. Ejectment in New England. — Ejectment was already 
 firmly established in England, as the most simple and ex- 
 peditious 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. 8 Possibly this is attributable to the 
 fact that every word of the declaration by which the action 
 was commenced was untrue. The stern integrity and 
 simplicity of the Puritans did not relish fictions. Profes- 
 sor Stearns says : 4 "We should hardly expect them to re- 
 sort to the indirect method of making a lease of their lands 
 in order to try the title. And as to the confessing a lease, 
 
 1 S ee § 45. The writ of assize once so popular in England was probably intro- 
 duced during the reign of Henry II. Its history is of little practical value with us. 
 
 "See §§5, 6, 8, 10. 
 
 5 Ejectment did not flourish in Virginia, New York was then under control of 
 the Dutch. 
 
 4 Stearns on Real Actions (2d ed. 1831), p. 352 [396] n. 
 
§§ 74, 75.] REAL ACTIONS IN THE UNITED STATES. 39 
 
 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." 
 
 This feeling of aversion to ejectments was not confined 
 to this country, for we find it written in an English work 
 of reputation, 1 that this ingenious and dexterously con- 
 trived proceeding " was objectionable, on the ground that 
 fictions and unintelligible forms should not be used in 
 courts of justice ; especially when the necessity for them 
 might be avoided by a simple writ so framed as to raise 
 precisely the same question in a true, concise, and intelli- 
 gible form." 
 
 § 74. Unpopularity of the remedy. — The inconclusiveness 
 of the judgment 2 also tended to render ejectment unsatis- 
 factory. 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 fresh 
 ejectments. Furthermore equity jurisprudence had scarce- 
 ly any existence in colonial times, 3 and has only been intro- 
 duced into some of our States by legislation of recent date. 
 Hence, according to eminent authority, only two fictitious 
 actions of ejectment upon the English model are to be 
 found in the court records of Massachusetts. 4 The com- 
 missioners 5 even assert that " the action of ejectment has 
 never been in use " in that State "for the trial of titles." 
 
 § 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 imperfect; many of the real writs were wholly unsuited 
 to try the titles by which the colonial lands were held, and 
 
 1 Cole on Ejectment, p. 2. 
 ! See Chap. XX. 
 
 , 5 I Story's Eq. Jur. § 56 and note. 
 4 Stearns on Real Actions (2nded. 1831), p. 352 [396]. 
 
 ' Report of the Commissioners to Revise the General Statutes of Mass., Part 3, 
 154. But see Hodgkins v. Price, 137 Mass. 15, 
 
40 KEAL ACTIONS IN THE UNITED STATES. [§§ 76, 77. 
 
 few of the early settlers possessed the critical skill and 
 precision in practice which the successful management of 
 the writs exacted. 1 Mistakes and vexatious delays were 
 consequently not infrequent. The colonists were not, how- 
 ever, "bigoted to legal forms." They abruptly departed 
 from the ancient precedents (intentionally, however, rather 
 than from ignorance, as the result shows) and introduced 
 a loose and irregular system of pleading in real writs, alter- 
 ing and adapting the process and writs so as to satisfy the 
 needs and requirements of settlers in a new country. The 
 English system of real actions was transplanted into the 
 colonies practically divested of aid prayers, vouchers, pro- 
 tections, parol demurrers, and essoins, the cumbersome 
 appendages which destroyed it in England. Hence we 
 have in our jurisprudence the remarkable anomaly of a 
 system of feudal remedies which the mother country aban- 
 doned as outgrown, impracticable 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 system 
 and to reject what was useless and pernicious. 2 The an- 
 cient process and forms were very little regarded, and all 
 real actions were called by the general name of actions of 
 ejectment. 3 Little or no distinction was made either in the 
 declaration or the pleadings between the different writs of 
 entry, or between possessory writs and the writ of right. 4 
 
 § 77. Though this loose and irregular practice was un- 
 doubtedly the cause of many mistakes which the colonists 
 
 We do not intend to imply that American lawyers did not become familiar with 
 real writs. The following cases among others' attest the skill that was early acquired 
 m this branch of law in the new world. Green v. Liter, 8 Cranch, 220; Green *. 
 Watkins, 7 Wheat. 27; Inglis v. Trustees of Sailor's Snug Harbor, 3 Peters, 133; 
 Barker v. Salmon, 2 Met. (Mass.) 32 ; St. Croix v. Sands, I Johns. (N. Y.) 328 ; Swift 
 v. Livingstone, 2 Johns. Cas. (N. Y.), 112; Frost v. Cloutman, 7 N. H. 9. 
 1 Stearns on Real Actions (2d ed.), p. 92 [97]. 
 
 • *, Jack AT f", 1 ^ Actions . P- 194- Prof. Pomeroy says of our modern statutory 
 ejectment that it does not bear the slightest resemblance to the action of ' eject- 
 ment as that was contrived by the old judges and lawyers, and only confusion and 
 misconception result from applying to it that name." Pomeroy's Remedies, etc., 
 
 4 Jackson on Real Actions, p. 162. 
 
§§ 78, 79.] REAL ACTIONS IN THE UNITED STATES. 41 
 
 made in 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. Unpopularity 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." 1 
 
 § 79. Modern changes. — Statutory real actions in various 
 forms are employed in Maine and New Hampshire. A writ 
 of entry, sur disseizin, was recognized as a proper form of 
 action in the latter State. 3 Writs pf right and of formedon 
 have been swept away in Massachusetts and a statutory 
 writ of entry adopted as the remedy for trying titles in 
 that State. The final judgment rendered on this statutory 
 writ is a complete bar to a writ of right for the same lands 
 subsequently prosecuted in the federal courts. 8 The com- 
 mon law remedy of ejectment for the recovery of a term, 
 though rarely used, has never been abolished in that com- 
 monwealth. 4 The entire system of real actions is super- 
 seded in New York by a statutory action of ejectment. In 
 Ehode Island any party having a right of entry may bring 
 ejectment. 5 In Connecticut the writ of disseizin is not a 
 fictitious remedy, and is the only real action known to their 
 law, and comprehends "all the actions in England, by writ 
 of right, writ of entry and ejectment, with all the multi- 
 farious divisions into which they are branched." 6 In Cali- 
 fornia they have technically "no action of ejectment." 
 There is said to be as much propriety in calling the action 
 
 ' Report of English Real Property Commissioners, Vol. I, p. 42. 
 5 Potter v. Baker, 19 N. H. 166. 
 8 Derby v. Jacques, 1 Cliff. 425. 
 
 4 Hodgkins v. Price, 137 Mass. 13; Fay v. Taft, 12 Cush. (Mass.) 448; Merrill 
 v. Bullock, 105 Mass. 493. 
 
 f McCann v. Rathbone, 8 R. I. 297. 
 8 Crandall v. Gallup, 12 Conn. 371. 
 
42 BEAL ACTIONS IK THE UNITED STATES. [§§ 80, 81. 
 
 in that State "a writ of entry or an assize, as an eject- 
 ment." * In Virginia writs of right, of entry, and of forme- 
 don, 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, 2 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 ef- 
 fect in framing legislative changes in our remedial law, but 
 the general system, with most of its peculiarities, is obso- 
 lete. 
 
 § 80. Classes of injuries affecting realty. — Injuries affecting 
 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 injure 
 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 oust- 
 er, and has been defined to be "a wrongful dispossession 
 or exclusion of a party from real property, who is entitled 
 to the possession." 3 This elementary principle must not 
 be overlooked in considering 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 Caro- 
 lina.— Trespass to try title was substituted for ejectment 
 in South Carolina as early as 1791." It was in form an ac- 
 tion of trespass quare clausum fregit, except that a notice 
 
 1 Caperton v. Schmidt, 26 Cal. 479, 496. 
 
 5 Genin v. Ingersoll, 2 W. Va. 558. 
 
 'Newell v. Woodruff, 30 Conn. 497. See Field v. Hawley, 126 Mass. 327; 
 Towle v. Ayer, 8 N. H. 57 ; Smith v. Burtis, 6 Johns. (N. Y.) 217. See § 93. 
 
 4 Stat, at Large, S. C. vol. V, p. 170; since repealed. See Chapter 147, Revised 
 Statutes, 1873, p. 801. 
 
§§ 82-84.] TRESPASS TO TRY TITLE. 43 
 
 was indorsed upon the writ to the effect that the action 
 was brought to try the title as well as for damages. This 
 remedy was 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. 1 There were, of 
 course, no fictions in this new action, and the names of the 
 real parties appeared as plaintiff and defendant. 2 
 
 § 82. What plaintiff must prove. — The plaintiff was com- 
 pelled to prove a trespass committed by the defendant no 
 matter how trifling. A bare threat made on a rock, the 
 title to which was in controversy, to prevent the plaintiff 
 from fishing there ; or obstructing a canoe from landing 
 upon it, was said to be enough evidence to support the ac- 
 tion. 3 Even the cutting or blazing of a tree was held suffi- 
 cient. 4 The judgment was in form for damages, but the 
 plaintiff, if successful, was entitled to a writ habere facias 
 possessionem. The reader will at once discover, aside from 
 the question of ouster, the close resemblance this form of 
 procedure bore to ejectment both in its nature and 
 uses. 5 
 
 § 83. Nature of trespass to try title. — Manifestly trespass 
 qtiare clausum fregit was a form of action calculated to re- 
 dress injuries to real property not amounting to an ouster. 
 This remedy as enlarged by statute in South Carolina un- 
 der the name of trespass to try title usurped the functions 
 and subserved the purposes of a real action. While evi- 
 dence of a slight trespass would suffice to raise a contro- 
 versy over the title, yet mesne profits could not be recov- 
 ered of the defendant if no actual eviction took place, but 
 only a technical trespass was proved. 
 
 § 84. Statutory change. — The result achieved by the use 
 of fictions in ejectment in England, after many years of ef- 
 fort, was accomplished summarily in South Carolina by a 
 
 1 Kennedy v. Campbell, 2 Const. Rep. (S. C.) 760. 
 * Lynch v. Withers, 2 Bay (S. C), 115-119, in notis. 
 
 3 Massey v. Trantham, 2 Bay (S. C), 421 ; Underwood v. Sims, 2 Bailey (S. C), 
 Law, 81. 
 
 4 Spigener v. Cooner, 8 Rich. (S. C), Law, 301. 
 6 See §§ is, 19, 39. 40. 
 
44 TRESPASS TO TRY TITLE. [§§ 85-88. 
 
 simple statutory enactment. Why the English Parliament 
 and the legislatures of other States of our Union did not 
 enact statutes somewhat similar in character, substituting 
 ouster for trespass, and at a single stroke demolish real 
 writs and the fictions in ejectment is a mystery. 
 
 §85. Reason for the change. —The Legislature of South 
 Carolina solemnly resolved, 1 as a justification for the 
 change, that "since the disuse of real actions, the common 
 method of trying the title to lands has been by action of 
 ejectment, which, depending upon a variety of legal fic- 
 tions, is rarely understood but by professors of the law." 
 Still, the name of the new* remedy, and the practice requir- 
 ing proof of a trespass, which certainly had no logical or 
 necessary connection with the trial of the title, occasioned 
 some confusion. 
 
 § 86. Aversion to real actions. — The writ of right was 
 never employed in South Carolina, 2 and the profession 
 seem to have shunned the whole system of real actions. If 
 the "variety of legal fictions" in ejectment was incom- 
 prehensible to the profession in South Carolina, it is cer- 
 tainly easily understood why no effort was made to utilize 
 real writs. 
 
 § 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. 3 This dispenses with the ne- 
 cessity of further discussion concerning the procedure in 
 this novel form of action in that State. 
 
 § 88. Trespass to try title in Alabama. — Trespass to try 
 title was introduced in Alabama, in 1821/ as a substitute 
 for the fictitious proceedings in the action of ejectment. 5 
 The act provides that "the mode of trying the right and 
 
 1 Stat, at Large, S. C. vol. V, p. 170, § 4. 
 
 5 Frost ads. Brown, 2 Bay (S. C), 133-144. 
 
 3 Revised Statutes South Carolina (ed. 1873), p. 586 ; Ibid, chap. 147, p. 801. 
 
 4 Session Acts of Alabama, 1821, p. 23 (approved December 17, 1821). 
 
 6 White v. St. Guirons, Minor (Ala.), 331 ; Avent v. Read, 2 Porter (Ala.), 480 ; 
 Masters v. Eastis, 3 lb. 368 ; Thrash v. Johnson, 6 lb. 458 ; Sturdevant v. Mur- 
 rell, 8 lb. 317. 
 
§§ 89, 90.] TRESPASS TO TRY TITLE. 45 
 
 title to lands, tenements, or hereditaments, shall be by the 
 action of trespass, in which the plaintiff shall endorse 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 fic- 
 titious proceedings, which were abolished, were made ap- 
 plicable to this action. 
 
 § 89. /Statutory changes in that State. — In 1835, 1 the Gen- 
 eral Assembly of Alabama passed an act restoring the rem- 
 edy of ejectment 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, 2 which established a 
 statutory proceeding "in the nature of an action of eject- 
 ment." In 1863 s 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 eject- 
 ment. This act was embodied in the Code of 1867, 4 and 
 was transferred to the Code of 1876. 5 
 
 § 90. Fictions in ejectment retained in Alabama and Dela- 
 ware. — Hence two remedies may now be invoked in that 
 State : the action in the nature of ejectment, 6 and the fic- 
 titious ejectment at common law. 7 John Doe, the litigious 
 lessee, appears in his old role in an ejectment instituted in 
 that State, as late as 1874 and decided in 1876, 8 but the 
 common law writ of ejectment is now but little resorted to 
 except by the older practitioners, and the statutory action 
 
 1 Clay's Digest (Ala.), p. 320, § 46. 
 
 2 See Code of 1852, § 2209 ; also § 10 ; lb. 1867, § 2610. See Williams v. Harts- 
 horn, 30 Ala. an, 
 
 3 Acts of Alabama, 1863, p. 58, No. 54. 
 
 4 Code of 1867, § 2621. 
 * Code of 1876, § 2970. 
 
 6 Morris v. Beebe, 54 Ala. 300 ; Olive v. Adams, 50 Ala. 373 ; Ivey v. Blum, 
 53 Ala. 172. 
 
 7 Doe d. Hudgens v. Jackson, 51 Ala. 514 ; Doe d. Hamilton u. Hardy, 52 
 Ala. 291 ; Smith v. Doe d. Carson, 56 Ala. 456 ; Cantelou v. Doe d. Hood, 56 
 Ala. 519. 
 
 8 Doe d. Davis v. Minge, 56 Ala. 121. 
 
46 TRESPASS TO TRY TITLE. [§ 91. 
 
 in the nature of ejectment is the remedy generally in use. 
 The writ of right has not been in use in Alabama since 
 1852. 1 An important ejectment founded upon a fictitious 
 demise was brought in Delaware in 1878, and went to 
 judgment. 2 
 
 § 91. Trespass to try title in Texas. — Ejectment, with or 
 without its fictions, has never been in use in Texas, 3 tres- 
 pass to try title being the exclusive action given for the 
 trial of controverted titles in that State. 4 By a proper in- 
 dorsement on the petition the action may be brought both 
 to try the title and to recover mesne profits and damages. 5 
 This remedy very closely resembles if indeed it is not the 
 exact counterpart of the common statutory ejectment. 
 Thus the complaint should allege that the plaintiff was in 
 possession or is entitled to the possession ; 6 the premises 
 should be so described as to be capable of identification 
 with reasonable certainty;' a survey though not neces- 
 sarily conclusive may be ordered ; 8 the tenant may dis- 
 claim ; 9 the pleadings may be amended so as to include a 
 different tract of land ; 10 improvements may be claimed ; u 
 and the suit may be prosecuted by one tenant in common 
 without joining his cotenant. 12 The plaintiff must prove 
 title in himself to overcome the presumption of title arising 
 from the defendant's possession. This is usually done by 
 deraigning title from the sovereign, 13 though better title 
 
 'See Ivey v. Blum, 53 Ala. 172. 
 
 2 John Doe, on the demise of Barrett v. Richard Roe, casual ejector, and Jeffer- 
 son, tenant in possession, 5 Hous. (Del.) 477. 
 
 3 Fisk v. Miller, 20 Texas, 572-578. 
 
 4 Dangerfield v. Paschal, 20 Texas, 552 ; Paschal's Digest, Art. 5292. 
 
 1 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. See Hillman v. Baumbach, 21 Texas, 203. 
 
 6 Bridges o. Cundiff, 45 Texas, 440. 
 
 ' Steinbeck v. Stone, 53 Texas, 382. 
 
 8 Bass v. Mitchell, 22 Texas, 293. 
 
 9 McBee v. Johnson, 45 Texas, 634. 
 10 Hunter v. Morse, 49 Texas, 219. 
 
 " Hill v. Spear, 48 Texas, 583. ' , 
 
 » Hutchins v. Bacon, 46 Texas, 408-414 ; Alexander v, Gilliam, 3 g Texas, 227; 
 Fisk v. Flores, 43 Texas, 340, 342 ; Presley v. Holmes, 33 Texas, 476. 
 13 Keys v. Mason, 44 Texas, 140. 
 
§ 92.] TRESPASS TO TRY TITLE. 47 
 
 from a common source, or title out of the State and prior 
 possession may suffice. The action is maintainable upon 
 an equitable title. 1 
 
 § 92. General principles the same in the various actions. — 
 The decisions rendered while the remedy of trespass to 
 try title 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, eject- 
 ment, and trespass to try title, are uniform in this coun- 
 try as to the interests for which the actions will lie, the 
 titles that will support them, the pleadings, evidence, 2 de- 
 fenses, judgments, writs of possession, and new trials. 
 They constitute practically one general method of pro- 
 cedure disguised under a variety of names. For this rea- 
 son cases decided under the different systems will generally 
 be cited side by side in this treatise. 
 
 1 Easterling v. Blythe, 7 Texas, 210 ; Walker v. Howard, 34 Texas, 478 ; Erhart 
 v. Bass, 54 Texas, 97. 
 
 2 Greenl. on Ev. vol. 2, § 303, p. 286. 
 
CHAPTER III. 
 
 NATURE OF THE RIGHTS UPON WHICH ACTIONS TO TRY 
 TITLE ARE FOUNDED.— INTERESTS FOR WHICH EJECT- 
 MENT LIES.— WRONGS TO REAL PROPERTY. 
 
 § 93. Distinction between ejectment and 
 trespass. 
 
 94. Between ejectment and forcible en- 
 
 try. 
 
 95. Ejectment maintainable for corpo- 
 
 real hereditaments only. 
 
 96. Early practice. 
 
 97. Nature of the interest sought to be 
 
 recovered. 
 
 98. Plaintiff's title and interest. 
 
 99. Reservation of right of entry in a 
 
 deed. 
 
 100. Right of possession essential. 
 
 101. 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. 
 106a. Horizontal divisions of land. 
 
 107. Vaults. 
 
 108. Mining rights and interests. 
 
 109. Coal mine, 
 no. Tin bound. 
 in. 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 under water. 
 
 118. Made lands. 
 
 119. Lands under water granted by land 
 
 office. 
 
 § 120. Rivulet or pool. 
 
 121. Bed of the ocean. 
 
 122. Tide lands. Ocean boundaries. 
 
 123. Land swallowed by the sea. 
 
 124. New islands. 
 
 125. Accretions. 
 
 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 
 
 public and private easements. 
 
 141. Land subject to 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. The action will not lie for a 
 mere trespass on land ; the plaintiff must furnish proof of 
 eviction or amotion of possession. In other words, there 
 must be some usurpation of dominion over the property, 
 for an ouster is a wrong that carries with it a change of 
 
§ 94.] INTERESTS FOR WHICH EJECTMENT LIES. 49 
 
 possession. 1 We may observe in passing, that the proof of 
 disseizin must be something more than the evidence of 
 mere words, or the taking of a deed of the lands without 
 entry under it. 2 "There is," say the Supreme Court of 
 Connecticut, " a clear landmark between them (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." s 
 This feature, it will be noticed, marked the distinction be- 
 tween trespass to try title as originally practiced in South 
 Carolina, and the remedy of ejectment. 4 
 
 The action of ejectment cannot be sustained upon proof 
 of an unlawful interference with a right incident to prop- 
 erty in possession, 5 — e. g., projecting a cornice, a gutter, or 
 the eaves of a building over plaintiff's lands. Then a 
 plaintiff in possession will not be permitted to maintain an 
 ejectment against a person who inconveniences or incom- 
 modes him, or interferes with the enjoyment of the prem- 
 ises by insisting upon remaining in the house with him ; 6 
 or who enters upon the land to cut timber under a claim 
 of contract right so to do.' To uphold the action in such 
 cases would be in violation of the settled principle that a 
 party in possession cannot invoke the remedy of eject- 
 ment. 8 
 
 § 94. Between ejectment and forcible entry. — An important 
 distinction must be noticed between an ejectment and the 
 statutory action of forcible entry and unlawful detainer, 9 
 
 1 See § 8o ; Farris v. Hayes, 9 Oregon, 85. 
 
 2 Field v. Hawley, 126 Mass. 327 ; Favour v. Sargent, 6 Pick. (Mass.) 5 ; 
 Towle v. Ayer, 8 N. H. 57 ; Putnam Free School v. Fisher, 38 Me. 324. Pulling 
 down houses and constructing a railway on the land constitutes an ouster. Doe d. 
 Wawn v. Horn, 5 M. & W. 564. 
 
 3 Potter v. City of New Haven, 35 Conn. 520, 522. 
 * See § 82. 
 
 ' 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 employed 
 as a substitute for trespass quare clausum f regit : per Sharswood, J. Corley v. 
 Pentz, 76 Pa. St. 57. Neither can trespass quare clausum /regit and ejectment be 
 united in the same complaint. Budd v. Bingham, 18 Barb. (N. Y.) 494. 
 
 6 Buchanan v. Streper, 35 Leg. Int. 274. 
 
 ' Corley v. Pentz, 76 Pa. St. 57- See § 231. 
 
 8 Kribbs v. Downing, 25 Pa. St. 404. 
 
 9 See § 4. 
 
 4 
 
50 INTERESTS EOE WHICH EJECTMENT LIES. [§ 94. 
 
 which will, perhaps, serve to illustrate more clearly the 
 nature of the remedy. The title or right of possession is 
 always involved in the trial of an action of ejectment. 
 The party who seeks to change the possession by eject- 
 ment must first establish a legal title to it. But the rem- 
 edy for a forcible or unlawful entry is designed to protect 
 the actual possession, whether rightful or wrongful, against 
 unlawful invasion, and to afford summary redress and res- 
 titution. The forcible entry even of the owner himself, 
 and still more the entry of any other person, whether for- 
 cible or not, is unlawful. 1 The title cannot be drawn in 
 question in forcible entry proceedings, which are fre- 
 quently conducted in tribunals having no jurisdiction to 
 determine titles to real property. 2 In the one case the 
 question of the unlawful invasion of an actual possession 
 only is involved ; in the other the absolute right of posses- 
 sion is to be tried and determined. 3 A forcible entry and 
 detainer proceeding may be supported independent of, 
 and opposed to, the title and legal right of possession. 4 It 
 must be remembered that the right of property merely, 
 not joined with the possession, will not justify the true 
 owner in committing an assault and battery upon the per- 
 son in possession with the design of regaining the prop- 
 erty, 5 This rule is founded upon considerations of public 
 policy to prevent parties from disturbing the public peace 
 by attempts to gain their rights by force, instead of resort- 
 ing to the remedy by action. 6 
 
 As to the character of the acts which will bring the 
 parties within the statute, we may state that a mere tern- 
 
 • dinger v. Shepherd, 12 Graft. (Va.) 462. See Thompson v. Wolf, 6 Oregon, 
 308 ; Bliss v. Johnson, 73 N. Y. 534. 
 
 2 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; Texas Land Co. v. 
 Turman, 53 Texas, 619; Kelly v. Sheehy, 60 How. Pr. (N. Y.) 439. 
 
 3 Carter v. Scaggs, 38 Mo. 302. 
 
 4 Smith v. Hollenback, 51 111. 223; Milner v. Wilson, 45 Ala. 478; KreveU. 
 Meyer, 24 Mo. 107 ; Dilworth v. Fee, 52 Mo. 130 ; People v. Van Nostrand, 9 
 Wend. (N. Y.) 50. 
 
 " Bliss v. Johnson, 73 N. Y. 533 ; Pollen v. Brewer, 7 C. B. [N. S.] 371 ; Par- 
 sons v. Brown, 15 Barb. (N. Y.) 590 ; Sampson v. Henry, 11 Pick. (Mass.) 387. 
 6 s. P. Reeder v. Purdy, 41 111. 279. 
 
I 95.] INTERESTS FOR WHICH EJECTMENT LIES. 51 
 
 porary trespass 1 is not sufficient to maintain a forcible 
 entry proceeding. There must be circumstances of vio- 
 lence, numbers and the strong hand. 3 The method in 
 which the disturbed possession was acquired is also im- 
 portant. Savage, Ch. J., said: "A mere intruder or tres- 
 passer could not institute proceedings under this statute, 
 and be restored to the possession which he held unlaw- 
 fully." 8 A possession acquired by violence cannot be pro- 
 tected by forcible entry proceedings. 4 A corporation may 
 be liable in these proceedings. Forcible entry by servants 
 •of a railroad company, followed by possession by the com- 
 pany, was considered presumably the act of the corpora- 
 tion, its possession being looked upon as a ratification. 5 
 
 But this remedy is outside the scope of our work as it 
 does not involve title. 6 
 
 § 95. Ejectment maintainable for corporeal hereditaments 
 only. — At common law, ejectment was maintainable only 
 for corporeal hereditaments, 7 which consist wholly of sub- 
 
 1 See Sloan v. Biemiller, 34 0. S. 517. 
 
 a Dudley v. Chanfrau, 2 Edmonds (N. Y.), 128. For a collection of authorities 
 ■concerning " Force as a Defense of Real Estate," see 28 Alb. L. J. 145. 
 
 3 People v. Reed, n Wend. (N. Y.) 159; s. P. Hodgkins v. Price, 132 Mass. 199. 
 
 4 Hodgkins v. Price, 132 Mass. 199. 
 
 5 Peoples rel. McBride v. N. Y. Central R. R. Co., 51 N. Y. 623. 
 
 ' 'Forcible entry and detention. — The Massachusetts statutes provide that " no per- 
 son shall make an entry into lands or tenements except in cases where his entry is 
 ■allowed by law, and in such cases he shall not enter by force, but in a peaceable 
 manner." Pub. Stat. Mass. c. 126, § 15. Chief Justice Shaw said in Saunders v. 
 -Robinson, 5 Met. (Mass.) 343: "A mere unlawful entry into lands, though it 
 would justify the common averment of vi et armis, or force and arms, is not the forci- 
 ble entry contemplated by the statute. It must be something more, either an original 
 -entry or subsequent detainer, with strong hand ; and this may be by the use of actual 
 ■force and violence, or by menace of force, accompanied by arms and a manifest intent 
 to cany such threat into effect, or by a show of force, calculated to create terror and 
 alarm, by an exhibition of arms, a display of numbers, or other means manifesting an 
 •open and visible determination forcibly to make the entry, or forcibly to resist the entry 
 of another." " This process," says Mason (Mass. Prac. p. 89), " can be maintained by 
 one tenant in common against a cotenant who has forcibly ejected him; (Presbrey v. 
 -Presbrey, 13 Allen [Mass.], 281, 284) by a mortgagee in possession after an entry to 
 foreclose against one whohas entered in a peaceable manner, but without right, and 
 afterwards holds possession by force; (Mitchell v. Shanley, 15 Gray [Mass.], 319) by 
 a tenant at will against one who forcibly enters and ejects him. (Walker v. Sharpe, 14 
 Allen [Mass.] 43)." The cases relating to forcible entries will be found collated in 
 notes to Davidson z/. Phillips, 30 Am. Dec. 393; Evill v. Conwell, 18 Am. Dec. 139; 
 Robertson v. Robertson, 38 Am. Dec. 148. In Texas a party in whose favor an ac- 
 tion of forcible entry would lie, may bring trespass to try title. Thurber v. Conners, 
 57 Texas, 96. But a party having a right of possession who has entered by force or 
 iraud cannot be turned out by ejectment. Depuy v. Williams, 26 Cal. 309. 
 
 7 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. 
 
52 INTERESTS FOE WHICH EJECTMENT LIES. [§ 98. 
 
 stantial and permanent objects; 1 and the remedy was a 
 substitute for the assize in cases where the thing sought 
 to be recovered was of a corporeal nature. 2 
 
 § 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 neces- 
 sity of confining the action to such things as the sheriff 
 might with certainty have recourse to for the purpose of 
 delivering possession after judgment. 3 
 
 § 97. Nature of the interest sought to he 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 ; 5 
 something capable of physical possession, 6 and of which 
 the owner can be disseized, 7 and of which possession can 
 be delivered by the sheriff to the plaintiff. 8 
 
 § 98. Plaintiff's title and interest. — The plaintiff, as will 
 presently appear, must be vested with a present subsisting 
 title, or corporeal estate in the premises, 9 or with an un- 
 restricted right to the immediate possession, 10 which must 
 be of some duration and exclusive ; and the action cannot 
 be maintained unless the interest or estate be more sub- 
 stantial than a mere license to use the land, or the right to 
 
 1 2 Bla. Com. p. 17. 
 
 3 Den d. Farley v. Craig, 15 N J. L. 191. 
 
 3 Runn. on Eject. (Am. ed.) p. 121. 
 
 •" Den d. Farley v. Craig, 15 N. J. L. 191. 
 
 * Jackson v. Buel, 9 Johns. (N. Y.) 298; Nichols v. Lewis, 15 Conn. 137. 
 
 6 Woodhull v. Rosenthal, 61 N. Y. 382. 
 
 1 See Marquis Cholmondeley v. Lord Clinton, 2 Meriv. 361. 
 
 8 Black v. Hepburne, 2 Yeates (Pa.), 331; Den d. Farley v. Craig, 15 N.J. L. 
 192 ; Jackson v. May, 16 Johns. (N. Y.) 184; Doe d. Earl of Falmouth v. Alderson, 
 I M. & W. 210; Crocker v. Fothergill, 2 B. & Aid. 652 ; Nichols v. Lewis, 15 Conn. 
 137. 
 
 9 Woodhull v. Rosenthal, 61 N. Y. 382. See Ferris v. Brown, 3 Barb. (N. Y.) 
 105. 
 
 10 Betz v. Mullin, 62 Ala. 365. "Ejectment is a possessory action to the extent 
 
§ 100.] INTERESTS FOB WHICH EJECTMENT LIES. 53 
 
 a standing place thereon. 1 On examining many of the 
 older cases apparently involving the question as to 
 whether ejectment could be supported for the property 
 contained in the demise, it will be found that they really 
 turned largely upon the proper description of the subject 
 matter of the action. 2 
 
 § 99. Reservation of right of entry in a deed. — In the case 
 of Jackson v. Buel, 3 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 build- 
 ing 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 eject- 
 ment. The first reason assigned by the court is that the 
 interest would be considered a tenement within the decisions 
 under the English settlement law ; this test, though some- 
 times applied in England, can hardly, as we shall presently 
 .see, be considered a safe criterion. Another ground sug- 
 gested — that the grantor possessed a right of entry, and 
 thatthe 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 prcesenti is fatal, and consti- 
 tutes a complete defense to the action. 4 The plaintiff must 
 
 •that the right of possession to the premises, on the part of the plaintiff, at the com- 
 mencement of the suit, is essential to a recovery." McFarland v. Goodman, 6 Biss. 
 
 112. 
 
 1 See King v. Inhabitants of Mellor, 2 East, 190. See Goodtitle d. Miller v._ 
 Wilson, ii East, 334-345. It is provided by statute in Maine 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. Savags, 
 C. J., said that a license is an authority to enter on the lands of another with- 
 out possessing an interest in the land. Mumford u. Whitney, 15 Wend. (N. 
 Y.) 380. It differs from an easement which is an interest in lands. Doolittle v. 
 Eddy, 7 Barb. (N. Y.) 78. 
 
 ■ See Longfield on Eject, p. 12. 
 
 3 9 Johns. (N. Y.) 298. 
 
 4 Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y), 407; City of Cincinnati v. 
 White, 6 Peters, 431; Sands v. Hughes, 7 Alb. L. J. 43. " An ejectment being a 
 
54 INTEKESTS FOE WHICH EJECTMENT XIES. [§ 102. 
 
 have a right of entry in virtue of or incident to some cor- 
 poreal estate or interest in the premises, 1 for the right to 
 take actual possession of the laud is the question to be 
 tried, and constitutes the foundation of the action, what- 
 ever may be the character or source of the claimant's title.* 
 Chi tty says: "A party having a right of entry, whether 
 his title be in fee simple, fee tail, in copyhold, for life,, 
 or years, may support an action of ejectment." 3 
 
 § 101. True test as to when ejectment lies. — " The true test 
 of this action," says the New York Supreme Court, " seems 
 to be, that the thing claimed should be a corporeal heredita- 
 ment, 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." 4 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. Bights 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 better rule seems to be that the rights- 
 and privileges appurtenant to the lands may be recovered. 
 therewith. 6 It seems to be settled that land not mentioned 
 
 possessory remedy, the lessor of the plaintiff must have a right of entry when this, 
 action is brought; for if his entry be taken away he cannot legally enter to make a 
 lease to try the title ; and he cannot be allowed to prosecute his right by an unlaw- 
 ful act." Gilbert on Eject., p. II. 
 
 1 Taylor v. Horde, I Burr. 6o, 119; Price v. Osborne, 12 Ired. (N. C.) Law, 26; 
 Jackson v. Sclover, 10 Johns. (N. Y.) 368 ; Jackson v. 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. The easement of drainage is no defense to an 
 information by the commonwealth to assert title to lands. Commonwealth v. City 
 of Roxbury, 9 Gray (Mass.), 451. 
 
 2 Colston v. McVay, 1 A. K. Mar. (Ky.) 250; Clay v. Ransome, I Munf. (Va.> 
 455- 
 
 3 1 Chitty on Pleadings, p. 211. 
 
 4 Rowan v. Kelsey, 18 Barb. (N. Y.) 484, 488. For purposes of taxation, a pierin 
 a river has been held to be real estate. Smith v. The Mayor, 68 N. Y. 554. See 
 Railroad and Bridge Co. v. District of Columbia, 1 Mackey (D. C), 227. Rails- 
 fastened to a roadbed are real estate. Northern Central Ry. Co. v. Canton Co., 30 Md. 
 354. A statue placed upon a pedestal built some distance in the earth, and not se- 
 cured to the pedestal except by its own gravity, is real estate which will pass under 
 a conveyance of the land. Snedeker v. Warring, 12 N. Y. 170. 
 
 5 Crocker v. Fothergill, 2 B. & Aid. 652-661 ; Newman v. Holdmyfast,, 1 Str. 54; 
 
§ 103.] INTERESTS FOR WHICH EJECTMENT LIES. 55 
 
 in a deed does not pass as an appurtenant to another dis- 
 tinct parcel of land. 1 A description including " adjoining" 
 land does not embrace a small island. 2 The word appur- 
 tenances will not pass any corporeal real property but 
 merely incorporeal easements or rights and privileges. It 
 will not include a strip of land adjacent to that granted. 8 
 A grant of an easement only carries with it whatever is req- 
 uisite for its fair and reasonable enjoyment, 4 but the fee 
 of the land remains undisturbed. 5 
 
 § 103. Annexation to the soil. — It is frequently said that 
 ejectment will lie for anything attached to the soil, 6 but 
 this test cannot by any means be regarded as conclusive. 
 It is probably derived from the common law principle 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 con- 
 clusive, however, with regard to fixtures, as to which three 
 criteria are now generally applied : first, annexation to the 
 
 Longfield on Ejectment, p. n; Baker u. Roe, Hardw. 119. Compare Gubbins v. 
 Massy, 3 Irish L. R. 239. See Taylor v. Gladwin, 40 Mich. 232, in which case 
 the declaration claimed and the judgment recited as included in the recovery, the 
 right to use an adjacent alley. This recital was declared to be nugatory, as the 
 easement in the alley was an incorporeal and intangible 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. In Provident Institution for Savings 
 v. Burnham, 128 Mass. 462, Gray, C. J., said: "Easements and restrictions cannot 
 he recovered or enforced, and need not be set forth, in a writ of entry," citing 
 Stearns on Real Actions, 150 ; Proprietors of Locks, &c. v. Nassau & Lowell R. R., 
 104 Mass. 1. Compare Leonard v. White, 7 Mass. 6; Kenniston v. Hannaford, 58 
 N. H. 28. See § 527. 
 
 1 Harris v. Elliott, 10 Peters, 54 ; Rivas v. Solary, 18 Fla, 122-127 ; Ammidown 
 v. Granite Bank, 8 Allen (Mass.), 292; Ogden v. Jennings, 62 N. Y, 526. See 
 Linthicum v. Ray, 9 Wall. 241. 
 
 8 Miller v. Mann, 55 Vt. 475. See Armstrong v. Du Bois, 90 N. Y. 102. 
 
 3 Ogden v. Jennings, 62 N. Y. 531. See Jackson v. Striker, 1 Johns. Cas. (N. 
 Y.)284; Jackson "J. Hathaway, 15 Johns. (N. Y.) 447; Buszard v. Capel, 8 B. 
 & C. 141. As to what passes as an incident, see Voorhees v. Burchard, 55 N. Y. 
 98; Marvin v. Brewster Iron Mining Co , 55 N. Y. 549; Smith v. The Mayor, 68 
 N. Y. 552. The owner of lands can have no easements in or over his adjoining 
 lands ; and when he sells one parcel, the right to enjoy privileges and conveniences 
 which he when owner of both enjoyed in the other does not pass 'to the purchaser. 
 Stanford v. Lyon, 22 N. J. Eq. 34. See Fetters v. Humphreys, 19 N. J. Eq. 471. 
 One who purchases land at a tax sale takes all the easements and incidents attached 
 or pertaining to the land. Hence the right to wharfage passes to the purchaser on 
 a tax sale of a pier. Smith v. Mayor, 68 N. Y. 557. 
 
 4 See Bakeman v. Talbot, 31 N. Y. 366. 
 
 Amondson v. Severson, 37 Iowa, 606. See Houpes v. Alderson, 22 Iowa, 160. 
 6 Jackson v. May, 16 Johns. 184. 
 
56 INTERESTS FOE WHICH EJECTMENT LIES. [§ 105. 
 
 realty ; second, adaptability to the use or purpose to which 
 the realty is appropriated, and third, the intention of the 
 party making the annexation. 1 It is obvious, therefore, 
 that while ejectment will lie for anything that is a fixture, 
 annexation to the soil is no longer sufficient 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 expense 
 of himself and the defendant, under an agreement to use 
 the same as a common source of power, without limitation 
 as to time, the interests thereby created in the fixtures 
 were in the nature of an estate in lands, 2 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. 3 
 
 § 105. Ejectment for a room, chamber, or portion of a 
 building. — It was contended at one time that the common 
 law definition of land as extending usque ad cmlum i et ad 
 infernos, 5 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 ; hut 
 it is now settled that interests in realty may be created 
 sufficient to support ejectment which fall far short of this 
 comprehensive measure of ownership. 6 Thus the action 
 will lie to recover a room or chamber in a house, 7 even 
 
 1 McRea v. Central Nat'l Bk. of Troy, 66 N. Y. 489. 
 
 8 See Mott v. Palmer, I N. Y. 569. Ruggles, J., said : " The word land, when 
 used in a deed, includes not only the naked earth, but everything within it, and the 
 buildings, trees, fixtures and fences upon it," citing Goodrich v. Jones, 2 Hill. (N. 
 Y.) 143; Walker v. Sherman, 20 Wend. (N. Y.) 639, 646; Green v. Armstrong, 1 
 Denio (N. Y.), 554. The meaning of the term " real estate " is considered in Merry 
 v. Hallet, 2 Cow. (N. Y.) 497 ; Jenkins v. Fahey, 73 N. Y. 362. Tenement signifies 
 land as well as house or building. Sacket v. Wheaton, 17 Pick. (Mass.) 103. 
 
 3 Hill v. Hill, 43 Pa. St. 521. 
 
 4 See Broom's Maxims, 396. 
 
 5 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. 
 
 6 Doe d. Freeland v. Burt, jc T. R. 701. 
 
 7 White •„. White, 16 N. J. L. 202; Anon, 3 Leon. 210, de una noma; Runn. 
 on Eject, pp. 122, 123; Gilliam v. Bird, 8 Ired. (N. C.) Law, 280; Doe d. Col- 
 
§ 106.] INTERESTS EOR WHICH EJECTMENT LIES. 57 
 
 ■without any grant or devise of land, 1 for possession may be 
 delivered of a portion of a building and there is clearly 
 enough to direct the sheriff in execution. 2 
 
 § 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. 3 "It is manifest," says Mr. 
 Justice Brown of the New York Supreme Court, "that the 
 common law signification of land, which embraces all above 
 as well as all below, to an indefinite extent, cannot be applied 
 to such interests." 4 A man may have an inheritance in 
 an upper chamber, 5 and a house may be held separate from 
 the land on which it stands, 6 when placed there by per- 
 mission 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. 7 In Pennsyl- 
 vania, a verdict for the use of a brick-house and store-room 
 has been sustained. 8 So ejectment lies for a "passage- 
 room," 9 for a part of a house known by the name of the 
 " Three Kings in A," 10 for a vestry, 11 and for the fourth 
 part of a house in T$. n Different horizontal strata may be 
 
 •naghi v. Bluck, 8 C. & P. 464 ; Ellicott v. Mosier, 7 N. Y. 201. " There may be 
 •within the same territorial limits distinct estates of inheritance. The different 
 stories of the same dwelling may be held in fee by different owners. The title to 
 the surface of the soil may be in one person, the title to the mines, or different 
 strata under the surface, may be in others." Zinc Co. v. Franklinite Co., 13 N. J. 
 Eq. 341. 
 
 1 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. 
 
 2 Bacon's Abr. Eject. D. 
 
 2 Doe d. Freelandw. Burt, 1 T. R. 701 ; Rowan v. Kelsey, 18 Barb. (N. Y.)484. 
 
 4 Rowan v. Kelsey, 18 Barb. (N. Y.) 484, 489. 
 
 5 Coke on Litt. 48 b. 
 
 6 Pullen v. Bell, 40 Me. 314 ; Dame v. Dame, 38 N. H. 429 ; Howard v. Fes- 
 senden, 14 Allen (Mass.) 124; Doty v. Gorham, 5 Pick. (Mass.) 487 ; Marcy v. 
 Darling, 8 Pick. (Mass.) 283. 
 
 ' Ibid. See Gilliam v. Bird, 8 Ired. (N. C.) Law, 280. 
 
 8 Miller v. Casselberry, 47 Penn. St. 376. 
 
 9 Bindover v. Sindercombe, 2 Ld. Raymond, 1470. 
 
 10 Sullivane v. Seagrave, 2 Str. 695. 
 
 11 Hutchinson v. Puller, 3 Lev. 96. 
 
 J2 Rawson v. Maynard, Cro. Eliz. 286. 
 
58 INTERESTS FOR WHICH EJECTMENT LIES. [§ 107. 
 
 owned by different people. 1 The title and ownership of 
 permanent erections made by one person upon the lands 
 of another generally accrues to the holder of the title to 
 the land, but it is considered perfectly competent for par- 
 ties to so regulate their respective interests by contract 
 that one may be the owner of the buildings and another of 
 the land. 2 
 
 § 106a. Horizontal divisions of land. — It has been said 
 that the term land "includes not only the surface of the 
 ground, but the substance or body of the soil, usque ad 
 medium terrce, and all accessions to the soil, with the water 
 and open space or air over them, usque ad caelum." 3 While 
 prima facie when a man owns the surface he owns all ac- 
 cessions to it, such as trees, houses and other structures, 
 and his proprietorship extended from the centre of the 
 earth to the clouds, yet this is only a presumption and not 
 the result of any "legal impossibility of severing the 
 house from the land, or one story of it from another, or 
 mines from the surface. . . . Different proprietorships 
 of land may be bounded or defined by horizontal as well as 
 perpendicular lines." 4 
 
 § 107. Vaults. — A controversy arose, in Coster v. Peters, 5, 
 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 posses- 
 sion of the vault was not a mere easement; and that 
 "ownership of soil extends downwards and upwards 
 from the surface as much as it does over the mere super- 
 ficial area, and may be subdivided horizontally as well as 
 
 1 See Casselman v. Packard, 16 Wis. 117. 
 
 2 People ex. rel. Muller v. Board of Assessors, 93 N. Y. 311 : Smith v. Benson, 
 1 Hill. (N. Y.) 176. 
 
 3 1 Am. J^aw. Reg., [N. S.] p. 577. * Ibid, p. 578, 
 6 5 Rob. (N. Y.) 192-202. 
 
§ 109.] INTERESTS EOK WHICH EJECTMENT LIES. 59 
 
 perpendicularly;" that being land in itself the vault car- 
 ried with it all the rights of dominion, and not a mere right 
 to a temporary or permanent use of the vault as an inci- 
 dent to the occupation of another adjoining piece of land, 
 and that it was not such an appurtenant as to pass by a 
 mere conveyance of the latter. 
 
 § 108. Mining rights and interests. — That ejectment may 
 be maintained for the recovery of the possession of a mine 
 is held in many cases. This may seem singular when it is 
 remembered that a mine forms an estate of inheritance dis- 
 tinct from that of the surface. The action of ejectment, 
 too, is possessory, and the subject of contention in the ac- 
 tion must be capable of actual delivery of possession by the 
 sheriff. The rights of the owner in the excavated parts of 
 a mine would seem to be of an incorporeal nature, and all 
 the portions which are severed instantly lose the character 
 of land and become mere personal chattels. The applica- 
 tion of ejectment to such interests would certainly not 
 seem to correspond with the exact definition of the pur- 
 pose of the action. "But in this, as in some other in- 
 stances, the action of ejectment has been carried beyond 
 its original limits." * 
 
 § 109. Coal mine.— A coal mine or a coal pit may be 
 recovered in ejectment, 2 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. 
 In the King's Bench, as early as 1692, a declaration in 
 ejectment "de mineris carbonum" was considered sufficient 
 
 1 Bainbridge Law of Mines (4th edition, London), p. 333. See Harris v. The 
 Equator M. & S. Co., 3 McCra. 14; United States v. Castillero, 2 Black, 221 ; 
 Jackson v. Oltz, 8 Wend. (N. Y.) 440; Zinc Co v. Franklinite Co., 13 N. J. Ch. 
 34-1- A gold mine is real estate, and can only be transferred by an instrument in 
 writing. Melton v. Lambard, 51 Cal. 258. Concerning the right to mine, &c, 
 consult note to McClintock v. Bryden, in 63 Am. Dec. p. 91. 
 
 _ 2 Comyn v. Kyneto, Cro. Jac. 150; Comyn v. Wheatly, Noy, 121 ; Bac. Abr. 
 Eject. D. See Turner v. Reynolds, 23 Penn. St. igg ; Jenk. Cent., 313 ; Harebottle v. 
 Placock, Cro. Jac. 21 ; Andrews v. Whittingham, Carthew, 277; Whittingham v. 
 Andrews, 1 Show. 364; s. c. 4 Mod. 143; I Salk. 255; 5 Morrison Min. Rep. 198 ; 
 Grotz v. Lehigh & W. B. Coal Co., 1 Luz. Leg. Reg. Rep. 53. Comyn v. Kyneto 
 is also reported by Noy (p. 121) under the name of Comyn v. Wheatly, the follow- 
 ing words, which our modern reporters might well imitate, constituting the entire 
 report: "Upon error, it was resolvM that an Ejectione firm, lies, of a Cole-mine. 
 43 E. 3, 35. An assize lies and was brought for a Cole-mine." 
 
(50 INTERESTS FOR WHICH EJECTMENT LIES. [§ 112. 
 
 without specifying the number of mines. 1 An ejectment 
 brought by a cestui que trust for a lead mine was defeated, 
 not because of its nature, but for the reason that "nothing 
 but a legal estate can be recovered by ejectment." 2 
 
 § 110. Tin iound. — 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 
 defendant's wrongful entry ; 3 but ejectment will not lie for 
 tin bounds eo nomine ; they should be described as a mine 
 lying within certain bounds called tin bounds, 4 the tin 
 bound itself being a mere liberty of entry and marking 
 out certain bounds within which the party entering ac- 
 quires the right to work a tin mine. 
 
 § 111. Quarry. — In Ireland a distinction has been sug- 
 gested between a mine and a quarry ; the former being 
 defined as a place where the substratum is excavated but 
 the surface left unbroken, whereas, in a quarry, the sur- 
 face is opened ; and it was intimated by the Irish Court 
 of Common Pleas that ejectment would not lie for a quar- 
 ry. 5 Again, the word "mine" is defined to import a cav- 
 ern or subterranean place containing metals or minerals. 
 This definition does not include a quarry. 6 The distinc- 
 tion, however, 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. 7 
 
 § 112. Oil wells. — The decisions in Pennsylvania with 
 regard to oil wells do not seem to be altogether reconcila- 
 
 1 Whittingham v. Andrews, 4 Mod. 143. See Caldwell v. Copeland, 37 Pa. St. 
 427. 
 
 2 Goodright v. Swymmer, 1 Kenyon, 385 ; s. c. 5 Morrison's Mining Rep. 200. 
 See § 223. 
 
 3 Vice v. Thomas, 4Y. & C. 538. 
 
 4 Doe d. Earl of Falmouth v. Alderson, Tyrw. & G. 543; s. c. I M. & W. 210. 
 
 5 Brown v. Chadwick, 7 Irish C. L. 101. See Clement v. Youngman, 40 Penn. 
 St. 341 ; Clark v. Brazeau, 1 Mo. 290. 
 
 6 Listowel v. Gibbings, 9 Irish C. L. 223. 
 
 7 The King v. Inhabitants of Sedgley, 2 B. & Ad. 65, and note. Compare Don- 
 ovan v. Vandemark, 88 N. Y. 668. 
 
§114.] INTERESTS FOE WHICH EJECTMENT LIES. 01 
 
 ble with the general principles which govern actions of 
 ejectment, or with each other. A lease granted " for the 
 sole and only purpose of mining and excavating for petro- 
 leum, coal, rock or carbon oil, or other valuable mineral or 
 volatile substances," was held to vest a corporeal interest 
 which would support ejectment. 1 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, 
 notwithstanding the grant under the lease may have been 
 of an incorporeal nature. 2 But where E. granted W. the 
 exclusive right to bore for oil, reserving a one-fourth 
 interest, with an agreement that, in the event of profitable 
 results, after a reasonable time for experiment, the lease 
 was to become perpetual, otherwise the land to revert to E.; 
 and E. brought ejectment for a part of the land, alleging 
 that the working of that portion had not proved profitable 
 — it was held that ejectment would not lie to test the right 
 to bore for oil. 3 
 
 § 113. Ibight and privilege of "boring for oil. — An agreement 
 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 incorporeal hereditament only, and that the 
 remedy for any disturbance of the rights of the grantee 
 was by action on the case and not ejectment. 4 The case is 
 distinguished by the court from Caldwell v. Pulton, 5 where 
 the conveyance in controversy was of the full right title 
 and privilege of digging and taking away stone coal to 
 whatever extent the grantee might think proper. This was 
 held to be a conveyance of the entire ownership of the coal 
 in place. 
 
 § 114. Oil regarded as a mineral. — In Stoughton's Appeal 6 
 
 1 Barker v. Dale, 3 Pittsb. (Pa.) igo. 
 
 2 Earns v. Tanner, 66 Penn. St. 297. 
 
 3 Rynd v. Rynd Farm Oil Co., 63 Penn. St. 397. See § 6183. 
 
 4 Union Petroleum Co. v. Bllvin Petroleum Co., 72 Penn. St. 173. See Funk v. 
 Haldeman, 53 Penn. St. 229. 
 
 6 31 Penn. St. 475; s. c. 3 Mor. Min. Rep. 238. 
 
 6 88 Penn. St. 198 (decided in 1878). 
 
62 INTERESTS FOR WHICH EJECTMENT LIES. [§ 116. 
 
 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 
 collect 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 ad- 
 judged void. This decision of the highest court of Penn- 
 sylvania, rendered subsequent to the cases already dis- 
 cussed, 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. 
 
 § 115. Vein or lode. — We have . seen already that the 
 ancient common law doctrine that the ownership of land 
 necessarily includes everything above and below it is now 
 obsolete. This is illustrated in the case of veins and lodes 
 no less than in that of rooms or portions of a buildiDg. 
 Thus ejectment lies for a vein or lode beneath the surface; 
 but the plaintiff, if successful, acquires no right to the 
 hoisting works erected for the purpose of taking ore from 
 the vein recovered, unless the surface upon which the 
 hoisting works stand is also recovered. 1 
 
 § 116. Possessory mining claims. — And ejectment will lie 
 to recover possessory as well as patented mining claims or 
 interests, 3 and for an undivided interest in a mining claim 
 and lode. 3 In California an owner of an undivided interest 
 in a mining claim is eutitled to the exclusive possession 
 against parties who show no title. 4 
 
 1 Bullion Mining Co. v. Croesus Gold & S. M. Co., 2 Nevada, 168. - See §§ 105, 
 
 • Sears v. Taylor, 4 Col. 3S ; Atkins v. Hendree, 1 Idaho, 107. 
 
 3 Mining Company v. Taylor, 100 U. S. 37; Waring v. Crow. 11 Cal. 366: s. C. 
 5 Morrison's Mining Rep. 204. 
 
 4 Melton v. Lambard, 51 Cal. 258. See §§ 300, 301. 
 
§ 121.] INTERESTS FOR WHICH EJECTMENT LIES. 63 
 
 § 117. Land under water. — Land under water may be 
 made the subject of an action of ejectment, 1 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. 3 
 
 § 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. 3 
 But this it may be observed involves purely a question of 
 title rather than a consideration of the subject matter for 
 which ejectment may be brought. 
 
 § 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. 4 And in Connecticut the rights of a riparian 
 proprietor to land below high-water may be vindicated in 
 this action. 5 
 
 § 120. Rivulet or pool. — A rivulet may be recovered by 
 laying the ejectment for so many acres of land covered by 
 water ; 6 and so of a pool or pit of water — the words compre- 
 hending both land and water. 7 We have already observed 
 that cases such as these turn largely upon the question of 
 what constitutes a proper description of the subject matter 
 of the action. 
 
 § 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 
 
 1 Martin v. Waddell, 16 Peters, 367 ; Casey v. Inloes, 1 Gill (Md.), 430. See 
 Browne v. Kennedy, 5 Hair. & J. (Md.), 195. 
 
 2 People v, Mauran, 5 Denio (N. Y.), 389. 
 
 3 Austin v, Rutland R. R. Co., 45 Vt. 215; but see Ledyard v. Ten Eyck, 36 
 Barb. (N. Y.) 102. 
 
 4 Champlain & St. L. R. R. Co. v. Valentine, 19 Barb. (N. Y.) 484. 
 
 5 Nichols v. Lewis, 15 Conn. 137. 
 
 6 Challenor v. Thomas, Yelv. 143; s. c. I Brownl. 142. 
 ' Ibid.; see, also, Co. Litt. 5 b. 
 
64 INTERESTS FOR WHICH EJECTMENT LIES. [§ 123. 
 
 the latter may maintain ejectment for a wharf constructed 
 beyond low-water mark by defendant without authority. 1 
 
 " The Pacific Ocean belongs to no one nation, but is the 
 common property of all; " 2 and each State owns the beds of 
 all tide- waters within its jurisdiction unless they have been 
 granted away. 8 
 
 § 122. Tide lands. — Ocean boundaries. — In Oregon tide 
 lands on the Columbia river, which are covered and uncov- 
 ered by the ebb and flow of the sea, belong to the State by 
 virtue of its sovereignty, and may be recovered by eject-. 
 ment. 4 The purchasers of tide lands from adjoining owners 
 are given by statute the right to acquire the title of the 
 State. 5 Incidentally it may be observed that the proprietor 
 of lands bounded on the sea-shore takes no fixed freehold, 
 but one that shifts with the changes that gradually take 
 place, and subject to the common incidents that may in- 
 crease or diminish the extent of his boundaries. 6 
 
 § 123. Land swallowed by the sea.— In Murphy v. Norton 1 
 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 institu- 
 ted to test the ownership of four miles of sand beach ex- 
 tending 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 upon and 
 extending down to the ocean ; that as far back as 1797 the 
 shore or line of the ocean extended outside of the present 
 sea front; that, in 1860, the plaintiff's shore was cut off,, 
 washed away, and swallowed by the sea ; that since 1870 the 
 
 1 Coburn v. Ames, 52 Cal. 385. See People v, Davidson, .30 Cal. 389. 
 ! Lord v. Steamship Co. 102 U. S. 544 
 
 'McCready z>. Virginia, 94 U. S. 394. See Pollard v. Hagan, 3 How. 212; Smith 
 v. Maryland, 18 How. 74; Mumford v. Wardwell, 6 Wall. 436. 
 
 4 Hinman v. Warren, 6 Oregon, 408. See Barney v. Keokuk, 94 U. S. 324. 
 
 5 De Force v. Welch, 10 Oregon, 507. 
 
 6 Camden & A. Land Co. v. Lippincott, 45 N. J. Law, 417. Compare Matter of 
 City of Brooklyn, 73 N. Y. 184; White's Bank of Buffalo v. Nichols, 64 N. Y. 65; 
 Trustees of East Hampton v. Kirk, 68 N. Y. 459 ; Cook v. McClure, 58 N. Y. 437. 
 
 1 61 How. Pr. (N. Y.) 197. Affirmed sub nomine Mulry v. Norton, 29 Hun 
 (N. Y.), 660. 
 
§ 124.] INTERESTS FOR WHICH EJECTMENI LIES. 65 
 
 beach had emerged from the sea, and reformed outside the 
 mainland, divided from it by a bay of navigable water, but 
 within the plaintiff's 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 right of sovereignty as an accretion upon Long Beach. 
 The court held that the title of the original owner attached 
 to the restored beach. The doctrine of accretion was held 
 not to apply in favor of the town because the change was 
 not gradual and imperceptible, but was brought about by 
 sudden convulsions of nature. In re Hull & Selby Eailway 1 
 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 encroaches up- 
 on private land by gradual and imperceptible progress, 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 : z " 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 
 quantity, and bounding upon the firm land, the same can 
 be known, though the sea leave this land again, or it be 
 by art or industry regained, the subject doth not lose his 
 property ; and accordingly it was held by Cooke and Foster, 3 
 though the inundation continue forty years." 
 
 § 124. New islands. — A similar question was decided by 
 
 ' 5 M. & W. 327. Compare Trustees of East Hampton v. Kirk, 84 N. Y. 215. 
 
 2 De Jure Maris Hargrave's Law Tracts, p. 15. See pp. 16, 30, 31, 36, 37; 2 Bla. 
 Com. pp. 261, 262. 
 
 3 M. 7, Jac. C. B. 
 
 5 
 
G6 INTERESTS FOR WHICH EJECTMENT LIES. [§ 124. 
 
 the Court of Common Pleas of Delaware County, Pennsyl- 
 vania, as early as 1815. 1 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 consequently 
 overflowed by the water of the river. Subsequently, a bar 
 began to form by the deposit of alluvion, and appeared 
 above 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 up- 
 wards 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 Supreme Court of Connecticut 2 it appeared 
 that the plaintiff's ancestor had sunk an old scow filled with 
 stones in a navigable 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. Plaintiff 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 settled law, in Connecticut, 
 that the title to an island emerging, as this did, in nayi- 
 
 1 Morris v. Brooke, 25 Albany Law Journal, 90. See Morton v. Manhattan 
 Beach Imp. Co., 20. Hun (N. Y.), 266. 
 
 2 , TraCy v Norwidl & w - R - R - Co., 39 Conn. 382. Compare McCullbugh v. 
 Wall, 4 Rich. Law (S. C), 68 ; s. c. 53 Am. Dec. 715. Islands that form in an un- 
 navigable river belong to the adjoining owners who have a property in the bed to 
 the middle. Ingraham v. Wilkinson, 4 Pick. (Mass.) 268; s. c. 16 Am. Dec. 342. 
 If the island forms or lies in the thread of the river it will be divided between the 
 riparian proprietors on the opposite sides according to tfce original thread. . Inhabi- 
 tants of Deerneld v. Arms, 17 Pick. (Mass.) 41 ; s. c. 28 Am Dec 276 - : "'" 
 
§126.] INTERESTS FOR WHICH EJECTMENT LIES. 67 
 
 gable waters, vested in the State, and that a grant from 
 the State could be presumed from long continued and ad- 
 verse possession, but that the plaintiff's possession was not 
 sufficiently 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 to which the land is contiguous. It is different from 
 reliction, 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 progress has been made, they could not perceive it 
 while the process was going on. Whether it is the effect 
 •of natural or artificial causes makes 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 essential attribute of the original property. 
 The title to the increment rests in the law of nature." 1 
 These accretions constitute a part of the realty, and may 
 be enjoyed and protected as such. Before the proprietor 
 can set up his claim to accretions, he must, however, es- 
 tablish title to the shore ; otherwise, inquiries concerning 
 his rights would be mere abstractions. 2 
 
 § 126. Salt lottery. — 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. 3 By the grant of a boilery of salt it is said that the 
 soil passes, for it is the whole profit of the soil, 4 and the 
 
 ' 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 ; Gerrish v. Clough, 48 
 N. H. 9 ; Boorman v. Sunnuchs, 42 Wis. 233 ; Mulry v. Norton, 29 Hun (N. Y.), 
 660 ; Camden and A. L. Co. v. Lippincott, 45 N. J. Law, 405 ; Lammers v. Nis- 
 sen, 4 Neb. 245 ; Posey v. James, 7 Lea (Term.), 101 ; Warren v. Chambers, 25 
 Ark. 120; Minto v. Delaney, 7 Oregon, 337; Saulet v. Shepherd, 4 Wall. 502. 
 
 2 Bates v. Illinois Central R. R., 1 Black, 208. 
 
 3 Sanders v. Patridge, Noy, 132; Smith v. Barrett, 1 Sid. 161; s. c. I Lev. 114. 
 4 -See Comyn v. Kyneto, Cro. Jac. 150; Co. Litt. 4 b. 
 
68 INTERESTS FOE WHICH EJECTMENT LIES. [§ 129. 
 
 water being fixed in a certain place within the bounds and 
 compass of the well is considered a part of the soil. 1 
 
 § 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 inacces- 
 sible at the time of trial, so that the sheriff could not de- 
 liver 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 inaccessible at the time the judgment is- 
 entered, or during the trial. 2 
 
 § 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. 3 To require the bringing 
 of separate actions in such cases would be unmeaning 
 and useless, for manifestly all the various titles could be 
 as fully investigated in a single proceeding as in several 
 actions. 
 
 § 129. Dower. — At common law a widow cannot main- 
 tain ejectment for dower until it has been admeasured or 
 set off to her, because she is not seized of any part of the 
 land, and has no ri«;ht of entry, or of present possession, 
 before assignment ; 4 nor is her grantee before admeasure- 
 ment in any better position. 5 And when ejectment i& 
 brought, after admeasurement, the validity of the widow's 
 
 1 Gilbert on Eject. (2d ed.) p. 62. 
 
 2 Woodhull v. Rosenthal, 61 N. Y. 382, per Dwight, C. See §§ 96-101, 572. 
 
 a Den v. Snowhill, 13 N. J. L. 23. See Worrall v. Beck, cited in I Wils. 1; 
 Jackson v. Woods, 5 Johns. (N. Y.) 278, per Kent, Ch. J. ; Jackson v. Sidney, X2 
 Johns. (N. Y.) 185. 
 
 4 Doe v. Nutt, 2 Car. & P. 430; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 
 67, per Spencer, Ch. J. ; Weaver v. Crenshaw, 6 Ala. 873 ; Chapman v. Sharpe, 
 2 Show. 184; Pringle v. Gaw, 5 S. & R. (Pa.) 536; Jackson v. O'Donaghy, 7 Johns. 
 (N. Y.) 247; Chapman v. Armistead, 4 Muni. (Va.) 382; 4 Kent's Com. 62; Dor- 
 sey on Ejectment, 43. 
 
 5 Jones v. Hollopeter, 10 S. & R. (Pa.) 326. 
 
.§ 130.] INTERESTS FOR WHICH EJECTMENT LIES. 69 
 
 ■claim to dower, the title of her husband 1 his seizin, and her 
 marriage, 8 may all be controverted and tried, notwithstand- 
 ing the admeasurement. 8 
 
 The many rules applicable to this highly favored in- 
 terest cannot be fully considered in this work, but we may 
 (observe that the widow's complaint in ejectment for dower 
 is sufficient if it alleges seizin and death of the husband 
 ^nd wrongful possession by the defendant. 4 In New York 
 the widow's action must be brought against the actual oc- 
 cupant, 5 and there must be a jury trial. 6 Her interest may 
 also be reached by her creditors. 7 
 
 Novel questions often arise as to what person may 
 ■claim dower and from what properties it may be claimed. 
 It may be noted that a foreign born widow of a naturalized 
 citizen may have dower. 8 Partnership lands are in equity 
 subject to the lien of the partnership's creditors, and the 
 better rule seems to be that the widow's right of dower is 
 -subordinate to this lien, 9 and to the final adjustment of 
 the partnership affairs. 10 
 
 § 130. Land subject to an easement, servitude, or public use. 11 
 — In general, ejectment lies to recover the possession of 
 ihe soil subject to either a public or private easement over 
 
 1 The defendant, though having a deed of the fee, may show that the husband 
 had only a leasehold estate. Finn v. Sleight, 8 Barb. (N. Y.) 401. 
 
 2 The validity of the marriage is determined by the law of the State where it was 
 -entered into. Van Voorhis v. Brintnall, 86 N. Y. 22. 
 
 3 Parks v. Hardey, 4 Bradf. (N. Y.) 15 ; Hyde v. Hyde, 4 Wend. (N. Y.) 630; 
 and see Sparrow v. Kingman, 1 N. Y. 242, and cases cited. 
 
 4 Draper v. Draper, 11 Hun (N. Y.), 616. Compare McKay v. Freeman, 6 
 'Oregon, 449. The heirs at law are proper parties in an action to secure an assign- 
 ment of dower. Van Name v. Van Name, 23 How. Pr. (N. Y.) 247. 
 
 5 Ellicott v. Mosier, 7 N. Y. 201. 
 
 6 Jones v. Emery, I N. Y. Civ. Pro. 338. 
 
 7 Payne v. Becker, 87 N. Y. 153. 
 
 8 Burton v. Burton, 1 Keyes (N. Y.), 359. See Headman v. Rose, 63 Ga. 465 ; 
 Kelley v. Owen, 7 Wall. 496. 
 
 9 Sumner v. Hampson, 8 Ohio, 365. See Greene v. Greene, 1 Ohio, 535 ; s. c. 
 13 Am. Dec. 642, and note. 
 
 10 Winter v. Eckert, N Y. Daily Reg., April 7, 1883. See Fairchild v. Fairchild, 
 -64 N. Y. 471 ; Chester v. Dickerson, 54 N. Y. I ; Van Brunt v. Applegate, 44 N. Y. 
 
 544; Staats v. Bristow, 73 N. Y. 264. 
 
 11 For a consideration of the right of municipal corporations to maintain eject- 
 ment for the possession of public streets or places, see Chap. VIII. 
 
70 INTERESTS FOR WHICH EJECTMENT LIES. [§ 131 ► 
 
 it. 1 In the leading case of Goodtitle v. Alker, 2 Lord Mans- 
 field decided, after exhaustive argument, that the action 
 might be maintained by the owner of the soil for land 
 which was part of the King's highway. In the argument 
 of counsel in this case, reference was made to a ruling, at- 
 tributed to Lord Hardwicke, that, as no possession could 
 be delivered of the soil of a highway, therefore no eject- 
 ment 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 overruled by Lord Mansfield's decision. 3 
 
 § 131. City of Cincinnati v. White discussed. — The Supreme 
 Court of the United States, however, in City of Cincinnati 
 v. White, 4 intimated the opinion that the supposed ruling 
 of Lord Hardwicke was sound in principle, and that eject- 
 ment was not maintainable for lands dedicated to a public 
 use, for the reason that the plaintiff by invoking that rem- 
 edy seeks to be put in actual possession of the land, and 
 this would subject him to an indictment for a nuisance, 
 the private right of possession beiug in direct hostility with 
 the easement or use to which the public are entitled; and 
 taking possession subject to the easement being utterly im- 
 practicable. This action it is to be observed was brought 
 to test the right of the public to an easement in land, and 
 the remarks of Mr. Justice Thompson on the question of a 
 recovery subject to an easement must therefore be consid- 
 ered, and indeed have generally been treated, as entirely 
 oliter. 6 In addition to the ruling attributed to Lord Hard- 
 wicke the court cite only two cases as authority for the 
 proposition that ejectment is not maintainable for land 
 subject to a public use. In Stiles v. Curtis, 6 the first case 
 
 1 Tillmes v. Marsh, 67 Perm. St. 507, per Sharswood, J. ; Cooper v. Smith, 9 S. 
 & R. (Pa.) 26. See §§ 526, 571, 492^. 
 '1 Burr. 133. 
 
 3 See Terre Haute and S. E. Ry. Co. v. Rode], 89 Ind. 128; s. c. 10 Am. & Eng- 
 R. R. Cases, 284, also notes, to Mayhew v. Norton, 28 Am. Dec. 304. 
 
 4 6 Peters, 431, per Thompson, J. 
 
 5 Hillyer, J., inadvertently observed in the case of the Central Pacific Railroad 
 Company v. Benity, 5 Sawyer, 120, that Cincinnati v. White, 6 Peters, 431 " does- 
 away with the idea that the owner of the fee may recover possession of land dedi- 
 cated to a public use, subject to the easement." 
 
 6 4 Day (Conn.), 328. 
 
§ 132.] INTERESTS EOR WHICH EJECTMENT LIES. 71 
 
 cited, certain proprietors of an ancient township bad ap- 
 propriated common lands for a public highway, by laying 
 out tbe land adjoining thereto and selling the same as 
 being bounded on tbe highway. At the time of the trial 
 this land had been used as a highway for a century, but 
 was no longer needed for that purpose. One of the adjoin- 
 ing owners inclosed and took possession of a portion of it, 
 and the Supreme Court of Connecticut held that ejectment 
 could not be maintained against him by tbe township pro- 
 prietors. The grounds of the decision do not clearly ap- 
 pear from the opinions of the judges, but it seems to have 
 been considered a sufficient reason for refusing to main- 
 tain the action that the plaintiff by laying out the high- 
 way bad parted with all his title as proprietor. Peck v. 
 Smith, 1 the second case relied upon, was an action of tres- 
 pass by the owner of the fee in a highway, against a de- 
 fendant who had obstructed it by maintaining a shop upon 
 it, and the plaintiff's right to support the action was up- 
 held. The remarks of the court concerning his right to 
 bring ejectment are obiter. The bearing of these cases is, 
 however, 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, 2 and not in any sense an obstruc- 
 tion to the remedies usually invoked by the owner of the 
 fee. 8 
 
 § 132. Ownership of the soil and tlie right to an easement 
 independent. — The grantee of an easement is not the owner 
 or occupant of the estate over which the right extends, 4 
 but the right to the fee and the right to an easement in 
 the same estate 5 are rights independent of each other, and 
 may well subsist together when vested in different persons. 
 
 ' I Conn. 103. 
 
 8 City of Dubuque v. Maloney, 9 Iowa, 450 ; Pomeroy v. Mills, 3 Vt. 279. 
 
 3 s. P. Taylor v. Armstrong, 24 Ark. 102 ; Kenniston v. Hannaford, 58 N. H. 
 28, and cases cited. 
 
 4 Cook Co. v. Chicago, B. & Q. R. R. Co., 35 111. 460. 
 
 6 The gift of a right of way is not a gift of the rock and other materials within 
 the boundaries of the way. Smith v. City Council of Rome, 19 Ga. 89; s. c. 7 Mor- 
 rison's Mining Rep. 306. 
 
72 INTERESTS FOE WHICH EJECTMENT LIES. [§ 133. 
 
 Each can maintain an action to vindicate and establish his 
 rights ; the former to protect and enforce his seizin of the 
 fee ; the latter to prevent a disturbance of his easement. 1 
 It may, therefore, be considered settled that the owner of 
 the fee of a highway, over which the public have an ease- 
 ment for travel-, may recover the land within the limits of 
 the highway, in ejectment against one who has illegally 
 appropriated it to a purpose not authorized by the ease- 
 ment or servitude 3 And the rule is the same with regard 
 to a private way, e. g., an alley, 3 a passage way; 4 and so of 
 a ferry right. 5 The sheriff in such cases delivers posses- 
 sion of land subject to the easement. 6 
 
 § 133. Character of defendant's occupation. — To sustain 
 the action, however, the occupation of the land by the 
 defendant must be wholly inconsistent with the public 
 easement ; ' hence, proof that at the time of the com- 
 mencement of the action the locus in quo was in use by the 
 defendant as one of the public streets of a city, was, in a 
 very questionable case, considered insufficient to sustain 
 ejectment; such use, it was argued, 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. 8 The rule embodied 
 in this case will be discussed presently. 9 Ejectment may 
 
 1 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, 1 Burr. 133 ; Etz v. Daily, 20 Barb. (N. Y) 
 32 ; Lozier v. N. Y. Central R. R. Co., 42 Barb. (N. Y.) 465 ; Carpenters/. Oswego 
 & S. R. R. Co., 24 N. Y. 655 ; Cooper v. Smith, 9 S. & R. (Pa.) 26 ; Warwick v. 
 Mayo, 15 Gratt. (Va.) 528; Boiling v. The Mayor, &c, 3 Rand. (Va.) 563; Wright 
 v. Carter, 27 N. J. L. 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. (N. Y.) 308 ; Stackpole v. Healy, 16 Mass. 35. Writs of Entry.— 
 Hancocks. Wentworth, 5 Mete. (Mass.) 446; Morgan v. Moore, 3 Gray (Mass.), 
 319- 
 
 3 Gordon v. Sizer, 39 Miss. 805. 
 
 4 Morgan v, Moore, 3 Gray (Mass.), 319. 
 
 6 Cooper v. Smith, 9 S. & R. (Pa.) 26. B Ibid. 
 
 ' Adams v. Saratoga & W. R. R. Co., n Barb. (N. Y.) 414. Reversed on 
 another point, 10 N. Y. 328 ; Dewitt v. Village of Ithaca, 15 Hun (N. Y.), 568. 
 See § 135. 
 
 8 Cowenhoven v. City of Brooklyn, 38 Barb. (N. Y.) 9. But see Strong v. City 
 of Brooklyn, 68 N. Y. 1 ; Kurkel v. Haley, 47 How. Pr. (N. Y.), 75 ; Dewitt v. 
 Village of Ithaca, 15 Hun (N. Y.), 568. 
 
 9 See § 161. 
 
§ 134.] INTERESTS FOB WHICH EJECTMENT LIES. 73 
 
 be maintained by the owner of the fee of a highway which 
 is subject to the public easement of travel, for the purpose 
 of ridding the highway of telegraph poles improperly main- 
 tained thereon. 1 
 
 § 134. Bights 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 
 use of the easement. 2 Eeasonable facilities for the enjoy- 
 ment of the easement must be accorded. 3 He may main- 
 tain trespass for any injury done to the soil not incidental 
 to the public right of passage ; 4 as where the defendant 
 continues a shop thereon ; 5 or plows the road, unless it 
 be done merely to make repairs ; or keeps goods contin- 
 uously in the street for the purpose of sale : for the free- 
 hold and the profits, the trees upon the land, the right to 
 take the herbage, 6 to remove the soil or sand, 1 to carry 
 water in pipes, 8 to work the mines under the surface, and 
 to utilize the quarries, springs of water, and timber, 9 be- 
 long to the owner of the soil. He has a right to all the 
 remedies for the protection of the freehold, subject to the 
 easement. 10 In a case which arose in New York, plaintiff con- 
 veyed a farm to defendant, excepting from it land embraced 
 in its boundaries which formed part of a highway. The 
 defendant dug up the road and ran a water pipe across it, 
 set out fruit and shade trees, piled stones, lumber and 
 
 1 Dusenbury v. Mutual Union Tel. Co. 64 How. Pr. (N. Y.) 206. 
 
 2 Jackson v. Hathaway, 15 Johns. (N. Y.) 447 ; Peck v. Smith, 1 Conn. 
 104-130 ; Babcock v. Lamb, 1 Cowen (N. Y.) 238 ; Stackpole v. Healy, 16 Mass. 
 35- 
 
 3 Bakeman v. Talbot, 31 N. Y. 366; Houpes v. Alderson, 22 Iowa, 160. 
 
 4 Chambers v. Furry, I Yeates (Pa.), 167; Barclay v. Howell, 6 Peters, 498; 
 Stackpole v. Healy, 16 Mass. 35 ; Harrison v. Parker, 6 East, 154; Peck v. Smith, 
 I Conn. 104 ; Babcock v. Lamb, 1 Cowen (N. Y.), 238 ; Gidney v. Earl, 12 Wend. 
 <N. Y.) 98 ; Willoughby v. Jenks, 20 Wend. (N. Y.), 96. 
 
 5 Peck v. Smith, 1 Conn. 103. 
 
 6 Stackpole v. Healy, 16 Mass. 33 ; Adams v. Emerson, 6 Pick. (Mass.) 57. 
 ' Williams v. Kenney, 14 Barb. (N. Y.) 629. 
 
 8 Goodtitle v. Alker, I Burr. 133-144. 
 
 9 Lyon v. Gormley, 53 Penn. St. 261. 
 
 10 Boiling v. The Mayor, &c, 3 Rand. (Va.) 563; Chambers v. Furry, 1 Yeates 
 (Pa.), 167. 
 
74 INTERESTS FOR WHICH EJECTMENT LIES. [§ 137. 
 
 manure within its boundaries, and used a portion of it for 
 farming purposes, claiming, 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 of that State. 1 
 
 § 135. Ejectment for lands applied to unauthorised use. — 
 It appeared in another action in the same State that a 
 railroad corporation had acquired land under its charter 
 for railroad purposes, and having subsequently discon- 
 tinued its railroad deeded the land to a municipal corpora- 
 tion to be used as a street. Ejectment was sustained 
 against the city by the owner of the fee on the ground 
 that he had a reversionary interest, and was entitled to 
 resume possession on the discontinuance of the use for 
 which the land had been taken by the railroad ; and that 
 it was not lawful to appropriate the land to a new addi- 
 tional use without fresh condemnation and additioual 
 compensation. 2 So an action may be maintained by the 
 owner of the fee of a street charged with a public ease- 
 ment, against a railroad company which had laid tracks in 
 the street, though the tracks had not been used or con- 
 nected with the other portions of the railroad. 8 A fortiori 
 this must be the rule where a railroad occupies any part of 
 a street for actual use as its roadway. 4 
 
 § 136. Wrongful use for puolic purposes not protected. — 
 The wrongful possession of land by a railroad company in 
 any such case will not be protected by the courts merely 
 because the lands are devoted to a public use, nor will the 
 owner be remitted to a vexatious litigation to recover 
 compensation. 5 
 
 § 137. Rule in Illinois. — A different rule, however, seem* 
 
 1 Etz v. Daily, 20 Barb. (N. Y.) 32. 
 
 8 Strong v. City of Brooklyn, 68 N. Y. 1 ; 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, 4^ 
 N. Y. 546. See § 133. 
 
 2 Carpenter v. Oswego & S. R. R. Co., 24 N. Y. 655. See § 133. 
 
 4 Weisbrod v. Chicago & N. W. Ry. Co., 21 Wis. 602; Gardiner v. Tisdale, 2 
 Wis. 153. 
 
 5 Graham v. Columbus & I. C. Ry. Co., 27 Ind. 260; s. p. Terre Haute & S. E. 
 R. R. Co. v. Rodell, 89 Ind. 128 ; s. c. 10 Am. & Eng. R. R. Cases, 284 ; Sharpe 
 v. St. Louis & S. E. Ry. Co., 49 Ind. 296. 
 
§ 140.] INTERESTS FOR WHICH EJECTMENT LIES. 75 
 
 to prevail 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 
 authorities, who had the superintendence and control of 
 the public roads, might authorize and permit travel over 
 them by means of a railway, and that the plaintiff could 
 not recover the possession in ejectment against the rail- 
 road company. 1 
 
 § 138. Rule when fee is granted for public iise. — Where 
 the owner 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 
 ordinary highway ; in the latter case the public have only 
 a right of way or passage. 2 Ejectment may be maintained 
 for a road-bed abandoned by a railroad company which 
 had originally acquired only an easement over the land. 3 
 
 § 139. Municipal corporations. — It was contended by 
 counsel, in a recent case in New Jersey, that a municipal 
 corporation had not sufficient title to its streets to main- 
 tain ejectment. But the court held that where the public 
 easement was such that exclusive possession was essential 
 for its enjoyment, ejectment was the only appropriate 
 action to obtain the possession, and the corporation might 
 defend ejectment at the suit of the owner of the fee by set- 
 ting up the right of possession of the street acquired by 
 dedication to the public use. 4 This subject is considered 
 elsewhere. 6 
 
 § 140. Attempted distinction between public and private 
 easements. — In a recent case already cited, 6 the Supreme 
 
 1 Edwardsville R. R. Co. v. Sawyer, g2 111. 377. 
 
 2 Hunter v. Middleton, 13 111. 50. See People v. Kerr, 27 N. Y. 188. 
 
 3 Phillips v. Dunkirk W. & P. R. R. Co. 78 Penn. St. 177. 
 
 4 Hoboken Land & Improvement Co. v. Mayor, &c., of Hoboken, 36 N. J. 
 L. 540. Compare Morgan v. Moore, 3 Gray (Mass.), 319. See contra City of 
 Racine v. Crotsenberg, 61 Wis. 481. 
 
 5 See Chap. VIII. 
 
 6 Hoboken L. & I. Co. v. The Mayor, &c, 36 N. J. L. 540. 
 
76 INTERESTS FOR WHICH EJECTMENT LIES. [g 141. 
 
 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 enjoyment, and that ejectment, being 
 based upon a right to be put in possession, is not main- 
 tainable. But the distinction cannot be entirely supported 
 on principle, for the owner, as we have seen, is still enti- 
 tled to the use, enjoyment, and possession of the fee in 
 so far as it does not detract from, or interfere with, the use 
 of the easement. He may still own, even in a public 
 street in a city, trees and herbage, and he 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 com- 
 munity — supposing a street to pass over the mine, the pub- 
 lic easement could not be any objection to his recovery. 1 As 
 already stated, the general current of modern authority is 
 to the effect that the two interests are entirely independ- 
 ent of each other, and there is no difficulty in the sher- 
 iff's delivering possession of the land subject to the ease- 
 ment. 2 
 
 § 141. Land subject to homestead rights. — On a writ of 
 entry in Massachusetts, against a married woman alone, to 
 recover possession of land in which she has a homestead 
 interest, a qualified judgment may, by statute, be rendered 
 for the possession of the land subject to the right of home- 
 
 1 In cases where the absolute title to a street, as distinguished from a mere ease- 
 ment, is vested in trustees of h. town for the public use, the trustees own the coal 
 under the surface of the street. Trustees of Hawes.ville v. Hawes 6 Bush (Ky.), 
 232. 
 
 * Tillmes v. Marsh, 67 Penn. St. 507 ; Cooper v. Smith, 9 S. & R. (Pa.) 26. 
 See § 132. 
 
§ 142.] INTERESTS FOR WHICH EJECTMENT LIES. 77 
 
 stead. 1 In that State the owner of land impressed with 
 this burden, in favor of a tenant and his family, may main- 
 tain a writ of entry, and recover the land except in so far 
 as the homestead title may exclude him. 2 In Letchford v. 
 Oary, the Supreme Court of Mississippi held that a pur- 
 chaser of land at execution sale, subject to homestead, 
 could recover it in ejectment, but was entitled to a judg- 
 ment to the extent of his title only, and could not dispos- 
 sess the occupants, or affect their rights under the home- 
 stead statute. 3 The decisions upon this subject, 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 
 plaintiff or defendant. The judgment was held to be a lien 
 upon that portion of the land exceeding $1,000 in value, but 
 the court said that the creditor's remedy was to proceed 
 under the statute. 4 In a later case in the same State, it 
 was decided that when the homestead was not released in 
 the mortgage it did not pass under a foreclosure sale and 
 no rights were acquired under such a sale which could be 
 enforced in ejectment where the owner of the homestead 
 right was occupying the land at the time of the sale. 5 
 
 § 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, 6 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. 8 Much confusion has been introduced into 
 
 1 Castle v. Palmer, 6 Allen (Mass.), 401 ; Stebbins v. Miller, 12 Allen (Mass.),. 
 591. Compare Rogers v. Sinsheimer, 50 N. Y. 646. See § 526. 
 
 2 Swan v. Stephens, 99 Mass. 7. 
 
 3 Letchford v, Cary, 52 Miss. 791. 
 
 4 Stevens v. Hollingsworth, 74 111. 202. 
 
 5 Asher v. Mitchell, 92 111. 480. 
 
 6 Molineux v. Molineux, Cro. Jac. 144. Forcible entry proceedings are not 
 maintainable for a fishery. Van Auken v. Decker, 2 N. J. L. 108. 
 
 ' The right of shooting is & profit a prendre. Webber ■v. Lee, 26 Alb. L. J. 453. 
 8 Herbert v. Laughluyn, Cro. Car. 492 ; Waddy v. Newton, 8 Mod. 278. 
 
78 INTERESTS FOR WHICH EJECTMENT LIES. [§ 142. 
 
 this subject, however, in part through a later decision of 
 the same court, 1 distinguishing between a mere common 
 of piscary as incorporeal, and a several fishery united with 
 the right to the soil. 2 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 tene- 
 ment. Trespass will lie for an injury to it ; and it may 
 be recovered in ejectment." 3 It is obvious that this lat- 
 ter statement can hardly be regarded as anything more 
 than an obiter dictum, 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 
 fishery, independent of the soil, would seem to have the 
 light to maintain ejectment against any one who cannot 
 prove the negative fact that he was not the owner of the 
 soil. In England this presumption has been recognized in 
 several cases, 4 in the last of which Lord Oockburn, though 
 strongly contending on grounds of principle against its 
 existence, admitted that the doctrine was settled law. In 
 this country, however, these precedents can hardly be 
 considered binding, and the dissenting opinion of Lord 
 Oockburn, 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 tres- 
 pass 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 presump- 
 
 1 The King v. Inhabitants of Old Alresford, I T. R. 358. 
 
 2 A right of several fishery, not founded upon a grant or prescription, cannot ex- 
 ist independently of the right to the soil. Collins v. Benbury, 5 Ired. (N. C.) Law, 
 118 ; s. c. 42 Am. Dec. 155, and notes. 
 
 3 The King v. Inhabitants of Old Alresford, 1 T. R. 358, 361. 
 
 4 Partheriche v. Mason, 2 Chitt. 658 ; Somerset v. Fogwell, 5 B. & C. 875; Hol- 
 ford v. Bailey, 8 Q. B. 1000 ; s. c. in Error, 13 Q. B. 426 ; Marshall v. Steam NaT. 
 Co., 3 B. & S. 732. 
 
§ 143.] INTERESTS POR WHICH EJECTMENT LIES. 79 
 
 tion 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 plaintiff does not rely on any presump- 
 tions, but on the strength of his own title, and his allega- 
 tion 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 reme- 
 dies. 1 
 
 § 143. 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 2 that the grantee of lierbagium terra has a 
 "particular right in the land, and shall have an action 
 quare clausum fregit ; but by grant thereof and liverie made, 
 
 1 In this discussion we have not thought it worth while to go into the distinctions 
 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 An- 
 gell on Watercourses, § 72; Butler & Hargrave's Co. Litt. 122a, note 7; Woolrych's 
 Law of Waters, III; and the dissenting opinion of Cockburn, C. J., in Marshall v. 
 Steam Nav. Co. ubi sup. The presumption of a united ownership in the absence of 
 negative proof is, of course, something entirely different. It may be observed here 
 that, as a general rule, the right to fish in any waters gives no rights in the adjoining 
 lands. Cortelyou v. Van Brundt, 2 Johns. (N. Y.) 357 ; Ball v. Herbert, 3 T. R. 
 256; Bickel v. Polk, 5 Harr. (Del.) 325 ; Locke v. Motley, 2 Gray (Mass.), 265. 
 See Blundell v. Catterall, 5 B. & Aid. 268 ; Casey v. Inloes, 1 Gill (Md.), 430. The 
 State government has the right to regulate fisheries and oyster beds within the terri- 
 torial limits of the State. Boggs v. Commonwealth, 76 Va. 989 ; Smith v. 
 State of Maryland, 18 How. 71. See McCready v. Virginia, 94 U. S. 394; Doughty 
 v. Conover, 42 N. J. Law, 193. Oysters are considered to be fish, — Caswell v. 
 Johnson, 58 Me. 166 — and parties planting them will be protected. McCarty v. 
 Holman, 22 Hun (N. Y.), 53. The right of fishery in navigable waters and arms of 
 the sea is presumptively free, — Trustees of Brookhaven v. Strong, 60 N. Y. 56 — 
 though it may become exclusive by grant or prescription. 
 
 2 Coke Litt. 46. 
 
80 INTERESTS FOR WHICH EJECTMENT LIES. [§ 143. 
 
 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 permitted to maintain ejectment may well be 
 doubted. In an early case in the King's Bench, often cited, 
 it was held that ejectione firmm would lie for the pasturage of 
 one hundred sheep, 1 but it does not appear from the report 
 what the interest of the plaintiff in the soil was, and the 
 question may have been only that of the proper description 
 of the subject of the action ; and in a later case in the 
 Exchequer, 2 where ejectione firmce was brought upon a 
 demise de lierbagio et pannagio of so many acres, 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. 8 In Ward v. Petifer, and in Parker v. Staniland, in 
 the King's Bench, 4 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 actual 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 ver- 
 dict to that effect " and leave it to the law whether an 
 ejectment lies in this manner." The case is chiefly remark- 
 able 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 
 
 1 Anon. 2 B. & Dal. 95. 
 
 " Wheeler v. Toulson, Hardres, 330. 
 
 3 English cases turning on the meaning of the word " tenement " in statutes re- 
 lating 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 renting of cows 
 to create a " tenement"— an interest which obviously could not support an action to- 
 try title to land. See Williams' Right of Common, pp. 81, 82, 83; The King «. 
 Inhabitants of Whixley, 1 T. R. 137; The King v. Inhabitants of Hollington, 3. 
 bast, 114 ; but compare Lonsdale v. Rigg, 11 Exch. 654 ; aff'd 1 H. & N. 923. 
 
 4 Ward v. Petifer, Cro. Car. 362. See Parker v. Staniland, 11 East, 362, 366;. 
 Uorsey on Ejectment, p. 17 ; Cook v. Gerrard, 1 Saund. 186. 
 
§ 145.] INTERESTS FOR WHICH EJECTMENT MBS. 81 
 
 freehold. These decisions certainly cannot 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. Pan- 
 nage, or the right to gather mast, which, in the nature of 
 the interest, cannot be distinguished from pasturage or 
 herbage, has been held insufficient to support ejectment. 1 
 The Supreme Court of Massachusetts has decided 2 that 
 the grantee of the "herbage or feeding" of land cannot 
 maintain a writ of entry, and this decision, it seems to us, 
 should be regarded as an authority in any State in which 
 the action of ejectment prevails. 
 
 § 144. Church property. — When ej ectment was first intro- 
 duced it was held that a church or chapel could not be 
 recovered in the action, because it was not a temporal in- 
 heritance and not demisable, but was res sacra. This 
 doctrine was soon exploded and the practice of demand- 
 ing and recovering church property as messuages was intro- 
 duced. 3 Ejectment for a church ground has been upheld. 4 
 With us, church property being held by religious corpora- 
 tions 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. 5 
 
 § 145. Common appendant and tithes. — In England eject- 
 ment has been sustained for common appendant and ap- 
 purtenant 6 and for tithes. 7 These decisions are of little 
 value with us. 
 
 1 Pemble v. Sterne, I Lev. 213. 
 
 2 Rehoboth v. Hunt, 1 Pick. (Mass.) 224. 
 
 3 Hillingsworth v. Brewster, Salk. 256; Thyn v. Thyn, Style, 101; Harpur's Case, 
 II Rep. 25* (6 Coke, 45). 
 
 4 City of Hannibal v. Draper, 15 Mo. 634. 
 
 6 See article entitled " Property Relations of Religious Societies," 17 Am. Law 
 Rev. p. 186; Van Deuzen v. Trustees, &c, 4 Abb. Ct. App. Dec. (N. Y.) 465. 
 
 6 Black v. Hepburne, 2 Yeates (Pa.), 331; Mellington v. Goodtitle, Andrews, 107; 
 Newman v. Holdmyfast, 1 Strange, 54. 
 
 1 2 Wms. Saund. 304, n. 12; Camell v. Clavering, 2 Ld. Raymond, 789. 
 
 6 
 
CHAPTER IV. 
 
 INTERESTS NOT RECOVERABLE IN EJECTMENT. 
 
 § 146. Not maintainable for incorporeal 
 hereditaments. 
 
 147. Remedies affecting incorporeal 
 
 rights. 
 
 148. Interests not recoverable in eject- 
 
 ment. 
 149. Water-coursesandoverflowed lands. 
 
 150. Mining rights and privileges. 
 
 151. Shore lines. 
 
 152. Ferry right or franchise. 
 
 §153. Wharfage. 
 
 154. Cloud on title. 
 
 155. Room or chamber. — Effect of de- 
 
 struction. 
 
 156. Projecting eaves or cornices. 
 
 157. Projecting foundation. 
 
 158. Party-walls. 
 
 159. Claim for improvement. 
 
 160. Rent reserved. 
 
 161. Claim of easement. 
 
 § 146. Not maintainable for incorporeal liereditaments. — 
 Ejectment is not maintainable for incorporeal heredita- 
 ments, 1 which consist of rights and profits issuing out of 
 and annexed to real property, such as rights of way, of 
 common, etc., 8 nor can a writ of entry be supported where 
 the demandant possesses no higher interest in the soil than 
 a mere easement, 3 because there can be no seizin of an in- 
 corporeal hereditament ; no ouster can be committed with 
 reference to such an interest : it cannot be delivered in ex- 
 ecution by the sheriff, and is not subject to entry. The 
 right to enjoy an easement cannot be vindicated in. this 
 action because an easement "lye thin grant and not hi 
 livery ;" the owner, as we have said, cannot be disseized or 
 evicted from it, and is not vested with the title to the soil.* 
 There cannot be actual dispossession for the subject itself 
 
 1 Den<a?. Farley v. Craig, 15 N. J. L. 191; Black z/. Hepburne, 2 Yeates (Penn.) r 
 331; Wilklow v. Lane, 37 Barbour (N. Y.), 244; Caldwell v. Fulton, 31 Penn. St. 
 475; Clement v. Youngman, 40 Penn. St. 341 ; Taylor v. Gladwin, 40 Mich. 232; 
 Union Canal Co. v. Young, 1 Whart. (Pa.) 410 ; s. c. 30 Am. Dec. 212, and note. 
 See Smith v. Wiggin, 48 N. H. 105 ; Le Fevre v. Le Fevre, 4 S. & R. (Penn.) 243. 
 See § 527. 
 
 ! See Pierce v. Keator, 70 N. Y. 421; Stevens v. Dennett, 51 N. H. 330; Mor- 
 rill v. Mackman, 24 Mich. 284; Canfield v. Ford, 28 Barb. (N. Y.) 340. 
 
 3 Provident Institution v. Burnham, 128 Mass. 458; see Proprietors of Locks, &c. 
 v. Nashua & L. R. R. Co., 104 Mass. 1. 
 
 4 Judd v. Leonard, 1 D. Chip. (Vt.) 204 ; Wood v , Truckee Turnpike Co., 24 Cal. 
 474; Hewhns v. Shippam, 5 B. &. C. 221; Northern Turnpike Co. v. Smith, 15 
 Barb. (N. Y.) 355. 
 
§ 148.] INTERESTS NOT RECOVERABLE IN EJECTMENT. 83 
 
 is neither capable of actual bodily possession nor dispos- 
 session. 1 Thus the action cannot 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 the mill of the claimant 
 adjoining the wharf, which right the claimant had occasion- 
 ally used or exercised in common with a similar right in 
 others. 2 
 
 § 147. Remedies affecting incorporeal rights. — 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; 3 the 
 easement or servitude not being an estate in land. 4 The 
 most effective remedy for an interruption of the enjoyment 
 of an incorporeal right is by action of trespass on the case 
 rather than a simple action of trespass, 5 though an action 
 of nuisance is sometimes brought or an injunction procured 
 in appropriate cases. 6 
 
 § 148. Interests not recoverable in ejectment. — -Ejectment 
 does not lie for a mere profit a prendre, as pannage, 7 nor for 
 rent, 8 nor for a privilege of a landing-place held in common 
 with other citizens of a town. 9 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. 10 Ejectment is not maintainable for 
 
 1 3 Bla. Com. pp. 169, 170 
 
 2 Child v. Chappell, 9 N. Y. 246. 
 
 3 Morgan v. Moore, 3 Gray (Mass.), 319. See § 132. 
 
 4 Nellis v. Munson, 24 Hun (N. Y.). 575; San Francisco v. Calderwood, 31 Cal. 
 585; First Baptist Society v. Grant, 59 Me. 245 ; See Union House v. Rowell, 66 
 Me. 400; Snyder v. Warlord, II Mo. 513; Hewlins v. Shippam, 5 B. & C. 221. A 
 license unlike an easement is not an interest in the land, but a mere privilege of 
 going upon it revocable at the will of the owner. Forbes v. Balenseifer, 74 111. 185; 
 See Cook v. C. B. & Q. R. R. Co., 40 Iowa, 456; Johnson v. Skillman, 29 Minn. 95. 
 License and grant distinguished. Wood v. Leadbitter, 13 M. & W. 843. See 
 Snyder's Great Opinions by Great Judges, p. 424. 
 
 5 Allen v. Ormond, 8 East, 4; Gushing v. Adams, 18 Pick. (Mass.) no; Hastings 
 v. Livermore, 7 Gray (Mass.), 194; Northern Turnpike Co. v. Smith, 15 Barb. (N. 
 Y.) 355; Seneca Road Co. v. Auburn & R. R. R. Co., 5 Hill (N. Y), 170. 
 
 6 See Sanderlin v. Baxter, 76 Va. 299. 
 
 7 Pemble v. Sterne, I Lev. 212; s. c. I Sid. 416. Compare Huntington v. Asher, 
 96 N. Y. 604. 
 
 8 Herbert v. Laughluyn, Cro. Car. 492. 
 
 9 Black v. Hepburne, 2 Yeates (Penn. , 331 
 
 10 Taylor v. Gladwin, 40 Mich. 232. See § 102, and note. 
 
84 INTERESTS NOT RECOVERABLE IN EJECTMENT. [§ 149. 
 
 a mere right of way, 1 nor for a right to a road, 2 nor for 
 setting up a stall in a street, 8 nor, in England, for glebe 
 after sequestration, 4 nor for an advowson, 5 nor, as was held 
 by Chief Justice Tindal, for a canonry or ecclesiastical of- 
 fice, 6 nor for a right of common by itself, 7 nor for a free 
 warren. 8 
 
 § 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. 9 Such overflow does not con- 
 fer possession upon the party causing it, nor does it consti- 
 tute an ouster of the owner. 10 It has been said, however, 
 in South Carolina, that where one joint tenant overflowed 
 the lands of the joint estate, thereby appropriating it to his 
 own use, it constituted an ouster which would justify an 
 action on the case against him by his companion. 11 Eject- 
 ment cannot be brought for diverting a water-course. 12 
 The most effectual remedy for this wrong is by mandatory 
 injunction, which will be granted to compel the restoration 
 of running water to its natural channel, 13 or to require the 
 lowering of a dam to prevent an overflow. 14 A water-course 
 or rivulet, though mentioned by name, cannot be recovered 
 in ejectment, because it is impossible to give execution of 
 a thing which is transient and always running. 15 But if the 
 
 ' Northern Turnpike Co. v. Smith, 15 Barb. (N. Y.) 355. 
 
 2 Wood v. Truckee Turnpike Co., 24 Cal. 474. 
 
 3 Doe d. Minister, &c, v. Cowley, 1 C. & P. 123. See The Mayor, &c., v. Ward, 
 2 Strange, 1238. 
 
 4 Doe d. Morgan v. Bluck, 3 Camp. 447. 
 6 Adams on Eject, p. 18. 
 
 6 Doe d. Butcher v. Musgrave, 1 Scott N. R. 451. 
 
 7 Barton v. Hamshire, 3 Keb. 738 ; s. c. Freeman, 447. 
 
 8 Tremain v. Sands, 1 Keb. 500. 
 
 9 Window v. Lane, 37 Barb. (N. Y.) 244. See Redfield v. Utica & Syracuse R. 
 R. Co., 25 Id. 54. 
 
 10 Perrine v. Bergen, 14 N. J. L. 355, 356; Green v. Harman, 4 Dev. (N. C.) 
 Law, 158. 
 
 11 Jones v. Weathersbee, 4 Strob. (S. C.) Law, 50. 
 
 12 Black v. Hepburne, 2 Yeates (Penn.), 331. 
 
 13 Corning v. Troy Iron & Nail Factory, 40 N. Y. 191. 
 
 14 Rothery v. New York Rubber Co., 90 N. Y. 32 ; Hammond v. Fuller, I Paige 
 (N. Y.), 197. 
 
 15 Runn. on Eject, p. 131 ; Challenor v. Thomas, Yelv. 143; Black v. Hepburne, 
 2 Yeates (Penn.), 331. r 
 
§ 150.] INTERESTS NOT RECOVERABLE IN EJECTMENT. 85 
 
 ground over which the rivulet runs belongs to the claimant, 
 the rivulet may be recovered by laying the action for so 
 many acres of land covered with water. 1 
 
 § 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 minerals 
 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 a grant 
 or demise of the mines, metals or minerals in the land. 2 
 The action will not lie for a mere license to mine, s .nor for 
 a privilege to dig in mines, 4 nor for the parts of land neces- 
 sarily occupied by shafts or other mining excavations or 
 erections made and used solely for mining purposes, 5 nor, 
 possibly for a quarry, 6 nor a tin bound eo nomine. 7 "A 
 right or privilege," says Judge Grier, " to dig and carry 
 ore from the land of another, is an incorporeal heredita- 
 ment." 8 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 compari- 
 son of the cases in which mining rights have been held in- 
 sufficient to support ejectment, with those before consid- 
 ered, 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 instrument by which the trans- 
 fer is effected. 9 
 
 1 See Adams on Eject. (4th ed.) p. [*2l] 22. As to " Oral License to Flow 
 Land" see 28 Alb. L. J. 144. 
 
 2 Doe v. Wood, 2 B. & Aid. 724. See Chetham v. Williamson, 4 East, 469-476, 
 per Lord Ellenborough. See Marble Co. v. Ripley, 10 Wall. 362. 
 
 3 Crocker v. Fothergill, 2 B. & Aid. 652 ; see Harlow v. Lake Superior Iron Co., 
 36 Mich. 105. A license to hunt is an interest in lands within the statute of frauds. 
 Webber v. Lee, 47 L. T. [N. S.] 215 ; s. c. 26 Alb. L. J. 453. 
 
 4 Beatty v. Gregory, 17 Iowa, 109; Union Petroleum Co. v. Bliven Petroleum 
 Co., 72 Penn. St. 173. Compare Huntington v. Asher, 96 N. Y. 612. 
 
 5 Erickson v. Mich. Land & Iron Co., 50 Mich. 610. 
 
 6 Brown v. Chadwick, 7 Irish C. L. 101. 
 
 7 Doe d. Falmouth v. Alderson, 1 Gale, 441; s. c. 1 M. & W. 210 ; s. c. Tyrw. 
 & G. 543- 
 
 8 Grubb v. Bayard, 2 Wall. Jr. 81; see Grubb u. Grubb, 74 Penn. St. 25. 
 
 •See Doe v. Wood, 2 B. & Aid. 724; Muskett v. Hill, 5 Bing. N. C. 694; Chet- 
 
86 INTERESTS NOT RECOVERABLE IN EJECTMENT. [§ 154. 
 
 § 151. Shore lines.— In New Jersey ejectment will not lie 
 to settle shore line divisions, the remedy being in equity. 1 
 The owner of land along tide water is considered to have 
 an easement in the shore in front of his land, and an incho- 
 ate right of appropriating it to his exclusive use. Until 
 reclaimed and inclosed the fee of the shore is in the State, 
 taut the adjoining owner will be protected in equity prior 
 to reclamation. 
 
 § 152. Ferry right or franchise. — A ferry right is incor- 
 poreal, and, in legal consideration, not tangible property. 
 Like a right of way or common, or other incorporeal right, 2 
 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 such a 
 case an ejectment would not lie ; and upon the same prin- 
 ciple a warrant of forcible entry would not. 8 A ferry is 
 nothing more than a continuation of a road; 4 "a liberty 
 to have a boat for passage upon a river." 5 
 
 § 153. Wharfage. — A demise by a municipal corporation 
 to an individual of the right to collect wharfage conveys 
 an incorporeal right, 6 and any interference with the enjoy- 
 ment 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 prop- 
 erty in dispute, was not a necessary or proper party defend- 
 ant in ejectment. A party desiring to quiet the title to 
 
 ham v. Williamson, 4 East, 469; See Funk v. Haldeman, 53 Penn. St., 229-243, 
 where this distinction is discussed. See §§ 108-113, 116. 
 
 1 Stockham v. Browning, 18 N. J. Eq. 390. 
 
 * Patrick v. Ruffners, 2 Robinson (Va.), 209; s. c. 40 Am. Dec. 740. 
 
 3 Rees v. Lawless, Litt. Sel. Cases (Ky.), 184; s. c. 12 Am. Dec. 295, and note; 
 The Mayor v. Union Ferry Co., 55 How. Pr. (N. Y.) 138; Bowman v. Wathen, 2 
 McL. 376; s. c. on appeal, 1 How. 189 ; State v. Wilson, 42 Me. 9. 
 
 4 See Ferry Co. v. Barker, 2 Exch. 149. 
 
 6 State v. Wilson, 42 Me. 20. , 
 
 6 Mayor, &c, of N. Y. v. Mabie, 13 N. Y. 151. 
 
§ 155.J INTERESTS NOT RECOVERABLE IN EJECTMENT. 87 
 
 land must proceed, in New York, under the statute regu- 
 lating such proceedings, or by bill in equity ; that result 
 cannot be accomplished in ejectment, nor can the alleged 
 cloud upon the title be cleared or foreclosed in that ac- 
 tion. 1 
 
 § 155. Boom or chamber. — Effect of destruction. — 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 tangi- 
 ble, nor could it be delivered in execution by the sheriff, 
 and hence ejectment will not lie for it. 3 But the New 
 
 1 Pixley v. Rockwell, I Sheldon (N. Y.1 ,267. See The Mayor v. North Shore 
 :S. I. F. Co., 55 How. Pr. (N. Y.) 154. 
 
 Cloud on title. — Bills filed for the purpose of removing " clouds upon title" are 
 in the nature of bills quia timet. See 11 Cent. L. J. p. 261. Relief in these cases 
 is accorded in conformity with an established exception to the usual rule that the 
 owner of real estate must wait until the title is assailed or his possession disturbed 
 before invoking the protection of the court. Townsend v. The Mayor, 77 N. Y. 
 545. The task of denning a cloud upon a title is not always free from difficulty. 
 It has been said that " when such claim appears to be valid upon the face of the 
 record, and the defect can only be made to appear by extrinsic evidence, particu- 
 larly if that evidence depends upon oral testimony to establish it, it presents a case 
 for invoking the aid of a court of equity to remove it as a cloud upon title." Ward 
 v. Dewey, 16 N. Y. 529; s. P. Allen v. City of Buffalo, 39 N. Y. 390; Marsh v. 
 City of Brooklyn, 59 N. Y. 283; Townsend v. The Mayor, 77 N. Y. 545; Moore 
 v. Cord, 14 Wis. 213; 11 Cent. L. J. pp. 262, 263. Chief Justice Field, in stating 
 the test for determining whether » cloud exists upon the title, said: " Would the 
 •owner of the property, in an action of ejectment brought by the adverse party, founded 
 upon the deed, be required to offer evidence to defeat a recovery ? If such proof 
 would be necessary the cloud would exist; if the proof would be unnecessary no 
 shade would be cast by the presence of the deed. If the action would fall of its 
 •own weight, without proof in rebuttal, no occasion could arise for the equitable 
 interposition of the court, as in the case of a deed void upon its face, or which was 
 the result of proceedings void upon their face, requiring no extrinsic evidence to dis- 
 close their illegality." Pixley v. Huggins, 15 Cal. 133; s. P. Lick v. Ray, 43 Cal. 
 S3; Davidson v. Seegar, 15 Fla. 671; 11 Cent. L. J. pp. 262, 263. The weight of 
 authority seems to be to the effect that equity will not interfere to cancel a deed void 
 upon its face. Cox v. Clift, 2 N. Y. 122; Scott v. Onderdonk, 14 N. Y. 14; Crooke 
 ■v. Andrews, 40 N. Y. 547; Guest v. City of Brooklyn, 69 N. Y. 513; Florence v. 
 Paschal, 50 Ala. 28; Washburn v. Burnham, 63 N. Y. 134. Contra, Hamilton v. 
 Cummings, 1 Johns. Ch. (N. Y.) 517; Jones v. Perry. 10 Yerg. (Tenn.) 59; Sessions 
 -v. Jones, 7 Miss. 123. A forged deed may be canceled. Remington Paper Co. v. 
 O'Dougherty, 81 N. Y. 483. The facts which show the apparent validity and actual 
 invalidity of the instrument should be stated in the complaint. Teal v. Collins, 9 
 Oregon, 89; Wals v. Grosvenor, 31 Wis. 684; Collart v. Fisk, 38 Wis. 243. A suit 
 to remove a cloud upon a title cannot be maintained in a court of equity when the 
 plaintiff has a full, complete, and adequate remedy at law. Greenwalt v. Duncan, 
 16 Fed. Rep. 35. 
 
 2 Rowan v. Kelsey, 18 Barb. (N. Y.) 4S4. See, however, s. C. on appeal, 2 
 Keyes (N. Y.), 594. See §§ 105, 106. 
 
88 INTERESTS NOT RECOVERABLE IN EJECTMENT. [§ 156. 
 
 York Court of Appeals, if the report of the case of Eowan 
 v. Kelsey on appeal is correct, seem to hold that where 
 the landlord had erected a new and entirely different 
 structure upon the property, not containing rooms corres- 
 ponding with those previously hired by the lessee of an 
 unexpired term, a fecovery in ejectment might neverthe- 
 less be had. It is difficult to reconcile this decision with 
 the argument of Hunt, J., who wrote the prevailing opin- 
 ion, or to understand what could be awarded by the 
 judgment, or of what the sheriff could deliver possession. 1 
 In another case the lessee of a cellar, after the destruction 
 of the building by fire, refused to surrender possession,, 
 and himself constructed a small house over the cellar, 
 which occupied about the space of the room leased by him. 
 The landlord brought ejectment, and recovered judgment, 
 but the case went off chiefly on the point that no title to 
 the land passed by the lease, and that after the destruction 
 of the building by fire the lessee's interest was gone. 2 The 
 common law rule undoubtedly was to the effect that the 
 destruction of the leased premises by fire did not discharge 
 a covenant to pay rent, 3 though the rule seems to have 
 been different where the lease was of a room or portion of 
 a building. 4 This point is now generally covered by 
 express provisions in the lease, or regulated by statute. 
 A vendee may avoid payment of the purchase money 
 where before delivery of possession the buildings upon the 
 property are destroyed. 5 
 
 § 156. Projecting eaves or cornices.— Where one of the 
 owners of a party wall places a cornice thereon which pro- 
 
 1 See Rowan v. Kelsey, 2 Keyes (N. Y.), 594. 
 
 /-v '/X^T v * C ° rnish > 5 Ohio, 477 ; Kerr v. Merchant's Exchange Co., 3 Edw. 
 U). (JN. Y.) 316 ; but see Rowan v. Kelsey, 2 Keyes (N. Y.), 594. 
 i-k, 'Harrington v. Watson, 1 West Coast Rep. 59; Hall'ett ■„. Wylie, 3 Johns. 
 (N cV 4 oV S V ' "' 4 Pa ' ge ' S Ch ' (N- Y,) 35S ; Izon v - Gorton ' 5 Bing - 
 
 'Harrington ".Watson, 11 Ore. 143, s. c. 1 West Coast Rep. 59; Graves v. 
 Berdan, 29 Barb. (N. Y) 100; aff'd 26 N. Y. 498; Shawmut Nat. Bank v. Boston. 
 118 Mass 128. See McMillan v. Solomon, 42 Ala. 356: Whitaker v. Hawley,. 
 25 Kans .674; Stockwell v. Hunter, u Met. tMass.) 448 ; Ainsworth v. Ritt, 38- 
 Cal. 89 ; Vanderpoel v. Smith, 2 Daly (N. Y.), 135. 
 
 M r Se / e w S v\ th V o M = CIuskev > 45 Barb. (N. Y.)6io; Aspinwall v. Balch, 4 Abb. 
 JN. <~. (.JN. Y.) 198; Mutual Life Insurance Co. v. Balch, 4 Abb. N. C. (N. Y.) 
 
§ 157.] INTERESTS NOT RECOVERABLE IN EJECTMENT. 89 
 
 jects slightly over the lot of the adjoining owner, this 
 constitutes an unlawful interference with a right incident 
 to property in possession, for which ejectment will not 
 lie. 1 Of course no one can undermine or overhang an- 
 other's land without violating his rights. 2 A leaning 
 wall s and an overhanging cornice 4 constitute nuisances 
 which may be abated by action, or by act of the party. 5 
 So the branches of a tree which extend over the premises 
 of another may be cut off by him ; 6 but ejectment is not 
 an appropriate remedy 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 encroachment as will sustain eject- 
 ment. 7 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 plaintiff. The sheriff 
 could not put the plaintiff in possession of that space : an 
 entry could not be made thereon ; nor is the thing sought 
 to be recovered attached to the soil. 8 The proper redress 
 for wrongs of this character has been said to be an action 
 of trespass on the case for the nuisance. 9 
 
 § 157. Projecting foundation. — On the other hand, where 
 some of the stones of defendant's foundation wall pro- 
 jected eight inches over plaintiff's land, it was held with 
 some hesitation, in Wisconsin, that plaintiff might treat 
 this as a disseizin and maintain ejectment. 10 In Stedman 
 
 200. Compare Tabor v. Robinson, 36 Barb. (N. Y.) 483. 
 1 Vrooman v. Jackson, 6 Hun (N. Y.), 326. 
 a 2 Bla. Com. p. 18. 
 
 3 Meyer v. Metzler, 51 Cal. 142. 
 
 4 Grove v. City of Fort Wayne, 45 Ind. 429 ; s. C. 15 Am. Rep. 262. 
 
 5 The keeping of a bawdy house and a rendezvous for thieves and murderers is 
 a nuisance, but does not justify for its abatement the destruction of the building 
 and furniture by a mob. Ely v. Supervisors of Niagara Co., 36 N. Y. 297. See 
 County of Allegheny v. Gibson, 90 Pa. St. 415. Compare Goldsmith u. Jones, 43 
 How. Pr. (N. Y.} 415. 
 
 6 Earl of Lonsdale v. Nelson, 2 B. & C. 302-311. 
 
 ' Aiken v. Benedict, 39 Barb. (N. Y.) 400; overruling Sherry v. Frecking, 4 
 Duer (N. Y.), 452. 
 
 8 Ibid. ; also, Jackson v. May, 16 John. (N. Y.) 184. 
 
 " Aiken v. Benedict, 39 Barb. (N. Y.) 400. 
 
 10 McCourt v. Eckstein, 22 Wis. 153. See a novel English case where the 
 defendant, under an agreement with a mortgagor, erected a large street advertise- 
 
90 INTERESTS NOT RECOVERABLE IN EJECTMENT. [§ 158. 
 
 v. Smith, 1 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, contiguous 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 contiguous 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 belonged 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 ejectment 
 is a proper remedy for recovering the ownership of land 
 covered by a party-wall. 3 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 excluding the strip of defendant's land over 
 which it extended, could not be recovered in an action of 
 ejectment. 3 In IsTew York it is doubtful whether eject- 
 ment will lie for land burdened with the servitude of a 
 party-wall ; 4 but in Maine the action has been sustained. 5 
 At all events, the only interest the plaintiff could recover 
 would be the fee subject to the easement, and in New 
 York the nature or extent of his interest should be spec- 
 ified in the verdict or finding. 6 We have already seen that 
 
 ment on the wall of a house, and the tenant brought ejectment to recover posses- 
 sion of the part of the wall thus occupied, and for mesne profits. The action was 
 sustained, although the defendants contended that they had only an easement or 
 license. Cited in I West. Coast Rep. 8o. 
 ' 8 E. & B. I. 
 
 2 Trotter v, Simpson, 5 C. & P. 51. 
 
 3 Robinson v. Gunnis, 2 W. N. C. (Penn.) 224. 
 
 4 Kurkel v. Haley, 47 How. Pr. (N. Y.) 75; Rogers v. Sinsheimer, 50 N. Y 
 '646; Brondage v. Warner, 2 Hill (N. Y.), 145. 
 
 5 Bradbury v. Cony, 59 Me. 494. 
 
 6 Rogers v. Sinsheimer, 50 N. Y. 646. See Goodtitle v. Alker, I Burr. 133. 
 Kenniston v. Hannaford, 58 N. H. 28 ; Cornes v. Minot, 42 Barb. (N. Y.) 60; 
 Brady v. Hennion, 8 Bosw. (N. Y.) 529. 
 
§ 161.] INTERESTS NOT RECOVERABLE IN EJECTMENT. 91 
 
 the current of modern authority, in the case of easements 
 of right of way or passage, is strongly in favor of uphold- 
 ing the right to recover in ejectment the land subject to 
 the easement. 1 Where, however, the easement consists in 
 the right to maintain or use a party-wall, although the fee 
 is in the owner of the servient tenement, there is a prac- 
 tical 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. Indeed, in 
 Bowie v. Brahe, 2 the court refused to instruct the sheriff 
 to remove so much of the wall of defendant's building as 
 stood upon the strip of land recovered, which was one and 
 seven-eighths inches wide, though the ruling was upon the 
 theory that the sheriff must act on his own responsibility 
 in the execution of process. 3 
 
 § 159. Claim for improvement. — In Pennsylvania, the 
 defendant in ejectment proceedings is entitled to compen- 
 sation in the same action for any improvements erected 
 by him during his unlawful possession ; but this claim for 
 improvements is an equitable lien, and cannot be made the 
 subject of an independent ejectment. 4 The circumstances 
 under which allowances for improvements are made and 
 the rules pertaining to the general subject will be presently 
 considered. 
 
 § 160. Bent reserved.— The right to recover possession of 
 lands for non-payment of rent cannot be enforced by 
 ejectment unless the right of re-entry is reserved. 6 
 
 § 161. Claim of easement. — It has been held by the New 
 York Supreme Court that ejectment will not lie against a 
 corporation which uses the land in controversy for the pur- 
 poses of a street only, and asserts no other claim or in- 
 
 1 See §§ 130-132. 
 
 '' 2 Abb. Pr. (N. Y.) 161 ; s. c. 4 Duer (N. Y.), 676. 
 
 3 See Ansonia Brass & Copper Co. a. Babbitt, 74 N. Y. 403; Matter of Steam- 
 ship " Circassian," 50 Barb. (N. Y.) 500. See § 565. 
 
 4 Paull's Ex'rs v. Eldred, 29 Penn. St. 415. 
 
 5 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. 
 
92 INTERESTS NOT RECOVERABLE IN EJECTMENT. [§ 161. 
 
 terest than the mere right to enjoy an easement, or right 
 of passage. 1 The principles of this case must, however, 
 be accepted with great caution if indeed the case is not 
 positively wrong in principle. 2 Undoubtedly the defend- 
 ant's claim of title must, ordinarily, be such that if reduced 
 to possession or enjoyment it would constitute an actual 
 occupation 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 pos- 
 session and use, subject to the easement, is acknowledged, 
 ejectment is not the proper form of action. 3 Although, as 
 we have seen, this rule, on principle, ought to apply in 
 cases where a municipal corporation assumes to treat pri- 
 vate property as a street, 4 the current of authority is,, 
 nevertheless, to the effect 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 ease- 
 ment exists, exclusive of any interference by the owner of 
 the fee, is essential for it proper regulation and enjoy- 
 ment. We shall presently show that the public easement 
 itself can be made the basis of an ejectment by a muni- 
 cipal corporation, and it would certainly seem strange if 
 proof of the assertion of so important and exclusive an in- 
 terest upon or over the land by the defendant as the right 
 to maintain a street would not suffice to support an action 
 of ejectment. 6 It should be clearly understood that the 
 doctrine with regard to ejectment in the case of streets in 
 cities constitutes an exception to the general principles 
 governing the action. In McClinton v. Pittsburg, F. W. f 
 &c, Ey. Co., 6 the defendant corporation had occupied the 
 
 1 Cowenhoven v. City of Brooklyn, 38 Barb. (N. Y.) 9. See §§ 132, 133, 135- 
 140, 158. 
 
 2 See Carpenter v. Oswego & Syracuse R. R. Co., 24 N. Y. 655 ; Henderson v. 
 New York Central R. R. Co., 17 Hun (N. Y.), 349, Aff'd 78 N. Y. 421; Troy & 
 B. R. R. Co. v. Boston H. T. & W. Ry. Co., 86 N. Y. 127. 
 
 3 Child v. Chappell. 9 N. Y. 246 ; Strong v. City of Brooklyn, 68 N. Y. I ; 
 Smith v. Wiggm, 48 N. H. 105 ; Window v. Lane, 37 Barb. (N. Y.) 244. See 
 §§ 133, 135, 158. ; 
 
 4 See §§ 139, 140. 
 
 ' See Armstrong v. City of St. Louis, 69 Mo. 309, and cases cited: Strong it. 
 City of Brooklyn, 68 N. Y. 1. 
 6 66 Pa. St. 408. 
 
§ 161.] INTERESTS NOT RECOVERABLE IN EJECTMENT. 93 
 
 plaintiff's land with a railroad. Agnew, J., said : " Eject- 
 ment is the proper remedy in such a case. The owner is 
 not bound to suffer an unlawful intrusion, and afterward 
 flght an unequal battle for compensation. The argument 
 that ejectment will not lie against one using a mere ease- 
 ment does not apply here ; because actual possession has 
 been taken by the trespassing company, by building and 
 fastening its structures upon the soil, and by daily and 
 hourly use of them ; and also because no easement has ever 
 been acquired ; it is simply an unlawful entry upon and 
 taking of the roadbed and using it to the exclusion of the 
 owner. It is not the case of fleeting and occasional foot- 
 steps, which print no trace upon the earth." 
 
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 and forcible detainer pro- 
 
 ceedings 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. 
 
 169. 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. 
 
 i 175. When mandamus not allowed itt 
 aid of judgment in ejectment. 
 
 176. Title cannot be tried in assumpsit. 
 
 177. Trial of title in condemnation pro- 
 
 ceedings. 
 177a. Action for value of land. 
 
 178. Distinction between trespass quare 
 
 clausum fregil and ejectment. 
 
 179. When ejectment and not action to 
 
 remove cloud on title proper rem- 
 edy. 
 
 179a. Trial of title in foreclosure pro- 
 ceedings. 
 
 1793. Trial of title by arbitration. 
 
 180. Ejectment converted into action to 
 
 redeem and foreclose mortgages. 
 
 181. Action to determine conflicting 
 
 claims to land changed by amend- 
 ment into ejectment. 
 
 182. 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. 
 184a. Issues that cannot be determined 
 in ejectment. 
 
 § 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 diffi- 
 cult and delicate task. The fundamental rule that eject- 
 ment can be maintained only for corporeal estates or in- 
 terests has already been fully considered, and should never 
 be overlooked. The cases in which the relief peculiar to 
 ejectment has been refused in other actions 1 or forms of 
 procedure will now be discussed. A review of these cases, 
 and of the reasons upon which the decisions are based, 
 
 J See Crane v. Randolph, 30 Ark. 579. 
 
§ 163.] RELIEF PECULIAR TO EJECTMENT. 95 
 
 will illustrate more clearly the character of ejectment, and 
 its statutory substitutes, and show the extent to which the 
 remedy is favored by the courts. 
 
 § 163. When ejectment, and not a suit to oitain construction 
 of a will, the appropriate remedy. — In Post v. Hover, 1 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 provisions of 
 the instrument are void, the proper remedy of the heirs is 
 to bring a direct action, in the nature of ejectment, to re- 
 cover the shares to which they claim to be entitled. This 
 case follows the opinion of Chancellor Walworth in Bowers 
 v. Smith, 2 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 
 execution of the trust. In Bailey v. Briggs, 3 the action 
 was brought to obtain the judicial construction of a clause 
 in a will devising real estate. The complaint averred an 
 interest 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 plaint- 
 iff 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 plaintiff to be vested 
 with the fee of the land. The court held that the com- 
 plaint did not state facts conferring jurisdiction upon a 
 
 1 33 N. Y. 593-602 ; Affi'g s. C. 30 Barb. (N. Y.) 312 ; S. P. Chipman v. Mont- 
 gomery, 63 N. Y. 221. 
 
 2 10 Paige's Ch. (N. Y.) 193. 
 
 3 56 N. Y. 407. See Weed v. Root, 14 Weekly Dig. (N. Y.) 90 ; Pomeroy's Eq. 
 Jur., g 1156 ; Sellers v. Sellers, 35 Ala. 235 ; Whitman v. Fisher, 74 111. 147 ; You- 
 mans v. Youmans, 26 N. J. Eq. 149 ; Clay v. Gurley, 62 Ala. 14 ; Devereux v. 
 Devereux, 81 N. C. 12; Appeal of Schaeffner, 41 Wis. 260. 
 
96 BELIEF PECULIAR TO EJECTMENT. [§§ 164, 165. 
 
 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 executor, trustee or cestui 
 que trust, and to ensure a correct administration of the 
 power conferred by a will, that jurisdiction is had to give 
 a construction to a doubtful or disputed 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 defend- 
 ants, if they have any, is of the same kind. There is no 
 trust to be enforced, nor a trustee to be directed." 
 
 § 164. Summary and forcible detainer proceedings not prop- 
 er where the title is involved. — In a comparatively recent 
 case decided in the Supreme Court of Georgia, it appeared 
 that the plaintiff's intestate had formerly owned the prem- 
 ises, and had resided on them with the defendant ; that 
 she died leaving the defendant in possession, and that her 
 administrator sued out summary proceedings 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 involved the validity 
 of the marriage, was an action of ejectment, and not sum- 
 mary proceedings. 1 The purchaser at a tax sale must as- 
 sert his right to possession by action of ejectment and 
 cannot resort to summary proceedings. 2 So the validity 
 of a title cannot be tried in forcible detainer proceedings, 3 
 or on a motion. 4 We may observe that where a statute 
 gives a person unlawfully in possession a right of action 
 for a forcible entry by the true owner that remedy is 
 exclusive, and he cannot maintain trespass for damages 
 caused by such entry. 5 
 
 § 165. When specific performance cannot be maintained.— In 
 
 1 Cassidy v. Clark, 62 Ga. 412. 
 
 2 Sperling v. Isaacs, 28 N. Y. Daily Reg. (July 14, 18S5), 81. 
 
 3 Wheelan v. Fish, 2 Bradw. (111.) 447. 
 
 5 4 Copeland v. Piedmont and A. Life Ins. Co., 17 S. C. 116. Compare Jordan v. 
 Poillon, 77 N. Y. 518 ; Lockman v. Reilley, 10 Abb. N. C. (N. Y.) W. Doed. 
 Turner v. Gee, 9 Dowl. 612. 
 
 6 Canavan v. Gray, 64 Cal. 5 ; s. c. 22 Am. Law Reg. N. S. 718, and note. 
 
§ 166.] RELIEF PECULIAR TO EJECTMENT. 97 
 
 Jones v. Boyd, 1 in the Supreme Court of North Carolina, 
 the vendor of real property, before the last installment of 
 the purchase money was due, brought a suit for specific 
 performance against a vendee in possession, who had de- 
 faulted in some of the installments of the purchase money. 
 It was decided that the remedy was prematurely sought, 
 and ancillary relief in the action was denied, the court say- 
 ing, however, that the vendor could have maintained eject- 
 ment, and protected the property from waste or destruc- 
 tion by any appropriate provisional remedy. 
 
 § 166. Partition not a substitute for ejectment. — The Court 
 of Appeals of New York have decided that an action for 
 partition cannot be made a substitute for the remedy of 
 ejectment, or other action to establish the legal title of 
 adverse claimants to real property. The title of the par- 
 ties should be first established by a proper action before 
 partition proceedings are instituted. 3 The complaint 
 should allege possession in the plaintiff. 3 The doctrine 
 of these cases commends itself as sound ; the right to par- 
 tition is based upon a common and not a disputed title or 
 ownership, and the remedy of partition is not adapted to 
 the trial of questions of title. 4 The same rule of procedure 
 prevails in other States. 5 A partition under the estab- 
 lished chancery practice system "does not deal with or 
 decide questions of controverted title. Its purpose is to 
 make division among the parties before the court, of real 
 estate in which they had interests or estates that were not 
 
 1 8o N. C. 258. 
 
 2 Van Schuyver v. Mulford, 59 N. Y. 426; Florence v. Hopkins, 46 N. Y. 182. 
 Under the New York Code of Civil Procedure, § 1543, questions of title in certain 
 cases, may now be determined in partition proceedings. Knapp v. Burton, 7 N. Y. 
 Civ. Pro. 448. 
 
 3 Farris v. Hayes, 9 Oregon, 86. See Bradley v. Harkness, 26 Cal. 6g. 
 
 4 Sullivan v. Sullivan, 66 N. Y. 37. 
 
 5 Longwell v. Bentley, 2 Phila. (Penn.) 157 [284] ; Thomas v. Garvan, 4 Dev. 
 Law (N. C), 223; Jenkins v. Van Schaak, 3 Paige (N. Y.), 243; Longwell v. Bentley, 
 3 Grant's Cases (Penn.), 177 ; Adam v. Ames Iron Co., 24 Conn. 230 ; O'Dougherty 
 v. Aldrich, 5 Denio (N. Y.), 385; Clapp v. Bromagham, 9 Cowen (N. Y.), 530; 
 Bonner v. Propr's Kennebeck Purchase, 7 Mass. 475 ; Albergottie v. Chaplin, 10 
 Rich. Eq. (S. C.) 428 ; Forder v. Davis, 38 Mo. 107 ; Gravier v. Ivory, 34 Mo. 522; 
 McMasters v. Carothers, 1 Penn. St. 324; Conyers v. Davis, 11 R. I. 527 ; Currin 
 v. Spraull, 10 Gratt. (Va.) 145 ; Daniel v . Green, 42 111. 471 ; Hoffman v. Beard, 22 
 Mich. 59 ; Hassam v. Day, 39 Miss. 392; Shearer v. Winston, 33 Miss. 149. As 
 to receivership for tenants in common, see § 621a. 
 
 7 
 
98 BELIEF PECTTLIAK TO EJECTMENT. [§ 167, 168. 
 
 in controversy as among themselves." 1 It has been said, 
 however, in Wallace v. Harris, 2 that the reason for remit- 
 ting the investigation of conflicting questions of title to a 
 common 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 partition the judgment should be allowed to 
 stand, especially if the specific objection to the investiga- 
 tion had been waived by a failure to urge it in the court of 
 original jurisdiction. 
 
 § 167. Defect in title or adverse title must he disclosed to de- 
 feat partition. — But the jurisdiction of equity to make par- 
 tition of lands cannot be defeated by the simple allegation 
 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 
 false allegations in the answer. 8 An answer which denies 
 " that the rights, shares, and interests of the parties hereto 
 are correctly alleged in the complaint" is a nullity. 4 If the 
 defendant sets up an adverse title, or disputes the com- 
 plainant's title, he must discover 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. 5 
 
 And where heirs at law brought partition against the 
 widow and other heirs, and the defendants set up an old 
 deed made by plaintiff's ancestor to a third person without 
 connecting themselves with it, this was held to be no de- 
 fense. 6 
 
 § 168. Bill in equity to recover possession, when not allowed. 
 
 1 Gay v. Parpart, 106 U. S. 689. See Lessee of McCall v. Carpenter, 18 How. 
 302. 
 
 2 32 Mich. 380-390. 
 
 3 Hudson v. Putney, 14 W. Va. 561. 
 
 4 Nolan v. Skelly, 62 How. Pr. (N. Y.) 102. 
 
 5 Lucas v. King, 10 N. J. Eq. 277; Overton v. Woolfolk, 6 Dana (Ky.), 371. 
 
 6 Knolls v. Barnhart, 71 N. Y. 474. 
 
§169.] BELIEF PECULIAR TO EJECTMENT. 99 
 
 — In the case of Oavedo v. Billings, 1 in the Supreme Court 
 of Florida, it was decided that a bill in equity to recover 
 the possession of lands claimed under a legal title, and for 
 mesne profits, and to set aside certain tax deeds and certifi- 
 cates 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 muniments 
 of title could be shown, and the entire relief sought in the 
 bill secured. 
 
 § 169. Ejectment Mils. — 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. 3 
 This is especially so if, upon the face of the bill, the plaint- 
 iff's right to draw a declaration in ejectment is clear. 
 The same principle applies where a party attempts to main- 
 tain a bill in cases where a writ of entry would lie. 8 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. 4 So a 
 widow cannot maintain a bill to determine who are the le- 
 gal heirs of her husband, and asking to be put into posses- 
 sion if she establishes title as sole heir. 5 Under our mod- 
 ern Code practice, however, as we shall presently see, legal 
 and equitable relief may, in some States, be had in the same 
 action. 6 Thus, in New York, it has been held to be settled 
 practice to allow a plaintiff in an action to recover real 
 
 1 16 Fla. 261. See Haythorn v. Margerem, 7 N. J. Eq. 324 ; Lee v. Simp- 
 son, 29 Wis. 333; Gray v. Tyler, 40 Wis. 579; Peyton v. Rose, 41 Mo. 257. 
 
 2 Loker v. Rolle, 3 Ves. Jr. 4, and note; Renison v. Ashley, 2 lb. 459-461. See 
 Tiilmes v. Marsh, 67 Penn St. 507, per Sharswood, J. ; Young v. Porter, 3 Woods 
 C. C. 342; Phipps v. Kent, 1 Chester Co. Rep. (Pa.) 158; Hecht v. Colquhoun, 57 
 Md. 563. Compare Fox's Appeal, 99 Pa. St. 385. 
 
 3 Swamscott Machine Co. v. Perry, 119 Mass. 123, and cases cited. 
 
 4 North Penn. Coal Co. v. Snowden, 42 Penn. St. 488; Frisbee's Appeal, 88 
 Penn. St. 144. 
 
 6 Jones v. Fox, 20 W. Va. 370. 
 
 6 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. See § 639. 
 
100 RELIEF PECULIAR TO EJECTMENT. [§ 170. 
 
 property, claiming under a defective deed, and showing- 
 sufficient grounds for its reformation, to secure the same 
 relief as if he had brought two actions : one to reform the 
 instrument, the other to enforce it as reformed. 1 
 
 So, also, it is settled law in Tennessee that an adverse 
 claimant of land out of possession, although he may bring 
 an action of ejectment for the land, may also go into equity 
 and file a bill to remove the deeds which may stand in his. 
 way as clouds on his title ; and the courts having jurisdic- 
 tion for that purpose will, having canceled the deeds, put 
 the complainant in possession. 2 This doctrine is the result 
 of judicial legislation. 3 
 
 The method of procedure, by means of which possible 
 shadows and encumbrances upon a title are judicially an- 
 nulled, and the possession also restored to the owner, pos- 
 sesses advantages over the remedy of ejectment ; it is more 
 logical and effectual in its results, removing the apparent 
 sources of contention and the embarrassments incident to 
 mistaken litigation, and dissipating the clouds that hang 
 over the title. 
 
 § 170. Ejectment not maintainable in the form of a Mil in 
 chancery. — In Lewis v. Cocks, 4 the Supreme Court of the 
 United States decided that an action of ejectment could, 
 not be maintained in the form of a bill in Chancery. 5 This 
 principle in English equity jurisprudence was declared to 
 be as old as the earliest period in its recorded history. 6 ' 
 And though the objection was not made by demurrer, plea, 
 or answer, nor was it suggested by counsel, nevertheless, 
 
 1 Laub v. Buckmiller, 17 N. Y. 626. Where the bill, in addition to the general 
 demand for relief contained a prayer that a deed be set aside, it was held that 
 merely because of a prayer, that defendant be decreed to give the complainant pos- 
 session of the land, the bill should not be treated as a bill for possession, nor dis- 
 missed on the ground that ejectment was the proper remedy. Miller v. Jamison* 
 24 N. J. Eq. 41. 
 
 2 Johnson v. Cooper, 2 Yerg. (Tenn.) 524; Jones v. Perry, 10 Id. 59; Almonyfl. 
 Hicks, 3 Head (Tenn.), 39; Anderson v. Talbot, 1 Heisk. (Tenn.) 407; Williams 
 ■o. Talliaferro, 1 Coldw. 39; Steinkuhl v. York, 2 Flippin, 376-378. 
 
 3 Hickman v, Cooke, 3 Humph. (Tenn.) 640. 
 
 4 23 Wall. 466. But see Almony v. Hicks, 3 Head (Tenn.), 39 ; Irvine v. McRee, 
 5 Humph. (Tenn.) 554. 
 
 s. p. Ellis v. Davis, 109 U. S. 485. Compare case of Broderick's Will, 21 Wall. 
 503 ; Hall v. Greenly, 1 Del. Ch. 274; Peyton v. Rose, 41 Mo. 257. 
 
 6 Spence's Jurisdiction of Courts of Chancery, 408, note b ; lb. 420, note a. 
 
§ 171.] RELIEF PECULIAR TO EJECTMENT. 101 
 
 if it clearly existed, it was the duty of the court sua sponte 
 to recognize it, and give it effect. 1 In such cases the ad- 
 verse party has a constitutional and common law right to 
 .a trial by jury, of which he will not be deprived in cases 
 where the redress at law is complete. 3 Furthermore ques- 
 tions affecting the title can be better tried at law than in 
 equity, and if it is desired to have any rulings of the court 
 below brought to the Supreme Court for review, such ques- 
 tions can be more effectually presented by bills of exception 
 and a writ of error, than by depositions and an appeal in 
 equity. 
 
 §171. Equitable title will not support ejectment till. — Young 
 v. Porter, 8 decided by Mr. Justice Bradley of the United 
 States Supreme Court, sitting at circuit, was a bill in 
 equity to recover land of which the defendants were in pos- 
 session. 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 
 complainants, the bill merely charging that defendants 
 had wrongfully possessed themselves of the land, and were 
 cutting timber and committing other waste thereon. The 
 bill was characterized as being a mere ejectment bill, the 
 only pretense for bringing which in a court of equity, was 
 that the complainants could not maintain an action at law. 
 The court, conceding this proposition, held that it did not 
 prove that a suit in- equity could be maintained for that 
 purpose. Complainants could not maintain a suit which 
 was the equivalent of an ejectment merely because their 
 title was only an equitable one. In addition, some connec- 
 tion 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 with- 
 
 1 lb., citing Hipp v. Babin, ig How. 278. 
 
 8 lb.; Tillmes v. Marsh, 67 Perm. St. 507; Hipp v. Babin, 19 How. 278. 
 
 3 3 Woods C. C. 342. s. P. Fussell v. Gregg, 113 U. S. 550, and cases cited. 
 
102 RELIEF PECULIAR TO EJECTMENT. [§ 172, 173. 
 
 holding the possession, before relief in equity could be af- 
 forded. In Fussell v. Hughes, 1 decided by Justice Mat- 
 thews of the United States Supreme Court, sitting at cir- 
 cuit, 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 possession, but alleged that they 
 were in possession of the premises, which in equity be- 
 longed to the complainant, and the legal title to which was 
 in the United States. The proper remedy of the complain- 
 ant, the court said, was to clothe the equity with the legal 
 title, by a proper application to the public officers of the 
 government for a patent, and then to proceed at law to re- 
 cover the possession. 
 
 § 172. Party vested ivitli legal and equitable estate cannot 
 proceed in equity — waiver. — If 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. 2 
 It seems to follow, from a general consideration of the 
 cases, that, where the plaintiff has a remedy at law (eject- 
 ment) to determine his title to land, an equitable action to 
 quiet title cannot be supported, 3 though the objection to 
 the maintenance of this latter form of action in such a case 
 may, under the Code practice, be waived if not taken by 
 demurrer or answer. 4 
 
 § 173. Jurisdiction in equity when remedy at law is incom- 
 plete. — Eomero v. Munos, 5 decided in the Territorial Court 
 of New Mexico, and recently reported, furnishes a curious 
 contrast to the case of Oavedo v. Billings above cited. 5 
 The plaintiff had successfully prosecuted an ejectment 
 against defendant, and the sheriff had placed her in pos- 
 
 1 8 Fed. Rep. 3S4; affirmed 113 U. S. 565, note. s. P. Adam v. Briggslron Co., 
 7 Cush. (Mass.) 361. Compare Steam Stone Cutter Co. v. Jones, 13 Fed. Rep. 567.. 
 Equity will annul a forged deed though the grantor named in it is out of possession, 
 Bunce v. Gallagher, 5 Blatchf, 481. 
 
 2 Odle v. Odle, 73 Mo. 289. See Crane v. Randolph, 30 Ark. 579. 
 
 3 Gray v. Tyler, 40 Wis. 579. 
 
 4 Boorman v. Sunnuchs, 42 Wis. 235; Culver v. Rodgers, 33 O. S. 537. Where 
 property has been sold under void proceedings the remedy is by ejectment and not 
 by action to set aside the proceedings. Weidersum v. Naumann, 10 Abb. N. C. (N. 
 Y.) 149. 
 
 5 1 New Mexico, 314. See Broiestedt v. South Side R. R. Co., 55 N. Y. 220. 
 6 See § 168. 
 
§ 174.] RELIEF PECULIAR TO EJECTMENT. 103 
 
 session 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 grow- 
 ing upon it. Complainant filed a bill praying for an in- 
 junction enjoining the defendant from molesting, disturb- 
 ing, harassing, or driving complainant away from the 
 possession of her lands, and also asking that she be restored 
 to the possession, 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 jurisdic- 
 tion 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 accomplished for her in that action had been done ; 
 complete execution 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 sustain an injunction. In some of 
 the States, as will be shown presently, an alias writ of 
 possession is awarded to cover cases of this character, 1 
 
 § 174. Injunction not granted when remedy oy ejectment is 
 adequate. — Though an injunction is occasionally issued to 
 restrain constantly repeated trespasses, requiring a suc- 
 cession of actions, yet this remedy cannot be resorted to 
 in cases where ejectment would restore the complainant 
 to all his rights. 3 Hence, where the defendant was a rail- 
 road corporation, 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 See Chapter XXI. 
 
 2 Stevens v. Erie Railway Co., 21 N. J. Eq. 259-264. See Deere v. 
 Guest, I M. & C. 516. As to the jurisdiction of equity to restrain trespasses, see 
 
104 RELIEF PECULIAR TO EJECTMENT. [§§ 175, 176. 
 
 § 175. When mandamus not allowed in aid of judgment in 
 ejectment. — In ex parte French, 1 it appeared that judgment 
 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 parcels 
 of land. A writ of error was sued out by all the defend- 
 ants. Two of the defendants, to render it a supersedeas 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 de- 
 fendants might not join in the writ, and make separate 
 applications when they asked for a stay. But, even if the 
 writ was informal, the remedy was by motion to vacate 
 the writ, and not by mandamus to have the judgment car- 
 ried into execution. 
 
 § 176. Title cannot oe tried in assumpsit. — In Eichardson 
 v. Eichardson, 2 recently decided in the Supreme Court of 
 
 Echelkamp v. Schrader, 45 Mo. 505; Hodges v. Perine, 24 Hun(N, Y.), 516; 
 Weiss v, Jackson Co., 9 Oregon, 470; Bracken v. Preston, 1 Pinney (Wis.), 365 ; 
 Troy & B. R. R. Co. v. Boston, H. T. & W. Ry. Co. 86 N. Y. 107 ; Mayor, &c, v. 
 Groshon, 30 Md. 436 ; Wagner v. Railway Co., 38 O. S. 32 ; s. c. 10 Am. & Eng. 
 R. R. Cases, 380; Livingston v. Livingston, 6 Johns. Ch. (N. Y.) 497, per Chan- 
 cellor Kent. See, also, Murphy v. Norton, 61 How. Pr. (N. Y.) 197. A tres- 
 passer upon real estate cannot invoke the aid of equity to preserve to him the fruit 
 of his wrong, by restraining the party who was in possession from resuming the 
 lawful occupation of which he had been deprived by the trespasser. Littlejohn v. 
 Attrill, 94 N. Y. 619. In Lacustrine Fertilizer Co. v. Lake G. & F. Co., 82 N. Y. 
 476-486, the court say : " We do not understand that it is indispensably neces- 
 sary, under our present blended system of procedure, that in case of a disputed title 
 to land, the title must be determined by a legal action before the court will interfere 
 by injunction to restrain alleged trespasses by one of the parties." Citing Corning 
 v. Troy Iron & Nail Factory, 40 N. Y. 191 ; West Point Iron Co. v. Reymert, 45 
 N. Y. 703 ; Broiestedt v. South Side R. R. Co., 55 N. Y. 220. It is pertinent to 
 note here that trespass will be enjoined where its frequency makes it equivalent 
 to a nuisance. An injunction is often granted to restrain nuisances, but is rarely 
 allowed for mere simple trespass. This difference grows out of the fact that a nui- 
 sance is ordinarily continuous, while a trespass commonly consists of a single act. 
 For a discussion of the subject of injunctions against trespass see Jerome v. Ross, 
 7 Johns. Ch. (N. Y.) 315 ; s. c. 11 Am. Dec. 498, and notes. This was the last 
 decision rendered by Chancellor Kent. See § 622. 
 
 1 100 U. S. 1. See Kountze v. Omaha Hotel Co., 107 U. S. 390. 
 
 " 72 Me. 403. See Bigelow v. Jones, 10 Pick. (Mass.) 161 ; Munroe v. Luke, 
 1 Met. (Mass.) 459-465; Miller v. Miller, 7 Pick. (Mass.) 133; Baker 11. Howell, 
 6 S. & R. (Penn.) 476 ; Sadler v. Evans (Lady Windsor's Case), 4 Burr. 1985 ; Samp- 
 son v. Shaeffer, 3 Cal. 196, and cases cited'; Bockes v. Lansing, 74 N. Y. 437; Van 
 Alstine v. McCarty, 51 Barb. (N. Y.) 326. 
 
§§ 177, 177«.] RELIEF PECULIAR TO EJECTMENT. 103 
 
 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 
 accrued 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 inheritance, or questions of conflicting titles, 
 must be settled in appropriate actions devised for that 
 purpose. 
 
 § 177. Trial of title in condemnation proceedings.— It has 
 been held, in the Supreme Court of California, that con- 
 flicting titles to land cannot be tried in condemnation 
 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. 1 This subject, however, is largely 
 regulated by statute, or by the varying practice of the 
 courts in the different States. 8 We may note that the 
 recovery of a judgment in trespass or ejectment, and the 
 payment of the mesne profits or damages does not operate 
 to pass the title. The damages paid are not compensation 
 for the land, but for the injuries up to the time of bringing 
 suit. 3 
 
 § 177a. Action for value of land. — It may be observed that 
 the unlawful or wrongful use of land, against the will of 
 the owner, but under such circumstances as not to estop 
 or prevent him from recovering possession, will not en- 
 
 1 Sacramento Valley R. R. Co. v. Moffatt, 7 Cal. 577. See Wilcox v. City of 
 Oakland, 49 Cal. 29 ; Curran v. Shattuck, 24 Cal. 427. 
 
 - See Mills on Eminent Domain, § 160, and succeeding sections. Also §§ 88, 
 •90, 141. 
 
 3 See Hartz v. St. Paul & S. C. R. R., 21 Minn. 361. 
 
106 BELIEF PECULIAR TO EJECTMENT. [§§ 178, 179, 
 
 title the owner while the title remains in him to maintain 
 an action to recover a judgment for the value of the land, 
 or for a sale of the same to pay the judgment. 1 
 
 § 178. Distinction "between trespass quare clauswm fregit 
 and ejectment. — The distinction between trespass and eject- 
 ment has already been noticed, and it seems to be clearly 
 established that trespass quare clausum fregit cannot be 
 employed as a substitute for ejectment. 2 The injury to 
 support an ejectment must be something more than a 
 trespass ; it must amount to a disseizin. 
 
 § 179. When ejectment and not action to remove cloud on 
 title proper remedy. — In Bockes v. Lansing, 3 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 
 executed a conveyance of the same premises to Simeon D. 
 Webster, and plaintiifs claimed to have acquired this title. 
 In 1861, a receiver, appointed in supplementary proceed- 
 ings instituted by a judgment creditor of George Webster, 
 sold the lands to one Humphrey, through whom the de- 
 fendants, who were in possession, claimed title. Plaintiffs 
 brought an action to have the receiver's deed set aside and 
 canceled, 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 main- 
 tained, as the receiver's sale and deed were subsequent to 
 the conveyance under which plaintiffs claimed, and that 
 only an instrument or proceeding which, on its face, pur- 
 ported to create or convey a title or estate paramount to 
 that of the party seeking relief, or to constitute an appar- 
 ently prior incumbrance thereon, could be set aside as a 
 cloud upon the title of a plaintiff in possession. 4 The 
 argument was advanced by counsel that, as all the facts 
 appeared, the court should disregard the form of the, 
 
 1 Railroad Co. v. Robbins, 35 O. S. 531. 
 
 ! Corley v. Pentz, 76 Perm. St. 57. See Jackson v. Pike, 9 Cowen (N. Y.), 69; 
 Potter v. City of New Haven, 35 Conn. 520, 522. See § 93. 
 
 3 13 Hun (N. Y.), 38 ; affi'd 74 N. Y. 437. 
 
 4 See Gunderson v. Cook, 33 Wis. 551 ; and § 154, and note. 
 
§§ 179«, &.] RELIEF PECULIAR TO EJECTMENT. 107 
 
 pleadings, and adjudge the proper relief; but it was 
 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. 
 
 § 179a. Trial of title in foreclosure proceedings. — The doc- 
 trine has been laid down though it does not seem to be 
 securely established that adverse claimants cannot be 
 made parties to a foreclosure suit for the purpose of liti- 
 gating their titles, as no privity exists between such claim- 
 ants and the mortgagee, and the adverse interests can be 
 in no way affected by the suit. 1 Chancellor Walworth said, 
 in Eagle Fire Co. v. Lent. 2 that " so far as mere legal rights 
 are concerned, upon a bill of foreclosure, the only proper 
 parties to the suit are the mortgagor and the mortgagee, 
 and those who have acquired rights or interests under them 
 subsequent to the mortgage. And the mortgagee has no 
 right to make one who claims adversely to the title of the 
 mortgagor, and prior to the mortgage, a party defendant, 
 for the purpose of trying the validity of his adverse claim 
 of title in this court." 8 This doctrine is reiterated by Mr. 
 Justice Swayne, who said : " It is well settled that in a fore- 
 closure proceeding the complainant cannot make a person 
 who claims adversely to both the mortgagor and mortgagee 
 a party, and litigate and settle his rights in that case." 4 
 A second mortgagee may, however, intervene and set up 
 the statute of limitations ; and judgment creditors may 
 also come in and contest the validity of the mortgage. 5 
 
 § 1796. Trial of title by arbitration. — An ejectment suit 
 may be submitted to arbitration, 6 and so may controver- 
 
 1 Jones on Mortgages, § 1440 ; Broome v. Beers, 6 Conn. 207 ; Palmer v. Mead,. 
 7 Conn. 149. 
 
 2 6 Paige (N. Y.), 637, followed in Corning v. Smith, 6 N. Y. 84. 
 
 3 See, also, Lange v. Jones, 5 Leigh (Va.), 192; Stuart v. Coalter, 4 Rand. (Va.) 
 74; Frelinghuysen v. Colden, 4 Paige (N. Y.), 203 ; Holcomb v. Holcomb, 2 Barb. 
 (N. Y.) 23. 
 
 4 Dial v. Reynolds, 96 U. S. 340 ; s. P. Hill v. Meeker, 23 Conn. 594 ; Chapin 
 i>. Walker, 2 McCra. 175. 
 
 ° 2 Jones on Mortgages, § 1441. Examine especially, De Wolf v. Sprague Mfg. 
 Co., 49 Conn. 305 ; Frink v. Branch, 16 Conn. 260. 
 
 6 McCracken v. Clarke, 31 Penn. St. 498 ; Austin v. Snow, 2 Dallas, 157. 
 
108 RELIEF PECULIAR TO EJECTMENT. [§ 180. 
 
 sies concerning boundary lines. 1 Both in England 2 and 
 in the United States, 3 many cases may be found sustaining 
 the validity of submissions of real property controversies 
 to arbitration. In New York no submission to arbitration 
 shall be made "-where the controversy arises respecting a 
 claim to an estate in real property, in fee or for life." i An 
 attempted arbitration made in defiance of the statute is 
 considered to be absolutely void and incapable of ratifica- 
 tion ; 5 but the statute is considered to relate only to the 
 legal title, and hence it is held that a claim to an equitable 
 estate in lands may be the subject of arbitration, 6 aside 
 from the statute. An award, it seems, does not actually 
 pass the title to land,' though it may operate by way of 
 estoppel, and may be used to sustain an action of eject- 
 ment. 8 
 
 §180. Ejectment converted into action to redeem and fore- 
 close mortgages. — The suggestion in Bockes v. Lansing, ante, 
 was not unprecedented, for in the case of the Madison 
 Avenue Baptist Church against the Oliver Street Baptist 
 Church, 9 an action of ejectment was brought against a 
 mortgagee in possession, but by the answer, supplemental 
 pleadings and subsequent proceedings, the title was ad- 
 mitted to be in the plaintiff, and the action was sub- 
 stantially turned into an action on the part of the plaint- 
 iff to redeem from the mortgages, and on the part of 
 the defendant to foreclose them. In North Carolina eject- 
 ment was converted into a foreclosure suit ; 10 and in Kan- 
 
 1 Page v. Foster, 7 N. H. 392; Jones v. Boston Mill Corp., 6 Pick. (Mass.) 148; 
 Stout v. Woodward, 5 Hun (N. Y.), 340, aff'd, 71 N. Y. 590. 
 
 3 Hunter v. Rice, 15 East, 100; Downs v. Cooper, 2 Q. B. 256 ; Doe v. Rosser, 
 3 East, 15. 
 
 3 Carey v. Wilcox, 6 N. H. 177 ; Jones v. Boston Mill Corp., 4 Pick. (Mass.) 
 507; Blair v. Wallace, 21 Cal. 317; Penniman v. Rodman, 13 Met. (Mass.) 382; 
 Page v. Foster, 7 N. H. 392. 
 
 * See N. Y. Code Civil Procedure, § 2365. 
 6 Wiles v. Peck, 26 N. Y. 42. 
 
 6 Olcott z*.-Wood, 14 N. Y. 32, aff'g, 15 Barb. (N. Y.) 644. 
 1 Sellick v. Addams, 15 Johns. (N. Y.) 197; Jackson v. Gager, 5 Cow. (N. Y.) 
 383 ; Shelton v. Alcox, n Conn. 240; Girdler v. Carter, 47 N. H. 305. 
 
 8 Sellick v. Addams, 15 Johns. (N. Y.) 197. 
 
 9 73 N. Y. 82-95. 
 
 10 Robinson v. Willoughby, 67 N. C. 84. 
 
§§ 181-183.] RELIEF PECULIAR TO EJECTMENT. 109 
 
 sas a suit for specific performance was amended so as to 
 become an action to quiet title. 1 
 
 § 181. Action to determine conflicting claims to land changed 
 by amendment into ejectment. — In Brown v. Leigh, 3 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 compel the de- 
 termination of conflicting claims to real property, so as to 
 set forth a cause of action in ejectment. The power to 
 amend from purely equitable relief to ejectment has been 
 denied in the same court. 3 It has also been held that a suit 
 brought to cancel, as fraudulent, a conveyance by the debtor 
 to his wife could not result in a judgment for an interest 
 in the land acquired by the husband upon the death of his 
 wife pending the action. 4 
 
 § 182. Equitable relief not awarded in ejectment. — In Vroo- 
 man v. Jackson, 5 in the New 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 posses- 
 sion. 
 
 § 183. Writs of entry, and forcible entry proceedings, 
 changed by amendment to ejectment. — In Fay v. Taft, 6 de- 
 cided in the Supreme Court of Massachusetts, it appeared 
 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 7 was a proceeding under the forcible 
 
 1 Newell v. Newell, 14 Kans. 202. 
 
 2 49 N. Y. 78. 
 
 3 Bockes v. Lansing, 74 N. Y. 442. 
 
 4 Curtis v. Fox, 47 N. Y. 299. 
 
 5 6 Hun (N. Y), 326. See Broiestedt v. South Side R. R. Co., 55 N. Y. 220. 
 
 6 12 Cush. (Mass.) 448. See Merrill v. Bullock, 105 Mass. 486. 
 ' 105 Mass. 486. See Ferguson v. Kumler, 25 Minn. 183. 
 
110 BELIEF PECULIAR TO EJECTMENT. [§ 184 «- 
 
 entry and detainer statutes of Massachusetts, 1 and was 
 submitted 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 au- 
 thority of Pay v. Taft, above cited, the plaintiff was al- 
 lowed 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. Eadical changes, such as have been 
 adopted to secure the modern system of civil procedure, 
 a,re certain to result, at first, in confusion and mistakes in 
 pleading, both in stating causes of action and framing- 
 prayers for relief. These errors result in part from the 
 habit of ignoring the landmarks between legal and equit- 
 able rights and interests, and overlooking the importance 
 of substantially preserving the ancient and necessary dis- 
 tinctions as to the manner of pleading and asserting equit- 
 able 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, 8 it by no means results that 
 the distinctions in pleading and in the nature of the relief 
 afforded have been abrogated. ]STo infallible rules can be 
 formulated to govern in selecting the appropriate remedy. 
 We suggest, in addition to the tests already furnished, 
 that when the facts render the selection of the form of 
 action doubtful, and when the title to a corporeal estate 
 in land is involved, it is safer to adopt a remedy in the 
 nature of ejectment, in preference to other less compre- 
 hensive and less favored forms of procedure. 
 
 § 184«. Issues that cannot he determined in ejectment.— ^ Hav- 
 ing thus considered many of the authorities which held 
 ejectment to be an exclusive remedy as to certain ques- 
 tions we may very briefly notice a few of the issues that 
 
 1 Gen. Stats, of Mass. u. .137. 
 
 2 See Laub v. Buckmiller,i7 N. Y. 626; Lattin v. McCarty, 41 N. Y. 107; 
 Broiestedt v. South Side R. R. Co., 55 N. Y. 220; Howse v. Moody, 14 Fla. 59. 
 Compare Van Deusen v. Sweet, 51 N. Y. 378. 
 
§ 184«.] BELIEF PECULIAR TO EJECTMENT. Ill 
 
 cannot be tried in this action. Thus the question of the 
 forfeiture by a corporation of its right to hold real estate 
 free from taxation by reason of non user can be determined 
 only in a direct proceeding instituted by the public author- 
 ities. No such issue can be raised for the first time in 
 ejectment between the corporation and an individual. 1 
 This may be explained by an extract from the opinion of 
 Mr. Justice Swayne, in National Bank v. Matthews, 2 who 
 said : "Where a corporation is incompetent by its charter 
 to take a title to real estate, a conveyance to it is not void, 
 but only voidable, and the sovereign alone can object. It 
 is valid until assailed in a direct proceeding instituted for 
 that purpose." s 
 
 A patent issued by the proper officers for a certain por- 
 tion of the public domain is conclusive in ejectment. 4 
 
 Ejectment being an action at law, equitable titles will 
 not in the absence of statutory authority sustain a recovery 
 upon the trial. This is especially true in Federal tribu- 
 nals where the distinction between law and equity remains 
 clearly defined. In the reformed procedure in some States 
 the holder of an equitable title may, as we shall see, assert 
 his rights by answer, 5 in the nature of a cross bill, and in 
 this way the legal and the equitable titles are examined 
 and compared, the question of ownership worked out, 
 and the appropriate relief extended. In other States and 
 in the Federal tribunals the equitable owner files a bill in 
 equity and enjoins the action at law until the equities are 
 determined. In either case the equitable title is' considered 
 practically in equitable proceedings and on equitable proofs, 
 and is not, strictly speaking, determined in the ejectment. 
 
 In Illinois where a trustee vested with the legal estate 
 executes a conveyance, the question as to whether or not 
 
 1 Mackall v. Chesapeake & Ohio Canal Co., 94 U. S. 308. 
 
 2 98 U. S. 628. 
 
 3 See Morawetz on Corporations, § 117 : Natoma Water & Mining Co. u. Clarkin, 
 14 Cal. 552. See § 195. 
 
 4 Steel v. Smelting Co., 106 U. S. 447 ; Ehrhardt v. Hogaboom, 115 U. S. 67 
 6 See §§ 485, 486, 487, 488. Chap. XXXI. 
 
112 BELIEF PECULIAR TO EJECTMENT. [§ 184». 
 
 it conforms to the trust deed is not a subject of inquiry in 
 ejectment. 1 Any relief desired must be sought in equity. 2 
 In ISTew York a widow, having a right to redeem because 
 she was omitted as a defendant in foreclosure, cannot bring 
 ejectment against the purchaser. 3 The remedy is by ac- 
 tion to redeem. The title of a purchaser under a foreclosure 
 decree cannot be impeached collaterally in ejectment for 
 irregularity ; 4 the right of a party to enter upon premises 
 to remove personal property therefrom does not bring up 
 a question of title to land ; 5 the regularity of the appoint- 
 ment of an administrator who is shown to be at least a de 
 facto administrator cannot be collaterally questioned in this 
 action ; 6 nor will the courts undertake to decide in eject- 
 ment who are the de jure officers of a corporation ; the in- 
 quiry must be by quo warranto.' 1 A tax title cannot be at- 
 tacked in ejectment in New Jersey. 8 The remedy is by 
 certiorari. 9 These illustrations might be indefinitely mul- 
 tiplied, but we apprehend the collection is sufficiently 
 complete. 
 
 1 Dawson v. Hayden, 67 111. 54. See Smith v. Pipe, 3 Col. 187. 
 
 2 Graham v. Anderson, 42 111. 517 ; Reece v. Allen, 10 III. 236. See Furguson 
 v. Coward, 12 Heisk. (Tenn.) 572; Beard v. Hall, 63 N. C. 39. 
 
 3 Smith v. Gardner, 42 Barb. (N. Y. ) 356. 
 
 * Nagle v. Macy, 9 Cal. 429; Jacksons v. Robins, 16 Johns. (N. Y.) 576. 
 
 5 Corcoran v. Webster, 50 Wis. 125. 
 
 6 Wight v. Wallbaum, 39 111. 554. 
 
 ' Presbyterian Society, &c. v. Smithers, 12 O. S. 248. 
 " s. P. Blanchard v. Powers, 42 Mich. 619. 
 9 State v. Newark, 40 N. J. Law, 92. 
 
CHAPTER VI. 
 
 PARTIES PLAINTIFF. 
 
 § 185. Who may maintain actions in the 
 nature of ejectment. 
 
 186. Statutory remedies cumulative. 
 
 187. Joinder of plaintiffs. 
 
 188. Hostile claimants cannot join. 
 
 189. Other cases of misjoinder. — 
 
 Amendments, 
 igo. Grantee suing in grantor's name. 
 191. Ejectment by the king. 
 102. 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 
 
 guardian. 
 
 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. 
 
 208. May recover estates for years. 
 
 209. 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. Cesluis que trustent. 
 
 224. Insolvent, or bankrupt. 
 
 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 ejectment. 
 — 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 
 person 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 1 incident to some 
 corporeal estate or interest in lands, can maintain an ac- 
 tion in the nature of ejectment. The title and right of 
 possession acquired after the commencement of the action 
 will not usually authorize a recovery. 2 Mr. Longfield ob- 
 
 1 Vance v. Schroyer, 82 Ind. 114. 
 
 2 Goodman v. Winter, 64 Ala. 437; McCool v. Smith, 1 
 Grove, 18 Pa. St. 377; Donaldson v. Waters, 30 Ala. 175. 
 
 8 
 
 Black, 459; Alden v. 
 
114 PABTIES PLAINTIFF. [§§186,187. 
 
 serves concerning the early practice ; * " All persons who 
 in a politic or natural capacity have an interest in land, 
 sufficient to enable them to make an actual lease, may 
 maintain an ejectment on a feigned lease." 
 
 § 186. Statutory remedies cumulative. — "When the common 
 law furnishes a remedy, and another is provided by stat- 
 ute, the latter is cumulative unless made exclusive by the 
 statute ; 2 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 deter- 
 mining what persons may prosecute actions in the nature 
 of ejectment, which will not be subject to frequent excep- 
 tions, modifications, and limitations. A classification of 
 the particular parties who can maintain these actions, ac- 
 companied 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 inter- 
 ests are joint or united. 3 Hence, on a joint demise, the 
 title proved must be joint, or the plaintiffs cannot recover. 4 
 To sustain an ejectment, as already shown, the plaintiff 
 must establish a right of possession in preesenti to the prem- 
 ises described in the complaint. If several plaintiffs count 
 upon a joint title and right of possession, the same principle 
 applies. The right of possession must exist in each and all 
 of the plaintiffs, or they cannot recover. 6 If one of the 
 
 1 Longfield on Ejectment, p. 12. 
 
 3 Candee v. Hayward, 37 N. Y. 653 ; Wetmore v. Tracy, 14 Wend. (N. Y.) 230, 
 and cases cited. Remedial statutes may be given a retrospective effect. Latkin v. 
 Saffarans, 15 Fed. Rep. 147, and cases cited. 
 
 3 See McKenzie v. L'Amoureux, 11 Barb. (N. Y.) 516; Pomeroy's Remedies 
 and Remedial- Rights, §§ 190-203. Owners of distinct parcels of land may unite in 
 equity to repress a wrong or nuisance common to all. Peck v. Elder, 3 Sandf. (N. 
 Y.) 126 ; Murray v. Hay, 1 Barb. Ch. (N. Y.) 59; Brady v. Weeks, 3 Barb. (N. Y.) 
 157; Pettibone v. Hamilton, 40 Wis. 402. 
 
 4 Taylor v. Taylor, 3 A. K. Mar. (Ky.) 18 ; Hoyle v. Stowe, 2 Dev. (N. C.) Law, 
 318 ; Tucker v. Vance, 2 A. K. Mar. (Ky.) 458 ; Teal v. Terrell, 48 Tex. 491. 
 
 5 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 ; Waterman v. Andrews, 14 R. I. 589- 
 
§188.] PARTIES PLAINTIFF. 115 
 
 plaintiffs has no title, the coplaintiffs cannot recover, 
 though they may be vested with the whole title, 1 for the 
 joinder of too many plaintiffs is ground for nonsuit on the 
 trial, whether the action be for a tort or on contract. 2 In 
 trespass by joint tenants, Judge Story declared it to be a 
 settled rule that all the plaintiffs must be competent to 
 sue, otherwise the action could not be supported. 3 So it 
 was decided in Michigan, that where a joint title is laid in 
 several plaintiffs a title in a less number is not provable. 4 
 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, 5 unless an amendment was allowed be- 
 fore verdict, striking out the name of the demandant who 
 was not entitled to recover. In Virginia, where several 
 plaintiffs aliened pending a suit, it was held that the action 
 could be continued for the benefit of the alienee. 6 
 
 § 188. Hostile claimants cannot join. — It has been decided 
 in Sew York that two persons, each claiming the whole of 
 a parcel of land, by titles derived from different sources, 
 hostile to each other, cannot unite as plaintiffs, and set 
 forth their separate titles in ejectment against a third 
 party in possession. 7 Those whose interests are in har- 
 mony, and only those, should be joined as plaintiffs. 8 The 
 Code of New York has abolished the early practice of nam- 
 ing several lessors and setting forth various and hostile 
 demises in separate and distinct counts. 
 
 1 De Mill v. Lockwood, 3 Bla. C. C. 56-61 ; Murphy v. Orr, 32 111. 489. 
 
 2 Murphy v. Orr, 32 111. 489. 
 
 3 Marsteller v. M'Clean, 7 Cranch, 156. 
 
 4 De Mill v. Moffat, 49 Mich. 128. See Doe v. Butler, 3 Wend. (N. Y.) 149 ; 
 Gillett v. Stanley, 1 Hill (N. Y.), 121, questioned, Vroomanz*. Weed, 2 Barb. (N. 
 Y.) 330. 
 
 5 Chandler v. Simmons, 97 Mass. 508 ; Prop'rs. Oxnard v. Kennebeck Purchase, 
 10 Mass. 179; s. P. Kelley, v. Meins, 135 Mass. 235. 
 
 6 Boiling v. Teel, 76 Va. 487. See Chap. XXIV. 
 
 ' 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; afH'd in Court of Appeals, 4 Abb. Dec. (N. 
 Y.) 140 ; s. P. in equity, Walker v. Powers, 104 U. S. 245 ; Grant v. Van Schoon- 
 hoven, 9 Paige (N. Y.), 255; Fulham v. McCarthy, I H. L. Cas. 703; Padwick v. 
 Piatt, u Beav. 503. 
 
 8 Bunce v. Gallagher, 5 Blatchf. 489 ; Saumarez v. Saumarez, 4 M. & C. 331. 
 See §§ 450, 640. 
 
116 PARTIES PLAINTIFF. [§§ 189, 190. 
 
 § 189. Other cases of misjoinder. — Amendments. — An ex- 
 ecutor cannot join with the devisees under the will to re- 
 cover lands of the testator j 1 nor can the widow join with 
 the heirs in ejectment, and if she is joined the latter cannot 
 recover alone. 2 Towns claiming as tenants in common can- 
 not join in a writ of entry. 3 It is error to order a person 
 to be joined as plaintiff who has no interest in the land ex- 
 cept as mortgagee to secure payment for his professional 
 services in the litigation. 4 In New York the people and 
 certain individuals claiming to be their tenants cannot 
 unite in an action to recover land. 5 Reversioners must all 
 join. 6 The general principles which underlie these cases- 
 seem to be that hostile claimants cannot be coplaintiffs, 
 and the absence of a joint 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 provided by the mod- 
 ern codes of procedure and systems of practice. Thus, 
 where a wife should have sued alone in an action for dam- 
 ages affecting her separate estate, but her husband was 
 joined as a nominal plaintiff, it was held that his name 
 could be stricken out either before or after j udgment. 7 
 
 § 190. Grantee suing in grantor's nttme. — Statutes render- 
 ing 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, 8 and must be actual as distinguished 
 
 1 Tarver v. Smith, 38 Ala. 135. 
 
 2 Pringle v. Gaw, 5 S. & R. (Penn.) 536 ; Gourley v. Kinley, 66 Perm. St. 270. 
 
 3 Rehoboth v. Hunt, 1 Pick. (Mass.) 224. See Chap. IX. 
 
 4 Mohr v. Porter, 55 Wis. 150. 
 
 5 People a. Mayor, &c„ 10 Abb. Pr. (N. Y.) III. 
 
 6 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 modern systems of procedure, 
 be made defendants. Mc Allen v. Woodcock, 60 Mo. 174. See Bliss on Code 
 Pleadings, §§ 77, 78. 
 
 7 Ackley v. Tarbox, 31 N. Y. 564. 
 
 8 Crary v. Goodman, 22 N. Y. 170; Matter of Department of Parks, 73 N. Y. 
 560; Higinbotham v. Stoddard, 72 N. Y. 94; Williams v. Rawlins, 33 Ga. 117. 
 
§ 190.] PARTIES PLAINTIFF. 117 
 
 from constructive possession. 1 These statutes have cer- 
 tainly outlived their usefulness, and are practically the 
 only restraints left upon the alienation of land, and no sub- 
 stantial reason can be assigned for their further retention 
 as a part of the statute law of this country. 2 They were 
 originally introduced partly upon the theory that it would 
 be dangerous to permit the transfer of disputed or " fight- 
 ing" titles, lest powerful and influential persons might 
 purchase and use such titles as a means of oppressing poor 
 people. 3 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 exerts 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 
 reasons can be assigned in favor of the general repeal of 
 these statutes. They are almost a dead letter, for, under 
 the decisions, the deed is not held to be void as a contract 
 between the parties, or at least is enforced by applying the 
 doctrine of estoppel, and is construed to be a power of at- 
 torney authorizing the grantee to use the grantor's name, 
 as plaintiff in ejectment, to recover the lands even against 
 the •will of the latter ; so that the only practical result at- 
 tained by the statutes is a variation of the form of the ac- 
 tion as regards the parties. 4 The grantee and not the 
 
 1 Dawley v. Brown, 79 N. Y. 390; Christie v. Gage, 71 N. Y. 191; Sands v. 
 Hughes, 53 N. Y. 296. 
 
 2 See Noonan v. Lee, 2 Black, 507. 
 
 8 In Roberts v. Cooper, 20 How. 483, Grier, J., said: " In this country, where 
 .lands are an article of commerce, passing from one to another with such rapidity, 
 the ancient doctrine of maintenance, which makes void a conveyance for lands held 
 adversely, is in many States entirely rejected. In some it has been treated as obso- 
 lete by the courts ; in others it has been abolished by statute ; while with some it 
 appears to have found more favor. The ancient policy, which prohibited the sale of 
 pretended titles, and held the conveyance to a third person of lands held adversely 
 at the time to be an act of maintenance, was founded upon a state of society which 
 does not exist in this country. The repeated statutes which were passed in the reigns 
 of Edw. I and Edw. Ill against champerty and maintenance, arose from the em- 
 barrassments which attended the administration of justice in those turbulent times, 
 from the dangerous influence and oppression of men in power." 
 » 4 Hamilton v. Wright, 37 N. Y. 502 ; Steeple v. Downing, 60 Ind. 478; Farnum 
 ■v. Peterson, ill Mass. 148 ; McMahan v. Bowe, 114 Mijss. 140. Compare contra 
 Surdick v. Burdick, 14 R. I. 574. 
 
118 PARTIES PLAINTIFF. [§ 191. 
 
 grantor is in such cases regarded as the real party in inter- 
 est. 1 These statutes do not apply to rights appurtenant, 
 nor to licenses ; 3 nor to possession by Indians ; s nor to a 
 confirmatory deed ; 4 nor to possession under a deed pro- 
 cured through fraud ; 5 nor to a conveyance by a reversioner. 5 
 In New York the statute 7 making it a misdemeanor to ac- 
 cept a conveyance of lands which the grantee knows are 
 held adversely, and the title to which is in litigation, does 
 not affect the previous title of the grantor in a deed exe- 
 cuted in violation of the statute, and the conveyance is no 
 defense to an ejectment brought by him. 8 The New York 
 Court of Appeals, in a singular case, never officially report- 
 ed, 9 promulgated the doctrine that a statute which permits- 
 a grantee of land, held adversely at the time of the convey- 
 ance, to maintain an action in the name of his grantor, is 
 limited in its effect to the first grantee, and does not in- 
 clude a remote grantee of the premises. This manifestly 
 is a decision which in effect revives the operation of these 
 obsolete statutes in a numerous class of cases. We depre- 
 cate the conclusion of the court, and cannot believe that 
 the case will be accepted or followed as a safe precedent. 
 
 § 191. Ejectment by tlie Icing. — Ejectment at common law 
 was a method of redressing injuries not considered "con- 
 sistent with the royal prerogative and dignity." "As r 
 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." 10 The constitutional 
 
 1 Adriance v. Sanders, 2 McC. Civ. Pro. (N. Y.) 262. 
 
 2 Corning v. Troy Iron and Nail Factory, 40 N. Y. 191 ; Broiestedt v. South Side 
 R. R. Co., 55 N. Y. 220 ; Glover v. Manhattan Railway Co., 66 How. Pr. (N, Y.) 85, 
 
 s Jackson v. Hudson, 3 Johns. (N. Y.) 375. 
 
 4 Coleman v, Manhattan Beach Imp. Co., 26 Hun (N. Y.), 525. 
 
 6 Moody v. Moody, 16 Hun (N. Y.), 189. 
 
 6 Christie v. Gage, 71 N. Y. 193. 
 
 1 R. S., Part 4, ch. 1, t. 6, § 5. 
 
 8 Chamberlain v. Taylor, 92 N. Y. 348. 
 
 9 Smith v. Long, 12 Abb. N. C. (N. Y.) 113, reversing 9 Daly (N. Y.), 429. 
 
 10 3 Bla. Com. *257. A foreign sovereign may bring suit in the courts of the 
 United States. The Sapphire, 11 Wall. 164; King of Spain v. Oliver, 2 Wash. 
 431- 
 
§192.] PARTIES PLAINTIFF. 119 
 
 court of South Carolina, following this principle, held that 
 the State of South Carolina having succeeded 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 
 tenant in possession, as he constituted one of the artificial 
 body which sued as plaintiff. 1 This rule was enforced in 
 England only when the king himself was plaintiff. 3 Ejec- 
 tionefirmm was given to the king's lessee to punish a tres- 
 pass, and recover the possession of which the lessee had 
 been deforced. 3 The royal prerogative, it was said, did not 
 pertain 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, 4 in the New 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 pos- 
 sessed by virtue of its sovereignty, or which have reverted 
 or escheated 5 to it from defect of heirs, is, in this country, 
 generally conferred by constitutional provision or statute, 
 and has been sustained in many cases. 6 The State may 
 sue independently of any statutory provision.' When the 
 State, as sovereign, possesses the original and ultimate 
 property in all lands within its jurisdiction, it occupies, in 
 
 1 State v. Stark, 3 Brev. (S. C.) 101; See State v. Arledge, 1 Bailey (S. C.) Law, 
 551 ; See People v. Livingston, 8 Barb. (N. Y.) 253. 
 
 s Doe d. William IV v. Roberts (13 M. & W. 520), seems to have been an eject- 
 ment by the sovereign. 
 
 3 Lee v . Norris, Cro. Eliz. 331. See Payne's Case, 2 Leon. 205. 
 
 4 Jackson v. Winslow, 2 Johns. (N. Y.) 81, 83. See Chiles v. Calk, 4 Bibb 
 (Ky.), 554- 
 
 5 The State, and not the United States, takes escheated lands. Etheridge v. 
 Doe d. Malempre, 18 Ala. 565. 
 
 6 People v. Trinity Church, 22 N. Y. 44; People v. Van Rensselaer, 9 N. Y. 319 : 
 Wendell v. People, 8 Wend. (N. Y.) 183; Hunter v. Field, 20 Ohio, 340; State of 
 Minnesota v. Grant, 10 Minn. 39; People v. Livingston, 8 Barb. (N. Y.) 253 ; Peo- 
 ple v. Conklin, 2 Hill (N. Y.), 67, per Nelson, J.; People v. Denison, 17 Wend. (N. 
 Y.) 312. See James River '& Kan. Co. v. Thompson, 3 Gratt. (Va.) 270; Coburn v. 
 Ames, 52 Cal. 385, A devise to the United States of real property situated in the 
 State of New York is void. United States v. Fox, 94 U. S. 321. 
 
 1 Brown v. The State, 5 Col. 496. 
 
120 PARTIES PLAINTIFF. [§ 192. 
 
 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 subse- 
 quently entered or made claim to them. 1 Indeed the propo- 
 sition was strenuously contended for by counsel, in the 
 case of The People v. Bector, &c, of Trinity Church, 2 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 ISTew 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 withiu 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 
 been once the owner, the defendant must prove where and 
 how the the title has become divested, or establish title by 
 adverse 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. 8 
 
 ' People v. Van Rensselaer, 9 N. Y. 291-319 ; Wendell v. The People, 8 Wend. 
 (N. Y.) 183; People v. Denison, 17 Wend. (N. Y.) 312. See People v. Arnold, 4 N. 
 Y. 508 ; People v. Trinity Church, 22 N. Y. 44. 
 
 2 22 N. Y. 44. 
 
 3 When one State holds lands within the limits of another State it acquires its 
 estate subject to all the incidents of ordinary ownership. Burbank v. Fay, 65 N. Y. 
 62. It may be here noted that the State may convey escheated lands before actual 
 entry or inquisition. McCaughal v. Ryan, 27 Barb. (N. Y.) 376; but see Larreau 
 v. Davignon, 5 Abb. Pr. N. S. (N. Y.) 369. 
 
£ 193. J PARTIES PLAINTIFF. 121 
 
 § 193. When the people cannot recover. — In the case of The 
 People v. The New York and Manhattan Beach Eailway 
 Company, 1 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, 2 a right of 
 action was given to the people in cases " where any money, 
 funds, credits or property . . held or owned, officially or 
 otherwise, for or on behalf of any public or governmental 
 interest, by any municipal or other public corporation, 
 board . . [or] village . . has heretofore, without 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 observed, 
 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 
 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 circum- 
 stances which led to the enactment of a statute might 
 properly be considered in aid of its interpretation. 8 The 
 complaint in the action set forth that the defendant rail- 
 way company had wrongfully acquired possession of the 
 lands in controversy, and subsequently by wrongful inter- 
 ference, 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 commissioners, for a grossly inadequate con- 
 
 1 84 N. Y. 565. 
 
 2 Laws of New York, 1875, ch. 49. 
 
 3 Citing Tonnele v. Hall, 4 N. Y. 140. See s. P. Blake v. National Banks, 23 
 Wall. 307; The Saratoga, 9 Fed. Rep. 330; United States v. Union Pacific R. R. 
 Co., 91 U. S. 74. 
 
122 PARTIES PLAINTIFF. [§ 194. 
 
 sideration, and that a conveyance had been executed in 
 pursuance of the action of the town meeting. The com- 
 plaint, among other things, demanded that the defendants 
 be adjiidged to surrender possession 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 followed the enumeration of 
 specific kinds of personal property. 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 
 preceding words of specific description, is to be construed 
 as referring to property of the same general kind with that 
 previously enumerated, upon the maxim noscitur a sociis. 
 The court considered that it would be a strained construc- 
 tion of the statute to extend it to the recovery of real 
 estate belonging to a municipality, the possession of 
 which had been wrongfully acquired, or was wrongfully 
 withheld. Further, as the deed in question purported to 
 be the formal act of the town, executed by its accredited 
 authorities, pursuant to a vote of a town meeting, 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 meetings, 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, 1 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 
 plaintiffs right of recovery in the action. Clearly, the fact 
 that the title is still in the Indians constitutes no ground 
 
 51 Barb. (N. Y.) 589 ; affi'd 41 N. Y. 397. 
 
§ 195.] PARTIES PLAINTIFF. 123 
 
 of recovery by the people, and the Indians, or one occupy- 
 ing with their consent, could not be dispossessed from 
 lands the title to which had never been acquired by the 
 State. 
 
 We do not readily see how the fee could have been 
 vested in the Indians, for it seems to have been established 
 that the exclusive title to the lands in this country vested 
 in the respective sovereigns of the old world, whose sub- 
 jects discovered the same. 1 The Indians were conceded 
 only a right of occupancy 2 in the nature of an easement, 
 and this right attached itself to the fee and vested in the 
 government without further grant when the Indians 
 abandoned the land. 3 
 
 § 195. Corporations. — At common law, in the absence 
 of charter restrictions, or statutory prohibitions, corpora- 
 tions, whether created by prescription or by legislative act, 
 possess the power to purchase, hold, and convey lands, so 
 far as may be necessary to effectuate the object of their 
 creation. The character and amount of real property 
 which a corporation may acquire is usually limited by its 
 charter or by statute, and its capacity to hold real property 
 can only be questioned by th^ sovereign. 4 A corporation 
 vested with the power, and having the capacity to pur- 
 chase land, may maintain ejectment to recover possession 
 of it. 5 " The modern method of trying the title of land by 
 ejectment," says Kyd, 6 "extends to corporations of every 
 kind, whether in the character of plaintiffs or defendants." 
 Corporations, it has been held, may, by comity, bring eject- 
 ment in States other than those which granted their char- 
 
 1 Johnson v. Mcintosh, 8 Wheat. 574. 
 
 8 United States v. Cook, 19 Wall. 592 ; Strong v. Waterman, 11 Paige (N. Y.),. 
 607. 
 
 3 See Howard v. Moot, 64 N. Y. 271 ; Beecher v. Wetherby, 95 U. S. 525 ; 
 Jackson v. Hudson, 3 Johns. (N. Y.) 375. Compare Ogden v. Lee, 6 Hill (N. Y.), 
 546 ; affi'd 5 Denio (N; Y.) 628. 
 
 4 National Bank v. Matthews, 98 U. S. 628, and cases cited ; Morawetz on Cor- 
 porations, § 117 ; Natoma Water and Mining Co. v. Clarkin, 14 CaI/552. 
 
 5 Henley v. Branch Bk. Mobile, 16 Ala. 552. See Jackson ^.Nestles, 3 Johns. 
 (N. Y.) 115 ; Bennett v. Walker, 64 Ga. 326 ; Partridge v. Ball, 1 Ld. Raym. 136 ; 
 Lincoln Co. v. Magruder, 3 Mo. App. 314. 
 
 6 Kyd on Corporations, vol. 1, p. 187. See Angell & Ames on Corporations, 
 §§ 37°) 631; Society, &c, v. Wheeler, 2 Gallison, 105. 
 
124 PARTIES PLAINTIFF. [§ 196. 
 
 ters, unless expressly prohibited by the statute of such 
 other State from so doing. 1 In Leasure v. Union Mutual 
 Life Insurance Company, 2 it was decided that a foreign 
 corporation could sue in the courts of Pennsylvania, to en- 
 force 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. 3 But it Avas 
 further said that should a foreign corporation resort to the 
 remedy of ejectment, or become a purchaser at a sheriff's 
 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 commonwealth. 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 conflict with the 
 prevailing practice. 
 
 § 19G. 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 ; 5 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 
 had no power to lease the lands of the infant. 6 Ejectment 
 was, however, upheld in Maryland upon the demise of a 
 husband and wife, although the wife was under twenty-one 
 
 1 New York Dry Dock v. Hicks, 5 McL. in. 
 
 2 91 Perm. St. 491. 
 
 8 See Bank of Augusta v. Earle, 13 Pet. 519. 
 
 4 Birchman v. Noright, Hardw. 51; O'Byrne v. Feeley, 61 Ga. 77; Weerasw. Mack- 
 all 4 H. &.M H. (Md.) 484; Zouch v. Parsons, 3 Burr. 1806; Maddon v. White, 2 
 
 1. R. 159; Booth v. Goodwin, 29 Ark. 633. See MacPherson 011 Infancy, ch. xxx, 
 PP. 352-354; Doe d. Miller v. Noden, 2 Esp. 530. The property of minors equally 
 with that of adults is subject to the lex rei site. Hoyt v. Sprague,' 103 U. S. 613. 
 
 5 Heft v. McGill, 3 Penn. St. 256. 
 
 6 Massie v. Long, 2 Ohio, 287. 
 
§ 196.] PARTIES PLAINTIFF. 125 
 
 years of age at the time of the demise laid. 1 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 maybe before 
 the court who can be held responsible for costs. A mother 
 of an infant cannot, without being appointed his guardian, 
 serve a notice to quit on behalf of the infant so as to main- 
 tain ejectment ; 2 but where a father secures himself to be 
 appointed guardian of his son, the proceedings will be 
 assumed to be correct even though it is shown that at the 
 time of the appointment the son was beyond the seas. a 
 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. 4 Thi& 
 action was instituted in the infant's name by her guardian 
 ad litem, to 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 possession 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. 5 The court held, however, that the defend- 
 ant, under the then existing practice in that State, by fail- 
 ing 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 inter- 
 meddling with the rents and profits of the infant's real 
 estate. The action must be brought in the name of the 
 guardian in socage or general guardian. 6 The New York 
 
 1 Weems v. Mackall, 4 Har. & McH. (Md.) 484- 
 
 2 Reade v. Kennedy, 12 Irish L. R. 565. 
 
 3 Morgan v. Thorne, 7 M. & W. 400. 
 
 4 1 T. & C. (N. Y.) 91. See MacPherson on Infancy, pp. 28-35. See § 201. 
 
 5 " There can exist at the same time but one title of entry." Botts v. Shields, 3 
 Litt. (Ky.) 35. See § 728, 
 
 6 Beecher v. Crouse, 19 Wend. (N. Y.) 307. 
 
126 PARTIES PLAINTIFF. L§§ 197, 198. 
 
 Code of Civil Procedure, recently enacted, allows an infant 
 to maintain a real action in its own name. 1 The remedy of 
 infants whose real estate has been sold under a judgment 
 rendered without jurisdiction is by ejectment against the 
 purchasers and not by proceedings to set the judgment 
 aside. 2 
 
 § 197. Security for costs. — The rule laid down in Doe v. 
 Alston, 3 that where an infant sues the court will require 
 the procliein ami, or guardian, to give security for costs, 
 was declared in New Jersey to be peculiar to the action of 
 ejectment. 4 Under the early practice, however, where the 
 lessor of the plaintiff resided outside the jurisdiction of the 
 court, security for costs could be exacted. 5 This is the 
 rule in some of our States. 6 
 
 § 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 convey- 
 ance by some notorious act, such as an actual entry, de- 
 mand of possession, or notice of his election to repudiate 
 the deed. 7 The question as to whether or not the infant 
 must tender back the consideration to render the disaf- 
 firmance effectual is involved in doubt, 8 but the better doc- 
 trine seems to be that where the infant has squandered the 
 money, restitution will not be ordered as a condition of dis- 
 affirmance. 9 
 
 1 New York Code of Civil Procedure, § 1686. 
 
 '' Wiedersum v. Naumann, io Abb. N. C. (N. Y.) 149; s. c. 62 How. Pr. (N. Y.) 
 369- 
 
 3 1 T. R. 491. See Longfield on Ejectment, pp. 92, 93. 
 4 Cotheal ads. Moorehouse, 21 N. J. L. 335. 
 
 6 Nagle v. Power, 1 Jones, 420; O'Connor v. Bernard, 1 Jones, 175. 
 
 •See Tibbs v. Clarkson, 2 B. Mon. (Ky.) 34. The proceedings in a second 
 ejectment could be stayed till the costs of a former action had been paid. Den v. 
 Sinnickson, 14 N. J. Law, 193. 
 
 7 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. An infant's power of attor- 
 ney is absolutely void. Philpot v. Bingham, 55 Ala. 435; Dexter v. Hall, 15 Wall. 
 26. Wait on Fraud. Convs. & Void & Voidable Acts, § 454. 
 
 8 See Bingham v. Barley, 55 Texas, 281; s. C. 40 Am. Rep. 801; Greens. Green, 
 69 N. Y. 553; s. c. 25 Am. Rep. 233. 
 
 9 Wait on Fraud. Convs. & Void & Voidable Acts, § 507, and cases cited. Chand- 
 ler v. Simmons, 97 Mass. 514 ; Tucker v. Moreland, 10 Peters, 74 ; Keil v. 
 
§ 199.] PARTIES PLAINTIFF. 127 
 
 An infant cannot be estopped from asserting title to his 
 property. 1 
 
 § 199. Guardian in socage and general guardian. — A guar- 
 dian in socage may bring ejectment in his own name as 
 guardian for the lands of his ward. 2 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 
 ■entitled 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 the action of trespass or ejectment 
 against any person entering upon him without right." 3 
 Such a guardian, in the language of Lord Ellenborough, 
 " has not a mere office or authority, but an interest in the 
 ward's estate." 4 He may maintain actions for inj uries to 
 his ward's realty. Being clothed with the duty of manag- 
 ing and protecting the ward's property for his benefit 
 the law gives him all the necessary legal remedies to ac- 
 complish these purposes. 5 Guardianship in socage has 
 gone into disuse, 6 and is practically unknown to our law, 7 
 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. 8 The common law right of a guar- 
 dian 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, 9 who possesses 
 
 Healey, 84 III. 105. See Sims v. Everhardt, 102 U. S. 309; Gillespie v. Bailey, 
 J2 W. Va. 70; s. c. 29 Am. Rep. 445; Kline w. Beebe, 6 Conn. 494. 
 
 1 See Sherman v. Wright, 49 N. Y. 227; Chapin v. Shafer, 49 N. Y. 407. 
 
 * Holmes v. Seely, 17 Wend. (N. Y.) 75; Byrne v. Van Hoesen, 5 Johns. (N. 
 Y.) 66; Seaton v. Davis, 1 T. & C. (N. Y.) 91 ; MacPherson on Infants, pp. 28, 35; 
 Truss v. Old, 6 Rand. (Va.) 556; Wade v. Baker, 1 Ld. Raym. 130; Caggerz/. Lan- 
 sing, 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.j, 208-216; Shopland v. Ryoler, 
 Cro. Jac. 98 ; See Beecher v. Crouse, 19 Wend. (N. Y.) 306; Cole on Eject, p. 582. 
 
 ' Holmes v. Seely, 17 Wend. (N. Y.) 75; See Quadring v. Downs, 2 Mod. 176. 
 
 * The King v. Inhabitants of Oakley, 10 East, 491. 
 
 s Torry v. Black, 58 N. Y. 185 ; Byrne v. Van Hoesen, 5 Johns. (N. Y.) 66. 
 
 6 2 Kent's Com. p. 224. See, nowever, N. Y. R. S. (7th ed.) p. 2162, § 5 ; Bar- 
 tholomew v. Lyon, 67 Barb. (N. Y.) 86. 
 
 7 Combs v. Jackson, 2 Wend. (N. Y.) 153. 
 
 8 2 Kent's Com. p. 224. 
 " 2 Kent's Com. p. 228. 
 
128 PAKTIES PLAINTIFF. [§§ 200, 201. 
 
 similar powers, 1 and may bring ejectment. 2 The right of a 
 guardian in socage, 3 general guardian, 4 or of a chancery- 
 guardian, 5 to lease his ward's real estate, is abundantly es- 
 tablished. 6 In Michigan a guardian cannot maintain eject- 
 ment 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. 7 
 
 § 200. Guardians for nurture and by nature. — A guardian 
 for nurture has neither the right of property nor of posses- 
 sion, and, it is clear, cannot maintain the action, 8 that 
 privilege not being extended to those guardians to whom 
 belong the custody of the infant's person only. 9 The same 
 principle applies to a guardian by nature. 10 
 
 § 201. Ejectment by both infant and guardian. — In Canada, 
 under the statute 8 Geo. IV, chap. 6, which provides that 
 guardians shall have the charge and management of the 
 estates of their wards, real and personal, and shall appear 
 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. 11 Mr. Adams says : " It is difficult to dis- 
 cover any principle upon which both infant and guardian 
 
 1 Thacker v. Henderson, 63 Barb. (N. Y.) 271. See Field v. Schieffelin, 7 Johns. 
 Ch. (N. Y.) 150. J 
 
 2 Smith v. Robertson, 24 Hun (N. Y.), 210, afE'd 89 N. Y. 555. 
 
 3 Emerson v. Spicer, 55 Barb. (N. Y.) 428 ; s. c. affi'd 46 N. Y. 504; Snook v. 
 Sutton, 10 N. J. L. 133. y 
 
 4 Richardson v. Richardson, 49 Mo. 29; Granby v. Amherst, 7 Mass. 1-6; see 
 Huff v. Walker, 1 Ind. 193. 
 
 6 Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 150. 
 
 6 Thacker v. Henderson, 63 Barb. (N. Y.) 271. 
 
 'Kinney v. Harrett, 46 Mich. 87; s. c. 24 Alb. L. J. 216. 
 
 8 Anderson ads. Darby, 1 N. & McC. (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- 
 der v. Peter, 4 G. & J. (Md.) 323; Bedell v. Constable, Vaughan, 177. See Fonda 
 v. Van Home, 15 Wend. (N. Y.) 631. 
 
 w 9 fee note to Ratcliff's Case, 3 Rep. 37 (2 Coke, 99); Combs v. Jackson, 2 
 Wend. (N. Y.) 153 ; Kinney v. Harrett, 46 Mich. 87 ; opinion per Cooley, J., s. c. 24 
 Alb. L. J. 216. 
 
 10 Ibid. See Fonda v. Van Home, 15 Wend. (N. Y.) 631. 
 " Doe d. Atkinson v. McLeod, 8 U. C. Q. B. 344. 
 
§ 202.] PARTIES PLAINTIFF. 129 
 
 can have the right of maintaining ejectment for the same 
 lands." 1 The existence of this double authority to sue for 
 and recover the infant's lands is certainly somewhat anoma- 
 lotfs. 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, 2 
 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. 
 
 § 202. Guardian'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 legislation, and of 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 Pennsyl- 
 vania, 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 a 
 deed, it is considered to be in effect the grant of a part 
 of the corpus of the estate, and not of a mere incorporeal 
 right, and, without the intervention and approval of the 
 Orphan's Court, the conveyance is void. 3 JSTor is a guard- 
 ian authorized to grant an incorporeal hereditament out of 
 the lands of his ward. 4 
 
 1 Adams on Ejectment (4th ed.), pp. 115, [*67.] 
 
 '' 1 T. & C. (N. Y) 91. See § 196. Compare Segelken v. Meyer, 14 Hun (N. 
 Y -)» 593 ; Porter v. Bleiler, 17 Barb. (N. Y.) I4g. 
 
 3 Stoughton's Appeal, 88 Penn. St. 198. See § 114. 
 
 4 Watkins v. Peck, 13 N. H. 360 ; s. c. 40 Am. Dec. 156. 
 
 9 
 
130 PAKTIES PLAINTIFF. [§§ 203, 204. 
 
 § 203. Committee of a lunatic. — A committee of a lunatic 
 cannot maintain an action of ejectment in bis own name 
 for lands of the lunatic, for the reason that the committee 
 is uot clothed or vested with an estate in the lands. 1 " No 
 rule of law," says the Supreme Court of New York, "is 
 better settled than that a lunatic, by the appointment of a 
 committee, loses none of his estate, rights of property, or 
 rights of action." 2 In North Carolina the guardian of an 
 insane person cannot bring the action. 3 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, and cannot maintain ejectment in that capac- 
 ity, for lands alleged to have belonged to the lunatic prior 
 to the appointment of the committee. 4 "The committee," 
 says Judge Bronson, "is a mere bailiff or servant, and the 
 interest and right of action remain in the lunatic." 5 In 
 Missouri, in an ejectment by an insane person in his own 
 name, the court held that it could proceed with the action 
 without the appointment of a guardian. 6 
 
 The usual practice is to bring the action in the name of 
 the lunatic by his committee or by a guardian. 
 
 § 204. Committee may maintain equitable action. — Though 
 the committee cannot prosecute a purely legal action, 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. 7 This doctrine has 
 
 ' Petrie v. Shoemaker, 24 Wend. (N. Y.)8s;, Knipe v. Palmer, .2 Wils. 130; 
 Drury v. Fitch, Hutton, 16 ; In re Fitzgerald, 2 Sch. & Lef. 437; Burnet u. Boolc- 
 staver, 10 Hun (N. Y.), 481 ; Cox v. Dawson, Noy, 27; s. c. Hob. 215; Fulcher 
 v. Griffin, Popham, 140; Gilleland v. Martin, 3 McL. 490. 
 
 ! McKillip v. McKillip, 8 Barb. (N. Y.), 552. A disaffirmance of the lunatic's 
 ■deed must be shown ; Schuff v. Ransom, 79 Ind. 465 ; and an offer of restitution 
 is not necessary. Crawford v. Scovell, 94 Pa. St. 48 ; s. c. 39 Am. Rep. 766 ; 
 Rogers v. Walker, 6 Pa. St. 371. 
 
 3 Brooks %,. Brooks, 3 Ired. (N. C.) Law, 389. See Knipe v. Palmer, 2 Wils. 
 130; Buswell on Insanity, § 118. Compare Klohs v. Reifsnyder, 61 Pa. St. 240. 
 
 4 Burnet v. Bookstaver, 10 Hun (N. Y.), 481. 
 
 5 Lane v. Schermerhorn, 1 Hill (N. Y.), 97. The mental incapacity may be 
 shown in an action of ejectment ; it is not necessary to bring a direct action to 
 annul the deed. Van Deusen v. Sweet, 51 N. Y. 378. See Mitchell v. Barnes, 22 
 Hun (N. Y.), 199, 200. 
 
 6 Allen v. Ranson, 44 Mo. 263. 
 
 1 Fields v. Fowler, 2 Hun (N. Y.), 400; Person v. Warren, 14 Barb. (N. Y.) 
 
§ 205.] PARTIES PLAINTIFF. 131 
 
 received the sanction of Kent 1 and Walworth, 3 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 deed. 3 Though the reason from which this rule origi- 
 nated 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; 4 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. 6 The 
 powers and 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 person- 
 alty, while his power over the realty is usually limited to 
 leasing and the perception of profits. 
 
 A drunkard is not incompetent like an idiot or one "gen- 
 erally insane. He is simply incompetent upon proof that, 
 at the time of the act challenged, his understanding was 
 clouded, or his reason dethroned by actual intoxication. 6 
 
 § 205. Sews at law. — An heir at law may bring ejectment 
 for lands of which his ancestor died seized. 7 So may preter- 
 mitted heirs ; 8 and a child born after a will was made but 
 who is not mentioned in it, by its guardian. 9 Under the old 
 practice the demise was laid on the day the ancestor died, 
 
 488. See McKillip v. McKillip, 8 Barb. (N. Y.) 552 ; Petrie u. Shoemaker, 24 
 Wend. (N. Y.) 85 ; Davis v. Carpenter, 12 How. Pr. (N. Y.) 287. 
 ' Ortley v. Messere, 7 Johns. Ch. (N. Y.) 139. 
 
 2 Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 24. 
 
 3 Palmer, Attorney General, v. Parkhurst, 1 Cas. in Ch. 112. See Ridler v. 
 Ridler, 1 Eq. Cases, Abr. 279; Dexter v. Hall, 15 Wall. 21. 
 
 "Addison v. Dawson, 2 Vern. 678; Ortley v. Messere, 7 Johns. Ch. (N. Y.) 
 139- 
 
 ' Warden v. Eichbaum, 14 Penn. St. 121. 
 
 6 Van Wyck v. Brasher, 81 N. Y. 262; Peck v. Cary, 27 N. Y. 9 ; Gardner v. 
 Gardner, 22 Wend. (N. Y.) 526. 
 
 ' Buck v. Squiers, 22 Vt. 484 ; Uhrich v. Beck, 13 Penn. St. 639 ; Tapscott v. 
 Cobbs, 11 Gratt. (Va.) 172; Updegraff v. Trask, 18 Cal. 458; Carruthers v. Bailey, 
 3 Ga. 105; King v. Boyd, 4 Oregon, 326 ; Filbey v. Carrier, 45 Wis. 469 ; Jones v. 
 Billstein, 28 Wis. 221; St. John v. Northrup, 23 Barb. (N. Y.) 26. See § 573. 
 
 8 McCracken v. McCracken, 67 Mo. 590. 
 
 9 Smith v. Robertson, 24 Hun (N. Y.), 210; affi'd 89 N. Y. 555. 
 
132 PARTIES PLAINTIFF. [§ 205. 
 
 for, if the ancestor died at five o'clock, the heir might enter 
 at six and make a valid lease at seven. 1 The heir may have 
 the action though the ancestor died out of possession, 2 or 
 was holding by adverse possession; 8 and a writ of right by 
 the heir may be supported though the ancestor was dis- 
 seized at the time of his death. 4 The heirs may convey 
 without waiting for the discovery of a will or the proof of 
 claims to establish the certainty of the title. 5 The heirs of 
 a trustee may maintain ejectment, the action not being 
 adverse to the interests of the cestui que trust. 6 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. T 
 Where the interest claimed was subject to a life estate, 
 the complaint must show that such estate has ceased. 5 
 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. 9 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. 10 No entry is necessary ; it is suf- 
 ficient to prove his title as heir. 11 One of six heirs of an 
 owner of a rent charge, with condition of re-entry, may, 
 upon non-payment of rent, maintain an action of ejectment 
 to recover an undivided sixth part of the demised prem- 
 
 1 Roe d. Wrangham v. Hersey, 3 Wils. 274. 
 * Webster^. Webster, 53 Penn. St. 161. 
 
 3 Hanna v. Renfro, 32 Miss. 125. 
 
 4 Mason v. Walker, 14 Me. 163. 
 
 6 Moser v. Cochrane, 25 N. Y. Daily Reg. 253 ; Spring v. Sandford, 7 Paige (N.. 
 Y.), 550; Hayes v. Harmony Grove Cemetery, 108 Mass. 400. 
 
 G Crunkelton v. Evert, 3 Yeates (Pa.), 570. Heirs of a mortgagor cannot main- 
 tarn ejectment against a party standing in the position of a mortgagee in possession. 
 Dunning v. Fisher, 20 Hun (N. Y.), 178, reversed on other features, 85 N. Y. 30. 
 
 7 Brown v. Colson, 41 Ga. 42. 
 
 8 Owen v. Cooper, 46 Ind. 524. 
 
 » Dowd v. Gilchrist, 1 Jones (N. C), Law, 353 ; Bronson v. Paynter, 4 Dev. k 
 Bat. (N. C.) Law, 393. See Chap. IX. ' 
 
 10 Updegraff v. Trask, 18 Cal. 458. See Bufford v. Holliman, 10 Texas, 564. 
 
 11 Soto v. Kroder, 19 Cal. 87. See Buck v. Squiers, 22 Vt. 484 ; Austin v. Bailey, 
 37 Vt. 219. ^ ' 
 
I 206, 207.] PARTIES PLAINTIFF. 133 
 
 ises. 1 The death of the owner, and the descent by opera- 
 tion of law to several heirs, effects a transfer to each, and, 
 as already stated, they hold as tenants in common. 2 
 
 § 206. Devisees. — A devisee may maintain ejectment. 3 
 Eeference will be presently made to the statutory policy, 
 peculiar to several States, which permits executors or ad- 
 ministrators to retain possession and control over the real 
 property 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 re- 
 stricted 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 become necessary, and so long a time 
 had elapsed that the executor's lien would be presumed to 
 be satisfied, the devisee might bring ejectment. 4 The 
 same principle applies in that State to heirs, if no admin- 
 istrator has been appointed ; or if administration has been 
 had, the debts will be presumed to be satisfied after the 
 lapse of nine years, and the heirs may then sue. 5 A devisee 
 has by operation of law, without actual entry, such a seizin 
 as will enable him to bring a writ of entry. 6 
 
 § 207. Personal representatives. — As a general rule, an 
 
 1 Cruger v. McLaury, 41 N. Y. 219, and cases cited. See §§ 160, 370. 
 
 2 Illegitimate children cannot inherit real estate of the ancestor of their deceased 
 mother. Matter of Mericlo, 63 How. Pr. (N. Y.) 62, reviewing the cases. 
 
 Probate of will reviewed by jury. — In New York, at least, the probate of a will is 
 not conclusive as to real estate, either as to its validity or due execution. Matter 
 ■of Kellum, 50 N. Y. 299; Bailey v. Hilton, 14 Hun (N. Y.), 7. It is prima facie 
 evidence which may be repelled. Jackson v. Rumsey, 3 Johns. Cas. (N. Y.), 236 ; 
 Bailey v. Stewart, 2 Redf. (N. Y.)2I2. Compare Hewlett v. Wood, 62 N. Y. 75 ; 
 Wager v. Wager, 23 Hun (N. Y.), 439; though the probate is conclusive as to 
 persopalty. Vanderpoel v. Van Valkenburgh, 6 N. Y. 190. The question of 
 testamentary capacity is, therefore, frequently raised in ejectment. We may note 
 that equity will not set aside the probate of a will. Ellis v. Davis, 109 U. S. 485 ; 
 Case of Broderick's Will, 21 Wall. 509; Kerrich v. Bransby, 7 Bro. P. C. 437 ; 
 State of California v. McGlynn, 20 Cal. 266. 
 
 3 Young v. Holmes, 1 Strange, 70; Doe d. Saye v. Guy, 3 East, 120. See 
 McCrea v. Haraszthy, 51 Cal. 146; Van Rensselaer v. Barringer,- 39 N. Y. 9; 
 Woodbridge v. Banning, 14 O. S. 328. While a devise of real estate to an alien is 
 void by statute in New York (R. S. Part II, ch. 6, t. 1, art. I, § 4), a devise to executors 
 who are citizens in trust to pay the income to an alien is valid. Marx v. McGlynn, 
 .88 N. Y. 357. 
 
 4 Abbott v. Pratt, 16 Vt. 626. 
 
 5 Buck z/.'Squiers, 22 Vt. 484; Austin v. Bailey, 37 Vt. 219, 
 
 6 Green v. Chelsea, 24 Pick. (Mass.) 71. 
 
134 PARTIES PLAINTIFF. [§ 208. 
 
 executor, administrator, 1 or administrator de bonis non* 
 cannot 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 tes- 
 tator or intestate, and ordinarily has no concern with or 
 control over the real property, 8 has no commission to inter- 
 vene and unsettle the title to the landed possessions of the 
 heirs derived through inheritance, 4 and is not vested with 
 the seizin or any estate in lee. 5 Upon the death of an 
 ancestor the title to real property usually vests immedi- 
 ately in the heirs or devisees, whose rights to the remedy of 
 ejectment we have just considered. Exceptions to these 
 rules have been created by statute in several States, and 
 the right has been given to personal representatives ta 
 control the real estate and treat it as assets until the debts 
 are paid. 6 
 
 § 208. May recover estates for years. — An executor may 
 maintain ejectment for lands which were held by his testa- 
 tor for a term of years, as such term is a chattel interest,' 
 or a chattel real, 8 and is treated as assets in his hands. So, 
 under the early practice, he was entitled to an ejectione 
 prm.ce, for such an interest. 9 Executors of a testator who 
 held an estate for years in land, and had leased the same 
 
 1 McPike v. Wells, 54 Miss. 136; Burdyne v. Mackey, 7 Mo. 374; Lucy v. 
 Lucy, 55 N. H. 9; Hollingsworth v. Spaulding, 54 N. Y. 636; Bridgewater v. 
 Brookfield, 3 Cow. (N. Y.) 299: James v. Beesly, 4 Redf. (N. Y.) 236. See 
 Denham v. Cornel], 67 N. Y. 560 ; Sheldon v. Rice, 30 Mich. 296 ; Humphreys v.. 
 Taylor, 5 Oregon, 260 
 
 2 Brown v. Strickland, 32 Me. 174. 
 
 3 Ludlow v. Johnson, 3 Ohio, 553 ; Burdyne v. Mackey, 7 Mo. 374. 
 
 4 Campbell v. Kuhn, 45 Mich. 513 ; s. c. 40 Am. Rep. 479. 
 
 6 Hathaway v. Valentine, 14 Mass. 501 ; Humphreys v. Taylor, 5 Oregon, 260 ;. 
 Morrill v. Menifee, 5 Ark. 629. 
 
 6 See Carnall -v. Wilson, 21 Ark. 62 ; Sisk v. Almon, 34 Ark 391. 
 
 7 Duchane v. Goodtitle, 1 Blackf. (Ind.) 117. See Williams on Executors (6tb 
 Am. ed.), vol. 1, pp. 746, 749 ; Olendorf v. Cook, 1 Lansing (N. Y.), 37 ; Cole on 
 Eject. 533. 
 
 8 Mosher v. Yost, 33 Barb. (S. Y.) 277 ; Metters v. Brown, 1 H. & C. 686 ; 
 Murdock v. Ratcliff, 7 Ohio, 119; Moreton's Case, 1 Ventris, 30; Slade's Case, 
 4 Rep. 95 a (2 Co. 510); Doe v. Bradbury, 2 D. & R. 706; s. c. 16 Eng. Com. Law, H5r 
 Lewis' Heirs v. Ringo, 3 A. K. Mar. (Ky.) 247 ; Payne v. Harris, 3 Strobh. Eq. 
 (S. C.) 39. 
 
 9 Peytoe's Case, 9 Rep. 78 b; (5 Coke, 143); Russell v, Prat, cited. in I Ander- 
 son, 243. See Gutzweiler v. Lackmann, 39 Mo. 91; Despard v. Churchill. 53 N. Y- 
 192. Compare People v. McAdam, 84 N. Y. 287 ; Smith v. Dodds, 35 Ind. 4."- 
 
§§209, 210.J PARTIES PLAINTIFF. 135 
 
 for a part of the term, with condition of re-entry for non- 
 payment of rent, may bring the action. 1 So may an ad- 
 ministrator of a tenant from year to year, 2 and it seems to 
 be immaterial whether the ouster occurred before or after 
 the death of the testator or intestate. In a case in Eng- 
 land, two of three executors were permitted to recover in 
 ejectment, on a joint demise, a mortgage term which be- 
 longed to their testator. 8 Ejectment has been upheld in 
 England on a demise laid before probate granted, 4 and 
 before letters of administration were issued. 5 In Alabama 
 the executor, suing in his representative capacity, and the 
 devisees under the will, cannot join in ejectment. 6 Under 
 the peculiar practice 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. 8 
 
 § 210. When executors or administrators may sue.— 
 Though ordinarily, as we have seen, an executor 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 eject- 
 
 1 Van Rensselaer v. Hayes, 5 Denio (N. Y.), 477. 
 
 2 Doe v. Porter, 3 T. R. 13. 
 
 3 Doe d. Stace v. Wheeler, 15 M. & W. 622. 
 
 4 Roe d. Bendall v. Summerset, 2 W. Bl. 692. 
 6 Patten v. Patten, Ale. ft N. 493. 
 
 6 Tarver v. Smith, 38 Ala. 135. 
 
 7 Cornell v. Green, 10 S. & R. (Penn.) 14. 
 
 8 Van Rensselaer v. Hayes, 5 Denio (N. Y.), 477. 
 
136 PARTIES PLAINTIFF. [§ 211. 
 
 ment. 1 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. 3 
 In Pennsylvania, executors empowered by will to sell real 
 estate may bring ejectment for it, 3 and it has been held 
 that the executors may bring the action when no one is 
 designated in the will to execute the power. 4 In Tennes- 
 see 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. 5 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. 6 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. 7 The title in such a 
 case is taken by the administrator in trust for the estate, 
 and the land is treated as personal property. 8 In New 
 York, 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 joining the heirs. 9 
 
 § 211. Statutory changes. — In California, during adminis- 
 tration of an estate, and until distribution, the executor or 
 administrator is entitled to the possession of the real prop- 
 
 1 Duchane v. Goodtitle, I Blackf. (Ind.) 117. 
 
 2 McLean v. Macdonald, 2 Barb. (N. Y.) 534. 
 
 3 Chew's Ex'rs v. Chew, 28 Perm. St. 17. 
 
 4 Kirk v. Carr, 54 Perm. St. 285. 
 
 B Brown v. McCloud, 3 Head (Tenn.), 280. 
 6 Lewis v. McFarland, 9 Cranch, 151. 
 1 Kunzie v. Wixom, 39 Mich. 384. 
 
 8 Valentine v. Belden, 20 Hun (N. Y.), 537. 
 
 9 Reynolds v. Darling, 42 Barb. (N. Y.) 418. The question of the right of an 
 administrator with the will annexed to execute a. power of sale of real estate given 
 to an executor or trustee under a will is involved in some obscurity in New York. 
 See Onderdonk v. Ackerman, 23 N. Y. Daily Reg. 1165 (New York Court of 
 Appeals); Bain v. Matterson, 54 N. Y. 663; Roome v. Philips, 27 N. Y. 357 ; 
 Hood v. Hood, 85 N. Y. 571. 
 
§ 212.] PARTIES PLAINTIFF. 137 
 
 erty, and may recover it from the heir or devisee. 1 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. 2 
 A similar statutory policy prevails in Minnesota. 3 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, 4 and it has been held in that State, that, where the 
 plaintiff brings the action as an individual, the complaint 
 may be so amended as to show that he sues as administra- 
 tor. 5 In Missouri, however, an executor suing in his rep- 
 resentative capacity was not allowed to recover by virtue 
 of his individual interest. 6 An administrator in Florida 
 may maintain ejectment, 7 but cannot have partition. 8 
 
 § 212. Reversioners — ■ conditions subsequent. — A grantor 
 may maintain ejectment, after a breach of a condition sub- 
 sequent, to recover the premises conveyed subject to such 
 condition ; 9 usually all the original grantors or their heirs 
 must join in the action. 10 The grantors are reversioners, and 
 such an interest in real estate is not and does not become 
 a title till after entry, 11 or the recovery of possession ; until 
 then the title of the defendant is not divested. 12 "Such in- 
 terest," says the New York Supreme Court, "being joint, 
 
 ' Page v. Tucker, 54 Cal, 121 ; See McCrea v. Haraszthy, 51 Cal. 146; McClel- 
 3and v. Dickenson, 2 Utah, 100. 
 
 2 Kline v. Moulton, 11 Mich. 370. But see Warren v. Tobey, 32 Mich. 45. 
 
 3 Miller v. Hoberg, 22 Minn. 249; see Menifee v. Menifee, 8 Ark. 9. 
 4 McRae v. McDonald, 57 Ala. 423; Russell v. Erwin, 41 Ala. 292; Golding v. 
 
 Golding, 24 Ala. 122. 
 
 " Agee v. Williams, 30 Ala. 636. 
 
 6 Burdyne v. Mackey, 7 Mo. 374. 
 
 7 Sanchez v. Hart, 17 Fla. 507. 
 
 6 Whitlock v. Willard, 18 Fla. 156. 
 
 9 Horner v. Chicago, M. & St. P. Ry. Co., 38 Wis. 165; Bogie v. Bogie, 41 Wis. 
 ■209 ; Bear v, Whisler, 7 Watts (Pa.), 144; Ruch v. Rock Island, 97 U. S. 693. 
 
 10 Cook v. St. Paul's Church, 5 Hun (N. Y.), 293 ; affi'd 67 N. Y. 594. In New 
 Jersey a plaintiff having a defeasible title is entitled to a general judgment. Hunt 
 ■v. O'Neill, 44 N. J. Law, 566. 
 
 11 Osgood v. Abbott, 58 Me. 73; Guild v. Richards, 16 Gray (Mass.), 309. 
 
 18 Ruch v. Rock Island, 97 U. S. 693; Kenner v. American Contract Co., 9 Bush 
 (Ky.), 202. 
 
138 PARTIES PLAINTIFF. [§ 213. 
 
 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." 1 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. 8 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 
 conveyance of the land, 3 and is not assignable, 4 and a 
 stranger cannot take advantage of it. 5 If a grantor re- 
 enters for breach of a condition subsequent, the dower of 
 the grantee's wife, of course, falls with the estate of her hus- 
 band, 6 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. 7 The right to enforce the forfeit- 
 ure may be lost by waiver. 8 The condition, if relied on to 
 work a forfeiture, is construed with great strictness. 9 
 
 § 213. 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 re- 
 served in the deed, the grantor, upon proof of the breach, 
 
 1 Cook v. St. Paul's Church, 5 Hun (N. Y.), 293; Nicoll -a. N. Y. & Erie Rail- 
 way, 12 N. Y. r2i. See Doe d. Patrick v. Beaufort, 4 Eng. L. & Eq. 496. 
 
 "Adams on Ejectment, 4th ed. p. *72 (120). See Sheets v. Seldon, 2 Wall. 189. 
 
 3 Towle v. Remsen, 70 N. Y. 303-312. 
 
 4 Underhill v. Saratoga & W. R. R. Co., 20 Barb. (N. Y.) 455; Ruch *. Rock 
 Island, 97 U. S. 693. 
 
 6 Schulenberg v. Harriman, 21 Wall. 44-63 ; Dewey v. Williams, 40 N. H. 222; 
 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. Saratoga & W. R. R. Co. 20 Barb. 
 (N. Y.) 455; Ruch v. Rock Island, 97 U. S. 693. 
 
 6 Beardslee v. Beardslee, 5 Barb. (N. Y.) 324. See Moore v. Esty, 5 N. H. 479. 
 
 7 Moore v. Pitts, 53 N. Y. 85. But see Allen v. Brown, 5 Lansing (N. Y.), 
 280. 
 
 8 Cook v. St Paul's Church, &c, 67 N. Y. 594; Andrews v. Senter, 32 Me. 394; 
 Hooper v. Cummings, 45 Me. 359. An elaborate consideration of the rules applic- 
 able to conditions subsequent, how construed, duration of, waiver, release, breach of, 
 etc., may be found in a note to Cross v. Carson, 44 Am. Dec. 742, 744. The sub- 
 ject is too prolific of cases to admit of extended treatment in this volume. See also. 
 Hammond v. Railroad Co., 15 S. C. 10. 
 
 9 Crane v. Hyde Park, 135 Mass. 149. 
 
§214.] PARTIES PLAINTIFF. 139 
 
 may recover the premises in ejectment, without previous 
 entry, 1 demand or notice. The court, in the opinion, cites 
 with approval various cases in which conditions against the 
 use of the premises for a school-house, distillery, blast fur- 
 nace, livery stable, machine shop, powder magazine, hos- 
 pital, or cemetery, have been upheld as valid. 2 The follow- 
 ing clause in a deed of real estate, "This conveyance is 
 made by us upon condition that the said 0," the grantee, 
 " will erect upon said premises a cotton factory within two 
 years from the date hereof," was held to be a condition 
 annexed to the estate and not a personal covenant with the 
 grantor, and an entry for breach of the condition was not 
 invalid for want of notice to the grantee. 8 Where, how- 
 ever, 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 interproprietary regulation. 4 
 
 § 214. Forfeiture of life estate. — In this country a rever- 
 sioner cannot maintain ejectment on the ground that the 
 owner of the life estate has forfeited his estate by the com- 
 mission of waste, 5 nor does the life tenant forfeit his estate 
 by claiming the fee against the reversioner, 6 nor by con- 
 senting to a sale of it, 7 nor by executing a deed purporting 
 to convey the fee, 8 and the remainder men, after the con- 
 
 ' See Cowell v. Springs Co., ioo U. S. 58 ; Austin v. Cambridgeport Parish, 21 
 Pick. (Mass.) 215 ; Ruch v. Rock Island, 97 U. S. 693; especially, Cornelius v. Ivins, 
 26 N. J. Law, 386, and cases cited. 
 
 ' Plumb v. Tubbs, 41 N. Y. 442. See Collins Mfg. Co. v. Marcy, 25 Conn. 242 ; 
 Gray v, 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 ; 
 Gillis v. Bailey, 17 N. H. 18 ; Gibert v. Peteler, 38 N. Y. 165 ; Cowell v. Colorado 
 Springs Co., 3 Col 82; s. c. 100 U. S. 55 ; Bogie v. Bogie, 41 Wis. 209; Horner v. 
 Chicago, M. & St. P. Ry. Co. 38 Wis. 165. 
 
 3 Langley v. Chapin, 134 Mass. 82. See Crane v. Hyde Park, 135 Mass. 147 ; 
 Anon., 2 Abb. N. C. (N. Y.) 56 ; Craig v. Wells, 11 N. Y. 315. 
 
 4 Hornback v. Cincinnati & Z. R. R. Co. 21 Ohio St. 81. Compare Hammond 
 v. Railroad Co., 15 S. C. 11. 
 
 5 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. Ga- 
 
 nong, 9 N. Y. 9. 
 
 'Bazemore v. Davis, 48 Ga. 341. 
 
 8 Carpenters. Denoon, 29 Ohio St. 379; Quimby v. Dill, 40 Me. 528; Rogers- 
 
140 PARTIES PLAINTIFF. [§§ 215, 216. 
 
 veyance as before, have no right to the possession during 
 the life estate. 1 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. 2 
 Commission of waste can be restrained by injunction, or 
 the property preserved by the appointment of a receiver, 3 
 and a suit for damages will lie, 4 or an action on the case, 5 
 while a conveyance of a greater estate than the life tenant 
 possesses conveys only the title or estate which he could 
 lawfully 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, uuder an agreement that the same might re- 
 main as long as B. wished, that B. had a life interest in the 
 iand, so far as the use of the same might be necessary for 
 his business, and that ejectment could be maintained to 
 recover that interest. 6 A widow's life estate in Michigan 
 may be recovered in ejectment.' A married woman in 
 New York may recover a life estate in ejectment against 
 her husband. 8 The life tenant may also maintain trespass 
 for injury to his possession. 9 
 
 § 216. Tenant for years. — A tenant of a term for years, 
 or leasehold interest, may maintain ejectment. It was 
 contended by counsel, in an action in the Supreme Court 
 
 v. Moore, II Conn. 553; Williams v. Robinson, 16 Conn. 522; McKee's Lessee v. 
 Pfout, 3 Dall. 486; Robinson v. Miller, 1 B. Mon. (Ky.) 88. The life tenant should 
 pay taxes out of income, Clark v. Middlesworth, 82 Ind. 240, and an action for 
 damages lies for neglect so to do, Wade v. Malloy, 16 Hun (N. Y.), 226. See 
 Pierce v. Burroughs, 58 N. H. 302; Plympton v. Boston Dispensary, 106 Mass. 547. 
 
 1 Christie v. Gage, 71 N. Y. 193. 
 
 2 4 Kent's Com. 83, 84; Quimby v. Dill, 40 Me. 528; Patrick v. Sherwood, 4 
 Blatch. C. C. 112. 
 
 3 King v. King, 41 N. Y. Superior, 518; Cairns v. Chabert, 3 Edw. Ch. (N. Y.) 
 312. 
 
 4 Rodgers v. Rodgers, 11 Barb. (N. Y.) 595; Jesser v. Gifford, 4 Burr. 2141. 
 
 5 Queen's College v. Hallett, 14 East, 489; Ray v. Ayers, 5 Duer (N. Y.), 494' 
 
 6 Stancel v. Calvert, Winst. (N. C.) Law, 104. 
 
 7 Finch ■v. Rhodes, 49 Mich. 33. 
 
 8 Wood v. Wood, 18 Hun (N. Y.), 350; affi'd 83 N. Y. 575; see Batterton v. 
 Yoakum, 17 111. 288; Gregg v. Tesson, 1 Black, 150; Beal v. Harmon, 38 Mo. 
 435- 
 
 'Zimmerman v. Shreeve, 59 Md. 357 ; s. c. 27 Alb. L. J. 499; Lane v. Thomp- 
 son, 43 N. H. 320. For proceedings to discover death of life tenant see N. Y. 
 Code Civ. Pro. § 2302, el seq. 
 
§217.] PARTIES PLAINTIFF. 141 
 
 of New York, that as a term for years was a chattel inter- 
 est, and constituted personal estate, the owner of the term 
 could not maintain ejectment. But the court decided that 
 ejectment 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 
 controversy must be in its nature corporeal and capable of 
 seizin, yet, the right of possession being shown, the nature 
 or quality of the estate itself does not control. 1 This doc- 
 trine has been repeatedly recognized in the New York 
 Court of Appeals in actions in which leasehold interests 
 constituted the subject-matter of contention, 2 and in Penn- 
 sylvania, even where the right conferred under the lease 
 was incorporeal. 3 Ejectment may be maintained by a 
 lessee, before entry, against a stranger wrongfully with- 
 holding the possession. 4 A less estate than a fee simple 
 may form the basis of an action of trespass to try title. 5 
 
 § 217. Tenant at will. — It has been said by the Supreme 
 Court of Indiana that a tenant at will may maintain eject- 
 ment. 6 The opinion is based upon the case of Stone v. 
 Grubbam, 1 referred to by Eunnington, 8 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 where the obligee of a bond to make titles went 
 
 1 Olendorf v. Cook, I Lansing (N. Y.), 37. 
 
 2 Mason v. Lord, 40 N. Y. 476 ; Darby v. Callaghan, 16 N. Y. 71 ; Trull t-. 
 Granger, 8 N. Y. 115. 
 
 3 Karns v. Tanner, 66 Penn. St. 297. 
 
 4 See Trull v. Granger, 8 N. Y. 115 ; Gardner v. Keteltas, 3 Hill (N. Y.), 330. 
 6 Thurber v. Conners, 57 Texas, 96. 
 
 6 Buntin v. Doe d. Duchane, I Blackf. (Ind.) 26. 
 
 1 1 Rolle 3. 
 
 8 Runnington on Ejectment, pp. 23, 24. 
 
142 PARTIES PLAINTIFF. [§§ 218, 219. 
 
 into possession, 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 enti- 
 tled to maiutain ejectment against the latter, or one 
 taking title from him. 1 The definition of an estate at will 
 excludes the idea of the tenant sustaining ejectment 
 against Ms lessor, 2 for any acts of the lessor sufficient to 
 warrant an ejectment against him would indicate a with- 
 drawal 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, 8 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 
 possession, cannot maintain ejectment, for he has no 
 interest in the land ; but it has been said that he may 
 bring trespass. 4 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, "exist- 
 ing only by the laches of the owner, cannot give the 
 occupant an estate or interest capable of transmission to 
 another." 5 
 
 § 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. 6 It has been 
 held in Pennsylvania, however, that the wife must join.' 
 At common law the husband's interest in the estates of 
 
 1 Richardson v. Thornton, 7 Jones (N. C.) Law, 458. See Love v. Edmonston, 
 1 Ired. (8. C.) Law, 152. 
 
 2 Jemot v. Cooly, T. Raym. 137. 
 
 3 Reckhow v. Schanck, 43 N. Y. 44S. See Haythorn v. Mareerem, 8 N. T. L. 
 324- 
 
 4 Doe d. Harrison v. Murrell, 8 C. & P. 134. 
 6 Reckhow v. Schanck, 43 N. Y. 448. 
 
 6 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, 1 Black, 150; 
 Jackson v. Leek, 19 Wend. (N.Y.) 339 ; Prescott v. Tones, 29 Ga. 58; Thomp- 
 sons Lessee v. Green, 4 Ohio St. 216 ; Hall v. Hall, 32 O. S. 184. 
 ' Bratton v. Mitchell, 7 Watts (Pa.), 113. 
 
§§ 220, 221.] PARTIES PLAINTIFF. 143 
 
 ■which the wife was possessed, at the time of the marriage, 
 was a freehold, 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. 1 
 
 § 220. Mwried, women. — In most of our States the right 
 to hold and enjoy real property, free from the interference 
 or control of their husbands, has been conferred by stat- 
 ute on married' women. Their rights have been a frequent 
 subject of legislation. 2 It will be remembered that at com- 
 mon law her deed was void, 8 and the husband was entitled 
 to the possession of her lands. 4 A wife may now, in some 
 States, maintain ejectment for her lands, 5 even against her 
 husband, 6 and may recover a term for years without join- 
 ing her husband, 7 and in Illinois may sue for homestead. 8 
 She may lose her property by adverse possession. 9 By the 
 common law a woman upon her marriage takes her hus- 
 band's name. That becomes her legal name, and she ceases 
 to be known by her maiden name. By that name she must 
 sue and be sued, make and take grants, and execute all 
 legal documents. 10 
 
 § 221. Partners. — Ejectment for real property belonging 
 to a firm should be brought in the name of all the persons 
 in whom the legal estate is vested. 11 If one partner alone 
 has the legal estate, he should bring the action in his own 
 
 1 Clark v. Clark, 20 Ohio St. 128. 
 
 8 See Slaughter v. Glenn, 98 U. S. 242 ; Burton v. Burton, 1 Keyes (N. Y.), 
 359 ; Clark v. Clark, 20 O. S. 128 ; Reinheimer v. Carter, 31 O. S. 579; Clarke -v. 
 Gibbons, 83 N. Y. 108; Bledsoe v. Simms, 53 Mo. 308. 
 
 3 Lefevre v. Murdock, Wright (O.), 205. 
 
 4 Wilson v. Garaghty, 70 Mo. 517; Hunt v. Thompson 61 Mo. 148. 
 6 See Scott v. Battle, 85 N. C. 184. 
 
 6 Wood v. Wood, 83 N. Y. 575 ; s. c. below, 18 Hun (N. Y.), 350. 
 1 Darby v. Callaghan, 16 N. Y. 71. Compare § 639, note. 
 
 8 Allen v. Hawley, 66 111. 164, 169. 
 
 9 Clarke v. Gibbons, 83 N. Y. 108. 
 
 10 Chapman v. Phoenix Nat'l Bank, 85 N. Y. 449. See § 426. 
 " I Lindley on Part. *482. 
 
144 PARTIES PLAINTIFF. [§ 221. 
 
 name, 1 and a surviving partner may recover the partner- 
 ship lands against one having no title. 8 The real property 
 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 common,* 
 and where the interest of a partner is sold on execution 
 it creates a dissolution of the firm, and the purchaser he- 
 comes a tenant in common as to the realty with the remain- 
 ing partner. 4 This principle has been recognized in Georgia, 
 where it has been held that one partner cannot mortgage 
 the interest of his copartner. 5 In equity, partnership real 
 estate is treated and governed by the same rules as person- 
 alty, 6 but after the claims of partnership creditors are sat- 
 isfied, and the rights and equities of the partners adjusted, 
 it is then considered as real estate, 7 and descends to heirs. 8 
 The widow's right of dower is subject to the adjustment 
 of the partnership affairs. 9 It has been held in Pennsyl- 
 vania, where 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 partnership 
 moneys to suit their own purposes, and can always secure 
 the identity of its character in the kind of title they take 
 
 1 Doe d. Green v. Baker, 2 Moore, i8g. 
 
 2 Robinson v. Roberts, 31 Conn. 145. 
 
 3 McGrath v. Sinclair, 55 Miss. 89 ; Galbraith v. Gedge, 16 B. Mon. (Ky.) 634. 
 
 4 Carter v. Roland, 53 Texas, 540 ; See § 303a. 
 6 Sutlive v. Jones, 61 Ga. 676. 
 
 6 Andrews' Heirs v. Brown, 21 Ala. 437 ; Black v. Black, 15 Ga. 445 ; Divine v. 
 Mitchum, 4 B. Mon. (Ky.)488; Coles v. Coles, 15 Johns. (N. Y.) 159; Piatt*. 
 Oliver, 3 McLean, 27 ; Whitney v. Cotten, 53 Miss. 689 ; Davis v. Christian, 15 
 Gratt. (Va.) 11; Mauck v. Mauck, 54 111. 281; Collumb v. Read, 24 N. Y. 509; 
 Dupuy v. Leavenworth, 17 Cal. 262; In re Ransom, 17 Fed. Rep. 331, 336; Shanks 
 v. Klein, 104 U. S. 18; Fairchild v. Fairchild, 64 N. Y. 471; Tarbell v. West, 86 
 N. Y. 280. 
 
 ' Buckley v. Buckley, 11 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. 
 
 8 Foster's Appeal, 74 Penn. St. 391 ; Williamson v. Fontain, 7 Baxt. (Tenn.) 
 212 ; McGrath v. Sinclair, 55 Miss. 89; Wilcox v. Wilcox, 13 Allen (Mass.), 252. 
 
 9 Winter v. Eckert, 23 N. Y. Daily Reg. 657, and cases cited. See Greene v. 
 Greene, 1 Ohio, 535 ; s. c. 13 Am. Dec. 642, and note. See g 129. 
 
§222.] PATCHES PLAINTIFF. 145 
 
 for it. If they take title as tenants in common, instead 
 of as partners, they by their own election stamp the char- 
 acter of the title as to those who may subsequently deal 
 with them. 1 
 
 § 222. Trustees. — A trustee may recover in ejectment 
 the lands affected by the trust even against his cestui que 
 trust* 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. 3 The 
 title of the cestui que trust being merely equitable, and the 
 trustee being vested with the legal title or estate, real ac- 
 tions or remedies in the nature of ejectment must, of 
 course, be brought in the name of the trustee. 4 Succeed- 
 ing trustees may be substituted in ejectment; 5 and a 
 trustee holding the legal title need not set forth in a writ 
 of entry that he is trustee. 6 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. 7 In a case which arose in Georgia, it appeared 
 that the plaintiff in an ejectment was appointed trustee 
 
 1 Second National Bank of Titusville's Appeal, 83 Penn. St. 203 ; Ebbert's Ap- 
 peal, 70 Penn. St. 79. See § 303a. 
 
 2 Beach v. Beach. 14 Vt. 28 ; s. c. 39 Am. Dec. 204 ; Reade v. Reade, 8 T. R. 
 118; Matthews v. Ward, 10 G. & J. (Md.) 443 ; Starke's Lessee v. Smith, 5 Ohio, 
 455-458 ; Pownal v. Myers, 16 Vt. 415 ; Lincoln v. French, 105 U. S. 614 ; Fitz- 
 patrick v. Fitzgerald, 13 Gray (Mass.), 402 ; Reece v. Allen, 10 111. 241 ; Sawyer v. 
 Skowhegan, 57 Me. 513. 
 
 3 Stearns v. Palmer, 10 Met. (Mass.) 35 ; Den d. Obert v. Bordine, 20 N. J. L. 
 394i Nicoll v. Walworth, 4 Denio (N. Y.), 385. 
 
 4 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; Fitzpatriclc 
 v. Fitzgerald, 13 Gray (Mass.), 400; Chapin v. First Universalist Soc, 8 Gray (Mass.), 
 581; Reece v. Allen, 10 111. 236; Doggett v. Hart, 5 Fla. 215 ; Stearns v. Palmer, 
 10 Met. (Mass.) 35; Wake v. Tinkler, 16 East, 36;'Goodtitle v. Jones, 7 T. R. 
 47; Methodist Soc. v. Bennett, 39 Conn. 293 ; McClurg v. Wilson, 43 Penn. St. 
 439 ; Baker v. Nail, 59 Mo. 265 ; Adams on Ejectment (4th Am. ed.) 127 [82] ; 
 Kirkland v. Cox, 94 111. 400 ; Meth. Ep. Church v. Stewart, 27 Barb. (N. Y.) 553. 
 See Western R. R. Co. v. Nolan, 48 N. Y. 517 ; Smith's Lessee v. McCann, 24 
 How. 398. 
 
 6 Dillon v. Dougherty, 2 Grant (Pa.), 99. 
 
 6 Simpson v. Dix, 131 Mass. 179. 
 
 ' Cameron v. Phillips, 60 Ga. 434. See Findlay v. Artope, 48 Ga. 537, 
 
 10 * 
 
146 PARTIES PLAINTIFF. [§§ 223, 224. 
 
 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 
 turning over the possession to those entitled to it, and to 
 accomplish this end he was allowed to add such demises as 
 might be necessary to bring in the children as formal par- 
 ties. 1 A wrong-doer cannot set up the title of the cestui 
 que trust against the trustee. 2 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 
 collect the rents and income, and apply it during two spe- 
 cified lives to the use of certain parties named, that the 
 trustees were seized of such an estate in the lands as en- 
 titled them to maintain ejectment. 3 
 
 § 223. Cestuis que trustent. — The cestui que trust, it has 
 been held, may maintain a real action upon his equita- 
 ble title against a stranger, who has no title and does not 
 claim under the trustee, 4 especially after the purposes of 
 the trust have been fully accomplished 5 though the true 
 legal title is still in the trustee. 6 But the remedy of the 
 cestui que trust is usually in equity, 7 often by injunc- 
 tion. 8 A re-conveyance by the trustee may be presumed in 
 many cases where the duty to re-convey existed. 9 
 
 § 224. Insolvent or bankrupt.— It has been decided, in a 
 case which arose in Pennsylvania, that notwithstanding 
 the assignment by an insolvent debtor passed the legal 
 
 1 Findlay v. Artope, 48 Ga. 537. 
 
 2 Hunt v. Crawford, 3 P. & W. (Penn.) 426. 
 
 l T M , c , Lean "• Macdona ld, 2 Barb. (N. Y.) 534. See Heermanns v. Robertson, 
 64 N. Y. 332-352. Contra, Doe d. Elle v. Young, 23 N. T. L. 47S: reversed, 24 
 N. J. L. 775. See Chew's Ex'rs v. Chew, 28 Penn? St. 17. 
 
 i Stearns v. Palmer, 10 Met. (Mass.) 35 ; Roper v. Holland, 3 Ad. & El. 99; 
 Sloper v. Cotlrell, 2 Jur. N. S. 1046. See Kennedy v. Fury, I Dall. 72 ; also note 
 to Doggett v. Hart, 58 Am. Dec. 472. 
 
 5 Note to Doggett v. Hart, 58 Am. Dec. 474. 
 
 6 Hopkins v. Ward, 6 Munf. (Va.) 38 ; Goodtitle d. Hart v. Knott, Cowp. 46. 
 1 See Gillett v, Treganza, 13 Wis. 472 ; Hukill v. Page, 6 Biss. 183. 
 
 8 St. Luke's Hospital v. Barclay, 3 Blatchf. 259. 
 
 8 See note to Doggett v. Hart, 58 Am. Dec. 474 ; England v. Slade, 4 T. R. 
 
<§225.] PAKTIES PLAINTIFF. 147 
 
 estate in his hands, yet a trust resulted by operation of 
 law which, as soon as the debts were satisfied, entitled the 
 insolvent to the possession 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. 1 In 
 another case in the same State it was held that an insolv- 
 ent, 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 assigned by him, without a formal 
 re-assignment. 2 The title reverts and vests again by oper- 
 ation of law. 3 But one discharged as an insolvent debtor, 
 whose debts remain unpaid, cannot support an ejectment 
 for lands of which he was divested by the assignment, 
 though his trustees have not given the bonds required by 
 law. 4 The Supreme Court of California have decided that 
 an insolvent might maintain ejectment for a right of home- 
 stead, under the insolvency laws of that State, during the 
 pendency of an application on his part to be discharged 
 from his debts. 6 
 
 § 225. Assignee of banlcrupt or insolvent debtor. — An early 
 case in Massachusetts held that an assignee in bankruptcy 
 was not entitled to come in under the statute 6 and prose- 
 cute a real action instituted by the bankrupt. The report 
 of the case does not contain the reasons upon which the 
 decision is based. 7 A conclusion more in harmony with 
 
 682 ; Wilson v. Allen, 1 Jac. & W. 6ti ; Nicoll v. Walworth, 4 Denio (N. Y.), 385 ; 
 Schaffer v. Lavretta, 57 Ala. 14; Page v. Waring, 76 N. Y. 473. 
 
 1 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, § 67. 
 
 2 Power v. Hollman, 2 Watts (Penn.), 218. 
 
 3 Page v. Waring, 76 N. Y. 473. See Charman v. Charman, 14 Ves. 580 ; In re 
 Hoyt, 3 N. B. R. 55. Perry on Trusts, §§ 351, 352, 353, 920; Cole on Eject. 554; 
 Boyd v. Olvey, 82 Ind. 294. 
 
 4 Willis' Lessee v. Row, 3 Yeates(Penn.), 520. 
 
 6 Moore v. Morrow, 28 Cal. 551. A mortgagee of a homestead in Texas cannot 
 maintain ejectment therefor if the forced sale of it was prohibited by the consti- 
 tution of the State in force at the date of the mortgage. Lanahan v. Sears, 102 U. 
 S. 318. 
 
 6 Bankrupt Act of 1800, ch. 19, § 3. 
 
 1 Fales u. Thompson, 1 Mass. 134. 
 
148 PARTIES PLAINTIFF. [§ 226. 
 
 the spirit of the bankrupt act was reached in Connecticut, 
 where the right of the assignee of a bankrupt to maintain 
 ejectment under the act of 1800 was upheld. 1 Similar 
 decisions have been rendered relative to the English bank- 
 ruptcy laws, 2 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. 3 ' 
 In England, both the assignee 4 and provisional assignee 5 of 
 an insolvent debtor may bring ejectment for the lands of 
 the insolvent. The right of dower is unaffected by the as- 
 signment. 6 
 
 § 226. Aliens. — The general rule under the former prac- 
 tice in England was that an alien could not maintain a real 
 or mixed action, 7 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 recovery of a freehold. 8 But in many of our States an 
 alien may acquire land by purchase, and hold it against all 
 the world but the State, 9 and may convey a good title 
 thereto, at least until after office found. 10 Having this 
 right, it naturally follows that an alien may maintain an ac- 
 tion in the nature of ejectment to recover and protect the 
 possession of his lands. 11 Thus in California a non-resident 
 
 1 Barstow v. Adams, 2 Day (Conn.), 70. 
 
 2 Smith v. Coffin, 2 H. Bla. 444. 
 
 'Cooper v. Lands, 14 W. R. 610 ; s. c. 14 L. T. (N. S.) 287. 
 
 4 Doe d. Ibbetson v. Land, 3 D. & R. 509 ; Longfield on Eject, p. 179. 
 
 6 Doe d. Clark v. Spencer, 2 C. & P. 79. 
 
 6 Porter v. Lazear, 109 U. S. 88; Eberle v. Fisher, 13 Pa. St. 526; Worcester v. 
 Clark, 2 Grant (Pa.) 84. 
 
 'Co. Litt. p. 129; Shep. Touchstone, p. 204; see White v. Sabariego, 23 Tex. 
 243; Hardy v. De Leon, 5 Tex. 240. For a general discussion of the rights of 
 aliens see note to Inglis v. Sailor's Snug Harbor, 1 Lea. Cas. on Real Prop. 493. 
 
 8 Barges v. Hogg, 1 Hayw. (N. C.) 485. 
 
 9 Ford v. Harrington, 16 N. Y. 294; Wright v. Saddler, 20 N. Y. 320. 
 
 10 Craig v. Leslie, 3 Wheat. 563, 589; Territory v. Lee, 2 Mont. 124-129; Fox 11. 
 Southack, 12 Mass. 143; Montgomery v. Dorion, 7 N. H. 475; 1 Washb. on Real 
 Prop. p. 74 [*49]; Blount v. Horniblea, 2 Hayw. (N. C.) 36 ; People ex re!, v. 
 Folsom, 5 Cal. 373. An alien woman becomes naturalized by marrying a citizen. 
 Kelly v. Owen, 7 Wall. 496. See Burton v. Burton, 1 Keyes (N. Y.), 359. 
 
 11 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. 
 
§227.] PARTIES PLAINTIFF. 149 
 
 alien can acquire 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. 1 The same principle has been recognized 
 in Maryland, where the court say that the title of an alien 
 friend could only be divested by office found, or some 
 act done by the State to acquire the possession ; and a judg- 
 ment for the possession of the land in the right of the alien 
 was upheld. 2 
 
 § 227. Becewers. — 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 
 tenancies, and, therefore, might sustain ejectment. 3 But 
 the receiver, as a rule, cannot institute an action to recover 
 the possession of land without first obtaining leave of the 
 ■court so to do. 4 In New York a receiver in supplementary 
 proceedings obtains title to the real property of the judg- 
 ment 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. 5 He probably 
 ■cannot maintain partition, 6 nor does a receiver to seques- 
 trate rents and profits in divorce obtain title to the land. 7 
 The title of receivers to the property of which they are the 
 -custodians is generally statutory, and their right to main- 
 tain actions in the nature of ejectment often depends upon 
 the wording and construction of statutes. 8 
 
 1 Norris v. Hoyt, 18 Cal. 217, 
 
 2 McCreery v. Allender, 4 H. & McH. (Md.) 409. See People ex rel. v. Folsom, 
 5 Cal. 372. A devise of real estate to executors who are citizens in trust to pay the 
 income to an alien is valid. Marx v. McGlynn, 88 N. Y. 357. 
 
 8 Doe d. Marsack v. Read, 12 East, 57. 
 
 4 Wynne v. Lord Newborough, 1 Vesey, Jr. 165; s. c. 3 Bro. C. C. 88; Green v. 
 Winter, 1 Johns. Ch. (N. Y.) 60; Sturgeon v. Douglas, 1 Hogan, 400; Conyers v. 
 Grosbie, 6 Irish Eq. 657 ; Ward v. Swift, 6 Hare, 312; Hooper v. Winston, 24 111. 
 366; Merritt v. Lyon, 16 Wend. (N. Y.) 410; Thompson on Prov. Rems. 488. 
 
 5 Porter v. Williams, 9 N. Y. 142; s. c. 59 Am. Dec. 525 and notes. See, how- 
 ever, Scott v. Elmore, 10 Hun (N. Y.), 68; Wing v. Disse, 15 Hun (N. Y), 190 ; 
 Chautauqua County Bank v. Risley, 19 N. Y. 374. 
 
 6 See Dubois v. Cassidy, 75 N. Y. 300. 
 'Foster v. Townshend, 68 N. Y. 203. 
 
 8 See Davis v. Gray, 16 Wall. 203, as to the general nature of a receiver's title. 
 
150 PARTIES PLAINTIFF. [§§ 228-230. 
 
 § 228. Indians. — An Indian may recover in ejectment 
 lands reserved to him by treaty, and of which he has been 
 dispossessed. 1 The Indian right of occupancy of lands in 
 this country has already been noticed. 2 
 
 § 229. Felons. — It has been held in England that a per- 
 son attainted of felony may, before office found in favor of 
 the king, convey a title to land which will sustain eject- 
 ment. 3 It would seem, however, that the title conveyed 
 would be defeasible and subject to the crown's right of 
 seizure after office found. 4 
 
 § 230. Additional illustrations. — We cannot, perhaps, fur- 
 ther classify, to advantage, the parties who may maintain 
 actions for the trial of title to land. Any additional dis- 
 cussion 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. 5 So may 
 school commissioners in Tennessee. 6 In Vermont a plaint- 
 iff vested with a proprietor's right in a town may recover 
 in ejectment against one in possession without title. 7 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 substituted in his stead. 8 In 
 Wisconsin a preemptor of swamp lands may sustain 
 ejectment therefor. 9 In Ohio a religious society may main- 
 tain ejectment by its trustees. 10 The owner of a conditional 
 fee may, until a breach of the condition, maintain eject- 
 
 Conceming the right of a receiver to sue in a foreign jurisdiction, see Booth v. 
 Clark, 17 Hovy. 332; Field v. Ripley, 20 How. Pr. (N. Y.) 26. 
 
 1 Coleman v. Doe d. Tish-ho-mah, 12 Miss. 40. See Cornet v. Winton, 2 Yerg. 
 (Tenn.) 144; Marsh v. Brooks, 8 How. 232. 
 
 2 See § 194; United States v. Cook, 19 Wall. 592; Howard v. Moot, 64 N. Y_ 
 271 ; Beecher v. Wetherby, 95 U. S. 517. 
 
 3 Doe d. Griffith v. Pritchard, 5 B. <& Adol. 765. 
 
 4 See Cole on Eject. 573. 
 
 5 Windham v, Chisholm, 35 Miss. 531. 
 
 6 Bowers v. School Com'rs, 7 Yerg. (Tenn.) 117. 
 1 Pomeroy v. Mills, 3 Vt. 410. 
 
 8 Jester v. Overseers, &c, 11 Penn. St. 540. 
 
 9 Manny v. Smith, 10 Wis. 509. 
 
 10 First Presbyterian Society v. Smithers, 12 Ohio St. 248. See § 144. 
 
§ 230.] PARTIES PLAINTIFF. 151 
 
 ment j 1 the grantor of a conditional deed may institute suit 
 where the right of possession remains in him until compli- 
 ance with the conditions, 2 and the assignee of a rent charge 
 may take advantage of a clause of re-entry and bring the 
 action. 3 The grantee of a deed containing covenants of 
 warranty may bring ejectment against his grantor who re- 
 mains in possession, 4 and the grantee of an ordinary quit- 
 claim deed may, of course, maintain ejectment if his grantor 
 could have done so. 5 Where it appeared that the plaintiff 
 purchased 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 foreclosure sale, though he was unaffected by the decree, 
 and had the right to redeem. 6 The nature of the titles 
 which will support actions for the trial of title and recovery 
 of possession of land will be incidentally discussed in sub- 
 sequent portions of this treatise. 
 
 1 Candee v. Burke, I Hun (N. Y.), 546 ; Olmsted v. Harvey, I Barb. (N. Y.) 
 102. 
 
 2 Bennett v. Criswell, 27 Hun (N. Y.), 554. 
 'Farley v. Craig, 11 N. J. L. 262. 
 
 4 Dodge v. Walley, 22 Cal. 225. 
 
 5 Sullivan v. Davis, 4 Cal. 291. 
 
 6 Kelgour v. Wood, 64 111. 345. See Howard v. Railway Company, 101 U. S. 
 837. 
 
CHAPTER VII. 
 
 PARTIES DEFENDANT. 
 
 § 231. Party in possession. 
 
 232. Abandonment of possession. 
 
 233. Defendants in writs of entry. 
 
 234. Unoccupied lands. 
 
 235. Claim of adverse title. 
 
 236. Proof of possession. 
 
 237. Possession of a part of the land. 
 
 238. Joinder of defendants. 
 
 239. Defendants claiming distinct par- 
 
 cels. 
 
 240. Claiming under distinct titles. 
 
 241. Squatters. 
 
 242. Servants or employees. 
 
 243. Clergymen and trustees of religious 
 
 corporations. 
 244. 
 
 245- . 
 
 246. 
 
 247. 
 
 248. 
 
 248a. 
 
 249- { 
 
 249a. United States v. Lee further ex. 
 plained. 
 
 Ejectment against 
 States. 
 
 the United 
 
 ' The Arlington case. 
 
 § 250. Ejectment against corporations 
 
 251. County. 
 
 252. City. 
 252c Receivers. 
 
 253. Insolvents. 
 253a. Aliens. 
 
 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. 
 
 260. Parties claiming by title paramount 
 
 to both litigants. 
 
 261. Parties claiming in opposition to 
 
 defendant's title. 
 
 262. Mortgagee. 
 
 263. Purchaser pendente lite. 
 
 264. Landlord as defendant. 
 
 265. Party claiming as landlord. 
 
 266. Marvin v. Dennison discussed. 
 266a. Relief between defendants. 
 
 § 231. Party ill 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. There must be actual 
 interference with the possession. 1 Actual possession is 
 the same as pedis possessio or pedis positio, and these mean 
 a foothold on the land, an actual entry, a standing upon 
 it, a real demonstrative act done. 2 Black, J., in delivering 
 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 
 
 1 Towle v. Ayer, 8 N. H. 57; Field v. Hawley, 126 Mass. 327; Favour v. Sar- 
 gent, 6 Pick. (Mass.) 5. 
 
 2 Churchill v. Onderdonk, 59 N. Y. 136. 
 
§231. J PARTIES DEFENDANT, 153 
 
 owner out of possession, and it cannot be maintained for 
 land of which the plaintiff is himself in possession." x If 
 the object of the action is to establish a title, the claimant 
 or holder of the adverse title must be made a defendant if 
 it is intended that the judgment should conclude him. 
 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. 2 Usually all 
 the parties in possession should be summoned. 8 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. 4 And, as a general rule, the defend- 
 ants in ejectment 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 com- 
 mencement of the action. 5 The question of possession is 
 usually submitted to the jury. 6 
 
 It must, in short, appear that there has been a disseizin 
 of the plaintiff as well as a wrongful possession of the 
 premises described in the complaint by the defendant. 7 
 
 We may observe that no decree annulling or affecting 
 the title of parties to land can be rendered without the 
 
 1 Kribbs v. Downing, 25 Penn. St. 399-404 ; Van Home v. Everson, 13 Barb. 
 (N. Y.) 531 ; Reed v. Tyler, 56 111. 288; EUicott v. Mosier, 7 N. Y. 201. See § 
 93 ; Chamberlin v. Donahue, 41 Vt. 306 ; Sears v. Taylor, 4 Col. 38 ; Anderson v. 
 Smith, 2 Mackey, (D. C.) 275. 
 
 2 Rodgers v. Bell, 53 Ga. 94; Hawkins a. 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 v. 
 Johnson, 8 Barb. (N. Y.) 244; Lyle v. Rollins, 25 Cal. 440; Thompson v. Schuyler, 
 7 111. 271 ; Bonner v. Greenlee's Heirs, 6 Ala. 411 ; Taylor v. Crane, 15 How. Pr. 
 (N. Y.) 358; Jackson v. Allen, 30 Ark. no; Schuyler v. Marsh, 37 Barb. (N. Y.) 
 35°; 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, 1 Mich. 
 14 ; Kilgour v. Gockley, 83 111. 109 ; Finnegan v. Carraher, 47 N. Y. 493 ; People 
 v. Ambrecht, n Abb. Pr. (N. Y.) 97; Goodright v. Rich, 7 T. R. 327. See § 161. 
 Forcible entry proceedings lie against an agent if guilty as well as against the prin- 
 cipal. Bailey v. Bailey, 61 Me. 361. 
 
 3 Irish v. Scovil, 6 Binn. (Penn.) 55. 
 
 4 Strong v. City of Brooklyn, 68 N. Y. 1. See Childs v. Chappell, 9 N. Y. 246 ; 
 Redfield v. Utica& S. R. R. Co., 25 Barb. (N. Y.) 54. 
 
 5 Simms v. Richardson, 32 Ark. 304. See Webster v. Bond, g Hun (N. Y.), 437. 
 
 6 Gross v. Welwood, 90 'N. Y. 638. See Bedell v. Shaw, 59 N. Y. 46 ; Martin 
 v. Rector, 30 Hun (N. Y.), 138 ; s. c. 17 Weekly Dig. (N. Y.) 240. 
 
 7 Chamberlin v. Donahue, 41 Vt. 306. 
 
154 PARTIES DEFENDANT. [§§ 232-234. 
 
 presence of such parties ; they are entitled to their clay in 
 court. 1 
 
 § 232. Abandonment of possession. — A party in possession 
 of lauds 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. 2 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 constituted an abandonment of the 
 possession, and that a subsequent 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 accepted or not. 3 
 
 § 233. Defendants in ivrits 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 beld 
 that if the person in possession has actually ousted the 
 demandant, or withheld the possession, the demandant 
 may, at his election, consider him a disseizor for the pur- 
 pose of trying the right, though claiming an estate less 
 than a freehold. 4 Formerly, 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 conferred by statute. 8 
 
 § 234. Unoccupied lands.— Under the modern practice, 
 if the premises are not occupied, the action can usually he 
 
 ' United Stales v. Central Pacific R. R., 8 Sawyer, 92 ; s. P. Shields v. Barrow 
 17 How. 130 ; Coiron v. Millaudon, 19 How. 113 ; Barney v. Baltimore City, 6 
 Wall. 285 ; Bank v. Carrollton R. R., 11 Wall. 624. 
 
 s It is a complete defense in ejectment that the party sued is not an actual occu- 
 pant. Porter v. McGrath, 41 N. Y. Superior, 84. See Shaver v. McGraw, 12 
 Wend. (N. Y.) 558. 
 
 3 Allen v. Dunlap, 42 Barb. (N. Y.) 585. 
 
 4 Wyman v. Brown, 50 Me. 139 ; Gregory v. Tozier, 24 Me. 308. 
 
 5 See Dolby v. Miller, 2 Gray (Mass.), 135 ; Gregory v. Tozier, 24 Me. 308. 
 
§§ 235, 236.J PARTIES DEPENDANT. 155 
 
 instituted against any one exercising acts of ownership over 
 the lands, 1 and under such circumstances acts of trespass 
 by one claiming title may be considered as acts of posses- 
 sion. 2 Any subjection of the property to the will and do- 
 minion of the party is sufficient. 8 Such subjection may be 
 shown by its cultivation, or by any other substantial use as 
 well as by residence thereon. 
 
 § 235. Claim of adverse title. — It has been held in Wis- 
 consin, that a grantee in a tax deed, who had never oc- 
 cupied 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. 4 So it was decided, under the practice in Vir- 
 ginia, 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. 5 Any 
 person claiming title to the lands adversely to the plaintiff, 
 though not in actual occupation, may be made a party de- 
 fendant. 6 An idle declaration, however, made by the de- 
 fendant that he owns the land, will not be sufficient to jus- 
 tify the action ; 7 but if the defendant seriously and delib- 
 erately lays claim to the title he does so at the peril of 
 making good the claim, for he should not set up title to 
 land unless he is prepared to defend it. 8 
 
 § 236. Proof of possession. — It is usually an indispen- 
 sable 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 
 
 1 Hanson v. Armstrong, 22 III. 442; Langford u. Love, 3 Sneed (Tenn.), 308 \ 
 Hill v. Kricke, 11 Wis. 442. 
 
 8 Chilson v. Buttolph, 12 Vt. 231; Doolittle v. Linsley, 2 Aik. (Vt.) 155 ; Saw- 
 yer v. Newland, 9 Vt. 383. 
 
 3 Quicksilver Mining Co. v. Hicks, 4 Sawyer, 688, See Garner v. Marshall, 9. 
 Cal. 270. 
 
 4 Hill v. Kricke, 11 Wis. 442. 
 
 1 See Harvey v. Tyler, 2 Wall. 328. 
 
 6 Carter v. Hunt, 40 Barb. (N. Y.) 89; Abeel v. Van Gelder, 36 N. Y. 513 ; 
 Mordecai v. Oliver, 3 Hawks (N. C), 479. See Langford v. Love, 3 Sneed (Tenn.), 
 308. 
 
 7 Lucas v. Johnson, 8 Barb. (N. Y.) 244. 
 
 8 Banyer v. Empie, 5 Hill(N. Y.), 48. See Abeel v. Van Gelder, 36 N. Y. 513 ;, 
 s. C. 2 Tr. App. (N. Y.) 99. 
 
156 PARTIES DEPENDANT. [§ 236. 
 
 plaintiff seeks to establish title, 1 and, as already shown, if 
 the defendant proves that he abandoned the premises 
 before the action was commenced, the plaintiff's case can- 
 not be sustained. 3 It has been decided, however, 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; 3 and in 
 California it has been expressly ruled that the possession 
 need not be actual as distinguished from constructive in its 
 character. 4 In Pennsylvania, proof of service of the writ is 
 prima facie evidence of the possession of the defendant. 5 
 Working a quarry may be considered evidence of posses- 
 sion. 6 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 owner- 
 ship over the land. It is often very difficult, and some- 
 times practically impossible, to distinguish between acts 
 which constitute merely trespasses on the land and acts 
 amounting to a claim of title, or an exercise of ownership 
 over it, and though trespass 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 results in the miscarriage of the 
 action, and places the claimant in an extremely awkward 
 position. 7 Thus questions of fact involving the title are 
 sometimes submitted to the jury, together with disputed 
 facts as to the possession or occupancy of the lands by the 
 defendant, and the jury under the practice in some States 
 is allowed to render a general verdict. If the verdict is 
 rendered, and a judgment entered for the defendant on the 
 
 1 Brown v. Brackett, 45 Cal. 167 ; Garner v. Marshall, 9 Cal. 268 ; Flanniken 
 v. Lee, 1 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. 
 
 2 Allen v. Dunlap, 42 Barb. (N. Y.) 585. See § 232. 
 
 3 Hurd v. Tuttle, 2 D. Chip. (Vt.) 43. See Smith v. Walker, 18 Miss. 584. 
 
 4 Crane v. Ghirardelli, 45 Cal. 235 ; Noe v. Card, 14 Cal. 600 ; Garner v. Mar- 
 shall, 9 Cal. 268. 
 
 5 Kirkland v. Thompson, 51 Penn. St. 216. 
 
 6 See Donovan v. Vandemark, 88 N. Y. 668. 
 'See §651. 
 
§237.] PARTIES DEPENDANT. 157 
 
 ground that he has not withheld the possession, then the 
 object of the action is not accomplished, 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 apparently involved. 
 The questions involved in the trial of the title to land are 
 so important that neither the courts, the litigants, nor the 
 juries ought to be called upon to consider the secondary 
 and collateral question as to the possession of the defend- 
 ant. The title alone should be brought in issue, and not 
 complicated and embarrassed by disputed questions of 
 possession. A still further embarrassment must be noticed. 
 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 which constitute the 
 proofs of ordinary possession. It is sometimes practically 
 impossible to discover whether or not the acts amount to a 
 disseizin, a trespass, or a legal exercise of the rights con- 
 ferred by the servitude. If the owner brings trespass he 
 may fail because the jury find the possession in the defend- 
 ant 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 defendant re- 
 lies upon adverse possession, the plaintiff is practically 
 called upon to prove what may constitute an important or 
 vital part of his adversary's case. Thus, in Lawrence v. 
 Ballou, 1 the court held that it could not be claimed that 
 the defendant was present and in the actual occupation for 
 the purpose of being sued, and at the same time ignore its 
 presence and occupation when relied upon as constituting 
 an adverse possession and defense. 
 
 § 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 cannot recover judgment for that 
 portion. The Supreme Court of California, in Mahoney v. 
 Middleton, 5 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 rale rendering the judgment 
 
 1 50 Cal. 264. 2 41 Cal. 41. 
 
158 PABTIES DEFENDANT. [§ 238. 
 
 evidence against the defendant, in a suit for the recovery 
 of damages and mesne profits. The plaintiff is entitled to 
 a verdict if he can show wrongful possession by the defend- 
 ant of any part, no matter how small, of the land claimed 
 in the declaration. 1 
 
 § 238. Joinder of defendants. — Under the practice in some 
 States, the landlord may be joined as a party defendant 
 with his tenants. 2 All the tenants should be made parties 
 defendant. 3 One in possession of the whole may be joined 
 with another in possession of a portion of the same land. 4 
 So, as shown elsewhere, husband and wife may be joined 
 in certain cases, 5 and the mortgagee with the party in pos- 
 session, 6 and parties occupying by a joint possession should 
 all be made defendants. 7 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 under him, and that all the de- 
 fendants unjustly withheld the possession. The answer 
 merely denied the allegation as to withholding possesssion, 
 and alleged that one of the defendants was the owner, and 
 entitled to the premises. The defendants were allowed to 
 prove, under objection, that they occupied, severally, dis- 
 tinct parcels of the premises. The court decided that 
 under the pleadings the plaintiff was entitled to recover 
 against all the defendants, and that if there was an im- 
 proper joinder of parties the objection should have been 
 xaised by demurrer or answer. 8 It is clear that if the de- 
 fendants unite in a joint denial t.hey are liable to a joint 
 
 1 Gilliam v. Bird, 8 Ired. (N. C ) Law, 280 ; s. c. 40 Am. Dec. 370 ; Hueeins v. 
 Ketchum, 4 Dev. & B. (N. C.) Law, 415. 
 
 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.), m; 
 Pearce v. Ferris, 10 N. Y. 280; More v. Deyoe, 22 Hun (N. Y), 208. 
 
 3 See Doe d. Williamson v. Roe, 10 Moore, 493; Doe d. Darlington v Cock, 
 4 B. & C. 259. 
 
 4 Rank v. Levinus, 50 N. Y. Superior, 159. 
 
 5 Stewart v. Patrick, 68 N. Y. 450. See § 255. 
 
 6 Marvin v. Dennison, 1 Blatchf. C. C. 159. 
 
 ' See Fosgate v. Herkimer Co., 12 N. Y. 580; Harkey v. Houston, 65 N. C. 
 137- 
 
 8 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. 
 
§239.] PARTIES DEFENDANT. 159 
 
 verdict. 1 The plaintiff may dismiss the action as to some 
 defendants, and proceed against others. 2 A party cannot, 
 however, for the purpose of defeating an ejectment, rely 
 upon the non-joinder as defendant of any person occupying 
 the premises with him under a claim of right that is merely 
 subordinate to, and wholly inseparable from, his own pos- 
 session. Hence, where a man furnished bis son with money 
 to enable him to buy a farm, and lived with him upon it, 
 working the farm and receiving a certain proportion of the 
 crops, and occupying rooms in the house exclusively, claim- 
 ing a right to remain on the premises, it was held that 
 these facts did not in themselves make it necessary to im- 
 plead him as a joint defendant with his son in an action of 
 ejectment. 3 
 
 The embarrassments incident to interposing equitable 
 defenses which require the presence of additional parties 
 on the record will be noticed presently.* 
 
 § 239. Defendants claiming distinct parcels. — In Fisher v. 
 Hepburn, 5 in the New York Court of Appeals, it was held 
 that where different parties claimed distinct parcels of the 
 real property in question, but all denied plaintiff's rights 
 upon the same ground, and claimed title from the same 
 source, it was proper to join them all as defendants in the 
 same action or proceeding. And in Minnesota it was de- 
 cided 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. 6 On the other hand, it has been held in 
 Michigan that where ejectment was instituted against two 
 defendants it was error to direct a verdict for the plaintiff 
 unless a joint occupancy was shown. 7 In Pearce v. Fer- 
 
 1 Patterson v. Ely, 19 Cal. 28 ; Jones v. Hartley, 3 Whart. (Penn.) 191. 
 
 2 Dimick v. Deringer, 32 Cal. 488 ; Reed v. Calderwood, 22 Cal. 464. 
 8 Hendricks v. Rasson, 49 Mich. 83. 
 
 4 See §488. Webster v. Bond, 9 Hun (N. Y.), 437. Compare Sawyer v. Cham- 
 bers, 11 Abb. Pr. (N. Y.) no. 
 
 5 48 N. Y. 41. See § 128 ; Boles v. Cohen, 15 Cal. 150. See Gibbons v. Mar- 
 tin, 4 Sawyer, 206. 
 
 6 Wells v. Atkinson, 24 Minn. 161. See Humphries v. Huffman, 33 O. S. 395. 
 
 1 Murphy v. Campau, 33 Mich. 71. A suit to quiet the title of three separate 
 tracts of land formerly owned by different persons, was held to be bad for mis- 
 joinder. Turner v. Duchman, 23 Wis. 500. 
 
160 PARTIES DEFENDANT. [§ 239. 
 
 ris, 1 it appeared that the defendants occupied, separately, 
 different parts of a house which had been wrongfully contin- 
 ued 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 sustain and 
 support the house, they were all joint trespassers as against 
 the plaintiff, who only claimed the land, and that plaintifl 
 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 fail 
 by reason of the non-joinder, as the only effect would be to 
 limit the recovery by excluding that portion of the premises 
 which he occupied. 2 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. 3 At 
 common 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 sep- 
 arately. 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 plaintiff was enti- 
 tled to recover, there was verdict and judgment severally 
 for the parcels respectively occupied by the defendants. 4 
 On the other hand, if the defendants plead the general 
 issue and fail to show what or how much they claim, a 
 general verdict against them will be good, and this whether 
 their possession be joint or several. 6 
 
 1 io N. Y. 280. See Winton v. Cornish, 5 Ohio, 477 ; Kerr v. Merchants' Ex. 
 Co. 3 Edw. Ch. (N. Y.) 315 ; Stockwell v. Hunter, 11 Mete. (Mass.) 448. 
 
 2 Hendricks v. Rasson, 42 Mich. 104. 
 8 Mahoney v. Middleton, 41 Cal. 41. 
 
 4 See Gibbons v. Martin, 4 Sawyer, 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, 24 How. 
 268. 
 
 6 Greer v. Mezes, 24 How. 268. 
 
§§ 240, 241.] PARTIES DEFENDANT. 161 
 
 § 240. Claiming under distinct titles. — In Helfenstein v. 
 Leonard, 1 in the Supreme Court of Pennsylvania, which 
 was ejectment for several distinct properties against sev- 
 eral defendants, i t was held that they could defend sepa- 
 rately 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 recov- 
 ery could not be had ; 3 but in the event of a misjoinder of 
 defendants the plaintiff may usually, under the modern 
 practice, move to strike out the unnecessary parties, and 
 proceed against those properly joined. 3 
 
 § 241. Squatters. — The owner of the fee can maintain 
 ejectment against a mere squatter, who neither makes 
 claim to nor has color of title. 4 And it was held in the 
 Circuit Court of the United States for the district of Ore- 
 gon, 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. 5 In Greer v. Mezes, 6 
 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 sev- 
 eral defendants, each claiming for himself. But he is not 
 bound to bring a separate action against several trespass- 
 ers 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 
 
 1 5° Penn. St. 461. See § 128. 
 
 2 Wood v. McGuire, 17 Ga. 303. See Cunningham v. Bradley, 26 Ga. 238. 
 
 3 See Cunningham v. Bradley, 26 Ga. 238. 
 
 4 Sykes v. Hayes, 5 Bissell, 529. 
 
 6 Gibbons v. Martin, 4 Sawyer, 206. 
 6 24 How. 277. 
 11 
 
162 PARTIES DEFENDANT. [§§ 242, 243. 
 
 to make such proof in order to support his action. Bach 
 defendant has a right to take defense 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 suc- 
 ceeds 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 
 entitled 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 unconnected with his separate litigation." It may 
 be here observed that possession of public land, by a mere 
 squatter, will afford no basis for the presumption of a 
 grant, 1 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. 2 
 
 §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. 3 
 
 § 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. 4 Even in 
 
 1 Miller u. Brownson, 50 Tex. 583. 
 
 2 Gay v. Mitchell, 35 Ga. 139. 
 
 3 Hawkins v. Reichert, 28 Cal. 534; Polack v. Mansfield, 44 Cal. 36; Doe v. 
 Staunton, 1 Chit. 119. It has been held, however, in New York, in an ejectment 
 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 de- 
 fendant. Shaver v. McGraw, 12 Wend. (N. Y.) 558. But see People v. Ambrecht, 
 11 Abb. Pr. (N. Y.) 97; Kerrains v. People, 60 N. Y. 225. 
 
 4 Chiniquy v. Catholic Bishop, 41 111. 148; Chatard v. O'Donovan, 80 Ind. 29. 
 
§244.] PARTIES DEFENDANT. 163 
 
 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. 1 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- 
 sion of the corporation, and ejectment would not lie against 
 the trustees or other officers of the church. 2 
 
 § 244. Ejectment against the United States. — An interest- 
 ing question is presented as to who shall be made the de- 
 fendant, and how a claimant shall proceed to recover the 
 possession 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, 3 which may be brought 
 in all cases where the crown has, through misinformation 
 or inadvertence, wrongfully possessed itself of the lands or 
 chattel 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." 4 A bill cannot be sustained 
 that calls for an interference with the operations of the 
 executive departments of the government ; 5 and money in 
 the hands of an officer of the government, as purser, can- 
 not be attached by creditors of seamen to whom it is 
 
 ' Martin v. Davis, Stra. 914. But see Hillingsworth v. Brewster, 1 Salk. 256. 
 8 Lucas v. Johnson, 8 Barb. (N. Y.) 244. See § 144. 
 
 3 Adams on Ejectment (4th Am. ed.), p. 18 [*2l] ; 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. 
 
 4 Federalist, No. 81 ; Cohens v. Virginia, 6 Wheat. 264-380 ; United States v. 
 Clarke, 8 Pet. 436, 444; United States v. Eckford, 6 Wall. 484; Hill v. United 
 States, 9 How. 386-389; Reeside v. Walker, 11 How. 272-290; Briggs v. Light 
 Boats, 11 Allen (Mass.), 157, 176, 177; People v. Dennison, 84 N. Y. 272; The 
 Davis, 10 Wall. 15. See The Fidelity (16 Bla. C. C. 569), in which case it was held 
 that this exemption applied to a municipal corporation in so far as it was locally in- 
 trusted with a share in the government. 
 
 6 Dobbins v. The Commissioners, 16 Pet. 435 ; The Collector v. Day, 11 Wall. 
 113; Harris v. Dennie, 3 Pet. 292. 
 
164 PARTIES DEFENDANT. [§ 245. 
 
 due. 1 It may be regarded as established by the cases, that 
 the officers and executive agents of the United States can- 
 not be divested or dispossessed of property to which the 
 government has an undisputed title, for the purpose of en 
 forcing a lien upon such property. 2 
 
 § 245. In Oarr v. The United States, 3 the question of 
 the right of an individual to sue the government indirectly 
 was considered by the Supreme Court of the United States. 
 The court held 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 funda- 
 mental 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 gov- 
 ernment suable in its courts. It is conceded in The Siren, 4 
 and in The Davis, 5 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 con- 
 trol 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 
 
 1 Buchanan v. Alexander, 4 How. 20. 
 
 2 See The Davis, 10 Wall. 15; The Siren, 7 Wall. 154; The Fidelity, 16 Bla. C. 
 C. 569; Klein v. New Orleans, 99 U. S. 149. 
 
 3 98 U. S. 433. See People v. Ambrecht, 11 Abb. Pr. (N. Y.) 97. 
 
 4 7 Wall. 152. 5 to Wall. 15. 
 
§ 246.] PARTIES DEFENDANT. 165 
 
 property." The later case of Campbell v. James 1 was an 
 action brought against a United States postmaster by a 
 patentee who claimed that the former had, while acting in 
 the government service, infringed a patent covering a 
 stamp for printing postmarks and canceling postage 
 stamps. Mr. Justice Bradley, in delivering the opinion of 
 the court, said: "We doubt very much whether such an 
 action can be sustained. It is substantially 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 Oarr v. The United 
 States, 2 where a judgment in ejectment against a govern- 
 ment agent was held to be no estoppel against the govern- 
 ment 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." 
 
 In Livington v. D'Orgenoy, 8 a case which arose in the 
 District Court of the United States for the Territory of Or- 
 leans, early in the century, the pleadings showed that the 
 defendant, who was a United States marshal, admitted the 
 ouster, but claimed no interest in the premises and did not 
 have possession, and no damages were demanded against 
 him. The United States intervened, and by their at- 
 torney asked to have the proceedings stayed on the 
 ground that the government claimed the premises. The 
 Court granted the stay, saying, "It is a standing rule in 
 actions of ejectment that no plaintiff shall proceed to re- 
 cover the land, without giving the tenant in possession a 
 declaration, and making him a defendant. . . If the 
 United States, who claim the premises, cannot be made 
 defendants, it becomes their dignity to establish a tribunal 
 in which the controversy may be determined." 
 
 § 246. Notwithstanding the remarks of the Supreme 
 Court of the United States in the cases of Oarr v. The 
 
 1 104 U. S. 356. a 9 8 U. S. 433. 
 
 3 Martin's O. T. R. (La.) 87. 
 
166 PAKTIES DEFENDANT. [§ 247. 
 
 United States, 1 and Campbell v. James, 2 already quoted, 
 the right of an individual claimant of lands, which are in 
 the possession of officers, employees, or agents of the gov- 
 ernment, to assert his title and recover the possession in 
 the courts, has been upheld by the same court in a number 
 of cases. 8 Meig's v. McClung's Lessee, 4 one of the most 
 important of these., was an action of ejectment — the plaint- 
 iff claiming the land under a grant from the State of North 
 Carolina, and the United States asserting title to it under 
 an Indian treaty. The defendants were officers of the 
 government, 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 opin- 
 ion 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 explana- 
 tion 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 unanimously and clearly of 
 opinion that the Circuit Court committed no error in in- 
 structing 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 important case of Grisar v. McDowell, 5 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- 
 
 ' g8 U. S. 433. 2 io4 u. S. 356. 
 
 3 See Meigs v. McClung's Lessee, 9 Cranch, II ; Wilcox v. Jackson, 13 Pet. 498 ; 
 Brown v. Huger, 21 How. 305 ; Grisar v. McDowell, 6 Wall. 363 ; Cooley v. O'Con- 
 nor, 12 Wall. 391. See contra, in New York, People v. Ambrecht, II Abb. Pr. (N. 
 Y.) 97; Dibl.le v. Clapp, 31 How. Pr. (N. Y.) 420. 
 
 4 9 Cranch, 11. 5 6 Wall. 363. 
 
§ 247.] PARTIES DEFENDANT. 167 
 
 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 Eess 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 
 States, commanding the Military Department of California, 
 and as such officer entered upon the possession of the 
 premises 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 
 reserved for military purposes." In four of these cases 
 the actions were 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 govern- 
 ment from suit, and of the jurisdiction of the court to pro- 
 ceed, was presented in some form in each of these causes. 
 In Meigs v. McClung, 1 the point was distinctly taken and 
 insisted upon by counsel. In Wilcox v. Jackson, 2 it was 
 sharply presented by the agreed state of facts. In Grisar 
 v. McDowell, 3 it was raised by the pleadings, and in Brown 
 v. Huger, 4 it was a prominent feature in the case. In Oooley 
 v. O'Connor, 5 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 tri- 
 bunals. Thus, the Supreme Court of California, in Polack 
 V.Mansfield, 6 said: "But this rule which . . exempts the 
 
 1 9 Cranch, n. 2 13 Peters, 498. 
 
 a 6 Wall. 363. * 21 How. 305. 
 
 5 12 Wall. 393. 
 
 6 44 Cal. 36. See McConnell v. Wilcox, 2 111. 344; Swasey v. North Carolina 
 R. R. Co. 1 Hughes, 17-20 ; s. c. 71 N. C. 571 ; Dreux v. Kennedy, 12 Rob. (La.) 
 489 ; Oiborn 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 Davis, J., dissent- 
 
 ng ; Preston v. Walsh, 10 Fed. Rep. 315; King v. La Grange, 61 Cal. 221. 
 
168 PARTIES DEFENDANT. [§ 248. 
 
 mere servant or employee of another from an action, pre- 
 supposes that the employer may be sued, and that the 
 wrongs of which the plaintiff complains may be redressed 
 by resort to an action against the employer, as being the 
 real party committing 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 em- 
 ployee, 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 properly held responsible for the 
 lawless invasion of private property, committed by them 
 under the direction or command 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, 1 recently decided in the 
 Supreme Court of the United States, but by a divided 
 bench. The facts of the case are briefly as follows : The 
 plaintiff, Lee, asserted ownership of the premises in con- 
 troversy. 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. 2 The lauds were occupied by 
 officers, agents, tenants, or wards of the federal govern- 
 ment, and were used as a military station, and as a national 
 cemetery established for the burial of deceased soldiers 
 and sailors, and known as the "Arlington Cemetery." 
 Lee brought ejectment in a State Court and made the of- 
 ficers and occupants of the land, some two hundred in 
 number, defendants. The case was removed by certiorari 
 into the Circuit Court of the United States. The Attor- 
 ney General of the United States then intervened upon 
 the record, and, by way of suggestion, informed the court 
 
 1 The Arlington Case, Lee v. Kaufman, 3 Hughes, 36 ; s. c. 106 U. S. 196. 
 * See Bennett v. Hunter, 9 Wall. 326 ; Tacey v. Irwin, 18 Wall. 549; Atwood 
 v. Weems, 99 U. S. 183. •**■*> 
 
§ 248.] PARTIES DEFENDANT. 169 
 
 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 controversy, 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 denied, and the plaintiff had judg- 
 ment in the ejectment, from which a writ of error was pros- 
 ecuted to the Supreme Court. Following Grisar v. Mc- 
 Dowell, 1 Meigs v. McOlung, 2 Polack v. Mansfield, 3 Dreux v. 
 Kennedy, 4 and similar cases, the majority of the court held 
 that the judgment must stand. Mr. Justice Miller in de- 
 livering the opinion also relied on the constitutional pro- 
 vision that no person shall be "deprived of life, liberty, 
 or property without due process of law, nor shall private 
 property be taken for public use without just compensa- 
 tion." He treated the decision in Oarr v. United States as 
 not in point, for the reason that the action was "equally 
 inconclusive against the United States" (i. e. not an es- 
 toppel), whether the persons " sued were officers of the 
 government or not," and mentioned the following addi- 
 tional consideration : " Since the United States cannot be 
 made a defendant to a suit concerning its property, and no 
 judgment in any suit against an individual who has posses- 
 sion or control of such property can bind or conclude the 
 government, as is decided by this court in the case of Carr 
 «. United States, already referred to, the government is 
 always at liberty, notwithstanding any such judgment, to 
 avail itself of all the remedies which the law allows to 
 every person, natural or artificial, for the vindication and 
 assertion of its rights. Hence, taking the present case as 
 an illustration, the United States may proceed by a bill in 
 chancery to quiet its title, in aid of which, if a proper case 
 is made, a writ of injunction may be maintained. Or, it 
 may bring an action of ejectment, in which, on a direct issue 
 between the United States as plaintiff, and the present 
 
 1 6 Wall. 363. " 9 Cranch, 11. 
 
 s 44Cal. 36. 4 12 Rob. (La.) 489. 
 
170 PARTIES DEFENDANT. [§ 248ff. 
 
 plaintiff as defendant, the title of the United States could 
 be judicially determined." 1 The view of the minority (Gray, 
 J., delivering the opinion) contains a full and able review 
 of the authorities. This learned justice maintains that the 
 apparently conflicting cases are reconciled by the fact that 
 the objection to the exercise of jurisdiction over the sov- 
 ereign is a personal one, which he may take or not, as he 
 pleases. If the sovereign submits to the adjudication of 
 his rights then he waives the objection ; if he refuses to 
 submit then the jurisdiction is entirely defeated. The 
 view taken of Meigs v. McCIung 2 is that the United States 
 there raised no objection to the jurisdiction. 
 
 § 248a. In Swasey v. North Carolina Eailroad Company, 8 
 which was a suit by a bondholder, to procure a sale of cer- 
 tain certificates of stock held by the State of North Caro- 
 lina, in pledge for the security of bonds owned by com- 
 plainant 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 defendant, and, conse- 
 quently, that this court cannot entertain jurisdiction of the 
 cause. The State, although directly interested in the sub- 
 ject-matter of the litigation, is not a party to the record. 
 The eleventh amendment to the Constitution 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 citi- 
 zens or subjects of a foreign State. It has long been held, 
 however, that this amendment applies 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 neces- 
 sary party in whose absence the cause cannot 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, 4 it has been the 
 
 1 U. S. v. Lee, io6 U. S. 196, 222. 
 '-' gCranch, 11. 
 
 3 1 Hughes, 17, 20; s. c. 71 N. C. 571. See Davis v. Gray, 16 Wall. 203. 
 
 4 9 Wheat. 738. 
 
§249.] PARTIES DEFENDANT. 171 
 
 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 jurisdiction. 
 In such cases the courts act through the instrumentality 
 of the property or the agent." 
 
 § 249.— Ejectment, as we shall presently see, is at once 
 a remedy in the nature of a proceeding in rem, 1 and an 
 action of trespass, 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 contention to the 
 exercise of jurisdiction in such cases by the courts 
 "through the instrumentality of the property or the 
 agent." 8 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 
 independent tort of the agent. The fact that a party is 
 employed 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, 3 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 
 department 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 execu- 
 tive 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 
 
 1 Mostyn v. Fabrigas, Cowp. 161-176, per Lord Mansfield ; Casey v. Adams, 
 102 U. S. 66. See chap. XVII. 
 
 5 Swasey v. N. C. R. R. Co. 1 Hughes, 17, 20. 
 
 3 See United States v. Kirby, 7 Wall. 482 ; United States v. Hart, Pet. C. C. 
 390 ; Penny v. Walker, 64 Me. 430 ; 5 Opinions Att'ys Genl. 554. 
 
172 
 
 PARTIES DEFENDANT. [§ 249a. 
 
 unlimited license to seize and appropriate private property 
 to governmental uses, and then to invoke the sovereign 
 prerogative as a shield against judicial inquiry, and a har 
 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 appropriated, whether public or private, affect 
 the rights of the parties ? 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 property, and place it 
 beyond the reach of a writ, by applying it to the uses of 
 the government, merely because it is land and not per- 
 sonal property ; and that, too, in a country in which 
 private rights are so carefully guarded that the govern- 
 ment 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? 1 
 
 § 249«. United States v. Lee further explained. — The 
 principle of the sovereign's exemption from suit has been 
 before the court again in two leading cases, 2 and in the 
 
 1 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 husband 
 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 eject- 
 ment to recover dower in the lands, making the government officers defendants. 
 The complaint was dismissed upon the ground that the State courts had no juris- 
 diction over the lands. People v. Ambrecht, 11 Abb. Pr. (N. Y.) 97, is a special 
 term decision. This 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 government 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 exer- 
 cise of arbitrary power could be checked, and these salutary provisions made effect- 
 ual. New York stands in the front rank of the States which have placed the 
 judiciary above the executive, and in which 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 tending to support the startling proposi- 
 tion contended for by the attorney general in the Arlington case. 
 
 ' Louisiana v. Jumel, 107 U. S. 711 ; Cunningham v. Macon & Brunswick R. R. 
 Co. 109 U. S. 446. 
 
§250.] PARTIES DEPENDANT. 173 
 
 latest of these Mr. Justice Miller further defined the limits 
 and explained the scope of the decision in United States v. 
 Lee. In delivering the opinion of the court in Cunningham. 
 v. Macon & Brunswick R. E. Co., 1 he said: "Another 
 class of cases is where an individual is sued in tort for 
 some act injurious to another in regard to person or prop- 
 erty, to which his defense is that he has acted under the 
 orders of the government. In these cases he is not sued 
 as, or because he is, the officer of the government, but as 
 an individual, and the court is not ousted of jurisdiction 
 because he asserts authority as such officer. To make 
 out his defense he must show that his authority was suffi- 
 cient in law to protect him. ... To this class belongs 
 also the recent case of United States v. Lee, 2 for the 
 action of ejectment in that case is, in its essential char- 
 acter, an action of trespass, with the power in the court 
 to restore the possession to the plaintiff as part of the 
 judgment. And the defendants, Strong and Kaufman, 
 being sued individually as trespassers, set up their au- 
 thority as officers of the United States, which this court 
 held to be unlawful, and therefore insufficient as a de- 
 fense. The judgment in that case did not conclude the 
 United States, as the opinion carefully stated, but held 
 the officers liable as unauthorized trespassers, and turned 
 them out of their unlawful possession." 
 
 § 250. Ejectment against corporations. — The old doctrine 
 that ejectment would not lie against a corporation aggre- 
 gate has long been exploded. 3 It has been held in JSew 
 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, 4 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. 5 A church edifice 
 will be deemed to be in the actual occupation of the relig- 
 ious society using it, and ejectment therefor should be 
 
 1 109 U. S. 446, 452. 8 106 U. S. 196. 
 
 8 See Dater v. Troy Turnpike, &c, Co., 2 Hill (N. Y.), 629. 
 4 People v. Mayor, &c, of N. Y., 28 Barb. (N. Y.) 240, 
 6 Redfield v. Utica, &c, R. R. Co., 25 Barb. (N. Y.) 54. 
 
174 PARTIES DEFENDANT. [§§ 251, 252. 
 
 brought against such corporation, and not against its trust- 
 ees. 1 It has been held in various cases that ejectment 
 could be maintained against a railroad corporation in the 
 same way as against any individual who had entered upon 
 plaintiff's lands, without taking condemnation proceedings, 
 or acquiring the title by deed, although it was using the land 
 for a public purpose ; 2 and where the plaintiff purchased at 
 judicial sale land over which a railway company had con- 
 structed its road, without right or condemnation, it was 
 held that he could eject the company, and that he need 
 take no notice of their possession, as they were mere in- 
 truders. 3 No assent to the use of the lands can carry the 
 title when compensation has not been paid, 4 though the 
 owner may waive the right to eject a railroad company 
 that entered upon his lands with his consent. 5 The de- 
 fense of adverse possession may be set up by a corporation 
 incapable of acquiring title. 6 
 
 § 251. County. — Ejectment may be brought against a 
 county to recover land claimed by the county to have been 
 dedicated to public use. 7 A county is considered to be a 
 quasi corporation capable of suing and being sued, of own- 
 ing lands and instituting ejectment therefor. 8 
 
 § 252. City.— Ejectment will lie against a city by the 
 owner of land wrongfully taken by the city and converted 
 into a public street. 9 This subject has already been con- 
 sidered in an earlier chapter, 10 but we may observe that 
 
 1 Lucas v. Johnson, 8 Barb. (N. Y.) 244. 
 
 ! Smith v. Chicago, A. & St. L. R. R., 67 111. 191. See Chicago, B. & Q. R. R. 
 Co. v. Knox College, 34 111. 195 ; Carpenter v. Oswego & S. R. R., 24 N. Y. 655; 
 Mills on Eminent Domain, §§ 88, 90; Troy & B. R. R. Co. v. Boston, H. T. & W. 
 Ry. Co., 86 N. Y. 127 ; Robinson v. Pittsburg R. R. Co. 57 Cal. 417; Murray v. 
 Fitchburg R. R. Co., 130 Mass. 101. See § 161. But compare Edwardsville R. 
 R. Co. v. Sawyer, 92 111. 377. 
 
 3 Chicago & I. R. R. Co. v. Hopkins, 90 111. 316. 
 
 4 Evansville, H. & N. R. R. Co. v. Grady, 6 Bush (Ky.), 144. 
 
 6 Pryzbylowicz v. Mo. River R. R., 17 Fed. Rep. 492; Pierce on Railroads, 169. 
 
 6 Humbert v. Trinity Church, 24 Wend. (N. Y.) 604. See § 253a. 
 
 ' Barry v. Sonoma Co., 43 Cal. 217. See Lyell v. Supervisors, &c, 3 McL. 580. 
 
 8 Lincoln Co. v. Magruder, 3 Mo. App. 314. See Bennett 0, Walker, 64 Ga. 
 326. 
 
 » Armstrong v. St. Louis, 69 Mo. 309; Strong v. City of Brooklyn, 68 N. Y. I. 
 B e ut ' =°™P are Cowenhoven v. City of Brooklyn, 38 Barb. (N. Y.)o: Smiths. Wiggin 
 48 JN. hL. 105. See § 161. 
 
 10 See§§ 133, 161. 
 
§§ 252a-253a.] parties defendant. 175 
 
 where the tenant of a municipal corporation is sued in eject- 
 ment the corporation may be allowed to come in and defend. 1 
 
 § 252a. Receivers. — It is a contempt of court to disturb 
 the possession of a receiver. 2 The law upon this subject 
 is considered in Angel v. Smith, 3 where it appeared that an 
 ejectment had been brought without leave of the court for 
 lands in the possession of its receiver. The Lord Chancel- 
 lor observed that the practice was to ask leave, and he 
 " cautioned the solicitor that he would proceed at his 
 peril." Possibly a sale of property by a third party in the 
 hands of a receiver would be considered illegal and void, 4 
 though this is questioned. 5 
 
 § 253. Insolvents. — In a case which arose in New York, 
 it was held that where a person had been discharged under 
 an insolvent act, he had no further right in the premises, 
 and, therefore, could not be let in to defend as landlord. 6 
 In Canada ejectment is maintainable against an insolvent 
 and his assignee. 7 In Massachusetts the assignee of an in- 
 solvent may maintain a real action against the wife of the 
 insolvent, and need not aver that she holds the land to her 
 sole and separate use. 8 
 
 § 253a. Aliens.— Though an alien cannot acquire title as 
 against the true owner by an adverse possession of twenty 
 years, yet the statute of limitations will furnish a perfect 
 defense to an action of ejectment brought against him by 
 the true owner. 9 The real question in such cases respects 
 the plaintiff's right to the remedy and not the defendant's 
 title to the estate. 10 An alien enemy may be sued u and 
 may employ counsel to defend him. 
 
 'Carleton v. Darcy, 90 N. Y. 573 ; s. c. 16 Weekly Dig. (N. Y.) 125. 
 5 See Chautauque Co. Bank v. Risley, 19 N. Y. 377. 
 
 " 9 Ves. 335. That a receiver may be sued, see Fort Wayne, M. & C. R. R. Co. v. 
 Mellett, 92 Ind. 536; Hills v. Parker, in Mass. 508. 
 4 Wiswall v. Sampson, 14 How. 52. 
 
 5 Chautauque Co. Bank v. Risley, 19 N. Y. 378. 
 
 6 Jackson v. Stiles, 10 Johns. (N. Y.) 67-69. 
 
 ' Fraser Institute v. Moore, 19 L. C. Jur. 133. 
 
 8 Blake v. Sawin, 10 Allen (Mass.), 340; see Cooper v. Lands, 14 W. R. 610; s. 
 C 14 L. T. (N. S.) 287. 
 
 'Overing v. Russell, 32 Barb. (N. Y.) 263. 
 
 10 See S. P. Humbert v. Trinity Church, 24 Wend. (N. Y.) 604. 
 
 11 McNair v. Toler, 21 Minn. 176. 
 
176 PAKTIES DEFENDANT. [§§ 254, 255. 
 
 § 254. Infants.— Ejectment, being an action of tort, 
 may be maintained against an infant, 1 who must, however, 
 appear and be represented by a guardian 3 otherwise any 
 judgment rendered against him in the action will be re- 
 versed. 8 But if the infant attain his majority pending the 
 suit he may be admitted to plead, 4 and, having pleaded, he 
 waives any doubt attending the service of the writ during 
 his minority. 5 An infant vested with the title to land for 
 which an action of ejectment has been instituted has a 
 right to be admitted as a party defendant on the usual 
 terms, and it is the duty of the court to appoint a guardian 
 ad litem, so as to enable him to defend the action ; 6 and an 
 infant is entitled to defend by guardian as landlord of the 
 premises.' It has been held in Missouri, however, that an 
 action of ejectment will not lie against an infant upon the 
 possession of his guardian. 8 In New York a statutory 
 action for the determination of conflicting claims to real 
 property cannot be brought against an infant defendant. 9 
 
 § 255. Husband and wife. — At common law, where hus- 
 band and wife occupied the land, the possession was in law 
 the possession of the husband, and in no respect that of the 
 wife. And where the husband claimed the lands in his 
 own right, it was held to be improper to join the wife in 
 the action, and, if joined, she was entitled to a nonsuit, or 
 a verdict in her favor. 10 To authorize a judgment against 
 the wife, there must be evidence tending to show that the 
 ouster, dispossession or holding over was the act of the 
 
 1 Marshall v. Wing, 50 Me. 62 ; McCoon v. Smith, 3 Hill (N. Y.), 147 ; s. C. 38 
 Am. Dec. 623 ; Beckley v. Newcomb, 24 N. H. 360. See § 196. 
 
 2 The appointment of a guardian ad litem in an action will not be effectual unless 
 the court has first acquired jurisdiction of the infant. See Insurance Co. v. Bangs, 
 103 U. S 435. 
 
 3 Beckley v. Newcomb, 24 N. H. 360; Crockett v. Drew, 5 Gray (Mass.), 399. 
 
 4 Marshall v. Wing, 50 Me. 52 ; Tessier v. Wyse, 3 Bland's Ch. (Md.) 28. 
 
 5 Hillegass v. Hillegass, 5 Pa. St. 97. 
 8 Glass v. Doe, 2 Blackf. (lnd.) 293. 
 
 ' Stiles v. Jackson, 1 Wend. (N. Y.) 316. 
 
 8 Spitts v. Wells, 18 Mo. 468. 
 
 9 Bailey v. Briggs, 56 N. Y. 407. 
 
 10 See Rose v. Bell, 38 Barb. (N. Y.) 25; Von Schrader v. Taylor, 7 Mo. App. 
 361 ; Meegan v. Gunsollis, 19 Mo. 417 ; Hunt v. Thompson, 61 Mo. 154 ; Wilson 
 v. Garaghty, 70 Mo. 518. 
 
§255. J PARTIES DEPENDANT. 177 
 
 wife. 1 In Massachusetts, however, as we have just seen, 
 an assignee of an insolvent debtor was held entitled to 
 maintain a writ of entry against the insolvent's wife, with- 
 out averring that she held the land to her sole and separate 
 use. 2 It has been held in the New York Court of Appeals, 3 
 that where a husband and wife were seized in joint tenancy, 
 the entry upon the premises by the husband, under a claim 
 of title under the grant to himself and wife, inured to the 
 benefit of both. It appeared in this case that when the 
 possession was demanded of the wife she did not disclaim 
 title to the land, or repudiate the action of her husband, 
 but refused to yield the possession. The court held that 
 the wife was properly joined as a party defendant with her 
 husband, not as being answerable for his tortious acts, but 
 as one claiming title and right of possession to the lands in 
 controversy. The action would have been defective had 
 she been omitted as a party, because the judgment would 
 not have concluded her, and it would have been necessary 
 to litigate the same questions over again with her, should 
 she subsequently have asserted the right which she had 
 already asserted by refusing to yield the possession. 4 So 
 it was decided in the Supreme Court of Michigan, 5 that 
 where a husband and wife occupied lands claimed by the 
 wife, an ejectment against the husband alone would be a 
 fruitless proceeding, as no judgment could be rendered 
 affecting her title to which she was not a party, and her 
 possession could not be disturbed by a judgment against 
 her husband. And in Pennsylvania, in an ejectment 
 against a husband for the wife's lands, if the husband has 
 confessed judgment, the wife has a right to ask that the 
 judgment be opened, and to come in and defend. 6 So in 
 Fenwick v. Gravenor, 7 an early English case, a wife was 
 
 1 Von Schrader v. Taylor, 7 Mo. App. 361. 
 
 a Blake v. Sawin, 10 Allen (Mass.), 340. See Von Schrader v. Taylor, 7 Mo. 
 App. 361. 
 
 3 Stewart v. Patrick, 68 N. Y. 450-455. 
 
 4 See Porter v. McGrath, 41 N. Y. Superior, 84. 
 
 5 Hodson v. Van Fossen, 26 Mich. 68. 
 
 6 Lewis v. Brewster, 57 Penn. St. 410. See, however, Johnson v. Fullerton, 44 
 Penn. St. 466. 
 
 7 7 Mod. 70. See Den v. Steward, 3 N. J. L. 929. 
 
 12 
 
178 PARTIES DEFENDANT. [§§ 256, 257. 
 
 admitted to defend when the title of the plaintiff's lessor 
 was based on a pretended marriage with her, which, how- 
 ever, she disputed. On a writ of entry, in New Hamp- 
 shire, where the title to the land sued for is in the wife, 
 the husband need not be joined. 1 The legal relations exist- 
 ing between husband and wife have been so much altered 
 by legislation that it is almost impossible to formulate 
 any general rule applicable to them. It is clear that if 
 the wife claims title to the land independent of the rights 
 incident to the relationship, or if she is the person who 
 has ousted or withheld the possession from the plaintiff, 
 then she is a necessary and proper party defendant. If, 
 however, she is upon the land merely as a member of her 
 husband's family, she can, as we shall presently show, be 
 evicted under the writ issued against him. 
 
 § 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. 8 It has been held in 
 Kentucky that the possession of the mansion house of a 
 deceased person by his widow, before allotment of dower, 
 is consistent with that of the heirs, and the latter may 
 therefore be admitted to defend an ejectment brought 
 against her. 3 The widow occupies a fiduciary relation to- 
 ward the heirs. 4 
 
 § 257. 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, 6 but in some of the States the statute of limitations 
 begins to run from the date of the deed, 6 or from the date 
 of its record, the act of recording the instrument being 
 regarded as equivalent to taking possession under it. 7 It 
 
 1 Cahoon v. Coe, 57 N. H. 556. 
 
 2 Gourley v. Kinley, 66 Penn. St. 270. 
 
 3 Porter v. Robinson, 3 A. K. Marsh. (Ky.)253. 
 
 4 Knolls v Barnhart, 71 N. Y. 474. 
 
 5 Wain v. Shearman, 8 S. & R. (Pa.) 356. See McEntire v. Brown, 28 Ind. 347. 
 352 ; Pixleyz*. Rockwell, 1 Sheldon (N. Y.), 267. 
 
 6 Degraw v. Taylor, 37 Mo. 310. 
 
 7 Knox v. Cleveland, 13 Wis. 245 ; Whitney v. Marshall, 17 Wis. 174. 
 
§§258-260.] PARTIES DEPENDANT. 179 
 
 has been decided in Nebraska, that parties holding tax 
 deeds are not proper parties to a foreclosure ; that if made 
 defendants 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. 1 
 The holder of tax deeds upon different tracts of land, the 
 former owners being different, cannot quiet the title in a 
 single suit. 3 
 
 § 258. Tenant at will. — A writ of entry will lie against 
 a tenant at will who refuses to surrender the premises on 
 demand. 8 
 
 § 259. Wlio may come in and defend. — In an action to 
 recover land in North Carolina, it was held that a third 
 party, claiming to be a joint owner with the defendant, had 
 a right to be let in as a party defendant. 4 This is of course 
 the general rule as to joint ownership. If a party has been 
 made a co-defendant on motion, the plaintiff is not entitled 
 to dismiss the suit as to him. 5 A party claiming an equi- 
 table title may be made a defendant 6 
 
 § 260. Parties claiming by title paramount to botli litigants. 
 — 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 ac- 
 tion. 7 So in Files v. Watt, 8 in the Supreme Court of Ar- 
 kansas, the application of a party to come in and defend 
 was denied where he alleged an independent ownership, 
 
 1 Hurley v. Cox, 9 Neb. 230. See § 179, a. 
 
 2 Turner v, Duchman, 23 Wis. 500. 
 
 3 Wheelwright v. Freeman, 12 Mete. (Mass.) 154 : Dolby v. Miller, 2 Gray 
 (Mass.), 135 ; Gregory v. Tozier, 24 Me. 308. 
 
 4 Lytle v. Burgin, 82 N. C. 301. See Colgrove v, Koonce, 76 N. C. 363; Rol- 
 lins v. Rollins, 76 N. C. 264 ; McCown v. Hannah, 3 Oregon, 302. 
 
 6 Hayden v. Stewart, 27 Mo. 286. 
 
 6 Hampson v. Fall, 64 Ind. 382 ; but compare Webster v. Bond, 9 Hun (N. Y.), 
 437- 
 
 ' Porter v. Garrissino, 51 Cal. 559; Colgrove v. Koonce, 76 N. C. 363. 
 8 28 Ark. 151. 
 
180 PARTIES DEFENDANT. [§§ 261-263. 
 
 and showed no interest in common or privity of right be- 
 tween himself and either of the litigants. Under the prac- 
 tice in Texas, however, in an action of trespass to try title, 
 brought by an insolvent vendor against the vendee, to en- 
 force payment of the purchase money for the land, the 
 vendee has, as against his vendor, the right in equity to 
 have the claimants of an outstanding 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. 1 
 
 § 261. Parties claiming in opposition to defendant's title.— 
 It is quite clear that one claiming in hostility to the title 
 of the defendant, cannot be admitted as a party defendant 
 in the action. 2 
 
 § 262. Mortgagee. — A mortgagee may be let in to de- 
 fend, 3 and so may the assignee of a mortgage, 4 unless the 
 plaintiff in ejectment will satisfy the mortgage; 5 and a 
 mortgagee claiming title to land for his mortgagor, as 
 being within the description of the mortgage deed, is 
 jointly liable in ejectment with a mortgagor. 6 
 
 § 263. Purchaser pendente lite. — It may be stated as a 
 general principle, that a party who purchases or intermed- 
 dles with property pendente lite does so at his peril, and is 
 as conclusively bound and affected by the judgment 7 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 other- 
 wise, by successive alienations, litigations could be pro- 
 tracted, 8 and the administration of justice delayed indefi- 
 
 1 Estell v. Cole, 52 Texas, 170. See Cooper v. Singleton, 19 Texas, 267 ; Simp- 
 son v. Hawkins, 1 Dana (Ky.), 303 ; Harris v. Smith, 2 Dana (Ky.), II. 
 
 2 Jackson v. Flint, 2 Cowen (N. Y.), 594. 
 
 3 Doe v. Cooper, 8 T. R. 645; vide Barnes, 194; Doe d. Pearson v. Roe, 6 Bing. 
 613; s. c. 4 M. & P. 437; Den v. Fen, 6 N. J. L. 478; Fairclaim v. Shamtitle, 3 
 Burr. 1293. 
 
 4 Jackson v. Babcock, 17 Johns. (N. Y.) 112. 
 
 5 Den v. Fen, 6 N. J. L. 478. See Jackson v, Babcock, 17 Johns. (N. Y.) 112. 
 
 6 Patch v. Keeler, 28 Vt. 332. See Marvin v. Dennison, I Bla. C. C, 159- 
 1 Whiteside v. Haselton, no U. S. 296, 301. 
 
 8 See Galbreath v. Estes, 38 Ark. 600. 
 
§264.] PARTIES DEPENDANT. 181 
 
 tritely. 1 And persons entering upon land pending eject- 
 ment, are bound by the judgment subsequently rendered, 
 and are subject to removal by the final process. 8 Hence in 
 ■Georgia, where a defendant was added who took possession 
 after the action was instituted, it was held that the only 
 result thereby accomplished 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. 3 
 
 § 264. Landlord as defendant. — In Finnegan v. Oarraher, 4 
 in the New York Court of Appeals,, which was an 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 en- 
 able the claimant to litigate the title, and that the defend- 
 ant 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 land- 
 lord) said that he was in possession of the premises in ques- 
 tion, and that service of the papers in the action was made 
 upon him on the faith of this statement. The court de- 
 oided that the defendant was estopped by such declaration 
 from subsequently denying that he was in the actual pos- 
 session of the lands at the time of the commencement of 
 the action. It has been held in South Carolina, that tres- 
 pass to try title will lie against a landlord, even though he 
 was never in possession except by his tenant. 5 A party 
 not an occupant cannot as a general rule be joined as a 
 defendant without his consent, or in the absence of aver- 
 ments showing some connection between the occupant and 
 the defendant out of possession. 6 
 
 1 Malone v. Marriott, 64 Ala. 486-490 ; Tilton v. Cofield, 93 U. S. 163 ; Inloe's 
 Lessee v. Harvey, 11 Md. 524; Salisbury v. Morss, 7 Lans. (N. Y.) 359 ; Harring- 
 ton v. Slade, 22 Barb. (N. Y.) 162 ; Peima. Canal Co. w. Central Iron Works, 7 
 Phila. (Penn.) 662. 
 
 2 Oetgen v. Ross, 47 111. 142 ; Wallen v. Huff, 3 Sneed (Tenn.), 82; chap. XXI. 
 
 3 Willingham v. Long, 47 Ga. 540; Bradley v. McDaniel, 3 Jones Law (N. C), 
 228. 
 
 4 47 N. Y. 493. See Abeel v. Van Gelder, 36 N. Y. 513 ; Pierce v. Ferris, 10 
 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. 
 
 s Binda v. Benbow, II Rich. Law (S. C), 24. 
 
 6 Chamberlain v. Dempsey, 22 How. Pr. (N. Y.) 356. 
 
182 PARTIES DEPENDANT. [§ 265. 
 
 § 265. Party claiming as landlord. — A third party claim- 
 ing as landlord will ordinarily be let in to defend an action 
 of ejectment. 1 But, according to some of the authorities, 
 he cannot be substituted in the tenant's place without the 
 plaintiff's consent. 2 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, 4 and the tenant cannot interfere with the 
 cause to the prejudice of the landlord. 5 It was held in 
 Virginia, 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 con- 
 nected or consistent with the possession of the occupying 
 tenant, 6 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. 7 
 The technical relationship need not always be shown, 
 provided the title of the applicant is consistent with that 
 of the occupier; 8 and the question of the receipt of rent is 
 not a conclusive test. A party claiming in opposition to 
 the tenant can in no light be considered as landlord, 9 and 
 two persons claiming separately will not be permitted to 
 defend as landlords of the same tenant. 10 
 
 1 Rollins v. Bishop, 76 N. C. 26S; Mitchell v. Bavatta, 17 Gratt. (Va.) 455;- 
 Wise v. Wheeler, 6 Ired. Law (N. C), 196 ; Marvin v. Dennison, 1 Blatch. C. C. 
 159- 
 
 2 Merritt v. Thompson, 13 III. 716 ; Emlen v. Hoops, 3 S. r & R. (Penn.) 130; 
 Jackson v. Stiles, 1 Cow. (N. Y.) 134. 
 
 3 Kellogg v. Forsyth, 24 How. 186. 
 
 4 Dutton v. Warschauer, 21 Cal. 609 ; Kellogg v. Forsyth, 24 How. 186. 
 Doe v. Franklin, 7 Taunt. 9. 
 
 6 See Stribling v. Prettyman, 57 111. 371 ; Fairclaim d. Fowler v. Shamtitle, 3 
 Burr. 1290; Falkner v. Jones, 12 Ala. 165. 
 ' Hanks v. Price, 32 Gratt. (Va.) 108. 
 
 8 Falkner v. Jones, 12 Ala. 165. See Abeel v. Van Gelder, 36 N. Y. 513. 
 
 9 Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1295. 
 
 10 Doe d. Lloyd v. Roe, 15 M. & W. 431. Lord Mansfield said, in Fairclaim ex 
 dem Fowler v. Shamtitle, 3 Burr. 1295: "It is no answer 'that any person 
 affected by the judgment may bring a new ejectment,' because there is a great dif- 
 
§266.] PARTIES DEPENDANT. 183 
 
 § 266. Marvin v. Dennison dismissed. — In Marvin v. 
 Dennison, 1 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 further suggested 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 different and inde- 
 pendent jurisdictions existed, and could be resorted to, 
 conflicting decisions might possibly be rendered 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 vend- 
 ee, 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 and other 
 cases of a like nature, but especially in that of mortgagee 
 and mortgagor, there is such a relation or connection 
 existing between the respective parties as constitutes a 
 tenancy, though it may not amount to that of landlord 
 and tenant within the meaning of the statute. A mort- 
 gagee, if he claims title under the mortgage, cannot be 
 allowed 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 
 
 ference between being plaintiff, or defendant, in ejectment." In other words, the 
 possessor is favored with the presumption of title, while the claimant must recover 
 upon the strength of his own title. 
 1 I Bla. C. C. 159. 
 
184 PARTIES DEFENDANT. [§ 266«. 
 
 the mortgagor, though conclusive upon his rights, would 
 have 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 litigation during his pleasure, or until the 
 statute of limitations should run." Much as the purpose 
 sought to be accomplished in this case is to be commended, 
 we cannot but regard the decision as carrying the inter- 
 pretation of the word landlord to an extreme, not to say 
 unwarrantable limit. The decision, in effect, practically 
 converts ejectment into a modern 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, except that the plaintiff is not in pos- 
 session. It may be classed as judicial legislation of a most 
 decided character. 
 
 § 266a. Belief between defendants. — Where all the prop- 
 erty claimed in ejectment was recovered, one lessor of the 
 plaintiff was held not entitled to prosecute a writ of error 
 against another on the ground that a greater interest was 
 recovered on the demise of the latter than should have 
 been. The controversy should be settled in a suit between 
 the plaintiffs. 1 It is said, in Fink v. Allen, 2 that parties 
 who are defendants in the same suit cannot be compelled 
 to settle any controversies they may have, unless it is done 
 by their voluntary submission. 
 
 ' Fortune v. Center, 2 O. S. 537. Compare Meek v. Breckenridge, 29 0. S. 642. 
 2 36 N. Y. Superior, 359 
 
CHAPTER VIII. 
 
 EJECTMENT BY MUNICIPAL CORPORATIONS FOR STREETS 
 AND PUBLIC PLACES. 
 
 I 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. Right to bring ejectment not uni- 
 formly recognized. 
 
 273. Rule in Michigan. 
 
 274. When ejectment cannot be main- 
 
 tained. 
 
 275. Trespass to try title. 
 
 § 267. Ejectment by municipal corporations vested with th e 
 fee. — The right of a municipal corporation to recover pos- 
 session by ejectment of streets or public places under its 
 direction and control, has been a subject of frequent con- 
 sideration in the courts. The public, we may observe, 
 ordinarily acquire by dedication for street purposes a mere 
 easement and not the right to the soil. 1 Where, however, 
 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 deliv- 
 ers possession of the ground itself to be held and appropri- 
 ated to the purposes of the public trusts. 2 Incidentally 
 we may note that condemnation proceedings, dedication 
 and grant are not the only means by which the title of 
 these corporations to lands intended for public uses may 
 be obtained. A municipal corporation may acquire title 
 to real estate for corporate purposes by adverse posses- 
 sion. 3 
 
 § 268. Vested with public easement. — Where the adjoining 
 owner retains the freehold in the soil, and only a naked 
 
 ' Pomeroy v. Mills, 3 Vt. 279; s. c. 23 Am. Dec. 207. 
 
 2 City of Savannah v. Steamboat Co., 1 R. M. Charlton (Ga.), 342; See Com'rs 
 of Bath v. Boyd, 1 Ired. (N. C.) Law, 194; City of Chicago v. Wright, 69 111. 318. 
 
 3 Sherman v. Kane, 86 N. Y. 57. 
 
186 EJECTMENT FOR STREETS. [§269. 
 
 easement or servitude, or the power to regulate and con- 
 trol the enjoyment by the public of the right of way or 
 passage, is granted or acquired by the corporation, a more 
 serious question is presented than where the fee is taken. 
 How can the rights thus conferred, which are in their 
 nature clearly incorporeal, be protected or enforced by the 
 action of ejectment I 1 In City of Savannah v. Steamboat 
 Company, 2 the 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 owner- 
 ship of the fee by the city. On the other hand, the case of 
 Cincinnati v. White s established the doctrine that a muni- 
 cipal corporation could defend ejectment at the suit of tbe 
 owner of the fee, by setting up the right of possession, in 
 a street or common, 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 eject- 
 ment, no reason can be advanced why it should not be also 
 available to support an action to recover the possession." 4 
 
 § 269. Theory of the decisions. — In Dummer v. Jersey 
 City, 5 which was ejectment for a market ground dedicated 
 to public use, the New Jersey Supreme Court used this 
 language : " 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 equitable right, and they may recover it against the 
 legal owner of the fee." The principles of this case, how- 
 ever, 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 appropriate remedy. Any easement, whether public 
 
 1 Se e §§ 95, i3°> 132, 139, 140, 146, 161. 
 2 1 R. M. Charlton (Ga.), 342. 
 
 3 6 Pet. 431. 
 
 4 Hoboken Land and Imp. Co. v. Mayor, &c, 36 N. J. L. 540. 
 6 20 N. J. L. 86. 
 
§270.] EJECTMENT FOE STREETS. 187 
 
 or private, carries with it, to the extent essential for its 
 proper enjoyment, the right of possession of the land over 
 which the easement extends. Eemedies for the protection 
 and enforcement of such incorporeal rights, exist both at 
 law and in equity. It is going too far to say that the right 
 of possession is the test as to when the remedy can be in- 
 voked, 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. 1 Neither constitutes an 
 estate in lands, and they differ only in degree. It must be 
 remembered that the abutters or owners of lands fronting 
 upon the public street or highway have a clear standing in 
 court either to restrain any unauthorized use of a public 
 street, 2 or to recover damages. 3 "We have no doubt at all," 
 say the Supreme Court of Indiana, " as to the right of the 
 owner of the fee to maintain ejectment against a wrong- 
 doer, although the fee is burdened by a public easement." 4 
 
 Can the right to maintain a possessory action for lands 
 be vested in two persons at the same time ? 
 
 § 270. Founded on public necessity. — In the case of Ho- 
 boken Land Company v. Mayor, &c, of Hoboken, 5 the 
 right of a municipal corporation, not vested with the fee, 
 to maintain ejectment, is placed upon the ground of con- 
 venience and paramount public necessity. The public 
 easement in a street or public place, is considered to be of 
 so.important a character that possession, exclusive of any 
 interference 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 
 
 'See §§ 140, 161. 
 
 'Glovers/. Manhattan Railway Co., 66 How. Pr.(N.Y.)8i; Hendersons/. New 
 York Central R. R. Co., 78 N.Y. 423; Story v. N.Y. Elevated R. R. Co., 90N.Y. 178. 
 
 3 Williams v. New York Central R. R. Co., 16 N. Y. 97 ; Terre Haute & S. E. 
 R. R. Co. v. Rodel, 89 Ind. 128; s. c. 46 Am. Rep. 164. 
 
 * Terre Haute & S. E. R. R. Co. v. Rodel, 89 Ind. 128; s. c. 46 Am. Rep. 164- 
 167, citing Sedg. & Wait on Trial of Title to Land, §§ 132, 135. See Coxs/. Louis- 
 ville, &c, R. R. Co. 48 Ind. 178. 
 
 5 Hoboken Land Co. v. Mayor, &c, of Hoboken, 36 N. J. L. 540; Trustees M. 
 E. Church v. Council of Hoboken, 33 N. J. L. 13; s. P. City of California v. Howard, 
 78 Mo. 88. 
 
188 EJECTMEKT FOB STREETS. [§ 271. 
 
 the land, and his rights differ little from those which are 
 common 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 remedy 
 of ejectment is given, instead of remitting the municipal 
 authorities to test and protect the rights of the public by 
 criminal prosecutions. The early decisions limited the 
 public right in a street or highway to that of passage and 
 repassage, 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 includesnot 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 exclusive right to regulate the public use and 
 enjoyment even as against the owner of the soil, so that 
 the latter has only a naked fee of but nominal value. The 
 public easement has grown to such proportions as to draw 
 to it the remedies incident 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 dedi- 
 cation, to invoke the remedy of ejectment, for the posses- 
 sion of streets, 1 public squares, 2 town commons, 8 churches, 4 
 and market grounds, 5 is upheld in many cases. 6 It is even 
 held that a railroad corporation may support ejectment to 
 recover possession of lands embraced in the grant of its 
 right of way. This is upon the theory that in order to en- 
 able the corporation to apply the lands to the purposes in- 
 tended it is necessary that they should take and hold the 
 possession thereof. 1 
 
 1 San Francisco v. Sullivan, 50 Cal. 603. 
 
 s Trustees M. E. Church v. Council of Hoboken, 33 N. J. L. 13 ; City of 
 "Winona v. Huff, 11 Minn. 119. 
 
 3 Com'rs of Bath v. Boyd, 1 Ired. (N. C.) Law, 194. 
 
 4 City of Hannibal v. Draper, 15 Mo. 634. 
 6 Dumraer v. Jersey City, 20 N. J. L. 86. 
 
 6 City of Chicago v. Wright, 69 111. 318 ; Klinkener v. School Directors, II 
 Penn. St. 444; City of Apalachicola v. Land Co., 9 Fla. 340. See Inhabitants of 
 Greenwich v. Easton & A. R. R. Co., 24 N. J. Eq. 217; Barney v. Keokuk, 94 U. 
 S. 324; Perry v. New Orleans, &c, R. R., 55 Ala. 413. 
 
 7 Central Pacific R. R. Co. v. Benity, 5 Sawyer, 118 ; Tenn. & Coosa R. R. Co. 
 v. East Ala. Ry. Co., 75 Ala. 516. 
 
§§ 272, 273.] EJECTMENT FOR STREETS. 189 
 
 § 272. Right to bring ejectment not uniformly recognized. — 
 The correctness of this doctrine, however, is not uniformly 
 conceded, and there is excellent ground for assailing it. 
 Where ejectment had been brought by a town having an 
 easement in a street, against the owner of the fee, for ob- 
 structing it, the Kentucky Court of Appeals denied the 
 right of a party entitled to an easement to recover in eject- 
 ment, for the reason that the judgment would divest the 
 owner of the absolute property in the soil. The court say 
 that the public have a remedy by injunction or indictment, 1 
 or it may summarily remove the obstructions in its street. 2 
 In a recent case in Indiana, it is said that the right to the 
 possession of the street is in the owner of the fee, for 
 -neither the public nor the municipal corporation can main- 
 tain an action for possession ; their rights cannot be vindi- 
 cated in such an action. It is argued that as the right to 
 maintain the proper possessory action must reside some- 
 where, and as it does not reside in the public or in the 
 municipality it must be in the owner of the fee. 3 In Wis- 
 consin, the interest of the corporation in the street is con- 
 sidered to be a mere easement which, being incorporeal, 
 is not the proper subject of an ejectment. 4 
 
 § 273. Rule in Michigan. — By statute in Michigan, the 
 plaintiff in ejectment is required to show " a valid subsist- 
 ing interest in the premises claimed." Under this statute 
 the right of a city, vested by charter with the supervision 
 and control of its streets, to maintain ejectment therefor, 
 was denied. 5 The same doctrine was applied in a case in 
 which a county representing the public brought ejectment 
 against a party who had occupied and obstructed land 
 dedicated to the public use as 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 ap- 
 
 1 West Covington v. Freking, 8 Bush (Ky.). 121. 
 
 2 City of Racine v. Crotsenberg, 6i Wis. 486; s. C. 50 Am. Rep. 149. 
 
 3 Terre Haute & S. E. R. R. Co. v. Rodel, 89 Ind. 128 ; s. c. 46 Am. Rep. 164. 
 
 4 City of Racine v. Crotsenberg, 61 Wis. 486 ; s. c. 50 Am. Rep. 149. Citing 
 Sedg. & Wait on Trial of Title to Land, §§ 95, 98, 146. 
 
 5 Grand Rapids v. Whittlesey, 33 Mich. 109. 
 
190 EJECTMENT EOR STREETS. [§§ 274, 275. 
 
 propriated for streets, or to keep it clear of unauthorized 
 impediments. 1 
 
 § 274. When ejectment cannot be maintained.. — In the case 
 of The Borough of Chainbersburg v. Manko, 2 in the New 
 Jersej 7 Court of Errors and Appeals, the general rule is 
 recognized that local municipal authorities having charge of 
 a public highway may maintain ejectment therefor, against 
 any persons encroaching thereon ; but the rule was held 
 not to be applicable so as to support ejectment by the 
 municipal authorities for an encroachment upon a turn- 
 pike, under the control of a private corporation, upon 
 which the burden of protecting the highway had been ex- 
 pressly 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 —In South Carolina it has 
 been held, that the commissioners of streets cannot main- 
 tain 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 relief. 3 In 
 Texas a municipal corporation may maintain trespass to 
 try title for its lands. 4 
 
 1 Bay County v. Bradley, 39 Mich. 163. 
 " 39 N. J. L. 496. 
 
 3 Com'rs of Georgetown v. Taylor, I Brev. (S. C) 130 : s. c. 2 Bay (S. C), 282 ; 
 second trial, lb. 288. 
 
 4 Lewis 11. San Antonio, 7 Texas, 288. 
 
CHAPTER IX. 
 
 EJECTMENT BETWEEN CO-TENANTS AND BY CO-TENANTS 
 AGAINST THIRD PARTIES. 
 
 j 276. Ejectment between tenants in 
 common. 
 
 277. Actual ouster must be shown. — 
 
 Early practice. 
 
 278. How distinguished from ouster in 
 
 other cases. 
 
 279. Newell v. Woodruff stated. 
 
 280. Zeller's Lessee v. Eckert. 
 280a. Notice of ouster. 
 
 281. Ouster a question of fact. 
 
 282. Burden of proof. 
 
 283. What constitutes an ouster. — De- 
 
 mand. 
 
 284. Examples of ouster, etc. 
 
 285. Occupation of wild lands. 
 
 286. Ouster to sustain trespass. 
 
 287. Conveyance of the entire estate. 
 
 288. Exceptions to the rule. 
 
 289. Presumption of ouster from lapse 
 
 of time. 
 
 § 290. 
 
 291. 
 292. 
 
 293. 
 294. 
 295. 
 
 296. 
 
 297. 
 298. 
 299. 
 300. 
 
 3°i- 
 302. 
 
 3°3- 
 303a. 
 
 When ouster need not be proved. — 
 
 Denial by answer. 
 Title of co-tenants. — Estoppel. 
 Purchase of outstanding title., 
 ) Title acquired under same in- 
 j strument. 
 Ejectment between joint tenants 
 
 and co-parceners. 
 Tenancy in common of naked pos- 
 session. 
 
 Tenants in cormnon against third 
 parties. — Joinder of tenants in 
 common. 
 
 What interest recovered. 
 
 Joinder of joint tenants against 
 
 third parties. 
 Ejectment by co-parceners. 
 Partnership real estate. 
 
 § 276. Ejectment 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. 1 An ouster is defined to be "a wrongful dispos- 
 session or exclusion of a party from real property who is 
 entitled to the possession." 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. Without proof of ouster ejectment will not 
 lie where this relationship exists. 2 The general rule is 
 
 1 See Culver v. Rhodes 87 N. Y. 348. Evidence of ouster is essential to main- 
 tain trespass to try title between tenants in common. Taylor v. Stockdale, 3 Mc- 
 Cord (S. C), 302. 
 
 2 Hebrard v. Jefferson Mining Co., 33 Cal. 290 ; s. c. 5 Mor. Min. Rep. 270. 
 
192 EJECTMENT BETWEEN CO-TENANTS. [§ 276. 
 
 that the possession of one tenant in common is the posses- 
 sion of his companions, 1 for a fellowship exists between 
 tenants in common, (the doctrine of possessio fratris ap- 
 plies), and the law assumes that each will be true to the 
 other. 2 " The seizin and possession of one tenant in com- 
 mon of real estate," say the Supreme Court of Iowa, "is 
 seizin and possession for the use of the others." 8 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, in the same 
 way that the knowledge of any other agent affects his 
 principal. 4 But this must be regarded as an extreme 
 statement of the legal effects of this relation, for the co- 
 tenant's admissions have been held not to be evidence 
 against his companions, for the purpose of enlarging or 
 varying the boundaries of a piece of land they had previ- 
 ously sold ; 5 one co tenant cannot create an easement in 
 the common property, 6 and the judgment in an unsuccess- 
 ful action for the lands of the co-tenancy, brought by one 
 co-tenant, does not bind or estop his companions. 7 The 
 possession of one co-tenant does not prevent the statute 
 of limitations from running against the others, 8 and the 
 disability of one co-parcener does not preserve the right 
 of entry of another. 9 The relations of tenants in common 
 
 •Covington v. Stewart, 77 N. C. 148; Bowen v. Preston, 48 Ind. 367; 
 Foulke v. Bond, 41 N. J. L. 527; Doe v. Keen, 7 T. R. 386; Smales 
 v. Dale, Hob. 120; Miller v. Myers, 46 Cal. 535; Ford v. Grey, Salk. 285; 
 Phillips v. Gregg, 10 Watts (Penn.), 158; Doe d. Fishar 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 Lessee v. Dawkins, 3 How. 674-689 ; Van Valkenburg v. Huff, 
 1 Nev. 142 ; Campau v. Campau, 44 Mich. 31 ; Allen v. Hall, 1 McCord (S. C), 
 131; Lillianskyoldt v. Goss, 2 Utah, 292; Robidoux v. Cassilegi, 10 Mo. App. 523; 
 Peaceable v. Read, 1 East, 568 ; Fielder v. Childs, 73 Ala. 567 ; Campbell v. Shiv- 
 ers, 1 Ariz. 161 ; Unger v. Mooney, 63 Cal. 586. 
 
 2 Day v. Howard, 73 N. C. 1 ; Thornton v. York Bank, 45 Me. 161. 
 
 3 Kinney v. Slattery, 51 Iowa, 353; Burns v. Byrne, 45 Iowa, 285; Campbell 
 v. Campbell, 13 N. H. 483 ; Crook v. Vandevoort, 13 Neb. 506. 
 
 4 Ward v. Warren, 82 N. Y. 265. See Munson v. Munson, 30 Conn. 425. 
 
 5 Young v. Griffith, 79 N. C. 201. 
 
 6 Crippen v. Morss, 49 N. Y. 63. 
 
 ' Stovall v. Carmichael, 52 Texas, 383. See Williams v. Sutton, 43 Cal. 71. 
 
 8 Earl of Sussex v. Temple, 1 Ld. Raym, 310. 
 
 9 Roe d. Langdon v. Rowlston, 2 Taunt. 441. See Chap. XXVIII. 
 
§277.] EJECTMENT BETWEEN CO-TENANTS. 193 
 
 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; 1 and one co- 
 tenant "will not be presumed to intend a wrong to his com- 
 panion, if his acts will admit of any other construction. 3 
 Thus, in Wood v. Phillips, the New York Court of Appeals 
 held that one tenant in common was justified in taking 
 peaceable possession of the common property ; and even 
 though such possession 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. 3 
 
 Tenants in common sustain to each other a relation of 
 trust, 4 and the possession of one tenant in common eo 
 nomine as tenant in common can never bar his companion, 
 such possession being not adverse to, but in support of, 
 the common title. 5 In an early case, in the New York 
 Supreme Court, Spencer, J., is reported as having said 
 that in ejectment between tenants in common, actual 
 ouster need not be proved. This cannot, however, be re- 
 garded as a correct statement of the law, unless the term 
 be confined to actual physical ouster, "a turning out by 
 the shoulders," or forcible expulsion. 6 
 
 §277. Actual ouster must oe shown. — Early practice. — 
 The rule of law, then, may be regarded as clearly estab- 
 lished, that one co-tenant cannot maintain ejectment 
 against his fellow tenant without proof of an actual ouster, 
 
 1 Foulke v. Bond, 41 N. J. L. 527 ; Baker v. Whiting, 3 Sumn. 475, per Story, 
 J. ; Wood v. Phillips, 43 N. Y. 152. 
 
 8 Stearns on Real Actions (2d ed.), P- 41 ; Berthold v. Fox, 13 Min. 507. 
 
 3 Wood v. Phillips, 43 N. Y. 152. See Depuy v. Williams, 26 Cal. 314 ; Low 
 v. Elwell, 121 Mass. 309 ; Souter v. Codman, 14 R. I. 119. 
 
 4 Harrison v. Harrison, 56 Miss. 174. 
 
 5 Doe d. Fishar v. Prosser, Cowper, 217; Kathan v. Rockwell, 16 Hun (N. Y.), 
 90; Jackson v. Tibbits, 9 Cow. (N. Y.) 241. 
 
 6 Shepard v. Ryers, 15 Johns. (N. Y.) 497, 501. See Gale v. Hines, 17 Fla. 
 
 773. 
 
 Tenancy in common of personal property. — One tenant m common or joint owner 
 cannot maintain an action for the possession of personal property against his co- 
 tenant. If the co-tenant sells or converts the property an action will lie for conver- 
 sion, or the excluded co-tenant may hold the title with the purchaser. But he 
 cannot compel a delivery to himself of the whole property, because his co-tenant 
 has an equal right. Davis v. Lottich, 46 N. Y. 396; Russell v. Allen, 13 N. Y. 
 173; Hart v. Fitzgerald, 2 Mass. 510; Balch v. Jones, 61 Cal. 234; Witham *>. 
 Witham, 57 Me. 448 ; Wills v. Noyes, 12 Pick. (Mass.) 324. 
 
 13 * 
 
194 EJECTMENT BETWEEN CO-TENANTS. [§ 278. 
 
 which may be effected either forcibly, or by a denial of the 
 plaintiff's rights and the assertion of an adverse title. 
 The Supreme Court of the United States adopted this 
 doctrine in Barnitz v. Casey, 1 and cases sustaining the 
 rule are numerous in both State and Federal tribunals, 
 under both common law and code systems of practice, 2 
 The ouster may be committed by a principal through an 
 agent. 8 
 
 The rule requiring proof of actual ouster existed in 
 early times in all cases where ejectment was brought by a 
 tenant in common, a joint tenant, or parcener, against his 
 companion, and the peculiar practice introduced to meet 
 this emergency further illustrates the flexible nature of the 
 remedy. When the defendant desired to admit the title 
 and co-tenancy, and to deny the commission of any acts 
 amounting to an ouster, or total denial of the plaintiff's 
 rights, the court permitted him, upon presenting proper 
 proof of the facts by affidavit, to enter into a special rule, 
 requiring him to confess lease and entry at the trial, but 
 not ouster, unless actual ouster should be proved. 4 This 
 favor was usually granted as a matter of course, 5 for if the 
 defendant entered into the usual consent rule he could not 
 subsequently object that no actual ouster was proved at 
 the trial. 6 This special rule was, of course, available only 
 when the defendant did not dispute or assail the title of 
 his companion. 
 
 § 278. How distinguished from ouster in other cases.— An 
 
 1 7 Cranch, 456. 
 
 3 Norris v. Sullivan, 47 Conn. 474; Bethell v. McCool, 46 Ind, 303; Sharp v. 
 Ingraham, 4 Hill (N. Y.), 116; Jones v. Perkins, 1 Stew. (Ala.) 512 ; Day v. How- 
 ard, 73 N. C. 1; Story v. Saunders, 8 Humph. (Tenn.) 663; Gale v. Hines, 17 Fla. 
 773 ; Cutts v. King. 5 Me. 482 ; Taylor v. Hill, 10 Leigh (Va.), 457; Harvin v. 
 Hodge, Dudley's (S. C.) Law, 23; Cross v. Robinson, 21 Conn. 379; Higbee v. 
 Rice, 5 Mass. 351 ; Noble v. McFarland, 51 111. 226; Ewald v. Corbett, 32 Cal. 
 493 ; Young v. De Bruhl, 11 Rich. (S. C.) Law, 638 ; Siglar v. Van Riper, 10 
 Wend. (N. Y.) 414; Gilchrist v. Ramsay, 27 U. C. Q. B. 500 ; Trapnall v. Hill, 
 31 Ark. 345 ; Edwards v. Bishop, 4 N. Y. 61 ; Halford v. Tetherow, 2 Jones' (N. 
 C.) Law, 393 ; Jones v. Weathersbee, 4 Strobh. (S. C.) Law, 50. 
 
 3 Munson v. Munson, 30 Conn. 425. 
 
 4 Doe d. Gigner v. Roe, 2 Taunt. 397 ; Anon. 7 Mod. 39; Oates v. Brydon, 3 
 Burr. 1895 ; Langendyck v. Burhans, II Johns. (N. Y.)46i; Jackson v. Lyons, 18 
 Jonns. (N. Y.) 398; Jackson v. Leek, 12 Wend. (N, Y.) 105; Taylor v. Hill, W 
 Leigh (Va.), 457. 
 
 6 Doe d. Gigner v. Roe, 2 Taunt. 397. 
 
 * Jackson v. Denniston, 4* Johns. (N. Y.) 311. 
 
§ 279.] EJECTMENT BETWEEN CO-TENANTS. 195 
 
 ouster by a tenant in common does not differ in its nature 
 from any other ouster in any respect ; the amount of evi- 
 dence required to prove it is, however, greater than in 
 ordinary cases. In other cases the assumption of owner- 
 ship is more clearly adverse, but the acts of a tenant in 
 common which indicate assumption of ownership may be 
 consistent with an acknowledgment of the title* and rights 
 of the cortenant ; hence acts which are decisive in the one 
 case may be equivocal and insufficient in the other, 1 and 
 may be susceptible of explanation consistent with a com- 
 mon title. "Acts of ownership," says Story, J., "are 
 not, in tenancies in common, necessarily acts of dis- 
 seizin." 2 As the possession of a co-tenant is presumed to 
 be in right of the common title, he cannot claim the pro- 
 tection of the statute of limitations, unless it clearly ap- 
 pears that he has repudiated the relationship in toto, and 
 is holding adversely to it. "Tn such cases the acts and 
 declarations of the party in possession are to be construed 
 much more strongly against him than when there is no 
 privity of title," 3 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 acknowledge and conform to the rights of his 
 companion, although 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. 4 
 
 § 279. Newell v. Woodruff, stated.— In the case just cited 
 the evidence showed that the defendant leased the property, 
 ordinarily spoke of it as her own, and paid the taxes regu- 
 larly ; that no one had, to her knowledge, set up a title or 
 
 1 Foulke v. Bond, 41 N. J. L. 527 ; Newell v. Woodruff, 30 Conn. 492. See 
 Warfield v. Lindell, 30 Mo. 272. 
 
 2 Prescott v. Nevers, 4 Mason, 326, per Story, J. See Gower v. Quinlan, 40 
 Mich. 572; Norris v. Dunn, 70 Ga. 800. 
 
 3 Baily v. Trammell, 27 Texas, 328. See § 750. 
 
 4 Newell v. Woodruff, 30 Conn. 492 ; Trenouth v. Gilbert, 63 Cal. 407; and see 
 Barret v. Coburn, 3 Met. (Ky.) 510 ; s. C. 13 Am. Dec. 140, note. An ouster which 
 may be the subject of an ejectment or an action of trespass will not necessarily sus- 
 tain a suit instituted to invoke the equitable powers of the court to restrain it. Shoe- 
 maker v. Shoemaker, II Abb. N. C. (N. Y.) 85. 
 
196 EJECTMENT BETWEEN CO-TENANTS. [§ 279. 
 
 claimed any right to it except tbe plaintiff, who had never 
 distinctly 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. On this evidence the court 
 below granted a non-suit, and this ruling was held on 
 appeal to be correct. Mr. Freeman, in his valuable work 
 on Co-tenancy and Partition, 1 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 insuffi- 
 cient when proved as a cause of action." As an illustration 
 he takes the case of an exclusive occupancy (similar to that 
 shown in Newell v. Woodruff) 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-tenant, 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 create a title by disseizin, then 
 the plaintiff 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 
 plaintiff's asserted title. Her speaking 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 sup- 
 pose, 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 
 
 1 Co-tenancy and Partition, by A. C. Freeman; § 231. 
 
§ 280«.J EJECTMENT BETWEEN CO-TENANTS. 197 
 
 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. Zeller's Lessee v. Eckert. — Mr. Justice Nelson, in 
 delivering the opinion of the Supreme Court of the United 
 States, in Zeller's Lessee v. Eckert, 2 said : " The trustee 
 may disavow and disclaim his trust ; the tenant the title 
 of his laudlord after the expiration of his lease ; the vendee, 
 the title of his vendor after breach of the contract ; and 
 the tenant in common, the title of his co-tenant ; and 
 drive the respective 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 between 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 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 be brought home to the party, are indispen- 
 sable before any foundation can be laid for the operation of 
 the statute. Otherwise, the grossest injustice might be 
 practiced ; for, without such notice, 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 found- 
 ed apply to every case where a party comes into possession 
 of land under a fiduciary relation and include, as has often 
 been decided, the case of a tenant in common in possession 
 of land. 3 
 
 The proof of ouster must at least be sufficient to estab- 
 lish an adverse possession on the part of a wrong-doer. 4 
 
 § 280a. Notice of ouster. — While it is conceded that one 
 co-tenant may oust his companion, some of the authorities 
 
 1 Warfield v. Lindell, 30 Mo. 272-282. 
 
 2 4 How. 289. See §§ 351, 750. 
 
 • s Boggess v. Meredith, 16 W. Va. 1-25. 
 4 See Edwards v. Bishop, 4 N. Y. 61. 
 
198 EJECTMENT BETWEEN CO-TENANTS. [§ 281. 
 
 assert that, as the entry and possession of* one co-tenant is 
 deemed to be the entry and possession of all, this presump- 
 tion will continue and prevail nntil some notorious act of 
 ouster or adverse possession is brought home to the knowl- 
 edge of the excluded tenant. 1 Such were the views of Mr. 
 Justice Nelson elsewhere quoted. 2 It has been said that 
 " a possession that, in its commencement, is not adverse to 
 the title of the true owner, can only become adverse to 
 that title in one way ; the holder must change his mind and 
 intend to hold adversely, and knowledge or notice of this in- 
 tention must come to the true owner," 3 
 
 While evidence of actual notice of ouster to the evicted 
 co-tenant is the most satisfactory proof procurable, yet we 
 do not apprehend that this is the exclusive test intended 
 to be applied. What is meant by the cases evidently is 
 that, while this class of proof will be accepted as satisfac- 
 tory, yet for proof of personal notice of eviction may be 
 substituted evidence of an open notorious exercise of the 
 rights of exclusive and absolute ownership which no co- 
 owner could mistake, and of the existence and continuance 
 of which he was bound to take notice. 4 
 
 § 281. Ouster a question of fact. — The ouster is a question 
 of fact which it is the province of the jury to determine, 
 and must be expressly found by them ; 5 and is not a ques- 
 tion of law for the decision of the court. 6 The evidence of 
 
 1 Stonestreet v. Doyle, 75 Va. 378; Caperton v. Gregory, n Gratt. (Va.) 506. 
 See Ord v. De La Guerra, 18 Cal. 75. 
 
 2 See § 280; Zeller's Lessee v. Eckert, 4 How. 289. 
 
 3 Lawson v. Cunningham, 21 Ga. 459; s. P. Roberts v. Morgan, 30 Vt. 324; Hol- 
 ley v. Hawley, 39 Vt. 534. 
 
 4 See Packard v. Johnson, 57 Cal. 180. The Supreme Court of Missouri, in a 
 well-considered case, say : " When the act [of ouster] is of such a nature as the law 
 will presume to be noticed by persons of ordinary diligence in attending to their own 
 interests, and of such an unequivocal character as not to be easily misunderstood, it 
 is not believed to be necessary that any positive notice should be given to the co- 
 tenant, or that it devolves upon the possessor to prove a probable actual knowledge 
 on the part of the co-tenant. It is sufficient that the act itself is overt, notorious, 
 and if the co-tenant is ignorant of his rights or neglects them, he must bear the con- 
 sequences." Wai-field v. Lindell, 30 Mo. 282. See Waterman v, Andrews, 14 R. 
 1. 000. 
 
 6 Taylor v. Hill, 10 Leigh (Va.) 457. 
 
 6 Cummings v. Wyman, 10 Mass. 465; Purcell v. Wilson, 4 Gratt. (Va.) 16; 
 Harmon v. James, 15 Miss, in; Blackmore v. Gregg, 2.W. & S. (Penn.)l82; 
 Carpentier v. Mendenhall, 28 Cal. 484: Clark v. Crego, 47 Barb. (N. Y.) 599. 
 
$ 283.] EJECTMENT BETWEEN CO-TENANTS. 199 
 
 ouster may of course be so overwhelming as to practically 
 amount to a legal presumption of ouster, so that a verdict 
 of a jury failing to find ouster will be set aside as against the 
 evidence. 1 The evidence of ouster must be of a most posi- 
 tive and satisfactory nature, 3 sufficient to effectually dispel 
 the presumption that the co-tenants have been loyal to one 
 another. 
 
 § 282. Burden of proof. — The burden of proving the 
 ouster rests upon the party alleging it ; 3 the law, as we 
 have seen, never assumes that a co-tenant is disloyal to 
 the interests of the co-tenancy, or that he intends to do an 
 unlawful act. The law will presume ''that every man, 
 having a right of entry or possession, enters and occupies 
 according to his title." * But before the plaintiff can be 
 called upon to establish an eviction or denial of his rights, 
 it must appear that he is a tenant in common with the de- 
 fendant, since it is only when that relation is shown to exist 
 that proof of the ouster becomes necessary. 5 The objec- 
 tion that a tenant in common must show an ouster can in 
 the nature of things only be taken by the co-tenant or one 
 claiming under him. 6 
 
 § 283. Wlmt constitutes an ouster. — Demand. — The deter- 
 mination of the question as to what constitutes an ouster 
 between tenants in common is often perplexing and diffi- 
 cult, and the cases, though numerous, are not entirely in 
 harmony. 7 As we have seen, no proof of actual physical 
 force, 6 or " turning out by the shoulders," 9 or "the heels," 10 
 is necessary. The intent to oust must be established to 
 the satisfaction of the j ury, and the highest and most com- 
 plete evidence of an ouster is a specific demand by the 
 
 1 See § 289. 
 
 2 Adam v. Ames Iron Co., 24 Conn. 230; Allen v. Hall, I McC. (S. C.) 131. 
 
 3 Newell v. Woodruff, 30 Conn. 492; Van Bibber v. Frazier, 17 Md. 436. 
 
 4 Compare Van Bibber v. Frazier, 17 Md. 436; Robidoux v. Cassilegi, 10 Mo. 
 App. 522; Stonestreet v. Doyle, 75 Va. 365 ; Caperton v. Gregory, 11 Gratt, (Va.) 
 506. 
 
 5 Gillett v. Stanley, t Hill (N. Y.), 121; Sharp v. Ingraham, 4 Hill (N. Y.), 116. 
 6 Arnot v. Beadle, Lalor's Supp. (N. Y.) 181. 
 
 1 See note to Gillaspie v. Osburn, 13 Am. Dec. 140 ; s. c. 3 A. K. Mar. (Ky.) 77. 
 8 Gale v. Hines, 17 Fla. 773. 
 ' Doe d. Fisharz<. Prosser, Cowp. 217. 
 " Warfield v. Lindell, 30 Mo. 272. 
 
200 EJECTMENT BETWEEN CO-TENANTS. [§ 283. 
 
 plaintiff, to be let into the possession of the premises, fol- 
 lowed by a specific refusal on the part of the defendant to 
 comply with the demand. 1 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 re- 
 fusal do not constitute, but are only evidence of, a conver- 
 sion. Hence, in California, a special verdict in ejectment 
 between co-tenants, finding, not an ouster, but merely a 
 demand of possession and a refusal by defendant to 
 comply therewith, has been held not sufficient to authorize 
 a judgment in plaintiff's favor, 2 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 demand 
 and refusal. 
 
 It seems quite clear, as we shall presently show, that a 
 denial by answer in the ejectment suit, of plaintiff's title 
 and right of entry, is equivalent to an ouster. 3 According 
 to the Supreme Court of Missouri 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. 4 
 
 In the recent case of Culver v. Ehodes, 5 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 aud 
 public, that notice may be presumed, of the assault upon 
 his title, and the invasion of his rights. The adverse pos- 
 session sets running a limitation which in the end may 
 
 1 Miller v. Myers, 46 Cal. 535 ; Doe d. Hellings v. Bird, n East, 40 ; Greer v. 
 Tripp, 56 Cal. 209. 
 
 2 Carpentier v. Mendenhall, 28 Cal. 484. See Roberts v. Moore, 3 Wall. Jr. 297. 
 
 3 Siglar v. Van Riper, 10 Wend. (N. Y.) 414 ; Miller v. Myers, 46 Cal. 535; 
 Greer v. Tripp, 56 Cal. 209. See § 290. 
 
 4 Warfield v. Lindell, 38 Mo. 561-581 ; Zeller v. Eckert, 4 How. 289; Boggess 
 v Meredith, 16 W. Va. 1 ; Hudson v. Putney, 14 W. Va. 561 ; Rust u. Rust, 17 
 W. Va. goi. ° ' 
 
 6 Per Finch, J., 87 N. Y. 348. 
 
§ 284.] EJECTMENT BETWEEN CO-TENANTS. . 201 
 
 operate as a bar. It does so only upon the theory that the 
 party disseized 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 knowl- 
 edge of the owner, or is of such definite and hostile and 
 public character that such knowledge may be fairly pre- 
 sumed : but it is unjust and unreasonable if enforced with- 
 out such limitation. . . Originally, an actual disseizin, a 
 palpable turning out of the co-tenant, or hindering him from 
 eutry, seems to have been requisite. 1 The modern rule is 
 content with less, but is well stated in Hawk v. Senseman, 4 
 that to effect an ouster of the co-tenant there must be ' an 
 actual, continued, visible, notorious, distinct, and hostile 
 possession.' It must be such that knowledge of its exist- 
 ence is brought home to the co-tenant. 3 It must make the 
 intention to hold adversely manifest, and palpably display 
 such intention. 4 . . 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; 5 taking title from a hostile source, and refusing to 
 let in the co-tenant; 6 an exclusive possession, exclusive 
 receipt of rents and profits, and exclusive claim of title ; T 
 a public claim of the entire title, a notorious act, an open 
 claim of exclusive right, 8 or where, upon demand of the co- 
 tenant, his title is denied and possession is refused." 9 
 
 § 284. Examples of ouster, cfec— The refusal to receive 
 the co-tenant into possession must be unequivocal. Thus, 
 it has been held that where the plaintiff, before suit 
 
 1 Citing Reading's Case, I Salk. 392. 
 
 2 6 S. & R. (Penn.) 21. 
 
 3 Citing Zeller's Lessee v. Eckert, 4 How. 295 ; Barr v. Gratz, 4 Wheat. 213 ; 
 McClung v. Ross, 5 Wheat. 124 ; Challefoux v. Ducharme, 8 Wis. 287 ; Long v. 
 Mast, n Penn. St. 189; Bennet v. Bullock, 35 Penn. St. 364; Hall v. Stevens, 9 
 Met. (Mass.) 418. 
 
 4 Citing Marcy v. Marcy, 6 Met. (Mass.) 360; Prescott v. Nevers,4 Mason, 330; 
 Hart v. Gregg, 10 Watts (Penn.), 185. 
 
 6 Citing Florence v. Hopkins, 46 N. Y. 182. 
 
 6 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. 
 ' Citing Grim v. Dyar, 3 Duer (N. Y), 354- 
 
 8 Citing Smith v. Burtis, 9 Johns. (N. Y.) 174 < Jackson v. Brink, 5 Cow. (N. Y.> 
 483 ; Jackson v. Tibb ts, 9 Cow. (N. Y.) 241 ; Miller v. Piatt, 5 Duer (N. Y), 272. 
 
 9 Citing Siglar v. Van Riper, 10 Wend. (N. Y.) 419. 
 
202 EJECTMENT BETWEEN CO-TENANTS. [§ 284. 
 
 brought, demanded to be let into possession, and defend- 
 ant, who occupied the whole premises, answered that she 
 desired to pay the judgment on which plaintiff had ac- 
 quired title, and did not wish to give up the premises, this 
 was held not to be an ouster or denial of plaintiff's rights. 1 
 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 defend- 
 ant's title," and not to be sufficient evidence of an ouster. 8 
 Piling lumber on the land is not an ouster. 3 
 
 Again where defendant "claimed the land as owner in 
 fee," such claim was adjudged not to be evidence of an 
 ouster, or total denial of plaintiffs rights, but was con- 
 sidered to be consistent therewith, for each tenant in 
 common is an owner in fee with the others. 4 It is an 
 ouster, however, if the tenant in possession refuses to suf- 
 fer his companion to occupy with him. 5 The ouster cannot 
 be presumed from the fact of sole and exclusive posses- 
 sion, 6 nor from a mere refusal to account for or pay a 
 share or proportion of the rents, 7 nor from an occasional 
 going upon the laud and cutting and removing trees from 
 the woods, 8 or swamps, 9 nor from cutting grass and remov- 
 ing fences, 10 nor from the removal of fixtures 11 nor from the 
 ploughing up of crops, 12 nor from the exclusive receipt of 
 the profits. 13 " The taking of the whole profits," says Coke, 
 ■" is no ejectment." There must be something more than 
 
 1 Avery v. Hall, 50 Vt. 11. 
 
 2 Colburn v. Mason, 25 Me. 434. 
 
 3 Keay v. Goodwin, 16 Mass. 1. 
 
 4 Edwards v. Bishop, 4 N. Y. 61. 
 
 5 Norns v. Sullivan, 47 Conn. 474. 
 
 6 Blakeney v. Ferguson, 20 Ark. 547. 
 
 ' Doe d. Fishar v. Prosser, Cowper, 217; Phillips v. Gregg, 10 Watts (Perm.), 
 ^58— 164. 
 
 8 Wait v. Richardson, 33 Vt. 190. 
 
 q Peck v. Ward, 18 Penn. St. 506 ; Ewer v. Lovell, 9 Gray (Mass.), 276. See § 285. 
 
 10 Booth u. Adams, 11 Vt. 156. 
 
 11 Gibson v. Vaughn, 2 Bailey (S. C.) 389. 
 
 12 Harman v. Gartman, Harp. (S. C.) Law, 430. 
 
 18 Silloway v. Brown, 12 Allen (Mass.), 30 ; Keyser v. Evans, 30 Penn. St. 507 ; 
 Allen v. Hall, 1 McC. (S. C.) 131 ; Catlin v. Kidder, 7 Vt. 12 : Linker v. Benson, 
 67 N. C. 150. ' 
 
§ 284.] EJECTMENT BETWEEN CO-TENANTS. 203 
 
 mere perception of profits and payment of taxes. 1 There 
 must be a disturbance of the possession. 2 But proof 
 of a denial of the plaintiff's title, accompanied by an 
 exclusive claim of possession, and receipt of the whole 
 profits, is sufficient to establish an ouster. 3 So where de- 
 fendant, 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. 4 Where one of several co- 
 tenants entered, claiming as exclusive owner, and locked 
 the doors of the buildings upon the premises, thereby ex- 
 cluding the other tenants in common, the latter were 
 allowed to maintain ejectment. 5 Erecting a permanent 
 structure on the land is some evidence of ouster. 6 So it is 
 an ouster to flood the lands of the co-tenacy by means of a 
 dam erected upon the sole estate of one co-tenant. 1 It has 
 been held in "Vermont that acts of possession constituting 
 the ouster must be not only inconsistent with, but exclu- 
 sive of the continuing rights of the plaintiff, and such as 
 would amount to an ouster between landlord and tenant. 8 
 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 con- 
 tinued for a period of twenty years. 9 
 
 The ouster must at least be such as would establish an 
 adverse possession on the part of a wrong-doer. 10 .A silent 
 possession accompanied by no act which can amount to an 
 ouster or give notice to the co-tenant of the intention to 
 
 1 Tulloch v. Worrall, 49 Penn. St. 133. 
 
 2 Harvin v. Hodge, Dudley (S. C.) Law, 23 ; Doe d. Hellings v. Bird, 11 East, 
 49 ; Gale v. Hines, 17 Fla. 773. 
 
 3 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. 
 
 4 Gordon v. Pearson, 1 Mass. 323. 
 
 5 Trustees, &c, Church of North Greig v. Johnson, 66 Barb. (N. Y.) 119. 
 
 6 Bennett v. Clemence, 6 Allen (Mass.), 18. 
 
 ' Jones v. Weathersbee, 4 Strobh. (S. C.) Law, 50. But see § 149. 
 
 8 Chandler v. Ricker, 49 Vt. 128. See Squires v. Clark, 17 Kan. 84 ; Ball v. 
 Palmer, 81 111. 370. See, also, Chap. XII. 
 
 9 Caldwell v. Neely, 81 N. C. 114 ; Covington v. Stewart, 77 N. C. 148 ; Neely 
 ». Neely, 79 N. C. 478. See Frederick v. Gray, 10 S. & R. (Penn.) 182. 
 
 10 Edwards v. Bishop, 4 N. Y. 61. See § 278. 
 
204 EJECTMENT BETWEEN CO-TENANTS. [§ 287. 
 
 exclude him, will not make the possession adverse. 1 And 
 the statute will cease to run upon the recognition of the 
 co-tenant's right. 3 
 
 § 285. Occupation of wild lands. — The use 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. 3 
 
 § 286. Ouster to sustain trespass. — A tenant in common 
 can only maintain trespass quare clausum fregit against his 
 companion for an actual ouster, such as would entitle him 
 to maintain an ejectment, 4 and in an action between ten- 
 ants in common, recently decided in the House of Lords, 5 
 it was held that where one co-tenant put a lock 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, 6 which was trespass between tenants in common, 
 the court decided that where both were in actual posses- 
 sion, a mere denial of the plaintiff's title, unaccompanied 
 by acts, did not of itself amount to an ouster. The denial 
 is available only as showing intent in connection with evi- 
 dence that plaintiff had been excluded or expelled from the 
 property. 
 
 § 287. Conveyance of the entire estate. — When 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. 7 This doctrine is just and reason- 
 
 1 Abercrombie v. Baldwin, 15 Ala. 363; McClung v Ross, 5 Wheat. 116-124; 
 Challefoux v. Ducharme, 8 Wis. 288-307. 
 
 2 Harral v. Wright, 57 Ga. 484. See § 753 e. 
 
 3 Chandler v. Ricker, 49 Vt. 128 ; s. P. Ewer v. Lovell, q Gray (Mass.), 277 ; 
 Peck v. Ward, 18 Pa. St. 508. 
 
 4 Stedman v. Smith, 8 El. & Bl. I ; McCourt v. Eckstein, 22 Wis. 153, 159. 
 6 Jacobs v. Seward, L. R. 5 H. L. 464-472. 
 
 6 42 Penn. St. 97. 
 
 7 Foulke v. Bond, 41 N. J. L. 527; Home v. Howell, 46 Ga. 9; Kinney v. 
 Slattery, 51 Iowa, 353 ; Kittredge v. Locks & Canals, &c, 17 Pick. (Mass.) 246; 
 Cain v. Furlow, 47 Ga. 674; Townsend & Pastor's Case, 4 Leon. 52; Doe d. Reed 
 z.. Taylor, 5 Barn. & Adol. 575 ; Parker v. Prop'rs, &c, M. R., 3 Met. (Mass.) ioii 
 
§288.] EJECTMENT BETWEEN CO-TENANTS. 205 
 
 able, for the grantee does not intend to enter or hold as a 
 co-tenant. His entry is adverse. "The sale in such case 
 of the whole tract, is in effect such an assertion of claim 
 to the whole as cannot be mistaken, because it is wholly 
 incompatible with an admission that the other tenant-in- 
 common has any right whatever." 1 This is especially so 
 if the conveyance is a deed of warranty. 3 
 
 Devising the entire estate by will is an ouster. 3 The 
 same principle applies to joint tenants. 4 
 
 § 288. Exceptions to the rule. — In Seaton v. Son, 5 how- 
 ever, the Supreme Court of California held that nothing 
 short of an actual ouster severs the unity of possession, 
 and that entry, followed by exclusive possession, under 
 a deed which purported to convey the entire title, and a 
 belief that the deed conveyed the whole estate, when in 
 fact the grantor had but an undivided interest, did not 
 amount to an ouster of the co-tenant. This case cannot 
 be reconciled with the authorities above cited 6 and seems 
 to ignore the fact that the grantee in such a deed has rights 
 which should be considered. It is in effect a revival of the 
 absurd doctrine of physical expulsion ; and would require an 
 actual turning out by the shoulders or some such decided 
 
 Clark v. Vaughan, 3 Conn. 191 ; Long v. Stapp, 49 Mo. 506 ; Gill v. Fauntleroy, 
 8 B. Mon. (Ky.) 186; Gray v. Bales, 3 Strobh (S. C.) Law, 498-500; Clapp v. Brom- 
 agham, 9 Covven (N. Y.), 530; Hinkley v. Greene, 52 111. 230; Bradstreet v. Hunt- 
 ington, 5 Pet. 401-445 ; Clymer's Lessee v. Dawkins, 3 How. 674-689 ; Weisinger 
 •v. Murphy, 2 Head (Tenn.), 679; Prescott v. Nevers, 4 Mason, 326; Gerry v. Hol- 
 ford, Cro. Eliz. 615. But see Seaton v. Son, 32 Cal. 481 ; Roberts v. Morgan, 30 
 Vt. 319, 324; Day v. Howard, 73 N. C. I: Caldwell v. Neely, 81 N. C. 114; Culver 
 v. Rhodes, 87 N. Y. 348. Possession taken under a partition decree constitutes a 
 disseizin. Cryer v. Andrews, 11 Texas, 181 ; Clymer v. Dawkins, 3 How. 688. 
 
 1 Law v. Patterson, 1 W. & S. (Pa.) 191. 
 
 ' Thomas v. Pickering, 13 Me. 349; Kittredge v. Locks and Canals, 17 Pick. 
 (Mass.) 247. 
 
 3 Miller v. Miller, 60 Pa. St. 16. 
 
 4 Larman v. Huey's Heirs, 13 B. Mon. (Ky.)436 ; Caldwell v. Neely, 81 N. C. 
 114 ; Day v. Howard, 73 N. C. 1. 
 
 5 32 Cal. 481. See, also, Packard v. Johnson, 57 Cal. 183 ; Day v. Howard, 73 
 N. C. 1 ; Roberts v. Morgan, 30 Vt 324. In this latter case the court say : " It has 
 never been considered that a conveyance by one joint tenant, or tenant in common, 
 of all his interest in real estate, though the land is described in such a manner as to 
 pass the whole under the deed, if the grantor had owned the whole, is notice of itself 
 to the other joint-owner of any such exclusive claim to the land, as to oust him of his 
 legal seizin in the land. He has the right to suppose that by such a deed, both the 
 grantor and the grantee understand it to convey the real interest the grantor owns 
 in the land." 
 
 6 §287. 
 
206 EJECTMENT BETWEEN CO-TENANTS. [§ 289. 
 
 act to evidence an ouster. It is doubtful, however, if the 
 taking of a deed by one co-tenant from a third party 1 or a 
 life tenant 2 is of itself the equivalent of an ouster, unless, 
 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 perse an ouster, for the mortgagor was left in posses- 
 sion, and the instrument created only a lien, and had not 
 the force or legal effect of an absolute sale. 3 
 
 § 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, 4 for seventeen years in 
 Iowa, 5 for twenty-six years in Missouri, 6 and for twenty- 
 seven years in New York, 7 appear to have been regarded 
 as insufficient, without other evidence, to justify an infer- 
 ence of an ouster. But thirty-six years sole and uninter- 
 rupted possession, by one tenant in common, was held by 
 Lord Mansfield to be sufficient to justify the jury in finding 
 an actual ouster. 8 - So in New York, periods of forty and for- 
 ty-two years, 9 in Alabama thirty years, 10 and in Pennsylvania 
 twenty -one years 11 were in each case, regarded as sufficient to 
 justify the inference of an ouster without other proof. In 
 
 1 Holley v. Hawley, 39 Vt. 532. 
 
 2 Culver v. Rhodes, 87 N. Y. 348. 
 
 3 Wilson v. Collishaw, 13 Penn. St. 276. 
 
 4 Linker v. Benson, 67 N. C. 150. 
 
 5 Flock v. Wyatt, 49 Iowa, 466. 
 
 6 WarHeld v. Lindell, 30 Mo. 272. 
 
 1 Northrop v. Wright, 24 Wend. (N. Y.) 221. See Colman v. Clements, 23 Cal. 
 245. 
 
 8 Doerf. Fishar v. Prosser, 1 Cowper, 217. See Cole on Eject, p. 17 ; Robidoux 
 v. Cassilegi, 10 Mo. App. 523. 
 
 Van Dyck v. Van Beuren, 1 Caines (N. Y.), 84 ; Jackson d. Bradt v. Whitbeck, 
 6 Cow. (N. Y.) 632. See Woolsey v. Morss, 19 Hun (N. Y.), 273. 
 
 10 Johnson v. Toulmin, 18 Ala. 50. 
 
 11 Frederick v. Gray, 10 S. & R. (Penn.) 182 ; McCall v. Webb, 88 Penn. St. 
 150. ' 
 
§ 289.] EJECTMENT BETWEEN CO-TENANTS. 207 
 
 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 authority 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 supported, and the authorities 
 are very generally opposed to it. 2 Michigan has no statute 
 that disposes of controversies which may arise between 
 tenants in common from an exclusive possession 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. 8 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 analogy for such a purpose is open to many 
 objections, and, indeed, 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 to be those which ought generally 
 to govern in these cases though they have never been dis- 
 tinctly formulated by the courts, and may be subject to 
 exception and limitation. 
 
 First. There is, in ordinary cases, no presumption of law 
 as to ouster arising from long continued exclusive posses- 
 sion by one co-tenant. 4 
 
 1 Van Dyck v. Van Beuren, I Caines(N. Y.), 84. 
 
 2 See Bolton v. Hamilton, 2 W. & S. (Penn.) 294. 
 
 3 Campau v. Dubois, 39 Mich. 274. 
 
 * This subject is ably treated in the case of Dubois v. Campau, 28 Mich. 304. 
 
208 EJECTMENT BETWEEN CO-TENANTS. [§ 290, 
 
 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 
 duration as to be manifestly insufficient to support a title 
 iu the occupant based upon an ouster, without other evi- 
 dence, 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 
 general guide in considering the evidence in the case. 
 
 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 he proved. — Denial hy answer. 
 — If the defendant controverts the plaintiffs title, that 
 must be taken as an admission of the ouster. If he does 
 not dispute the plaintiff's title, he should admit it by 
 answer or disclaimer, and deny the ouster. 1 He cannot, in 
 one breath, deny the co-tenancy and claim the benefit of 
 the relation. 3 Hence it was held that no ouster need be 
 shown where the answer alleged that the defendant held 
 the premises "adversely against all persons," 3 or where 
 
 Campbell, J., and Graves, J., were both of opinion that proof of the occupation by 
 one tenant in common, executing leases and receiving rents for more than twenty- 
 one years with the knowledge and without dissent or claim on the part of the ex- 
 cluded co-tenant, barred the latter absolutely as matter of legal presumption or in- 
 ference. Christiancy, Ch. J., with whom the learned Cooley, J., concurred, rendered 
 a very able dissenting opinion reviewing a great number of cases, and maintaining 
 with much vigor that the inference or question of ouster or adverse possession was 
 one of fact to be submitted to and found by the jury. The judgment, however, 
 was affirmed, as Cooley, J. , considered, that if the jury had returned any different 
 verdict it would have been set aside as unwarranted by the facts, and, therefore, no 
 error was committed to the prejudice of the plaintiff. 
 
 1 Withrow v. Biggerstaff, 82 N. C. 82. See Halford v. Tetherow, 2 Jones' (N. 
 C.) Law, 395. 
 
 2 Peterson v. Laik, 24 Mo. 541. 3 Harrison v. Taylor, 33 Mo. 211. 
 
§291.] EJECTMENT BETWEEN CO-TENANTS. 209 
 
 the defendant claiming the exclusive possession pleaded 
 "not guilty," 1 or denied the plaintiff's title, or right of 
 entry, by answer. 2 In the New York Superior Court, 
 Chief Justice Oakley said that "a denial in the defend- 
 ant's answer of all right, title and interest in the plaintiff, 
 is an admission that his own possession is adverse, and 
 may therefore well be treated as equivalent to a confes- 
 sion of ouster superseding the necessity of proof upon the 
 trial." 8 
 
 § 291. Title of co-tenants. — Estoppel. — Tenants in common, 
 entering into and holding possession of land as such, cannot, 
 as against their co-tenants, dispute or assail the common 
 title, 4 or set up a tax title as paramount and in opposition 
 to the title of the co-tenants. If one tenant in common 
 has a title superior to that of the co-tenancy he should 
 surrender the possession or allow the other co-tenant to 
 enter, after which the superior title may be asserted by 
 action. The vantage ground of possession may have been 
 acquired by an acknowledgment of the co-tenancy, and 
 good faith requires that it should be given up if the rela- 
 tionship is to be repudiated. Where the co-tenant relies 
 upon the defense of adverse possession, any title may be 
 proved in support of that plea, 5 for the defense concedes 
 
 1 Noble v. McEarland, 51 111. 226. But see Halford v. Tetherow, 2 Jones (N. 
 C.) Law, 393. 
 
 2 Miller v. Myers, 46 Cal. 535 ; Greer v. Tripp, 56 Cal. 209. 
 
 3 Clason v. Rankin, 1 Duer (N. Y.), 337. See McCallum v. Boswell, 15 U. C. 
 Q. B. 343; Scott v. McLeod, 14 U. C. Q. B. 574. See § 283. 
 
 4 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 v. Auble, 58 
 Penn. St. 410; Weaver v. Wible, 25 Penn. St. 270; Brown v. Homan, 1 Neb. 448 ; 
 Frentz v. Klotsch, 28 Wis. 312. But see Lawrence v. Webster, 44 Cal. 385 ; re- 
 viewed in Olney v. Sawyer, 54 Cal. 379 ; Burhans v. Van Zandt, 7 Barb. (N. Y.) 
 91. Mr. Bigelow, in a note in his work on Estoppel, 3d ed. p. 284, says of Olney v. _ 
 Sawyer, 54 Cal. 379 : " A questionable distinction taken in California may in this 
 connection be noticed. While it is there agreed that no estoppel arises from the 
 sole fact of a common title under which both plaintiff and defendant claim, it is 
 held that for the purpose of enabling an ousted co-tenant to obtain possession there 
 is an estoppel upon his associate to set up an outstanding title. But after the co- 
 tenant has thus regained possession either may proceed against the other under a 
 paramount title. Olney v. Sawyer, 54 Cal. 379 ; Bornheimer v. Baldwin, 42 Cal. 
 27. This distinction appears to have been fixed upon to save the case of Lawrence 
 v. Webster, 44 Cal. 385, which had justly denied the existence of any estoppel." 
 
 6 Phelan v. Kelly, 25 Wend. (N. Y.) 389. See Larman v. Huey's Heirs, 13 B. 
 Mon. (Ky.) 436. 
 14 
 
210 EJECTMENT BETWEEN CO-TENANTS. [§ 291. 
 
 the former title of the co-tenancy, but seeks to defeat it 
 by reason of the omission of the co-owner to assert his 
 rights within the proper time. The purchase of a tax 
 title by one co-tenant is esteemed to be for the benefit of 
 all the tenants in common, 1 though a lien may exist in 
 favor of the party making the payment. 2 The same prin- 
 ciple applies to the grantee of a co-tenant if he purchases 
 with knowledge of the co-tenancy. 3 The tenant who 
 relieves the estate from the incumbrance of taxes has also a 
 charge upon the land against his co-tenant for reimburse- 
 ment, 4 but not as against a purchaser from the co-tenant 
 without notice. 5 
 
 In Gillett v. Gaffney 6 a curious exception was admitted 
 to the rule that one tenant in common, who acquires an 
 outstanding title, will be considered as holding it in trust 
 for his co-tenant. The fee of the lands of the co-tenancy, 
 which were subject to entry, was in the United States. 
 One co-tenant died, leaving heirs. The survivor deeded 
 an undivided half interest in the lands to a third party, 
 who, with the survivor, thereafter acquired the title to the 
 entire tract from the government, the heirs of the deceased 
 co-tenant having taken no steps to protect their share. The 
 survivor afterwards died, leaving heirs. The court held that 
 
 1 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; Maul v. Rider, 51 Pa. St. 377 ; Conn v. Conn, 58 
 Iowa, 747. 
 
 2 Moore v. Woodall, 40 Ark. 42. 
 
 8 Austin v. Barrett, 44 Iowa, 488. 
 
 4 Davidson v. Wallace, 53 Miss. 475. See Harrison v. Harrison, 56 Miss. 174. 
 
 s Stover v. Cory, 53 Iowa, 708. In Washington v. Conrad, 2 Humph. (Term.) 
 562, it is said that tenancy in common differs widely from the ordinary relation of 
 landlord and tenant, and that a mere admission of co-tenancy is not necessarily 
 binding. Thus, if A, being already in possession, admit that B is his tenant in 
 common, and afterwards, claiming exclusively for himself, is sued by B in an action 
 of ejectment, B cannot recover against him by the mere force of such parol admis- 
 sion, and without showing any title whatever. Analogous to the doctrine of estoppel 
 between tenants in common is that of implied warranty between partitioners. In 
 case of a partition of land between co-tenants, the law imports a warranty of the 
 common title, and holds it incompatible with their duty to each other to set up a 
 claim by paramount title. But in a case in which, by the operation of law or act 
 of God, there has, after the partition, ripened in favor of the claimant a title poten- 
 tially existing at the time of the partition, but then inchoate, (e. g., dower,) the 
 warranty may not apply. See Bigelow on Estoppel, 3d ed. p. 346, and cases cited. 
 
 6 3 Col. 351. 
 
§ 292.] EJECTMENT BETWEEN CO-TENANTS. 211 
 
 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 diligence of the third party, and 
 that the latter did not come within the rule making co- 
 tenants trustees for their companions, as to the acquisition 
 of an outstanding title, but that the heirs of the survivor 
 took his interest in the premises charged with all the equi- 
 ties, and must be considered as holding it in trust for the 
 heirs of his co-tenant. 
 
 § 292. Purchase of outstanding title. — We may there- 
 fore regard it as a well settled rule that one tenant in 
 common who purchases an outstanding title or incum- 
 brance, cannot set it up against his co-tenant without 
 affording the latter an opportunity to contribute his pro- 
 portion of the expense of acquiring the title or incumbrance, 
 thus enabling him to participate in the benefits of the 
 purchase. 1 The same principle applies to joint tenants and 
 co-parceners. 2 A defendant in possession under a deed 
 which makes him tenant in common with the plaintiff, can- 
 not set up an outstanding title in a stranger to defeat the 
 action. 3 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. 4 The same prin- 
 ciple holds though the co-tenant takes the title in the 
 name of a third party. 5 
 
 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 par- 
 ties, as claimants of a common subject, created, that one 
 
 'Smith v. Osborne, 86 111. 606; Titsv/orth v. Stout, 49 111. 78-80; Wilton v. 
 Tazwell, 86 111. 29 ; Venable v. Beauchamp, 3 Dana (Ky.), 321 ; Lee v. 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, 613; Bracken v. Cooper, 80 111. 221 ; Brown v. Ho- 
 man, 1 Neb. 448 ; Gossom v. Donaldson, 18 B. Mon. (Ky.) 230; Flagg v, Mann, 2 
 Sumner, 486; Brittin v. Handy, 20 Ark. 381; Moore v. Woodall, 40 Ark. 42. 
 
 2 Lee v. Fox, 6 Dana (Ky.), 172, 176. 
 
 8 Braintree v. Battles, 6 Vt. 395. 
 
 4 KnolJs v. Bamhart, 71 N. Y. 474. Compare Aguirre v. Alexander, 58 Cal. 21 ; 
 Watts v. Owens, 62 Wis. 525. 
 
 5 Duff v. Wilson, 72 Penn St. 442. 
 
212 EJECTMENT BETWEEN CO-TENANTS. [§ 293. 
 
 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 com- 
 panion. It would be repugnant to a sense of refined and 
 accurate justice. 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 relation- 
 ship 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." 1 
 
 This doctrine is not, however, of universal application, 
 but is limited and qualified by some of the authorities. 
 Thus, where 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 
 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 
 purchase an outstanding title, and hold it exclusively for 
 his own benefit. 2 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. 3 
 
 § 293. Title acquired under same instrument. — It has been 
 laid down in several cases 4 that tenants in common are 
 subject to this mutual obligation only when their interests 
 accrue under the same instrument, or acts of the parties, or 
 of the law, or where they enter into some obligation or 
 understanding with one another, and that persons acquir- 
 
 1 Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 389; Tisdale v. Tisdale, 2 Sneed 
 (Tenn.), 596. A purchase by a life tenant of an adverse title will inure to the bene- 
 fit of the remainder-man. Myers v. Reed, 17 Fed. Rep. 401-407; Varney v. Stev- 
 ens, 22 Me. 334; Daviess v. Myers, 13 B. Mon. (Ky.) 513. Neither a guardian of 
 an intestate's heirs nor an administrator of his estate can buy up an adverse title to 
 his land. Culberhouse v. Shirey, 42 Ark. 25. 
 
 2 Wright v. Sperry, 21 Wis. 331, 338. See Frentz v. Klotsch, 28 Wis. 312, 317- 
 
 3 Coleman v. Coleman, 3 Dana (Ky.), 398. 
 
 4 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. Contra Montague v. Selb, 106 111. 49. 
 
§293.] EJECTMENT BETWEEN CO-TENANTS. 213 
 
 ing unconnected interests in the same subject, by distinct 
 purchases, though it may be under the same title, are not 
 bound to any greater protection of one another than would 
 be required among strangers. 
 
 In most of these cases the principle stated was not 
 necessary to a decision of the case. Thus in Eoberts v. 
 Thorn it appeared 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. Dixon, 1 
 between a defective title and an absolute want of title. 
 The plaintiff and defendant in that case had purchased 
 from a party having neither claim nor color of title, and 
 the defendant had subsequently acquired the title from the 
 State by actual settlement. The court held that there 
 existed no obligation of law, or of conscience, which pre- 
 vented him from acquiring 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 between 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 miscon- 
 ception of the principle underlying the decision of the 
 Massachusetts Supreme Court, in Matthews v. Bliss. 2 In 
 that case it was held that one tenant in common of a vessel, 
 who had contracted 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 pur- 
 chase the entire vessel at a higher rate. Chief Justice 
 Shaw, in delivering the opinion of the court, says, that 
 " the tenants in common of a vessel, who are not engaged 
 jointly in the employment 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 
 
 1 1 P. & W. (Pa.) 439. 2 2 2 Pick. (Mass.) 48. 
 
214 EJECTMENT BETWEEN CO-TENANTS. [§ 294. 
 
 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 rela- 
 tion, 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-tenan- 
 cies having a common and those having diverse origin. The 
 learned court did indeed suggest that if the tenants in com- 
 mon of a ship were engaged jointly in the employment of pur- 
 chasing or building ships for sale, they might be bound to 
 communicate to each other all facts affecting the price or 
 value ; such a rule would, however, be founded not on consid- 
 erations growing out of the origin of the co-tenancy, but out 
 of its object and purpose. It is not easy to see on what 
 principle any distinction as to the nature of the co-tenancy, 
 growing out of its origin, can be satisfactorily supported. 
 
 § 294. The distinction is without merit if the doctrine 
 of this trust relation is founded upon elementary considera- 
 tions of fair dealing between parties having a community 
 of interest in a subject. Each tenant in common is entitled 
 to the entire management and control of the property ; for 
 one to use this right for his own individual profit, and not 
 the common 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, as we 
 have said, 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 
 principal of the trust relation is departed 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 1 it was decided by the Supreme Court of Arkan- 
 sas, in a well-considered opinion, that there was no reason 
 
 1 20 Ark. 381, 401, 404. 
 
§ 295.] EJECTMENT BETWEEN CO-TENANTS. 215 
 
 why one tenant in common should not purchase the 
 interest of his co-tenant in the land under execution. He 
 having a claim against his co-tenant, enforcible by such 
 means, was regarded, as to the enforcement of it, as stand- 
 ing 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 the same instrument, and such tenancies arising 
 through purchases at different times, and of land held by 
 different titles ; but what was said on this head was in no 
 way necessary to the decision of the case. 
 
 The analogy of the rule governing landlord and tenant 
 may be noticed. If the co-tenants all acquire the interest 
 and possession under a common instrument or by a single 
 act they are estopped. All must be vested with the same 
 title. When the diverse interests are gathered into one by 
 separate conveyances, the possibility of a variation in the 
 interests and in the situation of the parties seems to be 
 considered possible. 
 
 § 295. Ejectment ietiveen joint tenants and co-parceners. — 
 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 com- 
 mon benefit ; and proof of actual ouster, and denial of the 
 claimant's rights and title, is necessary to sustain the 
 action. 1 
 
 One joint tenant or owner may, as we, shall presently 
 see, sustain ejectment against another upon a title ac- 
 quired by adverse possession. 2 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 oust- 
 er where the defendant had overflowed the land by water 
 
 1 2 Cruise's Dig. *497, *5i8 ; Adams on Ejectment (4th ed. 1834). P- 136 ; Doe 
 v. Keen, 7 T. R. 386 ; Jones v. Weathersbee, 4 Strobh. (S. C.) Law, 50. 
 
 2 Russell v. Marks, 3 Met. (Ky.) 37. 
 
216 EJECTMENT BETWEEN CO-TENANTS. [§ 296. 
 
 from a mill-pcmd, thus appropriating it to his exclusive 
 
 use. 1 
 
 § 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 pos- 
 session 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, 3 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 
 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 relation- 
 ship by driving his companion off the property. But 
 naked possession or occupancy of land is clearly a degree 
 of title, although the lowest and most imperfect, 3 or, at 
 least, it constitutes, in itself, prima facie evidence of title, 4 
 which, in ejectment, is effectual against every person ex- 
 cept the true owner. A mere naked possession can be sold 
 at sheriff's sale, and the purchaser acquires the right to re- 
 cover it ; 5 so a debtor may have homestead in a mere pos- 
 sessory interest ; 6 and such an interest descends to heirs.' 
 Actual possession of land is prima facie evidence of title in 
 
 Jones v. Weathersbee, 4 Strobh. (S. C.) Law, 50. After considerable con- 
 troversy (see Meeker v. Wright, 76 N. Y. 262), it seems to be now established in 
 New York (Bertles v. Nunan, 92 N. Y. 152; Freel v. Buckley, 92 N. Y. 634), 
 that under a conveyance to a husband and wife jointly, they take not as tenants in 
 common or joint tenants, but as tenants by the entirety, and upon the death of 
 either the survivor takes the whole estate. The legislation affecting married women 
 is considered not to have abrogated the common law doctrine. 
 
 2 Lillianskyoldt v. Goss, 2 Utah, 292 (Boreman, J. diss.), 
 
 " 2 Bla. Com. 195. 
 
 4 Hill v. Draper, 10 Barb. (N. Y.) 458. 
 
 6 Knox v. Herod, 2 Penn. St. 26; Hughes v. Devlin, 23 Cal. 501. 
 
 6 McGrath v. Sinclair, 55 Miss. 89. 
 
 7 Gillett v. Gaffney, 3 Col. 351 ; Teabout v. Daniels, 38 Iowa, 158. 
 
§297.] EJECTMENT BETWEEN CO-TENANTS. 217 
 
 fee, and will support ejectment against a trespasser, 1 
 although, to raise a presumption as to the quality or degree 
 of the interest claimed, if not an absolute fee, proof of pos- 
 session must be accompanied by evidence of some claim of 
 title. 2 In Grillett v. Gaffney s the nature of title by occu- 
 pancy of land, and whether or not it possesses the legal 
 character of real estate, was considered at length by the 
 Supreme Court of Colorado. The common law doctrine, 
 that a mere naked possession, without shadow or pretense 
 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 descends to heirs. 
 There seems, therefore, no reason why a possessory co- 
 tenancy should not be recognized as involving, as far as ap- 
 plicable, all the legal consequences incident to an owner- 
 ship of the fee by tenants in common. 
 
 It seems that, under the English chancery practice, and 
 in our Federal Courts, the holder of a mere possessory 
 interest in land cannot maintain a bill for partition. 4 Such 
 a bill must be filed by those having title. 5 
 
 § 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 eject- 
 ment. This was certainly the rule in real actions. 6 The 
 reason upon which this rule rests is that their freeholds 
 are several ; there is no joint property, or union and en- 
 
 1 Burt v. Panjaud, 99 U. S. 180. 
 
 2 Ricard v. Williams, 7 Wheat. 59. In Jackson d. Sparkman v. Porter, 1 Paine 
 C. C. 467, the court said " Possession per se is evidence of no more than the mere 
 fact of present occupation by right. Hence the declarations of a party in possession 
 are always admitted to show the extent and nature of the interest he claimed in the 
 land; and from the very nature of the case, it must depend on these collateral cir- 
 cumstances to ascertain the extent of his interest. If the occupant of land avows 
 his interest to be that of a term of years, it would be absurd to consider his posses- 
 sion evidence of a fee ; and it is certainly granting all that can reasonably be asked, 
 to allow the occupant an interest as large as he claimed." 
 
 8 3 Colorado, 351 
 
 4 Strettell v. Ballou, 3 McCr. 46. See Horncastle v. Charlesworth, 11 Simons, 
 315. 
 
 6 Ross v. Cobb, 48 111. Ill ; Williams v. Wiggand, 53 111. 233. 
 
 6 Stearns on Real Actions, p. 198 ; Roscoe on Actions Relating to Real Prop- 
 erty, p. *8. See Webster v. Vandeventer, 6 Gray (Mass.), 432. 
 
218 EJECTMENT BETWEEN CO-TENANTS. [§ 298. 
 
 tirety of interests, but the estate is held by distinct titles, 
 or by one title and several rights. 1 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. 2 Their interests are considered 
 as different estates, depending upon different titles. 3 This 
 rule has been disregarded in some of our States, and ac- 
 tions of ejectment, founded upon a joint demise by ten- 
 ants 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 dis- 
 posing of that interest. 4 This is contrary to the former 
 rule in England, and opposed to the doctrine of Littleton 
 and Coke. 5 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 firmce, and when that 
 action has become in form only a mixed action, and in sub- 
 stance 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." 6 
 
 § 298. It was held, however, in a later case in New 
 York, that though this doctrine may be sound as to the 
 
 1 Doe d. Poole v. Errington, i Ad. & EI. 750 ; Heatherley v. Weston, 2 Wils. 
 232 ; Gaines v. Buford, 1 Dana (Ky.), 483 ; Wathen v. English, I Mo. 746 ; Moore 
 v. Fursden, 1 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, r Mo. 313. 
 
 2 White v. Pickering, 12 S. & R. (Penn.) 435. 
 
 3 Doe d. Harrison v. Botts, 4 Bibb (Ky.), 420. 
 
 4 Cole v. Irvine, 6 Hill (N. Y.), 634 ; Malcom v. Rogers, 5 Cowen (N. Y.), 188; 
 Massie v. Long, 2 Ohio, 287; Doe d. Nixon v. Potts, I Hawks (N. C), 469; Jack- 
 son v. Bradt, 2 Cat. (N. Y.) 170 (note a) ; Alford v. Dewin, 1 Nev. 211 ; Hoyle ». 
 Stowe, 2 Dev. (N. C.) Law, 321 ; Barrow v. Nave, 2 Yerg. (Tenn.) 228. Tenants 
 in common may join in an action for use and occupation. Cobb v. Kidd, 19 Bla. C. 
 C. 560; Porter v. Bleiler, 17 Barb. (N. Y.) 149. 
 
 5 See Jackson v. Bradt, 2 Cai. (N. Y.) 170. 
 
 6 Ibid. 
 
§ 300.] EJECTMENT BETWEEN CO-TENANTS. 219 
 
 mere rights of- possession of tenants in common, it has no 
 application to their right of property which is not joint. 1 
 Judge Story said, in the case of Poole v. Fleeger, 3 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 dis- 
 posed of by statutory enactment conferring upon tenants 
 in common the right to join in ejectment at their option, 8 
 and that method of procedure is now very common. 
 
 One tenant in common, we may note, can maintain a 
 suit to abate a nuisance without joining his companions. 4 
 
 § 299. In New York it was held, in an action in which 
 the title was in several tenants in common that a joint 
 ejectment could not be sustained by two or more, less 
 than the whole number. All must j oin in one action to 
 recover the whole premises and. estate, or a separate ac- 
 tion must be brought by each to recover his share. The 
 case turns upon the construction of the statutes of that 
 State, 5 which have since been changed, 6 so as to enable 
 one or more to maintain a suit, thereby rendering this de- 
 cision inapplicable. 
 
 § 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 
 except his co-tenants. 7 Each tenant can pursue his 
 remedies independent of the others, and may maintain 
 
 1 Cole v. Irvine, 6 Hill (N. Y.), 634. 
 
 2 Poole v. Fleeger, 11 Pet. 185. See Alford v. Dewin, 1 Nev. 207; May v. 
 Slade, 24 Tex. 205. 
 
 8 Gray v. Givens, 26 Mo. 291-303; Pooler. Fleeger, 11 Pet. 185-212; affirm- 
 ing s. c. I McL. 185 ; Hicks v. Rogers, 4 Cranch, 165 ; Swett v. Patrick, 11 Me. 
 179. 
 
 4 The Debris Case, 16 Fed. Rep. 33; Mississippi & Mo. R. R. Co. v. Ward, 2 
 Black, 485. See Payne v. Hook, 7 Wall. 431. But compare contra, DePuy v.. 
 Strong, 37 N. Y. 372 ; White v. Brooks, 43 N. H. 402. 
 
 6 Hasbrouck v. Bunce, 62 N. Y. 475. See Bullion Mining Co. v. The Crcesus 
 G. & S. Mining Co., 2 Nev 171. 
 
 6 N. Y. Code of Civil Procedure, § 1500. 
 
 'Williams v. Sutton, 43 Cal. 65; Hart v. Robertson, 21 Cal. 346; Touchard v. 
 Crow, 20 Cal. 150-162. 
 
220 EJECTMENT BETWEEN CO-TENANTS. [§ 300. 
 
 ejectment or trespass to try title alone, 1 -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. 8 
 Where this right is recognized he recovers for the bene- 
 fit of all. 3 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. 4 This principle is expressly 
 recognized in Oregon, 5 Nebraska, 6 Nevada, 7 North Caro- 
 lina, 8 Colorado, 9 and California. 10 But the rule has been 
 repudiated in Massachusetts, 11 Pennsylvania," and Mis- 
 souri. 13 In Gray v. Givens, 14 the Supreme Court of Mis- 
 souri say, that "as the right of possession, which depends 
 on title, is several, a recovery by one will restore him 
 only a moiety of the possession against the disseizor, who 
 will hold the other moiety with him in common." The 
 court further remark, that the statute permitting tenants 
 in common to join is rendered useless if one co-tenant can 
 recover for his companions. Moreover, the disseizor may 
 
 1 Robinson v. Roberts, 31 Conn. 145 ; Alexander v. Gilliam, 39 Tex. 227; Cru- 
 ger v. McClaughry, 51 Barb. (N. Y.) 642; Tarver v. Smith, 38 Ala. 135; Mobley 
 v. Biuner, 59 Penn. St. 481; Carson v. Smart, 12 Ired. (N. C.) Law, 369; Hooper 
 v. Hall, 30 Tex. 154; Hines v. Trantham, 27 Ala. 359; Presley v. Holmes, 33 
 Tex. 476. 
 
 5 Hardy v. Johnson, 1 Wall. 371 ; Starke. 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 Tex. 222 ; Alexanders. 
 Gilliam, 39 Tex. 227; Presley v. Holmes, 33 Tex. 476; Hopkins v. Noyes, 4 
 Mont. 550 ; Chipman v. Hastings, 50 Cal. 310 ; Logan v. Goodall, 42 Ga. 95; Da- 
 vant v. Cubbage, 2 Hill (S. C.) Law, 311; French v. Edwards, 5 Sawyer, 266; Le 
 Franc v. Richmond, 5 Sawyer, 601. 
 
 3 Barrett v. French, 1 Conn. 354. 
 
 4 Johnson v. Tilden, 5 Vt. 426. 
 
 6 Dolph v. Barney, 5 Oregon, 191. 
 
 9 Crook v. Vandevoort, 13 Neb. 507. 
 
 7 Sharon v. Davidson, 4 Nev. 416 ; Brown v. Warren, 16 Nev. 228. 
 
 8 Yancey v. Greenlee, 90 N. C. 317. 
 ' Weese v. Barker, 7 Col. 178. 
 
 10 Chipman v. Hastings, 50 Cal. 310; Hart v. Robertson, 21 Cal. 346; Melton 
 ■v. Lambard, 51 Cal. 258. 
 
 11 Dewey v. Brown, 2 Pick. (Mass.) 387. 
 
 12 Dawson v. Mills, 32 Penn. St. 302. See Hall v. Dodge, 38 N. H. 352. 
 
 13 Gray v. Givens, 26 Mo. 291-303. 
 
 14 Gray v. Givens, 26 Mo. 291-303. See Bannister v. Bull, 16 S. C. 229 ; Dorn v. 
 Beasley. 6 Rich. Eq. (S. C.) 420. 
 
§ 301.] EJECTMENT BETWEEN CO-TENANTS. 221 
 
 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. 1 It seems to be 
 clearly settled in Pennsylvania that, as there is no privity 
 of estate between tenants in common, and they are sepa- 
 rately seized, one cannot maintain ejectment, or sue and 
 recover in any form of action, for the interest and benefit 
 of the others. 2 
 
 § 301. It was held by Judge Story, in the case of Stevens 
 v. Euggles, 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 posses- 
 sion 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 
 possession, for that possession was consistent with the 
 title of the other tenant. 8 
 
 In Texas, since the enactment of the Revised Statutes of 
 that State, the claimant of an undivided interest is required 
 to state its nature, 4 but, nevertheless, a single co-tenant is 
 allowed to recover the entire estate against a wrong-doer. 5 
 In Georgia, when tenants in common sever, each recovers 
 only his own interest or their respective shares. 6 The rule 
 allowing one tenant in common to maintain in his own 
 name, but for the benefit of his co-tenants as well as him- 
 self, 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. 7 
 
 1 Dewey v. Brown, 2 Pick. (Mass.) 387. 
 
 2 Mobley v. Bruner, 59 Penn. St. 481. 
 
 3 Stevens v. Ruggles, 5 Mason, 221. 
 
 4 Stovall v. Carmichael, 52 Tex. 383. 
 
 5 Contreras v. Haynes, 61 Tex. 103 ; Sowers v, Peterson, 59 Tex. 216. 
 
 6 Sanford v. Sanford, 58 Ga. 259 ; Wilson v. Chandler, 60 Ga. 129. See Logan 
 v. Goodall, 42 Ga. 95. 
 
 7 Cromwell v. Holliday, 34 Tex. 463. 
 
222 EJECTMENT BETWEEN CO-TENANTS. [§303. 
 
 § 302. Joinder of joint tenants against third forties. — At 
 common law, in all actions relating to the joint estate, one 
 joint tenant could not sue or be sued without joining the 
 other. 1 Having but one joint title, and one freehold, they 
 must join in an action for the possession of land. 2 Hence, 
 it was held, in an early case in Pennsylvania, that one 
 of three joint tenants could not recover his one-third of 
 the estate from a stranger. 3 In that State all must join. 
 Less than the whole number cannot recover for the benefit 
 of the others. 4 "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." 6 
 Oases sustaining this doctrine are numerous. 6 It was sug- 
 gested to Lord Ellenborough, 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 share in ejectment on their 
 several demises. 1 Where several persons have a joint 
 title to an estate, any one or more of them may sue, with- 
 out joining the others, and recover against him who has 
 no title. 8 
 
 § 303. Ejectment by co-parceners. — Parceners may declare 
 on a joint demise, 9 or they may sever and each recover his 
 moiety. 10 
 
 1 3 Bla. Com. 182; Bac. Abr. Joint Tenants, K. See §§ 187, 188, 189. 
 
 2 Dewey v. Lambier, 7 Cal. 347. 
 
 3 Milne v. Cummings, 4 Yeates (Penn.), 577. 
 
 4 Mobley v. Bruner, 59 Penn. St. 481. 
 
 5 Adams on Ejectment (4th ed. 1854), p. (*2io) 232. 
 
 6 See Roe d. Raper v. Lonsdale, 12 East, 39; Doe d. Marsack v. Read, 12 East, 
 57-61 ; Doe v. Fenn, 3 Camp, 190. 
 
 * Doe d. Whayman v. Chaplin, 3 Taunt. 120. See Craig v. Taylor, 6 B. Mon. 
 (Ky.) 457- 
 
 8 Clark v. Vaughan, 3 Conn. igi. 
 
 'Boner v. Juner, 1 Lord Raymond, 726, per Holt, J., overruling Milliner v. 
 Robinson, Moore, 682. See Decharms v. Horwood, 10 Bing. 526. 
 
 10 Jackson v. Sample, 1 Johns. Cas. (N. Y.) 231; Doe v. Pearson, 6 East. 179; 
 Chambers v. Handley, 3 J. J. Marsh. (Ky.) 98 ; Roe d. Raper v. Lonsdale, 12 
 East, 39. 
 
§ 303«.] EJECTMENT BETWEEN CO-TENANTS. 223 
 
 § 303a. Partnership real estate. — The rule generally pre- 
 vails in America that partnership real estate is subject to 
 the adjustment of partnership debts, 1 and is treated as 
 personalty in the adjustment of the mutual claims of the 
 partners. 3 As between personal representatives and heirs 
 it becomes realty, after the adjustment of the co-partner- 
 ship affairs. 8 The principles and rules applicable to the 
 sale of partnership effects do not apply to real estate ; usual- 
 ly one partner can only convey his own interest or undi- 
 vided share therein, 4 as they hold as tenants in common. 5 
 But, to satisfy co-partnership obligations, a surviving part- 
 ner may convey co-partnership real estate, and vest the 
 equitable ownership in a purchaser who can in equity 
 compel the heirs or devisees of the deceased partner to 
 convey the legal title to him. 6 
 
 'See §§ 129, 221; Buchan u. Sumner, 2 Barb. Ch. (N. Y.) 165 ; Shanks v. 
 Klein, 104 U. S. 18 ; Buckley v. Buckley, n Barb. (N. Y.) 74; Sumner v. Hamp- 
 son, 8 Ohio, 328 ; Sage v. Sherman, 2 N. Y. 428 ; Hiscock v. Phelps, 49 N. Y. 103 ; 
 Ross v. Henderson, 77 N. C. 170; Brewer 0. Browne, 68 Ala. 210. 
 
 'Shearer v. Shearer, 98 Mass. 117 ; Richards v. Manson, 101 Mass. 484; Moran 
 ■u Palmer, 13 Mich. 377 ; Fairchild v. Fairchild, 5 Hun (N. Y.), 413 ; s. c. on ap- 
 peal, 64 N. Y. 478 ; Tarbel v. Bradley, 7 Abb. N, C. (N. Y.) 279; McCauley v. 
 Fulton, 44 Cal. 362. 
 
 3 Marrett v. Murphy, 11 Nat. Bank Reg. 133, 
 
 4 Coles v. Coles, 15 Johns. (N. Y.) 159. See Thornton v. Dixon, 3 Bro. C. C. 
 199 ; Balmain v. Shore, 9 Ves. Jr. 500 ; Baca v. Ramos, 10 La. 417 ; Thomas v. 
 Scott, 3 Rob. (La.) 256. 
 
 6 Slaughter v. Swift, 67 Ala. 498; Caldwell v. Parmer, 56 Ala. 405. 
 6 Shanks v. Klein, 104 U. S. 18. See § 221. 
 
CHAPTER X. 
 
 EJECTMENT BETWEEN VENDOR AND VENDEE. 
 
 304. Against vendee in possession un- 
 der executory contract. 
 
 Vendee holds as a licensee. 
 
 Ejectment maintainable when 
 covenant or specific performance 
 cannot be brought. 
 
 Election of remedies. 
 
 Vendor. — Bond for titles. 
 
 Nature of vendor's interest. 
 
 Demand of possession and notice 
 to quit. 
 
 Rescission of contract. 
 
 When notice of rescission is nec- 
 essary. 
 
 313. Tender of deed by vendor. 
 
 314. When tender of deed or money 
 
 not necessary. 
 
 315. Nature of the relationship. 
 
 316. Rules governing relationship of 
 
 30 5 
 306 
 
 307. 
 308. 
 
 3°9- 
 310. 
 
 3"- 
 312. 
 
 landlord and tenant not applica- 
 ble. 
 § 317. Vendee in default cannot dispute 
 vendor's title. 
 
 318. Estoppel in absence of fraud. 
 
 319. Vendee against vendor. 
 
 320. Vendor or vendee against tres- 
 
 passers. 
 
 321. Part performance. 
 
 3210. Statute of frauds. — Part perform- 
 ance. 
 
 322. Vendee may assert equitable 
 
 rights. 
 
 323. Defective title — Surrender of pos- 
 
 session. — Improvements. 
 
 324. Defenses. — Defective title. 
 
 325. Parties. 
 
 326. Waiver of forfeiture. 
 
 § 304. Against vendee in possession under executory con- 
 tract. — Remedies in the nature of ejectment or trespass to 
 try title are often invoked by a vendor to regain possession 
 of lands from a vendee in possession under an executory 
 contract of sale, after the latter has repudiated or failed 
 to perform the contract on his part. 1 When the contract 
 for the sale and purchase of land is silent as to the posses- 
 sion there is no implied license for the purchaser to enter ; 
 the facts oppose the idea that the vendee is to have the 
 consideration for which he bargained before he has com- 
 plied with the terms of the contract on his part, and by 
 omitting any stipulation in the contract, as to the posses- 
 sion of the land, the right to it is left with the vendor. 2 
 
 1 See Browning v. Estes, 3 Texas, 462 ; s. C. 49 Am. Dec. 760; Harris v. Catlin, 
 53 Texas, 1-9; Central Pacific R. R. Co. v. Mudd, 59 Cal. 585 ; Hicks v. Lovell, 64 
 Cal. 14. 
 
 2 Bumett v. Caldwell, 9 Wall. 290; Gaven v. Hagen, 15 Cal. 208 ; Spencer v. 
 Tobey, 22 Barb. (N. Y.) 260; Suffern v. Townsend, 9 Johns. (N. Y.) 35; Erwin v. 
 Olmsted, 7 Cowen (N. Y.), 229; Van Deusen v. Young, 29 N. Y. 32 ; Doe d. 
 Brumfield v. Brown, 7 Blackf. (Ind.) 142; s. c. 41 Am. Dec. 217. 
 
§§ 305, 306.] VENDOR AND VENDEE. 225 
 
 It may be stated as a general rule, however, that when the 
 contract makes no mention of the possession, and the land 
 is vacant, and the vendee has paid the entire consideration 
 and fully performed on his part, and the delivery of the 
 deed is all that remains to be done, there is an implied 
 agreement or license that the vendee may at once take 
 possession and have the use of the land. 1 
 
 § 305. Vendee holds as a licensee. — If the vendee acquires 
 the possession, he holds as a licensee 2 or tenant at will,* 
 and his possession is in no sense adverse to the vendor, 4 at 
 least until his agreement has been fully performed, so that 
 he has become entitled to a conveyance, 5 or the purchase 
 money has been fully paid. 6 The vendee under such cir- 
 cumstances is not vested with the full rights of an owner. 
 While, for instance, he may cut timber for the use of a 
 farm, he will not be permitted to sell timber therefrom. 7 
 
 § 306. Ejectment maintainable when covenant or specific 
 performance cannot be brought. — Though the vendor, having 
 failed to tender a deed, cannot recover the purchase money 
 in covenant against the vendee, yet after default in the 
 payment of any installment, he may, without tendering a 
 deed, maintain an action of ejectment; the redress of the 
 vendee in such a case, if any, is in equity. 8 And when a 
 vendor sues for a specific performance of a contract to con- 
 vey, it is necessary to show a strict tender of performance 
 
 'Sherman v. Savery, 2 McC. 118; Miller v. Ball, 64 N. Y. 293. Compare Suf- 
 fern v. Townsend, 9 Johns. (N. Y.) 35; Spencer v. Tobey, 22 Barb. (N. Y.) 260. 
 
 2 Burnett v. Caldwell, 9 Wall. 290; See Dolittle v. Eddy, 7 Barb. (N. Y.) 74, 
 78; Mumford v. Whitney, 15 Wend. (N. Y.) 380. 
 
 8 Harris v. Frink, 49 N. Y. 32, and cases cited ; Howard v. Shaw, 8 M. & W. 
 122. 
 
 4 Young v. Irwin, 2 Hayw. (N. C.) 9; Seabury v. Stewart, 22 Ala. 207; Potts v. 
 Coleman, 67 Ala. 225 ; Adair v. Adair, 78 Mo. 630. 
 
 5 Matter of Department of Parks, 73 N. Y. 560-566; Devyr v. Schaefer, 55 N. 
 Y. 446; Briggs v. Prosser, 14 Wend. (N. Y.) 227 ; Jackson v. Johnson, 5 Cow. (N. 
 Y) 74; Dolittle v. Eddy, 7 Barb. (N. Y.) 79. " Taken in its strict import, it is a 
 mere license." Cowen, J., in Wright v. Moore, 21 Wend. (N. Y.) 230, 233. But see 
 Stansbury v. Taggart, 3 McL. 457. 
 
 "Benson v. Stewart, 30 Miss. 49; Tayloe v. Dugger, 66 Ala. 445. See § 751; 
 Tillman v. Spann, 68 Ala. 102. 
 
 'Van Deusen v. Young, 29 N. Y. 9; Rockwell v. Saunders, 19 Barb. (N. Y.) 
 482. 
 
 8 Wright v. Moore, 21 Wend. (N. Y.) 230 ; Burnett v. Caldwell, 9 Wall. 290- 
 293. 
 
 15 
 
226 VENDOR AND VENDEE. [§§ 307, 308. 
 
 on his part, but in ejectment by a vendor to recover the 
 land, the vendee can only defend or protect bis possession 
 by showing a performance on his part, or that he is not in 
 default. 1 
 
 Hill v. Winn, 2 in the Supreme Court of Georgia, was 
 ejectment by the obligor of a bond for titles against an 
 obligee in possession, and in default as to part of the pur- 
 chase money. The defense was insolvency of the vendor 
 and the fact that he had no title, but only a bond for title, 
 and had not paid Ms vendor. It was held that these facts 
 might have constituted sufficient ground for a rescission of 
 the contract, but afforded no defense in ejectment, and no 
 reason why the obligee should keep both the purchase 
 money and the possession of the land. 
 
 § 307. Election of remedies. — After demand of payment 
 of the purchase money, and a refusal or default, the vendor 
 has an election either to maintain a suit for the specific 
 performance of the contract, or an action for the purchase 
 money ; or, if the contract is executory, to treat it as re- 
 scinded, and bring an action of ejectment against the vendee 
 in possession. 3 
 
 A vendee induced to purchase by fraud has an election 
 of remedies. He may rescind the contract and offer to re- 
 convey, and then recover back the consideration ; or he 
 may retain the land and recover damages by reason of the 
 fraud. 4 
 
 § 308. Vendor.— Bond for titles. — The general principle 
 prevails in Georgia that, in cases of an executory sale of 
 land, where the purchase money is not paid and no deed is 
 executed, but only a bond for title given, conditioned to be 
 void if the vendor conveys a perfect title on the payment of 
 the notes, the title, and therefore the right to sue and re- 
 cover in ejectment, remains in the vendor until the pur- 
 chase money is fully paid. 5 The rule is stated in a case in 
 
 1 Pierce v. Tuttle, 53 Barb. (N. Y.) 155-169. 2 60 Ga. 337. 
 
 3 Home Manuf. Co. v. Gough, 2 Bradw. (111.) 477. See Crary v. Smith, 2 N. 
 Y. 60. 
 
 4 Krumm v. Beach, 96 N. Y. 398. Compare Graves v. White, 87 N. Y. 465 ; 
 Hicks v. Lovell, 64 Cal. 21. 
 
 6 Alston v. Wingfield, 53 Ga. 18 ; Day v. Solomon, 40 Ga. 32 ; Tompkins v. 
 
§§ 309, 310.] VENDOR AND VENDEE. 227 
 
 'Texas to be that the superior title remains in the vendor 
 until the purchase money is fully paid in three classes of 
 ■cases. 1 First. When the conveyance is executory, as where 
 a bond for title has been given. 3 Second. When a mort- 
 gage for unpaid purchase money is given simultaneously 
 with the deed. 3 Third. When an express lien is retained 
 in the deed for the payment of the purchase money. 4 
 
 § 309. Nature of vendor's interest.— In Mississippi the 
 vendor is regarded by the courts as a mortgagee, his re- 
 tention of the title operating as an equitable mortgage ; 
 his interest and the interest of a mortgagee are held to be 
 .alike in this essential that both are security for the debt ; 3 
 while in Alabama the vendor is said to be a trustee for the 
 vendee of the legal title pending an executory contract. 6 
 
 § 310. Demand of possession and notice to quit. — We shall 
 presently show that after default, or failure by the vendee 
 to comply with the conditions of the contract, the vendor 
 may, in most of our States, recover the possession of the 
 lands from the vendee by ejectment without proving pre- 
 vious demand of possession or notice to quit.' The same 
 rule applies where the vendee repudiates the contract. 8 
 The subsequent possession of the vendee is held to be 
 tortious, and there is an immediate right of action against 
 him. 9 But until the vendee shall have done or omitted to 
 
 Williams, ig Ga. 569; Miller v. Swift, 39 Ga. 91 ; Ware v. Jackson, 19 Ga. 452; 
 McHan v. Stansell, 39 Ga. 197. 
 
 1 Webster v. Mann, 52 Texas, 416. 
 
 2 Citing Walker v. Emerson, 20 Texas, 706 ; Baumgarten v. Smith, 37 Texas, 
 439- 
 
 3 Citing The Howards v. Davis, 6 Texas, 174 ; Dunlap v. Wright, II Texas, 
 597- 
 
 4 Citing Baker v. Ramey, 27 Texas, 52 ; Peters v. Clements, 46 Texas, 114. 
 6 Strickland v. Kirk, 51 Miss. 795 ; Tanner v. Hicks, 12 Miss. 294, 300. 
 
 6 Sellers v, Hayes, 17 Ala. 749. See Muldrow v. Muldrow, 2 Dana (Ky.), 387. 
 
 7 Baker v. Gittings, 16 Ohio, 485 ; Jackson v. Miller, 7 Cowen (N. Y.), 747 ; 
 Jackson v. Moncrief, 5 Wend. (N. Y.) 26 ; Wright -v. Moore, 21 Wend. (N. Y.) 233; 
 Maynard v. Cable, Wright (Ohio), 18 ; Gregg v. Von Phul, 1 Wall. 274, 280. 
 
 8 Moak v. Bryant, 51 Miss. 560. See Chap. XIII. 
 
 9 Gregg v. Von Phul, 1 Wall. 274; Prentice v. Wilson, 14 111. 92; Baker v. Git- 
 tings. 16 Ohio, 489; Burnett v. Caldwell, 9 Wall. 290. But see, contra, Costigan 
 •v. Wood, 5 Cr. C. C. 507 ; Right v. Beard, 13 East, 210; Twyman v. Hawley, 24 
 Gratt. (Va.) 512; Williamson v. Paxton, 18 Gratt. (Va.) 475, 505; Newby v. Jack- 
 son, 1 B. & C. 448. 
 
228 VENDOR AND VENDEE. [§§ 311, 312. 
 
 do something which by operation of law converted his pos- 
 session from a lawful to a tortious one he cannot be evicted 
 as a trespasser in an action of ejectment. 1 
 
 § 311. Rescission of contract. — A rescission of a contract, 
 in order to be effectual, must be a rescission in toto? A party 
 cannot repudiate a contract and enforce it in the same ac- 
 tion. 3 And if, on a bill to rescind a contract on the ground 
 that the vendor is unable to convey good title, it appears 
 that at the time of the hearing or decree he is able to do 
 so the plaintiff will be compelled to accept. 4 When the 
 vendor brings ejectment to recover lands in the possession 
 of the vendee under a parol contract of sale, this amounts 
 to a rescission of the contract, and the vendee may sue for 
 the purchase money paid. 5 
 
 § 312. When notice of rescission is necessary. — The Su- 
 preme Court of Kansas 6 has held that where a vendee had 
 been for a long time in possession of land under a bond for 
 title, and had neglected to pay the balance of the purchase 
 money when due, and the contract was silent as to any re- 
 scission, and no time of performance was mentioned, the 
 vendor could not maintain an action of ejectment against 
 the vendee in possession, without at least giving an ex- 
 plicit notice, reasonable in its terms, that unless the vend- 
 ee performed within a certain time, he would rescind the 
 contract. The vendor it was said had the right to proceed 
 
 1 Harle v. McCoy, 7 J. J. Mar. (Ky.) 318 ; s. c. 23 Am. Dec. 407. See Whittier 
 v. Stege, 61 Cal. 238. 
 
 2 Bohall v. Diller, 41 Cal. 532. 
 
 3 Walker v. Millard, 29 N. Y. 375. 
 
 4 Diggle v. Boulden, 48 Wis. 477 ; Akerly v. Vilas, 15 Wis. 401; Fletcher v. 
 Wilson, 1 Sm. & M. Ch. (Miss.) 376; Pierce v. Nichols, [ Paige (N. Y.), 244. 
 The same principle applies to a suit for specific performance, especially where time 
 is not of the essence of the contract. Dresel v. Jordan, 104 Mass. 407 ; Christian 
 v. Cabell, 22 Gratt. (Va.) 82 ; Jenkins v. Fahey, 73 N. Y. 355; Moss v. Hanson, 17 
 Penn. St. 379; Luckett v. Williamson, 37 Mo. 388; Coffin v. Cooper, 14 Ves. 205 ; 
 Hepburn v. Dunlop, 1 Wheat. 179. 
 
 6 Hairston v. Jaudon, 42 Miss. 380. See Pipkin v. James, I Humph. (Tenn.) 
 325; s. c. 34 Am. Dec. 652. We cannot discuss all the objections to a title that may 
 be raised between vendor and vendee, but it may be noted that one who buys real es- 
 tate is not obliged to take it subject to easements. Wheeler v. Tracy, 49 N. Y. Su- 
 perior, 208. An implication arises that the property is free from incumbrances. Bur- 
 well v. Jackson, 9 N. Y. 535 ; Newark Savings Inst. v. Jones, 37 N. J. Eq. 449- 
 
 6 Courtney v. Woodworth, 9 Kan. 443. See Kirby v. Harrison, 2 Ohio St. 326; 
 Cythe v. La Fontain, 51 Barb. (N.Y.) 186. 
 
§§ 313, 314.] VENDOR AND VENDEE. 229 
 
 in equity for a rescission of the contract, or could treat the 
 bond as an equitable mortgage and foreclose the equities 
 of the vendee. 
 
 § 313. Tender of deed by vendor. — Questions concerning 
 the sufficiency of a tender frequently arise. In the case 
 of Gregg v. Von Phul 1 it appeared that the vendor had 
 tendered a deed which did not contain all the covenants 
 called for by the contract. The vendee made no objection 
 to the form of the deed, but handed it back, answering that 
 he was not ready to pay the money. The Supreme Court 
 •of the United States held that if the deed was defective or 
 objectionable the defects should have been pointed out by 
 the vendee at the time of the tender, for possibly they 
 might have been obviated. The very silence of the vendee 
 was well calculated to influence the conduct of the vendor, 
 and to convince him that inability to raise the money was 
 the only reason which the vendee had for declining to per- 
 form the contract. The vendee is estopped, upon the most 
 obvious principles of justice, from subsequently interpos- 
 ing objections which he did not even name when the deed 
 was tendered, and the money due on the contract de- 
 manded. 
 
 § 314. When tender of deed or money not necessary. — No 
 necessity exists for proving tender of the deed in ejectment 
 by a vendor against a vendee who has failed to pay the 
 purchase money, where the vendee had previously declared 
 his inability to perform, 3 or had practically abandoned the 
 possession, and given notice to the vendor of his refusal to 
 perform the contract. 3 And when the vendor is unable to 
 perform a tender of the purchase money is not necessary 
 in order to preserve the vendee's rights under the con- 
 tract. 4 
 
 ' I Wall. 274. See Bigler v. Morgan, 77 N. Y. 312 ; Carman v. Pultz, 21 N. Y. 
 547 ; Congregation S. H. M. v. Halladay, 50 N. Y. 664. 
 
 2 Dixon v. Oliver, 5 Watts (Penn.), 509. 
 
 8 See Crary v. Smith, 2 N. Y. 60 ; Morange v. Morris, 3 Keyes (N. Y.), 48. 
 The vendee is excused from a tender of payment, or of performance on his part, 
 where the vendor is unable to carry out the agreement, or has broken it by failing to 
 remove incumbrances. Morange v. Morris, 3 Keyes (N. Y.), 48. See Holmes v. 
 Holmes, 12 Barb. (N. Y.) 137 ; s. C. affi'd, 9 N. Y. 525 ; Karker v. Haverly, 50 
 Barb. (N. Y.) 79. 
 
 4 Delavan v. Duncan, 49 N. Y. 485. 
 
230 VENDOR AND VENDEE. [§ 315. 
 
 § 315. Nature of the relationship. — The authorities ex- 
 pounding the nature of the relationship of vendor and ven- 
 dee are not entirely harmonious. We shall notice an im- 
 portant case, Blight's Lessee v. Rochester, 1 in the United 
 States Supreme Court. It appeared that James Dunlap, 
 an alien, died in 1794 seized of the premises in dispute. 
 The plaintiffs were the heirs of John Dunlap, who was a 
 citizen, and had claimed as the heir to his alien brother 
 James Dunlap. Subsequent to his death one Hunter, pro- 
 fessing to have purchased from John Dunlap, entered into 
 possession and conveyed to the defendant. The plaintiffs 
 brought ejectment, and sought to estop the defendant 
 from impeaching or controverting the title of John Dunlap, 
 by parol evidence that James Dunlap was an alien. The 
 court doubted the propriety of extending the doctrine of 
 estoppel, as applied to lessor and lessee, to vendor and 
 vendee. Chief Justice Marshall, who delivered the opinion, 
 said : "The vendee acquires the property for himself, and 
 his faith is not pledged to maintain the title of the vendor. 
 The rights of the vendor are intended to be extinguished 
 by the sale, and he has no continuing interest in the main- 
 tenance of his title, unless he should be called upon in con- 
 sequence of some covenant or warranty in his deed. The 
 property having become, by the sale, the property of the 
 vendee, he has a right to fortify that title by the purchase 
 of any other which may protect him in the quiet enjoy- 
 ment of the premises. JSTo principle of morality restrains 
 him from doing this ; nor is either the letter or spirit of 
 the contract violated by it. The only controversy which 
 ought to arise between him and the vendor, respects the 
 payment of the purchase money. How far he may be 
 bound to this by law, or by the obligations of good faith,, 
 is a question depending on all the circumstances of the 
 case, and in deciding it, all those circumstances are ex- 
 aminable. If the vendor has actually made a conveyance,, 
 his title is extinguished in law as well as equity, and it -will 
 not be pretended that he can maintain an ejectment. If he 
 
 1 7 Wheaton, 535. Compare the contradictory cases of Sparrow v. Kingman, I 
 N. Y. 242; Bowne v. Potter, 17 Wend. (N. Y.) 164 ; Ward v. Mcintosh, 12 0. S. 
 231 ; Hamblin v. Bank of Cumberland, 19 Me. 66 ; Small v. Procter, 15 Mass. 495- 
 
§§ 316, 317.] VENDOR AND VENDEE. 231 
 
 has sold, but has not conveyed, the contract of sale binds 
 him to convey, unless it be conditional. If, after such a 
 contract, he brings an ejectment for the land, he violates 
 his owu contract, unless the condition be broken by the 
 vendee ; and if it be, the vendor ought to show it." 
 
 §316. Bales governing relationship of landlord and tenant 
 not applicable. — It may be regarded as a settled principle 
 that the relation of landlord and tenant does not exist be- 
 tween vendor and vendee. 1 An essential quality of a lease 
 is wanting, i.e., stipulation for compensation to the owner. 
 "The vendee pays nothing for the enjoyment of the prop- 
 erty." 2 And the relationship of vendor and purchaser 
 cannot, by a subsequent agreement, be converted into that 
 of landlord and tenant so as to defeat supervening rights. 3 
 
 § 317. Vendee in default cannot dispute vendor's title. — 
 Where, however, the vendee enters into possession under 
 an executory contract to purchase land, and fails to comply 
 with the terms of the contract by neglecting to pay the 
 purchase money, the vendor may bring ejectment, and the 
 vendee obviously cannot dispute his title, nor set up an 
 outstanding title to defeat a recovery, 4 any more than a 
 lessee could question the title of his lessor, 3 and for the 
 same reason. The estoppel in one case, as in the other, is 
 founded upon the fact that the defendant has been clothed 
 with the possession by the plaintiff. 6 Were the rule other- 
 wise the inconvenient condition of affairs would result 
 
 1 Watkins v. Holman, 16 Peters, 25-54; Society, &c, v. Town of Pawlet, 4 
 Peters, 480-506 ; Bradstreet v. Huntington, 5 Peters, 402 ; Willison v. Watkins, 3 
 Peters, 43; Dolittle v. Eddy, 7 Barb. (N. Y.) 74; Burnett v. Caldwell, 9 Wall. 290. 
 
 5 Burnett v. Caldwell, 9 Wall. 293. 
 
 3 Nobles v. McCarty, 61 Miss. 456. 
 
 4 Pershing v. Canfield, 70 Mo. 140 ; Lesher v. Sherwin, 86 111. 420 ; Seabury v, 
 Stewart, 22 Ala. 207; Harvey v. Morris, 63 Mo. 475 ; Fitzgerald v. Spain, 30 Ark. 
 95; T ac kson v. Bard, 4 Johns. (N.Y.) 230; Jackson v. Stewart, 6 Johns. (N. Y.) 
 34; Hill v, Winn, 60 Ga. 337; Jackson v. Ayers, 14 Johns. (N. Y.) 224 ; Sanford v. 
 Cloud, 17 Fla. 557 ; Jackson v. Hotchkiss, 6 Cowen (N. Y.), 401 ; Galloway v. 
 Finley, 12 Peters, 264-295 ; Jackson v. Walker, 7 Cow. (N. Y.) 637; Bush v. Mar- 
 shall, 6 How. 284-291 ; Love v. Edmonston, 1 Ired. (N. C.) Law, 152 ; Strong v. 
 Waddell, 56 Ala. 471 ; Jackson v. McGinness, 14 Penn. St. 331. 
 
 5 Burnett v. Caldwell, 9 Wall. 290 ; Whiteside v. Jackson, 1 Wend. (N. Y.) 418 ; 
 Bowers v. Keesecker, 14 Iowa, 301-305 ; but see contra Gudger^. Barnes, 4 Heisk. 
 (Tenn.) 570 ; Corder v. Dolin, 4 Baxter (Tenn.), 238. See Waggener v. Lyles, 29 
 Ark. 47. See, also, § 351. 
 
 6 A warrantor having put a warrantee in his place as regards the occupancy of 
 
232 VENDOR AND VENDEE. [§§ 318, 319. 
 
 that no vendor could safely part with the possession of his 
 lauds until the consideration money had been fully paid. 
 
 The estoppel, of course, extends to those claiming in the 
 vendee's right, 1 and a purchaser cannot set up want of title, 
 or an outstanding title, against a grantor who brings eject- 
 ment to enforce a forfeiture arising from a breach of a 
 condition subsequent. 2 When a person in possession of 
 land covenants with another to pay him for the land, he 
 thereby acknowledges the title of the vendor, and is es- 
 topped from setting up an outstanding title, or title in 
 himself, unless he can show that he was deceived, or im- 
 posed upon, in making the agreement. 3 
 
 § 318. Estoppel in absence of fraud.— So in Pennsylvania, 
 in ejectment by a vendor against a purchaser from the 
 vendee, where it appeared that the defendant had not paid 
 any part of the purchase money, nor made any valuable 
 improvements, it was held that the defendant could not 
 set up the weakness of the vendor's title in defense of his 
 possession. Unless fraud had been practiced on him he 
 must pay the purchase money or relinquish possession. 
 He cannot set up an outstanding title in another, or 
 adverse title in himself. 4 
 
 § 319. Vendee against vendor. — The remedies of a vendee, 
 being usually in equity, cannot be treated here. It has 
 been decided in the Supreme Court of Georgia, that a 
 vendor is not liable to an action for the recovery of the 
 possession of land at the instance of his vendee claiming 
 under a bond for titles, until the purchase money has been 
 fully paid, or unconditionally tendered. 5 Even then it 
 seems to us his proper relief is in an equitable forum. 
 
 In a case which came before the Supreme Court of 
 
 land, the latter is bound in good faith to retain the possession which may itself ripen 
 into a perfect title. _ If the possession be surrendered the warrantee in an action on 
 the covenant must justify the surrender by evidence clearly showing the paramount 
 title. Callis v. Cogbill, 9 Lea (Term.), 137. 
 
 1 Raley v. Ross, 59 Ga. 862. 2 O'Brien v. Wetherell, 14 Kan. 616. 
 
 3 Jackson v. Ayers, 14 Johns. (N. Y.) 224; Jackson v. Thompson, 6 Cow. 
 (N. Y.) 178 ; Jackson v. Walker, 7 Cow. (N. Y.) 637. 
 
 4 Jackson v. McGinness, 14 Penn. St. 331. See Smith v. Webster, 2 Watts 
 (Penn.), 478 ; Treaster v. Fleisher, 7 W. & S. (Penn.) 138. 
 
 5 Miller v. Swift, 39 Ga. 91. See Allen v. Holding, 29 Ga. 485-490; Peterson 
 ■v. Orr, 12 Ga. 464 ; Hays v. Carr, 83 lnd. 275. 
 
1 320.] VENDOR AND VENDEE. 233 
 
 Pennsylvania, where it appeared that no time for the de- 
 livery of possession of the land was stipulated for in the 
 contract of sale, and before the day for the payment of 
 the purchase money arrived the vendee obtained posses- 
 sion with the consent of the vendor, and the purchase 
 money remained partially unpaid, the court held that the 
 vendee might, without tender of the balance of the pur- 
 -chase money, recover the possession from the vendor who 
 had unlawfully regained it through the unauthorized act 
 of a third party. 1 The general rule is, however, that an 
 obligee of a title bond cannot maintain ejectment against 
 the obligor, or one taking title under him, 3 for he has only 
 a promise of the title, and not a title sufficient to support 
 the action. 
 
 Incidentally we may observe that the vendee's damages 
 are not restricted to the purchase money and interest ; 
 on the contrary, he may recover the equivalent or value of 
 the lands to which he was entitled. 3 He may retain the 
 land and recover damages for false representations in the 
 sale, the measure of the damages being the difference 
 between the value of the property conveyed and the value 
 had it been as represented. 4 
 
 § 320. Vendor or vendee against trespassers. — Trespassers 
 and strangers to the title may, in Texas, be evicted by 
 either the vendor or vendee. And as against a trespasser 
 the vendee need not prove a compliance with the condi- 
 tions of the contract which would entitle him to a specific 
 performance. The trespasser has no interest in, and can- 
 not bring into controversy, any disputed matters, or unad- 
 justed equities, between the contracting parties. A 
 recovery of the land by either the vendor or vendee will 
 inure to the benefit of the one who may be entitled 
 thereto upon an adjustment between them of their respect- 
 ive rights. 5 The status of the vendee in such a contro- 
 versy is not readily defined. 
 
 J Harris v. Bell, 10 S. & R. (Perm.) 39 ; s. P. D' Arras v. Keyser, 26 Pa. St. 252. 
 9 Richardson v. Thornton, 7 Jones (N. C.) Law, 458 ; Love v. Edmonston, 1 
 Ired. (N. C.)Law, 152 ; Trammell v. Simmons, 17 Ala. 411. 
 
 3 Taylor v. Barnes, 69 N. Y. 434. 4 Krumm v. Beach, 96 N. Y. 398. 
 
 5 Hooper v. Hall, 30 Texas, 154 ; Wright ■</. Thompson, 14 Texas, 558. See 
 
234 VENDOR AND VENDEE. [§§ 321, 321«. 
 
 § 321. Part performance. — Construction. — Although a 
 vendor cannot insist upon the vendee's accepting a part 
 performance of the contract, 1 yet the vendee may require 
 a specific performance as to part, and claim damages as to 
 the residue, where the vendor is unable to perform in toto? 
 
 The court will not construe a contract so as to produce 
 a forfeiture of a legal or equitable estate unless that inten- 
 tion is plainly indicated. 3 
 
 § 321a. Statute of frauds. — Part performance. — It is the 
 general policy of the law that agreements for the sale of 
 interests in real property must be evidenced by some note 
 or memorandum in writing. 4 Part performance of a parol 
 agreement is often relied upon to free it from the opera- 
 tion of the statute of frauds. The general rule is that 
 nothing is to be considered as a part performance which 
 does not put the party into a situation which would make 
 it a fraud upon him, unless the agreement was fully per- 
 formed. 5 Taking possession under a parol agreement with 
 the consent of the vendor, accompanied with other acts 
 which cannot be recalled so as to place the party taking 
 possession in the same situation that he previously occu- 
 pied, has always been held to take such agreement out of 
 the operation of the statute. 6 Mr. Waterman 7 considers 
 the rule " well established, that when the vendee has been 
 let into possession under a parol contract, and made valu- 
 able improvements, it constitutes part performance, and 
 takes the case out of the statute." 8 
 
 Murphy v. Loomis, 26 Hun (N. Y.), 662 ; Melenthin v. Keith, 17 Fed. Rep. 583. 
 It is unimportant to a tenant, who has no title, whether the demandant is a mort- 
 gagee or absolute owner of the fee. Simpson v. Dix, 131 Mass. 183. 
 
 1 Gibert o. Peteler, 38 N. Y. 165. 
 
 2 Jones v. Shackleford, 2 Bibb (Ky.), 410 ; Barnes v. Wood, L. R. 8 Eq. 424 ; 
 Bass v. Gilliland, 5 Ala. 761 ; Wright v. Young, 6 Wis. 127; Harding </. Parshall, 
 56 111. 219 ; Wilson v. Cox, 50 Miss. 133. 
 
 3 Hill v. Still, 19 Texas, 76. 
 
 J It seems that a written conveyance is not necessary to the transfer of a posses- 
 sory mining claim. Mining Co. v. Taylor, 100 U. S. 42 ; Table Mountain Tunnel 
 Co. v. Stranahan, 20 Cal. 198. By statute a written conveyance has been required 
 in California. Felger v. Coward, 35 Cal. 652. 
 
 5 Malins v. Brown, 4 N. Y. 403 ; Miller v. Ball, 64 N. Y. 291. See Felton v. 
 Smith, 84 Ind. 493. 
 
 6 Lowry v. Tew, 3 Barb. Ch. (N. Y.) 407 ; Freeman v. Freeman, 43 N. Y. 34. 
 
 7 Waterman on Specific Performance, § 280. 
 
 8 See Wills v. Stradling, 3 Ves. 378 ; Mundy v. Jolliffe, 5 Mylne & C. 167 ; Annan 
 
§§ 322, 323.] VENDOR AND VENDEE. 235 
 
 § 322. Vendee may assert equitable rights. — Under the 
 reformed procedure, as we shall presently see, the equitable 
 rights of a vendee may be enforced as effectually by answer 
 and proofs in ejectment as by an independent suit in equity. 
 Thus in a case decided by the New York Court of Appeals, 1 
 it was held that a vendee in possession of land under a con- 
 tract of sale could, in an action of ejectment brought by the 
 vendor, assert equitable rights the same as though he was a 
 party to an action for a specific performance of the con- 
 tract. And if the vendor is indebted to the vendee on an 
 independent liquidated claim, the latter can set it up and 
 have it applied in payment, and procure a specific perform- 
 ance of the contract. The same rule was held to apply in 
 favor of a sub-vendee. So in Minnesota the vendee may 
 set up in ejectment any equities relating to the right of 
 possession, but the facts must be such as, under the former 
 practice, would have sustained a bill in chancery for an 
 injunction against the action at law, and so have kept the 
 party in possession. 3 
 
 § 323. Defective title— Surrender of possession. — A vendee 
 in possession who has discovered a defect in the title of 
 his vendor is sometimes confronted with a perplexing ques- 
 tion as to the safest course to take. It has been decided 
 by the New York Court of Appeals that if the vendee is 
 not content with the title offered, he should specify the 
 objection and surrender up the possession of the land. 8 
 Otherwise, if the vendee were permitted to retain the 
 possession and defend a suit for the purchase money on 
 the ground that the vendor had no title and was insolvent,. 
 
 v. Merritt, 13 Conn. 478 ; Green v. Finin, S5 Conn. 178 ; Dugan v. Colville, 8 
 Texas, 126; Neatherly v. Ripley, 21 Texas, 434 ; Mason v. Wallace, 3 McL. 148; 
 Kidder v. Barr, 35 N. H. 236; Edwards v. Fry, 9 Kansas, 417 ; Freeman v. Free- 
 man, 43 N. Y. 34 ; Haines v. Haines, 6 Md. 435 ; Vickers v. Sisson, 10 W. Va. 12 ;. 
 Pfiffner -v. Stillwater & St. P. R. R. Co., 23 Minn. 343. 
 
 1 Cavalli v. Allen, 57 N. Y. 508; See Traphagen v. Traphagen, 40 Barb. (N. Y.) 
 537; Cythe v. La Fontain, 51 Barb. (N. Y.) 186; Tibeau v. Tibeau, 19 Mo. 78; 
 Carpenters. Otth?y, 2 Lans. (N. Y.)45i; Love v. Watkins, 40 Cal. 547; Richards 
 v. Elwell, 48 Penn. St. 361 ; Young v. Montgomery, 2S Mo. 604. 
 
 2 Williams v. Murphy, 21 Minn. 534; Gates v. Smith, 2 Minn. 30; Barkers. 
 Walbridge, 14 Minn. 469-475. See Chap. XVIII. 
 
 8 Viele v. Troy & B. R. R. Co., 20 N. Y. 184; See Jackson v. McGinness, 14 
 Penn. St. 331 ; Mclndoe v. Morman, 26 Wis. 588 ; Pierce v. Tuttle, 53 Barb. (N. 
 Y-) 155; Diggle v. Boulden, 48 Wis. 477-484; Hill v. Winn, 60 Ga. 337; Nicloson. 
 v. Wordsworth, 2 Swanston, 369 ; More v. Smedburgh, 8 Paige (N. Y.), 606. 
 
236 VENDOR AND VENDEE. [§ 324. 
 
 the vendee might defeat a recovery of the purchase money, 
 and yet never be disturbed in the possession of the land. 1 
 The application of this principle often works injustice to a 
 vendee who has paid a part of the purchase money, or 
 made valuable improvements, and then discovers that the 
 vendor is ixnable to give him the title for which he bar- 
 gained. Hence the same court has decided that where a 
 vendee was in possession under a contract from a vendor 
 to convey, and had made improvements in conformity with 
 the provisions of the contract, which required certain ex- 
 penditures as a necessary condition to entitle him to a 
 deed, and the vendor's title proved defective, the vendee 
 had an equitable lien upon the premises for the money so 
 expended for improvements, which entitled him to hold 
 the possession, and the payment of which was a condition 
 precedent to the recovery of the premises, by the vendor, 
 in ejectment. 2 A lien for the unrefunded purchase money 
 is in some cases recognized in equity where the transaction 
 is tainted with fraud. 3 
 
 § 324. Defenses. — Defective title. — It has been decided in 
 Texas that where the purchaser held under an executed 
 contract; as a deed with warranty, he could not resist the 
 payment of the purchase money upon proof that the title 
 might be doubtful. He must go further and show with 
 reasonable certainty that the title had failed in whole or in 
 part, and that he had been evicted by a superior outstand- 
 ing title of which he had no notice at the time of the pur- 
 chase. 4 The fact that the vendor has proved his claim for 
 the purchase money against the estate of the vendee in 
 bankruptcy constitutes no ground of defense to an eject- 
 
 1 Cartwright v. Culver, 74 Mo. 182 ; Pershing v. Canfield, 70 Mo. 140; Key v. 
 Jennings, 66 Mo. 356 ; Wheeler v. Standley, 50 Mo. 509. Compare Noonan v. 
 
 Lee, 2 Black, 508 ; Mitchell u . McMullen, 59 Mo. 252. 
 
 2 Gibert v. Peteler, 38 N. Y. 165. Compare Davis v. Strobridge, 44 Mich. 159; 
 Turner v. Marriott, L. R. 3 Eq. 744; Tyler v. Fickett, 75 Me. 211; Smoot v. 
 Smoot, 12 Lea (Tenn), 274; Jackson v. Ludeling, 99 U. S. 513; Brown on Stat, of 
 Frauds, §§ 119, 120; Ewing v. Handley, 4 Litt. (Ky.) 346 ; Patrick v. Roach, 21 
 Texas, 251. 
 
 3 See Diggs v. Kirby, 40 Ark. 422 ; Rose v. Watson, 10 H. L. Cas. 672 ; Burgss 
 v. Wheate, 1 Eden, 211. 
 
 4 Price v. Blount, 41 Texas, 472 ; Cooper v. Singleton, 19 Texas, 266 ; Wood- 
 ward v. Rodgers, 20 Texas, 178 ; Johnson v. Long, 27 Texas, 21 ; Demaret v. Ben- 
 nett, 29 Texas, 263. See Estell v. Cole, 52 Texas, 170. 
 
§§ 325, 326.] VENDOR AND VENDEE. 237 
 
 merit brought by the vendor against the vendee for default 
 in the payment of it. 1 
 
 § 325. Parties. — It has been held in Pennsylvania that 
 a vendor could not enforce his contract in ejectment by 
 bringing suit against a tenant of a single field or tract, 
 or of a single room of a house, 2 nor could a vendee who was 
 not summoned, or made a party to the ejectment, be turned 
 out of possession upon a judgment rendered against a 
 tenant of a small portion of the premises. 
 
 § 326. Waiver of forfeiture. — In a recent case in the 
 Supreme Court of Iowa, it was decided that the vendor's 
 statement to the purchaser that he would not insist upon 
 the forfeiture stipulated in the contract, in case of default 
 in prompt payments, constituted a waiver of the right 
 to declare a forfeiture, where, upon the strength of such 
 statements, the payments were allowed to fall in arrears, 
 and valuable improvements were made upon the property.* 
 And in a case which arose in New York, where it appeared 
 that the time of payment under the contract had been ex- 
 tended with the vendor's assent, and no certain time fixed 
 when payment would be required, it was held that the 
 vendor could not afterwards claim a forfeiture of the con- 
 tract, by requiring immediate payment, but that the vendee 
 was entitled to a reasonable time, after notice, to com- 
 plete his payment. 4 
 
 1 McAlpin v. Lee, 57 Ga. 281. 
 
 2 Davidson v. Barclay, 63 Penn. St. 406. See § 239. 
 
 3 Blair v. Blair, 48 Iowa, 393. 
 
 4 Cythe v. La Fontain, 51 Barb. (N. Y.) 186. See Durand v. Sage, 11 Wis. 151 ; 
 Edgerton v. Peckham, 11 Paige (N. Y.), 352; AM v. Johnson, 20 How. 511; Hale 
 v. Wilkinson, 21 Gratt. (Va.) 75 ; Potters. Jacobs, III Mass. 32. 
 
CHAPTER XL 
 
 EJECTMENT BETWEEN MORTGAGEE AND MORTGAGOR. 
 
 § 327. Early practice. 
 
 328. Disadvantages of ejectment be- 
 
 tween mortgagee and mortgagor. 
 
 329. Foreclosure a more effectual rem- 
 
 edy. 
 
 330. Mortgagee's rights at common law. 
 
 331 ' {■ Modern practice. 
 
 332. S 
 
 333. In what States mortgagee may 
 
 bring ejectment. 
 
 334. Statute prohibiting ejectment by 
 
 mortgagee. — B \Vhen unconstitu- 
 tional. 
 
 335. Ejectment by execution purchaser. 
 
 336. Title after default. 
 
 337. Deed absolute on its face may be 
 
 shown to be a mortgage. 
 
 § 338. 
 
 339- 
 340. 
 
 341- 
 
 342. 
 343. 
 
 344- 
 
 345. 
 
 Ejectment maintainable in certain 
 States upon a deed intended as 
 a mortgage. 
 
 Mortgage. — Outstanding title. 
 
 Ejectment by mortgagor against 
 mortgagee in possession. 
 
 Ejectment by mortgagor not main- 
 tainable until after accounting 
 and application of rents. 
 
 Rule in Michigan. 
 
 Mortgagee may purchase equity at 
 execution sale. 
 
 A conveyance by mortgagor to 
 mortgagee of entire estate. — 
 How regarded. . 
 
 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 
 governing this relationship was, that the mortgagee, upon 
 the execution of the mortgage, became immediately vested 
 with the entire estate, and the mortgagor, by continuing 
 in possession, was considered to be like a tenant at will of 
 the mortgagee. 1 
 
 § 328. Disadvantages of ejectment "between mortgagee and 
 mortgagor. — The remedy of ejectment while in general use 
 by mortgagees was not, ordinarily, a final remedy, and 
 frequently led to litigious accountings concerning tbe rents 
 and profits received by the mortgagee during the period of 
 his occupancy of the mortgaged lands; so that the practical 
 abolition of ejectment, as applied to this peculiar relation- 
 ship, may be regarded as a beneficial change. 
 
 1 We may note that land certificates are not the proper subject of a pledge. The 
 debtor's interest cannot be extinguished by a sale as in the case of pledged goods. 
 The depositing of such certificates as security for a debt is in effect a mortgage which 
 must be enforced in equity. Mowry v. Wood, 12 Wis. 413. 
 
§§ 329, 330.J MORTGAGEE AND MORTGAGOR. 239 
 
 §329. Foreclosure a more effectual remedy. — The mort- 
 gagee's most common and effectual remedy is to proceed 
 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 
 adoption in the courts of law." 1 The commentator refers 
 in this passage to the adoption by courts of law, by a 
 gradual and almost insensible progress, of the equity doc- 
 trine that a mortgage is a mere security for the debt, and 
 only a chattel interest, and that, until a decree of fore- 
 closure, the mortgagor continues the owner of the fee. 2 
 Lord Mansfield, in King v. St. Michael, 3 decided in 1781, 
 used this language: "The mortgagee, notwithstanding 
 the form, has but a chattel, and the mortgage is only a 
 security. It is an affront to common sense to say the 
 mortgagor is not the real owner." 
 
 § 330. Mortgagee's rights at common law. — As we have 
 said, at common law the mortgagee, even before and a 
 fortiori after forfeiture, could, by reason of non-payment 
 of the mortgage, 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. 4 
 Whether the mortgage was legal or equitable in its nature, 
 the mortgagee might pursue his legal remedy of ejectment, 
 
 1 4 Kent's Com. p. *I58. See De Wolf v. Sprague Mfg. Co., 49 Conn. 318. 
 
 ! 4 Kent's Com. p. *i6o ; See Wilkins v. French, 20 Me. in; Kinna v. Smith, 
 3 N. J. Eq. 14. 
 
 " 2 Doug. 632. See Casborne v. Scarfe, I Atkyns, 603, per Lord Hardwicke. 
 
 4 Thunder v. Belcher, 3 East, 449 ; Wakeman v. Banks, 2 Conn. 445 ; Rockwell 
 v. Bradley, 2 Conn. 1; Keech v. Hall, Doug. 21; Birch v. Wright, 1 T. R. 378; 
 Tripp v. Ide, 3 R. I. 51; Colman v. Packard, 16 Mass. 39; Pierce v. Brown, 24 
 Vt. 165; Wilson v. Hooper, 13 Vt. 653; Den v. Stockton, 12 N. J. Law, 322; Jack- 
 son v. Warren, 32 111. 331; Jackson v. Colden, 4 Cowen (N. Y.), 266; Carpenter 
 v. Carpenter, 6 R. I. 542 ; Oldham v. Pfleger, 84 111. 102 ; Carrroll v. Ballance, 26 
 HI. 9-17; Fuller v. Wadsworth, 2 Ired. (N. C.) Law, 263 ; Ahem v. White, 39 Md. 
 409; Mitchell v. Bogan, 11 Rich. (S. C.) Law, 686. 
 
240 MORTGAGEE AND MORTGAGOR. [§331. 
 
 and at the same time file a bill to foreclose the equity of 
 redemption. 1 
 
 § 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, even after default, possess 
 a sufficient title to support the action of ejectment. The 
 right of possession remains with the mortgagor until fore- 
 closure whether the instrument be a mortgage in form, or 
 a deed intended as a mortgage. 2 Default in payment does 
 not divest his right to the possession. The exceptions to 
 the general rule in certain States, extending to the mort- 
 gagee the right to maintain ejectment, must not be over- 
 looked. In New York the principle is settled that a mort- 
 gage is but a lien upon the land. The mortgagor, both at 
 law and in equity, is regarded as the owner of the fee, 3 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 mortgagee could maintain eject- 
 ment 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 en- 
 titled to the possession of the mortgaged 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 ex- 
 pressly prohibited by statute. 5 And a mortgagor in de- 
 fault may have ejectment against an intruder or one 
 
 1 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. 
 
 2 Ferris v. Wilcox, 51 Mich. 105, per Cooley, J. 
 
 3 See Angier v. Agnew, 98 Pa. St. 587. 
 
 4 Union College ». Wheeler, 61 N. Y. 88-118 ; Trimm v. Marsh, 54 N. Y. 599- 
 604; Packer v. 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; Powers. Lester, 23 
 N. Y. 527. See 4 Kent's Com. 194, and notes; Runyan v. Mersereau, 11 Johns. 
 (N. Y.) 534; Waters v. Stewart, I Cai. Cas. in Er. (N. Y.) 47. 
 
 6 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 p. La Crosse R. R. 1 Woolw. 80. It seems 
 that in New York a plaintiff may prove title as mortgagee in possession by agree- 
 ment with the mortgagor. This establishes a right to the possession. Chapman v. 
 Delaware L. & W. R. R. Co. 3 Lans (N. Y.), 261. See Murphy v. Loomis, 26 Hun 
 (N. Y.), 662. F ' 
 
§332.] MORTGAGEE AND MORTGAGOR. 241 
 
 claiming under a voi'd deed, since until foreclosed he has 
 the right of possession against all the world except the 
 mortgagee lawfully in possession. 1 ladeed it is the pre- 
 vailing principle, in most of the States, that a mortgage 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 f and the in- 
 terest of the mortgagor is an estate which may be sold on 
 execution, 3 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. 4 
 
 § 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 
 cannot maintain an action of trespass to try title to dis- 
 possess him. 5 In Florida under the present practice the 
 mortgagee cannot acquire the possession until after a 
 decree of foreclosure. 6 So a mortgagee cannot maintain 
 ejectment for the possession of the mortgaged premises in 
 Kentucky ; 7 and it has been held in Wisconsin that, where 
 the plaintiff's only title is a mortgage, the action fails, 
 even though the defense is imperfectly pleaded; 8 in 
 Georgia a mortgagee has only a lien, and no right of 
 
 1 Olmsted v. Elder, 5 N. Y. 144. See Pell v. Ulmar, 18 N. Y. 139. 
 
 5 Fletcher v. Holmes, 32 Ind. 497 ; Grable v. McCulloh, 27 Ind. 472 ; Turrell v. 
 Warren, 25 Minn. 9; Carpenter v. 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., 1 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 Bradw. (111.) 136. 
 
 1 Gorham u. Arnold, 22 Mich. 247 ; Huntington v. Cotton, 31 Miss. 253 ; 
 Trimm v. Marsh, 54 N. Y. 599. 
 
 4 Odell v. Montross, 68 N. Y. 499. 
 
 6 Mann v. Falcon, 25 Texas, 271 ; Duty v. Graham, 12 Texas, 427. 
 
 6 See McMahon v. Russell, 17 Fla, 698; Casborne v. Scarf e, 1 Atkyns, 606. 
 ' Newport Bridge Co. v. Douglass, 12 Bush (Ky.), 673. See Caufman v. Sayre, 
 2 B. Mon. (Ky.) 202-205. 
 
 8 Brinkman v. Jones, 44 Wis. 498. 
 
 16 
 
242 MORTGAGEE AND MORTGAGOR. [§§ 333, 334. 
 
 entry, and cannot maintain ejectment, 1 and a mortgagee, 
 as such, is not entitled to bring ejectment in Michigan. 3 
 
 § 3.33. In what States mortgagee may bring ejectment. — In 
 Illinois the mortgagee owns the fee, and has the jus in re 
 as well as ad rem, and after condition broken may main- 
 tain ejectment against the mortgagor ; s 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. 4 
 
 In Worth Carolina a mortgagee may bring an action to 
 recover the lands. 5 So in Vermont, the mortgagee, under 
 the statutes of that State, 6 has the right, after condi- 
 tion broken, to bring ejectment against the mortgagor 
 or his grantees without giving notice to quit, 7 for he 
 then becomes absolutely vested with the interest of the 
 mortgagor, and has a right to the immediate posses- 
 sion. 8 
 
 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. 9 
 
 § 334. Statute prohibiting ejectment by mortgagee. — When 
 unconstitutional. — The Supreme Court of Michigan decided, 
 in Todd v. Davis, 10 that the act of the legislature prevent- 
 ing actions of ejectment by mortgagees before their title 
 
 1 Fry v. Shehee, 55 Ga. 208-212. 
 
 2 Livingston v. Hayes, 43 Mich. 129. 
 
 3 Oldham v. Pfleger, 84 111. 102 ; Jackson v. Warren, 32 111. 331 ; Carroll v. 
 Ballance, 26 111. 17. 
 
 4 Carroll v. Ballance, 26 111. 9. See Carpenter v. Carpenter, 6 R. I. 542 ; Red- 
 dick v. Gressman, 49 Mo. 389. 
 
 6 Wiltkowski v. Watkins, 84 N. C. 458. ' 
 
 6 Ford v. Steele, 54 Vt. 562. 
 
 1 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. ick. See Marvin 0. Dennison, 20 
 Vt. 662. See, also, Chap. XIII. 
 
 8 Hagar 1). Brainerd, 44 Vt. 294. 9 Simms v. Richardson, 32 Ark. 304. 
 
 10 32 Mich. 160. And see Mundy v. Monroe, 1 Mich. 68. 
 
§§ 335, 336.] MORTGAGEE AND MORTGAGOR. 243 
 
 had become absolute by foreclosure, was unconstitutional 
 and void as to mortgages existing and in force at the time 
 of the passage of the act, and it was held that mortgagees 
 so situated still had the right to bring ejectment. 
 
 § 335. Ejectment ly execution purcliaser. — The mortgagor 
 in Ehode Island is regarded as the tenant at sufferance of 
 the mortgagee, and a mortgagor in possession, whose 
 interest had been sold on execution, can, in ejectment 
 brought against him by the purchaser, protect his posses- 
 sion by setting up a lease for years from his mortgagee, 
 the mortgage having been given prior to the levy. 1 The 
 sale of the mortgagor's interest upon execution, it was held, 
 imposed no obligation upon him to redeem the mortgage 
 for the benefit of the purchaser at the sheriff's, 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 
 redemption, and, consequently, except in case of such a 
 reservation, a purchaser of the mortgagor's equity of 
 redemption in land, after the maturity of the mortgage, 
 does not become vested with a sufficient title to maintain 
 a possessory action in the nature of ejectment. 2 
 
 § 336. Title after default. — Some of the authorities 
 decide that the title of the land passes and becomes abso- 
 lute in the mortgagee after condition broken ; 3 but the 
 prevailing modern principle is that even after default the 
 title revests in the mortgagor upon payment of the debt, 
 without a formal reconveyance. 4 And after the condition 
 
 1 Simmons v. Brown, 7 R. I. 427. But see Doe d. Ogle v. Vickers, 4 Ad. & 
 El. 782. 
 
 1 Atcheson v. Broadhead, 56 Ala. . 414 ; Childress v. Monette, 54 Ala. 317 • 
 Bernstein u. Humes, 60 Ala. 582. 
 
 8 Frische v. Kramer, 16 Ohio, 125-138; Stewart v. Crosby, 50 Me. 130; John- 
 son v, Houston, 47 Mo. 227. 
 
 4 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 ; Mc- 
 Manon v. Russell, 17 Fla. 698. 
 
244 MORTGAGEE AND MORTGAGOR. [§ 337. 
 
 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. 1 
 
 § 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, 2 and 
 the relation of mortgagor and mortgagee being thus 
 established, all the rights, remedies, and obligations inci- 
 dent to that relation attach to the parties ; 3 and in New 
 York such a mortgagee cannot recover the possession of 
 the mortgaged premises in ejectment. 4 But a deed will be 
 declared a mortgage upon purely equitable grounds only, 
 and in the absence of such equitable considerations the 
 relief will be refused ; as where the conveyance was made 
 to defraud creditors. 5 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. 6 The burden rests upon the 
 grantor to establish that the deed was intended as a mort- 
 gage, 7 and the question of whether or not a deed absolute 
 in form was a mortgage is a mixed question of law and 
 fact. 8 But if the lands are conveyed by a deed absolute 
 on its face, but intended as security for money loaned, a 
 
 1 York Co. Savings Bank v. Roberts, 70 Me. 384. See Griffin v. Lovell, 42 
 Miss. 402 ; Donnelly v. Simonton, 13 Minn. 301. 
 
 2 Meehan v. Forrester, 52 N. Y. 280; King v. Warrington, 2 New Mex. 318; 
 Wells v. Morrow, 38 Ala. 125 ; French v. Burns, 35 Conn. 359 ; Butcher v. Stultz, 
 60 Ind. 170; Gay v. Hamilton, 33 Cal. 686 ; McCarron v. Cassidy, 18 Ark. 34; 3 
 Pomeroy's Eq. § 1196. 
 
 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; Little- 
 wort 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. 
 
 4 Carr v. Carr, 52 N. Y. 251; Murray v. Walker, 31 N. Y. 399. 
 
 5 Hassam v. Barrett, 115 Mass. 256. 
 
 5 Henley v. Hotaling, 41 Cal. 22 ; Phillips v. Croft, 42 Ala. 477 ; Kent v. Las- 
 ley, 24 Wis. 654 ; Price v. Karnes, 59 111. 276. See Fullerton v. McCurdy, 55 N. 
 Y. 637. A deed absolute in form and a defeasance are to be taken as one instru- 
 ment, constituting a mortgage. Lanahan v. Sears, 102 U. S. 321. 
 
 ' Haines v. Thomson, 70 Penn. St. 434. 
 
 8 Brown v. Clifford, 7 Lansing (N. Y.), 46. See Montgomery v. Spect, 55 CaL 
 352- 
 
§338.] MORTGAGEE AND MORTGAGOR. 245 
 
 purchaser from the grantee, without notice that the grant 
 was intended as a mortgage, acquires a title free from the 
 equity of the grantor. 1 In such a case the party to whom 
 the mortgage deed was given is bound to account to the 
 debtor at his election for the proceeds of the sale or for 
 the value of the land at the time the debtor's right to 
 restoration is established. 2 
 
 § 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 eject- 
 ment. It was decided that the statute of that State which 
 forbids ejectment by mortgagees before foreclosure, was 
 not intended to reach a case of this description. 3 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 delivered as security for a debt, and a 
 recovery may be had thereon in ejectment by the grantee 
 against the grantor. 4 These decisions seem illogical. In 
 California, 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 equities by answer, accom- 
 panied with an offer to pay the amount of the mortgage 
 lien, and prays that the conveyance be declared a mort- 
 gage. 6 On the other hand, the courts of Texas have 
 decided that the defendant, under a plea of "not guilty " 
 in an action of trespass to try title, may give in evidence 
 special matters of defense to the action, whether legal 
 ■or equitable, and may defeat the plaintiff's recovery by 
 proving that the deed under which plaintiff claims, is in 
 fact a mortgage. 6 
 
 1 Pico v. Gallardo, 52 Cal. 206 ; Meehan v. Forrester, 52 N. Y. 280. 
 s Meehan v. Forrester, 52 N. Y. 277. 
 
 8 Jeffery v. Hursh, 42 Mich. 563; Wetherbee v. Green, 22 Mich. 311 ; Bennett 
 ■■». Robinson, 27 Mich. 26-30. 
 4 Biggers v. Bird, 55 Ga. 650. 
 
 6 Pico v. Gallardo, 52 Cal. 206. See Sutton v. Mason, 38 Mo. 120. 
 6 Mann v. Falcon, 25 Texas, 271. See Hannay v. Thompson, 14 Texas, 142. 
 
246 MOKTGAGEE AND MOETGAGOK. [§§ 339, 340. 
 
 § 339. Mortgage.— Outstanding title. — The rule that the 
 plaiutiff 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. 1 In the United States Supreme Court the 
 principle was declared to be settled, that an outstanding 
 satisfied mortgage could not be set up against the mortga- 
 gor by a stranger for the purpose of defeating the mortga- 
 gor's title. 3 
 
 § 340. Ejectment oy 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. 3 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, 4 nor his tenant, 3 nor 
 any one claiming in his right. 6 He, of course, cannot do so 
 until the mortgage is fully paid and satisfied,' as the law- 
 ful possession of the mortgagee carries with it the right to 
 liquidate the mortgage debt from the rents and profits of 
 the land, 8 and to retain the possession until that purpose is 
 accomplished. The mortgagee may have a writ of entry 
 against the mortgagor where the latter has disturbed the 
 rightful possession of the former. 9 If the mortgagee's 
 
 1 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 v. Di- 
 mon, io N. J. Law, 157; Emory v. Keighan, 88 111. 482; Oldham v. Pfleger, 84 111. 
 102. But see Meyer v. Campbell, 12 Mo. 603. 
 
 2 Peltz v. Clarke, 5 Peters, 480. See Collins v. Robinson, 33 Ala. 91 ; 2 Greenl. 
 Ev. § 330. A pretended outstanding title barred by statute is not available to a 
 defendant in ejectment. Chapman v. Delaware, L. & W. R. R. Co., 3 Lans. 
 (N. Y.) 263 ; Hoag v. Hoag, 35 N.Y. 473. 
 
 3 Odell v. Montross, 68 N. Y. 499. See § 336. 
 
 4 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.) 448 ; Pace v. Chadderdon, 4 Minn. 499. 
 
 E Hennesy v. Farrell, 20 Wis. 42. 
 
 8 Stark v. Brown, 12 Wis. 572. 
 
 ' 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 0. 
 Munson, 77 Penn. St. 250, 262 ; Den v. Wright, N. J. Law, 175 ; Hannay v. 
 Thompson, 14 Tex. 142. 
 
 8 Edwards v. Wray, 12 Fed. Rep. 42. 8 Stewart v. Davis, 63 Me. 539- 
 
§ 341.] MORTGAGEE AND MORTGAGOR. 247 
 
 possession is obtained unlawfully, as where the mortgagee, 
 without the mortgagor'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. 1 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. 2 
 
 § 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. 3 The law does not 
 make the application. 4 The mortgagee may possibly be 
 
 1 Russell v. Ely, 2 Black, 575 ; Gross v. Welwood, 90 N. Y. 638. See 27 Al- 
 bany L. J. 9. See especially the learned article on "How mortgagee as such 
 can get possession," 26 Alb. L. J. 526, and 27 Albany L. J. 9, reviewing the New 
 York cases. 
 
 The New York Court of Appeals in a recent case consider it scarcely necessary 
 to review the authorities to show that none of them have ever gone so far as to hold 
 that a possession of the mortgagee acquired by either force or fraud against the will 
 and consent of the rightful owner, and without even color of lawful authority, as it 
 respects such owner and amounting only to a pure trespass, was sufficient to defend 
 the action of ejectment. Finch, J., said : " The possession requisite for such a de- 
 fense must have about it, at least, some basis of right as against the owner evicted. 
 Often his assent or acquiescence may be inferred from slight circumstances, but the 
 right cannot be founded upon an absolute wrong. To hold that one who has 
 merely a lien, and but an equitable right, can get a legal one by the commission of 
 a trespass would be neither logical nor just." Howell v. Leavitt, 95 N. Y. 621. 
 This language is employed in a case where the mortgagee had gained the posses- 
 sion by foreclosure, but the proceedings were a nullity as to the heirs of the mort- 
 gagor who had not been made parties. 
 
 2 See Madison Ave. Bap. Ch. v. Oliver St. Bap. Ch. 73 N. Y. 82. 
 
 8 See Ruckman v. Astor, 9 Paige (N. Y.), 517. A mortgagee in possession of 
 personal chattels is liable to account for the income or profits of the chattels. 
 Covell v. Dolloff, 31 Me. 104 ; Osgood v. Pollard, 17 N. H. 271. 
 
 4 Hubbell v. Moulson, 53 N. Y. 225 ; New England Jewelry Co. v. Merriam, 2 
 Allen (Mass.), 390. 
 
248 MORTGAGEE AND MORTGAGOR. [§§ 342-344. 
 
 entitled to commissions, 1 though in some cases his right 
 thereto has been denied. 2 He is clearly liable for waste 
 and misuse of the property. 3 
 
 § 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. 4 
 
 § 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 action by the mort- 
 gagor or his grantee to redeem, for the relationship is not 
 one of trust or confidence ; 5 and he may purchase the 
 equity of redemption, and thereby acquire an absolute title. 6 
 
 § 344. Conveyance ly mortgagor to mortgagee of entire es- 
 tate. — How regarded. — The mortgagor and mortgagee may, 
 at any time after the creation of the mortgage, and before 
 foreclosure, make any agreement that they please concern- 
 ing 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 lorn 
 fide, and in all respects fair and for an adequate considera- 
 tion.' In Odell v. Montross, 6 in the New York Court of 
 
 ' Cazenove v. Cutler, 4 Met. (Mass.) 246 ; Adams v. Brown, 7 Cush. (Mass.) 220. 
 
 2 Moore v. Cable, 1 Johns. Ch. (N. Y.) 385 ; Bonithon v. Hockmore, I Vera. 
 316. See Green v. Lamb, 24 Hun (N. Y.), 89. 
 
 8 Castleman v. Simpson, 16 Weekly Dig. (N. Y.) 455. 
 
 4 Newton v. McKay, 30 Mich. 380. See Humphrey v . Hurd, 29 Mich. 44; Rus- 
 sell v. Ely, 2 Black, 575. But see Mad. Ave. Bap. Ch. v. Oliver St. Bap. Ch. 73 N. 
 Y. 82. 
 
 6 Ten Eyck v. Craig, 62 N. Y. 406. 
 
 6 Green v. Butler, 26 Cal. 595 ; Gwinn v. Smith, 55 Ga. 145 ; Hinkley v. Wheel- 
 wright, 29 Md. 341. A mortgagee cannot acquire a tax title against the owner 
 while in possession, as it is his duty to pay taxes. Schenck v. Kelley, 88 Ind. 444. 
 
 7 Odell v. Montross, 68 N. Y. 499; Trull v. Skinner, 17 Pick. (Mass.) 213 ; Hynd- 
 man v. Hyndman, 19 Vt. 9; Patterson v. Yeaton, 47 Me. 308; Ford v. Olden, L. 
 R. 3 Eq. Cas. 461; Russell v. Southard, 12 How. 139; Holdridge v. Gillespie, 2 
 Johns. Ch. (N. Y.) 30; McLeod v. Bullard, 84 N. C. 531. 
 
 8 68 N. Y. 499. 
 
§ 345.] MORTGAGEE AND MORTGAGOR. 249 
 
 Appeals, it appeared that the plaintiff executed to the 
 defendant 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 : 
 
 " New York, Sept. 17, 1866. 
 "Eeceived 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. Odbll." 
 
 It was held that the deed was a mortgage, with all the 
 incidents of such an instrument, and that the rights and 
 obligations 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; further- 
 more, that the mortgagor's legal estate in fee could only 
 be divested (otherwise than by way of estoppel) by some 
 instrument valid under the statute of frauds, and which 
 complied with the statute prescribing the mode and manner 
 of conveying lands ; that this paper, exproprio vigore, did 
 not have that effect, 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 settle- 
 ment of the mortgagor's claim upon the property, yet the 
 mere payment of money did not entitle the purchaser to a 
 specific performance 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 insufficiency of the written instrument. 
 
 § 345. Mortgagor's remedy against mortgagee after condi- 
 tion IroJcen. — The remedy of the mortgagor against the 
 mortgagee in possession after breach of condition, accord- 
 
250 MORTGAGEE AND MORTGAGOR. [§ 345. 
 
 ing to some of the authorities, is in equity ; 1 and in Maine, 
 New Hampshire and Massachusetts he cannot recover the 
 possession from the mortgagee by a writ of entry, although 
 he has tendered the whole amount due after default. The 
 tender, under such circumstances, merely affords a founda- 
 tion for a bill in equity. 2 
 
 1 Brobst v. Brock, io Wall. 519-536; Hill v. Payson, 3 Mass. 559; Parsons v, 
 Welles, 17 Mass. 419. 
 
 2 Parsons v. Welles, 17 Mass. 419; Rowell v. Mitchell, 68 Me. 21; Jewett v. 
 Hamlin, 68 Me. 172; Wilson v. Ring, 40 Me. 116 ; 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. 
 
 j 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. — Adverse pos- 
 session. 
 
 354. Tenant cannot, by his own act, de- 
 
 stroy the estoppel. — Attornment. 
 
 355. Fraud of the landlord. 
 
 356. When tenant may purchase supe- 
 
 rior 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- 
 
 tenant's title. 
 
 362. Forfeiture and waste. 
 
 363. Test of waste. 
 
 364. Waste by tenant at will or from 
 
 year to year. 
 
 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. — Demand. 
 
 371. Eight to enforce forfeiture. — How 
 
 waived. 
 
 § 346. Ejectment prior to the introduction of summary pro- 
 ceeding statutes. — Early in the present century, ejectment, in 
 the States in which that form of remedy prevailed, consti- 
 tuted the only proceeding by which a landlord, entitled to 
 re-enter upon his lands by reason of forfeiture or expira- 
 tion of the demised term, could recover the possession from 
 a tenant. 
 
 § 347. The remedy inadequate. — This intricate and dilatory 
 remedy was productive of the grossest abuse and injustice 
 to the landlord, 1 and in the case of refractory and irrespon- 
 sible tenants often proved an expensive and inadequate 
 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. 
 
 1 See Adams on Ejectment, 4th Am. ed. p. 187 [*l6i]. 
 
252 LANDLOKD AND TENANT. [§§ 348-350. 
 
 § 348. Summary proceeding statutes. — The unsatisfactory 
 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 summary 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. Further- 
 more, the provisions of these statutes, and the principles 
 and rules governing their interpretation, vary in the differ- 
 ent 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 its termination, and this being 
 established, the tenant, 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. 
 
 Ejectments have been divided into two classes, viz. : 
 ejectments on the title and ejectments for non-payment of 
 rents. 1 
 
 § 350. What the landlord must prove in ejectment.— To 
 maintain ejectment against his tenant the landlord must 
 show, either that the term has expired according to the 
 provisions of the lease, or that the tenancy has been actu- 
 ally terminated by forfeiture, and that the landlord has a 
 present right to the immediate possession. The landlord 
 
 1 Longfield on Ejectment, p. io. 
 
§ 351.J LANDLOKD AND TENANT. 253 
 
 has ordinarily no right of re-entry during the term, and his 
 only practical redress for breach of the contract or injury 
 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. 1 
 
 § 351. Estoppel against the tenant. — It is a fundamental 
 principle governing the relation of landlord and tenant 
 that in controversies between them concerning the posses- 
 sion of the demised lands, the tenant is estopped from dis- 
 puting or asailing the landlord's title, 3 or from setting up 
 an outstanding title against the landlord hostile to that 
 under which the tenant entered, 3 or a title acquired during 
 the existence of the tenancy. 4 
 
 This principle is a rule of pleading as well as of evi- 
 
 1 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 v. Jewett, 2 N. 
 Y. 141. See, also, § 160. As to the early feudal and common law doctrine concern- 
 ing forfeiture of inferior estates, see DeLancey v. Ganong, 9 N. Y. 9-16, and the 
 extract from Coke therein discussed. See, also, Wigg v. Wigg, 1 Atk. 382 ; Doe v. 
 Watt, 1 M. & 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. See 
 §370. 
 
 2 6 Am. Law. Rev. 1 ; Doe v. Smythe, 4 M. & S. 347; Coppinger v. Arm- 
 strong, 8 Bradw. (111.) 210 ; Hostetter v. Hykas, 3 Brewst. (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 ». 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. Bassett, 26 Minn. 235; Love v. Law, 57 Miss. 596; 
 Nolen v. Royston, 36 Ark. 561 ; Territt v. Cowenhoven, 79 N. Y. 400 ; Prevot 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 Tex. 75 ; Hatch v. 
 Bullock, 57 N. H. 15 ; Bowdish v. Dubuque, 38 Iowa, 341 ; Walden v. Bodley, 
 14 Pet. 156 ; Lamson v. Clarkson, 113 Mass. 348; Tewksbury v. Magraff, 33 Cal. 
 237; Pope v. Harkins, 16 Ala. 321; Clarke v. Clarke, 51 Ala. 498; Cody v. Quar- 
 terman, 12 Ga. 386; Alwood v. Mansfield, 33 111. 452; Grant v. White, 42 Mo. 
 285; Richardson v. Harvey, 37 Ga. 224 ; Cooper v. Smith, 8 Watts (Penn.), 536; 
 Blakeney v. Ferguson, 20 Ark. 547; Longfellow v. Longfellow, 61 Me. 590 ; Jack- 
 son v. McLeod, 12 Johns. (N. Y.) 182; Jackson v. Harder, 4 Johns. (N. Y.)202; 
 Whiting v. Edmunds, 94 N. Y. 314; Bishop v. Lalouette. 67 Ala. 197; Otis v. 
 McMillan, 70 Ala. 46. 
 
 8 " The principle is that a tenant shall not contest his landlord's title ; on the 
 contrary, it is his duty to defend it. If he objects to such title let him go out of 
 possession;" per Tindal, C. J., in Doe d. Manton v. Austin, 9 Bing. 45. 
 
 4 Pope v. Harkins, 16 Ala. 321 ; Jackson v. Harper, 5 Wend. (N. Y.) 246 ; 
 O'Halloran v. Fitzgerald, 71 111. 53; Galloway v. Ogle, 2 Binn. (Pa.) 468; Ber- 
 tram v. Cook, 32 Mich. 518 ; Woodward v. Brown, 13 Pet. I. 
 
254 LANDLORD AND TENANT. [§ 351. 
 
 deuce, 1 and, when the relationship is shown, applies to 
 actions of assumpsit, covenant, debt, summary proceed- 
 ing, and actions of forcible entry and unlawful detainer, 
 as well as to ejectment, trespass to try title, and writs of 
 entry. 2 A party admitted to defend in the tenant's place 
 is subject to the same rule, s and the estoppel applies to the 
 heirs of the tenant, retaining the possession and claiming 
 solely in the tenant's right ; 4 nor can the tenant after the 
 landlord's death hold adversely to his infant heir, by tak- 
 ing a grant to himself, or attorning to another. 5 
 
 The estoppel extends to all persons claiming under, or 
 succeeding to the lessee, 6 and, being founded on the deliv- 
 ery of possession, 7 ceases only when the possession is sur- 
 rendered. In modern practice the estoppel is regarded as 
 equitable rather than legal. 8 It was held in the Supreme 
 Court of California that a party who accepted a lease could 
 not lawfully refuse to surrender possession of the demised 
 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. 9 
 
 As against a stranger the tenant is not precluded from 
 denying his landlord's title, and setting up title in himself 
 adversely to his landlord. The reason upon which the 
 estoppel depends is manifestly wanting when a stranger 
 
 1 Palmer v. Bowker, 106 Mass. 317. 
 
 2 Townsend v. Davis, Forrest, 120 ; Tompkins v. Snow, 63 Barb. (N. Y.) 525 ; 
 Barwick v. Thompson, 7 T. R. 488; Hawes » 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. 1. 
 
 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. 
 
 4 Lewis v. Adams, 61 Ga. 559. 
 
 6 Williams v. McAHley, Cheves (S. C.) Law, 200. 
 
 6 Graham v. Moore, 4 S. & R. (Pa.) 467; Stagg v. Eureka Tanning Co. 56 
 Mo. 3:7; Blakeney v. Ferguson, 20 Ark. 547 ; Rose v. Davis, 11 Cal. 133 ; Mc- 
 Cravey v. Remson, 19 Ala. 430; Karle v. Hale, 31 Ark. 470 ; Jones v. Dove, 7 
 Oregon, 467 ; Cooper v. Smith, 8 Watts (Pa.), 536. 
 
 ' Lamson v. Clarkson, 113 Mass. 348. 
 
 8 Wiggin v, Wiggin, 58 N. H. 237. 
 
 9 McCreary v. Marston, 56 Cal. 403. 
 
§ 352.J LANDLORD AND TENANT. 255 
 
 not in privity with the landlord, .seeks to set it up for 
 estoppels must be mutual and can only operate between 
 parties and privies. 1 The estoppel upon a tenant from 
 denying his landlord's title may be met by a counter 
 estoppel on the landlord from denying the tenant's right 
 to hold under another person. 3 
 
 § 352. Reasons upon which the estoppel rests. — Public 
 'policy. — The estoppel rests upon considerations of public 
 policy, the purpose of which would, for obvious reasons, 
 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. 3 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, 4 in which the onus of 
 proof will lie upon the claimant. 5 
 
 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 before he could regain the possession, or evict the 
 tenant. 6 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 precluded from letting the property. 7 
 It results from the application of this principle that, gen- 
 erally 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. This 
 carries the subject practically beyond the scope of this 
 treatise. 
 
 1 Cole v. Maxfield, 13 Minn. 235. 
 "Downs v. Cooper, 2 Q. B. 256. 
 
 3 Tewksbury v. Magraff, 33 Cal. 237-244 ; Glen v. Gibson, 9 Barb. (N. Y.) 638 ; 
 Richardson v. Harvey, 37 Ga. 224 ; Rogers v. Boynton, 57 Ala. 501 ; Wilson v. 
 James, 79 N. C. 349. 
 
 4 Lowe v. Emerson, 48 111. 160. 
 6 Doe v. Smythe, 4 M. & S. 347. 
 
 6 Anderson ads. Darby, I N. & McC. (S. C.) Law, 368. 
 'See §§317, 318. 
 
256 LANDLORD AND TENANT. [§§ 353, 354. 
 
 § 353. Estoppel ceases upon redelivery of the possession. — 
 Adverse possession. — The tenant is only estopped to deny 
 the title under which he entered, and therefore the rule 
 does not prevent him from buying up a title to be asserted 
 after the termination of the tenancy and the redelivery of 
 possession of the land. 1 It is the tenant's possession at 
 which the estoppel is aimed. We may observe that the 
 tenant of one holding under a tax deed cannot purchase 
 the interest of a minor who has a right of redemption, and 
 set it up against his lessor. 3 
 
 In New York the rule is established that the possession 
 of the tenant in subordination to the title of the landlord 
 continues not only during the running of the term, but is 
 presumed to be such and to remain unchanged until 
 twenty years after the end of the term, and notwithstand- 
 ing any claim by the tenant or his successors of a hostile 
 title. This presumption may be rebutted, but to do so 
 effectively and initiate an adverse holding, the tenant 
 must surrender the possession to the landlord or do some 
 equivalent act, and bring home to him knowledge of the 
 adverse claim. 3 
 
 § 354. Tenant cannot, oy his own act, destroy the estoppel. 
 — Attornment. — The tenant cannot so change his tenancy 
 or affect the relationship by ceasing to pay rent to his land- 
 lord and attorning to another, as to enable him to dispute 
 the landlord's title, 4 nor can the tenant, ordinarily, without 
 defending the possession or giving notice to his landlord, 
 treat himself as evicted, and attorn to another. 5 Where 
 one claiming to be entitled to the rents as landlord, 
 acknowledges the right of another thereto, and the tenant, 
 relying upon such acknowledgment, made payment to the 
 
 1 Williams v. Garrison, 29 Ga. 503 ; Nims v. Sherman, 43 Mich. 45. 
 
 2 Stout v. Merrill, 35 Iowa, 47. 
 
 3 Whiting v. Edmunds, 94 N. Y. 314. See note to Jackson v. Davis, 15 Am. 
 Dec. 460 ; Flanagan v. Pearson, 61 Tex. 302. 
 
 4 Belfour v. Davis, 4 Dev. & Bat. (N. C.) Law, 300 ; Bertram v. Cook, 33 Mich. 
 518; Turner v. Thomas, 13 Bush(Ky.), 518, and cases cited ; Leach v. Koening, 55 
 Mo. 451 ; Simmons v. Robertson, 27 Ark. 50; Rogers v. Boynton, 57 Ala. 501. See 
 Mills v. Hamilton, 49 Iowa, 105. 
 
 6 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. 
 
§355.] LANDLOBD AND TENANT. 257 
 
 latter, the party claiming the rent was held to be estopped 
 from enforcing his claim against the tenant. 1 And an at- 
 tornment to a stranger may be operative as to the tenant, 
 though void as against his lessor. 8 The attornment does 
 not create a new tenancy but is a continuation of the old 
 tenancy under a new landlord. 3 
 
 § 355. Fraud of tlie 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. 4 The same rule applies where an attornment of the 
 tenant is superinduced by the misrepresentations of the 
 landlord, 5 or the plaintiff has received rent from the defend- 
 ant by mistake, or under a false claim of title. 6 Hence 
 where, by the exhibition of a title founded in forgery, the 
 party in possession was induced to accept the lease, it was 
 held that the facts might be shown; 7 and the landlord's 
 title may be disputed where it was acknowledged under a 
 misapprehension by a party already in possession as the 
 tenant of another. 8 It may be here observed that an 
 agreement by a party in possession to abandon the prem- 
 ises at a certain day is not a lease, and does not estop him 
 from controverting the title. 9 
 
 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 induced by the fraud to accept the lease, 10 and must 
 show some right under a superior title. And it is error to 
 
 1 Winterink v. Maynard, 47 Iowa, 366. See Downs v. Cooper, 2 Q. B. 256. 
 
 2 Kenada v. Gardner, 3 Barb. (N. Y.) 589. 
 
 3 Austin v. Ahearne, 61 N. Y. 6. 
 
 4 Schultz v. Arnot, 33 Mo. 172; Johnson v. Chely, 43 Cal. 300; Miller v. Bonsa- 
 don, 9 Ala. 317; Mountnoy v. Collier, I El. & Bl. 630; Franklin v. Merida, 35 Cal. 
 55 8 ; Higginsw. Turner, 61 Mo. 249; Turpin v. Saunders, 32 Gratt. (Va.) 27-33; 
 -Alderson v. Miller, 15 Gratt. (Va.) 279. 
 
 6 Tison v. Yawn, 15 Ga. 491; Gallagher v. Bennett, 38 Tex. 291; Evans v. Bid- 
 well, 76 Penn. St. 497 ; Jenckes v. Cook, 9 R. I. 520. 
 
 6 Anderson v. Smith, 63 111. 126 ; Schultz v. Arnot, 33 Mo. 172. 
 
 ' Miller v. McBrier, 14 S. & R. (Penn.) 382. 
 
 8 Swift v. Dean, 11 Vt. 323. See Borland u. Box, 62 Ala. 87. 
 
 9 Miller v. McBrier, 14 S. & R. (Penn.) 382. 
 M Camarillo v. Fenlon, 49 Cal. 202. 
 
 17 
 
258 LANDLORD AND TENANT. [§§ 356-358. 
 
 permit the defendant to prove that his signature to the 
 lease was obtained by fraud or mistake when no such facts- 
 are set up in the answer. 1 
 
 § 356. When tenant may purchase superior title. — In Galla- 
 gher v. Bennett, the Supreme Court of Texas 3 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 by reason of insolvency his estate was un- 
 able to indemnify the tenant for rents wrongfully exacted, 
 the tenant acting in good faith, under the advice of coun- 
 sel, and from a well-founded fear of eviction during the 
 term, might purchase the superior title, and resist the land- 
 lord'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 subse- 
 quently disclaiming holding under such title, if the original 
 entry was not under the person whose title is acknowl- 
 edged. 8 And after judgment of eviction by title paramount 
 the tenant may attorn to the successful party, and defeat 
 the former landlord's claim for rent, by setting up the 
 paramount title ; 4 but the tenant assumes the burden of 
 showing the superiority of the title in question. 6 
 
 § 358. Exceptions as to the estoppel. — The tenant may 
 also show that his landlord's pretended title was acquired 
 in violation of law. 6 So no estoppel exists if the contract 
 on which the so-called tenancy rests is void for usury, 7 or 
 the tenant accepted the lease under an entire misunder- 
 
 1 McCreary v. Marston, 56 Cal. 403. 
 ! 38 Tex. 291. 
 
 3 Jackson v. Leek, 12 Wend. (N. Y.) 105; Franklin v. Merida, 35 Cal. 55 8 ! 
 Alderson v. Miller, 15 Gratt. (Va.) 279; Washington v. Conrad, 2 Humph. (Tenn.) 
 562 But see, contra, Saunders u. Moore, 14 Bush (Ky.), 98; Prevot v. Lawrence, 
 51 N. Y. 219 ; Hall v. Butler, 10 Ad. & El. 204; Marlow v. Wiggins, 4 Q. B. 367. 
 
 4 Moffat v. Strong, 9 Bosw. (N. Y.) 57; Lunsford v. Turner, 5 J. J. Mar. (Ky.) 
 104; Foster v. Morris, 3 A. K. Mar. (Ky.) 609 ; Supervisors v. Herrington, 50 111. 
 232. 
 
 6 Merryman v. Bourne, 9 Wall. 592. See Douglas v. Fulda, 45 Cal. 592. 
 6 Satterlee v. Mathewson, 13 S. & R. (Penn.) 133. See Milton v. Haden, 32 
 Ala. 30. 
 
 1 Tribble v. Anderson, 63 Ga. 31. 
 
§ 358.] LANDLORD AND TENANT. 259 
 
 standing of its purport and effect. 1 And if the tenant is 
 compelled to purchase in an outstanding mortgage upon 
 or title to the property, for his own safety, equity will pro- 
 tect his equitable title and his possession until he has been 
 reimbursed. 8 The tenant, it is clear, may show an out- 
 standing title against the landlord where the latter's title 
 has expired, or been extinguished since the relation of 
 landlord and tenant was created, 3 for he does not thereby 
 deny that the landlord had title at the time the lease was 
 executed. 4 So the tenant may show that he himself has ac- 
 quired 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. 5 
 
 The tenant may also show that the landlord's only title 
 was an estate for the life of another which expired during 
 the term. 6 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. 7 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. 8 
 
 The cases holding that the tenant may show the failure 
 of the landlord's title subsequent to the entry are numer- 
 
 1 Wiggin v. Wiggin, 58 N. H. 237. 
 
 2 Bates v. Conrow, 11 N. J. Eq. 137. See Gallagher v. Bennett, 38 Texas, 291 ; 
 Thrall v. Omaha Hotel Co. 5 Neb. 295. 
 
 8 Jackson v. Rowland, 6 Wend. (N. Y.) 666 ; Randolphs. Carlton, 8 Ala. 606 ; 
 McDevitt ■v. Sullivan, 8 Cal. 592 ; Wheelock v. Warschauer, 21 Cal. 309 ; Gregory 
 v. Crab, 2 B. Mon. (Ky.) 234 ; Giles v. Ebsvvorth, 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 ; 
 Hoag v. Hoag, 35 N. Y. 469; Devacht v. Newsam, 3 Ohio, 57; Clarke ■v. Clarke, 
 51 Ala. 498; Otis v. McMillan, 70 Ala. 46. 
 
 4 Lamson v. Clarkson, 113 Mass. 348. 
 
 5 Casey v. Gregory, 13 B. Mon. (Ky.) 505 ; Texas Land Co. v. Turman, 53 Tex. 
 619; Camley v. Stanfield, 10 Tex. 546. See Silvey v. Summer, 61 Mo. 253; 
 Higgins v. Turner, 61 Mo. 249 ; Ryder v. Mansell, 66 Me. 167 ; Hetzel v. Barber, 
 69 N. Y. 1-15 ; Despard v. Walbridge, 15 N. Y. 374. 
 
 6 Lamson v. Clarkson, 113 Mass. 348 ; Blake v. Foster, 8 T. R. 487. 
 ' Weichselbaum v. Curlett, 20 Kans. 709. 
 
 8 Abbott v. Cromartie, 72 N. C. 292. 
 
260 LANDLORD AND TENANT. [§§ 359-361. 
 
 ous. 1 Thus the tenant may show that the landlord's title 
 has expired by effluxion of time, 2 or that the plaintiff has 
 parted with his title, and is no longer entitled to posses- 
 sion. 8 
 
 § 359. In Massachusetts tenant cannot set up Ms 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, 4 for he can derive no title from 
 her by contract or grant. 5 
 
 § 360. Tenancy under mortgagor extinguished oy 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. 6 
 But a disclaimer by the tenant of his landlord's title will 
 never be implied. 7 
 
 § 361. Tenant in common may deny co-tenant'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 
 
 1 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. Herrington, 50 111. 232; Duttv. 
 "Wilson, 69 Penn. Si. 316 ; England v. Slade, 4 T. R. 682; St. John v. Quitzow, 72 
 111. 334; Franklin v. Palmer, 50 111. 202; Armstrong v. Wheeler, 9 Cow. (N.Y.) 88; 
 Burden v. Thayer, 3 Met. (Mass.) 76. 
 
 8 Presstman v. Silljacks, 52 Md. 647. See Claridge v. Mackenzie, 4 Man. & G. 
 143, per Tindal, Ch. J. 
 
 3 McGuffie v. Carter, 42 Mich. 497. 
 
 4 Miller v. Lang, 99 Mass. 13. 
 
 6 Ibid. See Thompson v. O'Sullivan, 6 Allen (Mass.), 503 ; Gay v. Kingsley, n 
 Ibid. 345; Love v. Law, 57 Miss. 596. 
 
 6 Simers v. Saltus, 3 Denio (N. Y.), 214: Lancashire v . Mason, 75 N. C. 455- 
 But see Belfour v. Davis, 4 Dev. & Bat. (N. C.) Law, 300. 
 ' Leport v. Todd, 32 N. J. L. 124. 
 
§ 362.] LANDLORD AND TENANT. 261 
 
 as owner, and holds possession for himself, and is not 
 estopped, by the admission of the co-tenancy, from setting 
 up a better title in himself or others. 1 This, as we have 
 already shown, is too broad a statement of the rule. 2 
 
 § 362. Forfeiture and, ivaste. — Ejectment may be brought 
 for breach of a covenant against waste, where the lease 
 contains a provision for re-entry. In the case of the 
 United States v. Bostwick, 3 the Supreme Court of the 
 United States held that, unless excluded by the opera- 
 tion of some express covenant or agreement, an implied 
 obligation existed 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, 4 and is 
 not a covenant to repair generally, but so to use the prop- 
 erty in a proper and tenant-like manner, 5 as to avoid the 
 necessity for repair as far as possible. 6 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 implied agree- 
 ment, if, during the occupancy under the lease, orna- 
 mental trees are destroyed, fences and walls torn down 
 and the materials used for sidewalks and the erection of 
 buildings, 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. 7 
 
 1 Washington v. Conrad, 2 Humph. (Tenn.) 562. 
 
 2 See §§ 291, 292. 
 
 s 94 U. S. 53-65. See McGregor v. Brown, 10 N. Y. 114; Winship v. Pitts, 3 
 Paige (N. Y.), 259 ; Cole v. Greene, 1 Lev. 309 ; London v. Greyme, Cro. Jac. 
 181. 
 
 4 See Holford v. Dunnett, 7 M. & W. 347. 
 
 s Nave v. Berry, 22 Ala. 382. See Cheetham v. Hampson, 4 T. R. 318. 
 
 6 Miller v. Shields, 55 Ind. 71; Horsefall v. Mather, Holt, 7-9; Brown v. 
 Crump, 1 Marsh. 567. 
 
 7 United States v. Bostwick, 94 U. S. 53-69 ; Jackson v. Brownson, 7 Johns. (N. 
 Y.) 227. See People v. Alberty, II Wend. (N. Y.) 162. 
 
262 LANDLORD AND TENANT. [§§ 363-365. 
 
 § 363. Test of waste. — Injury is not the test of waste, 
 but disherison of him in remainder or reversion. 1 It is 
 "the abuse or destructive use of property by him who has 
 not an absolute unqualified title." 3 The tenant is not 
 liable for the mere wear and tear of the premises, 8 and is 
 under no obligation to make repairs of a substantial and 
 general nature. 4 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 committed 
 of them, and consequently no forfeiture could be incurred 
 by cutting them down. 5 Taking down partitions is ap- 
 parently an act of waste though the question as to whether 
 or not it is injurious should be submitted to the jury. 6 
 
 § 364. Waste oy tenant at ivill or from year to year. — A 
 tenant at will who commits voluntary waste, such as cut- 
 ting timber, forfeits the term, for it is said that the injury 
 amounts to a determination of the will and of his posses- 
 sion. 7 A condition in the lease not to sell or dispose of 
 any wood or timber from the demised premises is valid, 
 and a breach of it works a forfeiture of the estate which 
 may be enforced in ejectment. 8 An action will lie against 
 a tenant from year to year for permissive waste. 9 
 
 § 365. Construction of covenant against waste. — Eject- 
 ment has been upheld, in the following cases :— by a lessor 
 
 1 Livingston v. Reynolds, 26 Wend. (N. Y.) 115; Doe d. Darlington^. Bond, 5 
 B. & C. 855; Robinson v. Kime, 70 N. Y. 147 ; Wilkinson t,. Wilkinson, 59 Wis. 
 •561. See, especially, McGregor v. Brown, 10 N. Y. 114; Wadez*. Malloy, 16 Hun 
 <N.Y), 226. See §§ 214, 215. ' 
 
 2 Duvall v. Waters, 1 Bland's Ch. (Md.) 572. 
 
 3 Torriano v. Young, 6 C. & P. 8 ; Wise v. Metcalfe, 10 B. & C. 299. See 
 Harder v. Harder, 26 Barb. (N. Y.^409. See, also, § 621. 
 
 4 Horsefall v. Mather, Holt, 7; Johnson v. Dixon, I Daly (N. YA 178 ; Leach 
 -v. Thomas, 7 C. & P. 327. 
 
 6 Goodright v. Vivian, 8 East, 190. See Schermerhorn v. Buell, 4 Denio (N. Y.), 
 422. The reversioner cannot bring trespass or ejectment against the tenant so long 
 as the tenancy continues, but he is not debarred from his remedy at law or in equity 
 ior waste because the proceeding may involve the determination of a disputed title. 
 Robinson v. Kime, 70 N. Y. 151. 
 
 6 Agate v. Lowenbein, 57 N. Y. 604, and cases cited in opinion of Dwight, C. 
 
 7 Phillips v. Covert, 7 Johns. (N. Y.) 1. See, further, as to forfeiture for waste, 
 Suffern v. Townsend, 9 Johns. (N. Y.) 35 ; Cooper v. Stower, lb. 331 ; Erwin*. 
 Olmsted, 7 Cow. (N. Y.) 229; Livingston v. Reynolds, 26 Wend. (N. Y.) 115. 
 
 * Verplanck v. Wright, 23 Wend. (N. Y.) 506. 
 9 Newbold v. Brown, 44 N. J. Law, 266. 
 
§§ 366, 367.] LANDLORD AND TENANT. 263 
 
 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 ; 1 on a proviso for 
 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 ; 3 and for breach of a covenant to insure, 8 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. 4 
 
 §366. Severance of conditions in a lease. — The conditions 
 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, commits any act which, by the terms of the 
 lease, creates a forfeiture of the estate, the forfeiture 
 attaches to the whole of the premises embraced in the 
 lease. 5 
 
 § 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, 6 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. 7 It is often said that the extent and meaning 
 
 1 Doe v. Spry, I B. & Aid. 617. See Doe d. Davis v. Elsam, 1 Mood. & M. 189. 
 
 5 Doe d. Bish v. Keeling, 1 M. & S. 95- 
 
 3 Doe d. Flower v. Peck, 1 B. & Adol. 428 ; Doe d. Pitt v. Shewin, 3 Camp. 
 134 ; Reynolds v. Pitt, 2 Price, 212, note. 
 
 4 Doe d. Vickery v. Jackson, 2 Stark. 293. But see Doe v. Jones, 4 B. & Adol. 
 126. 
 
 s Clarke v. Cummings, 5 Barb. (N. Y.) 339. See Eyton v. Jones, 21 L. T. [N. 
 S.] 789. 
 
 6 Parmelee v. Oswego & S. R. R. Co., 6 N. Y. 74. See Morton v. Weir, 70 N. 
 Y.247. 
 
 ' Stuyvesant v. Davis, 9 Paige (N. Y.), 427; Collins v. Hasbrouck, 56 N. Y. 167. 
 
264 LANDLORD AND TENANT. [§§ 368, 369. 
 
 of a covenant or condition, and the fact of a breach, are 
 matters 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 its letter. 1 A for- 
 feiture is never favored or implied. 2 Thus it has been held 
 in ejectment for breach of a condition, that the words " let 
 and underlet," 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. 3 
 
 § 368. Liberal construction of Lord Tenterden. — Lord Ten- 
 terden decided that provisoes of this sort should not be 
 construed with the strictness of conditions at common law, 
 as they constituted matters of contract between the parties,, 
 and should be construed like any other contracts. 4 This 
 rule of construction commends itself as sound and reason- 
 able. The covenants and conditions should receive the 
 construction which the ordinary and natural meaning of 
 the words employed justify, for such an interpretation 
 obviously reflects the intention of the parties more clearly. 
 The words strict or liberal, as applied to these interpreta- 
 tions, are often mere epithets ; and a departure from Lord 
 Tenterden's rule has, in considering many cases of for- 
 feiture, 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 
 York Court of Appeals, 5 and the conclusion reached that, 
 even under the feudal system, the many causes for which an 
 inferior estate could be forfeited did not include a parol 
 
 1 Lynde v. Hough, 27 Barb. (N. Y.) 415, 423; Livingston v. Stickles, 8 Paige 
 N. Y.), 398; s. c. in error, 7 Hill (N.Y.), 253, per Nelson, Ch. J.; Jackson v. Har- 
 rison, 17 Johns. (N. Y.) 66. See Dermott v. Wallach, 1 Wall. 61. 
 
 2 Kentucky River Nav. Co. v. Commonwealth, 13 Bush (Ky.), 435. 
 
 3 Lynde v. Hough, 27 Barb. (N. Y,) 415, 423. 
 
 4 Doe d. Davis v. Elsam, 1 Moody & M. 189. 
 
 6 De Lancey v. Ganong, 9 N. Y. 9, and cases cited. See Graves v. Walls, 10 Ad. 
 & El. 427. 
 
§ 370.] LANDLORD AND TENANT. 265 
 
 denial of the landlord's title, except in cases of a tenancy 
 at will or sufferance, or from year to year, in which a 
 disclaimer is evidence only of a cessation of the will, and 
 supersedes the necessity of service of notice to quit. The 
 court expressed inability to find any case in which judg- 
 ment 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, accord- 
 ing to the preponderance 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. — Demand. — Th& 
 remedy 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 
 paTties. 1 It was formerly held at common law that only 
 the grantor of a lease in fee, and his heirs, could avail 
 themselves of the. right of re-entry, 2 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 ejectment by the assignee of the rent, 3 or by 
 an heir for an undivided interest in the demised premises. 4 
 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. 5 A 
 
 1 De Lancey v. Ganong, 9 N. Y. 25 ; Van Rensselaer v. Jewett, 2 lb. 141; s. c. 
 5 Denio (N. Y.), 121; Kenege v. Elliott, 9 Watts (Penn.), 258; Tyler v. Heidorn, 
 46 Barb. (N. Y.) 439-454; Campbell v. Shipley, 41 Md. 81 ; Hosford v. Ballard, 39. 
 N. Y. 147. 
 
 2 Tyler v. Heidorn, 46 Barb. (N. Y.) 439-454; Nicoll v. N. Y. & Erie R. R. Co., 
 12 N. Y. 121; Van Rensselaer v. Ball, 19 N. Y. 100-103. 
 
 3 Van Rensselaer v. Slingerland, 26 N. Y. 580; Farley v. Craig, 11 N. J. L. 
 262. 
 
 4 Cruger v. McLaury, 41 N. Y. 219. 
 
 5 Van Rensselaer v. Hays, 19 N. Y. 68; Nicoll v. N. Y. & Erie R. R. Co., 
 12 Barb. (N. Y.) 460. 
 
266 LANDLORD AND TENANT. [§ 371. 
 
 demand of the rent must be shown, 1 and as the right to re- 
 enter is a very harsh remedy it will be restrained by the 
 courts within very narrow limits, and the lease construed 
 strongly in favor of the lessee. 2 
 
 § 371. Bight 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 he 
 waived, or lost by acceptance of rent which accrued after 
 knowledge on the part of the lessor of the act of for- 
 feiture, 3 or by acceptance of an annuity, non-payment of 
 which constituted the claim of forfeiture, 4 or by any act 
 constituting an acknowledgment of a subsisting tenancy. 5 
 This principle applies whether the breach be for non-pay- 
 ment of taxes ; 6 failure to erect buildings ; 7 underletting ; 8 
 cutting timber, 9 or insolvency, 10 and it has been said that 
 an unqualified demand for rent after forfeiture, 11 or dilatori- 
 ness on the part of the landlord, from which the tenant is 
 justified in assuming that strict performance of the cove- 
 nant will not be exacted, 12 amounts to a waiver of the for- 
 feiture, or may constitute a ground of relief in equity. 
 
 1 Smith v. Whitbeck, 13 O. S. 471 ; Jackson v. Harrison, 17 Johns. (N. Y.) 66 ; 
 Connor v. Bradley, 1 How. 211; Van Rensselaer v. Jewett, 2 N. Y. 141; Prout v. 
 Roby, 15 Wall. 471; Kansas City Elevator Co. v. Union Pacific R'y Co., 3 McCra. 
 463- 
 
 2 Kansas City Elevator Co. v. Union Pacific R'y Co., 3 McCra. 463 ; Kentucky 
 River Nav. Co. v. Commonwealth, 13 Bush(Ky.), 435; Miller v. Havens, 51 Mich. 
 482. 
 
 3 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.), 617; reversed 
 90 N. Y. 594. See Jackson v. Sheldon, 5 Cow. (N. Y.) 448; Chalker v. Chalker, I 
 Conn. 79; Ireland v. Nichols, 46 N. Y. 413; Arnsby v. Woodward, 6 B. & C. 519; 
 McGlynn v. Moore, 25 Cal. 384; Gomber v. Hackett, 6 Wis. 323; Watson v. 
 Fletcher, 49 111. 498 ; Murray v. Harway, 56 N. Y. 337. 
 
 4 Chalker v. Chalker, 1 Conn. 79. 
 
 5 Doe d. Sheppard v. Allen, 3 Taunt. 78. 
 
 6 Watson v. Fletcher, 49 111. 498. 
 
 7 McGlynn v. Moore, 25 Cal. 384. 
 
 8 Ireland v. Nichols, 46 N. Y. 413. 
 
 9 Gomber v. Hackett, 6 Wis. 323. 
 
 10 Doe v. Rees, 4 Bing. N. C. 384. 
 
 11 Doe d. Nash v. Birch, 1 M. & W. 402. 
 
 15 Thropp v. Field, 26 N. J. Eq. 82. The right of re-entry for non-payment of 
 Tent must be enforced during the term, otherwise the forfeiture will be considered 
 -waived; Cheatham v. PlinUe, 1 Tenn. Ch. 577 ; see Johns v. Whitley, 3 Wils. 127, 
 and a covenant not to assign without the landlord's consent, if waived once, is 
 
§371.] LANDLORD AND TENANT. 267 
 
 The principles governing the relationship of landlord, 
 and tenant will be further incidentally discussed in the 
 next chapter. 
 
 waived forever. Murray v. Harway, 56 N. Y. 337; Chalker v. Chalker, 1 Conn. 79; 
 see Dumper v. Syms, Cro. Eliz. 815. See further, as to waiver, Prindle zi, Ander- 
 son, 19 Wend. (N. Y.) 391. Rent must have accrued, and been received after for- 
 feiture, to constitute waiver. Jackson v. Allen, 3 Cow. (N. Y.)220; Hunter v. 
 Osterhoudt, 11 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. Mere silent 
 acquiescence in an act which constituted a breach of an express condition in a deed 
 would not amount to a waiver of the right of forfeiture for such breach. Adams v. 
 Copper Co., 4 Hughes, 594. 
 
CHAPTER XIII. 
 
 NOTICE TO QUIT AND DEMAND OF POSSESSION. 
 
 372. 
 
 Notice to quit. 
 
 § 39'- 
 
 Tenants in common. — Demand of 
 
 373- 
 
 Defined. — When necessary. 
 
 
 possession. 
 
 374- 
 
 Privity of estate. 
 
 39 2 - 
 
 Tenant of tenants in common. 
 
 375- 
 
 Notice to quit necessary only in 
 
 393- 
 
 Landlord defending in tenant's 
 
 
 cases of tenancies. 
 
 
 place. 
 
 376- 
 
 Intruders. 
 
 394- 
 
 Vendor and vendee. 
 
 377- 
 
 Trespassers. 
 
 395- 
 
 Obligee in bond for titles. 
 
 378. 
 
 Expiration of term by provisions 
 
 396. 
 
 Vendee in possesion under void 
 
 
 of lease. 
 
 
 contract. 
 
 379- 
 
 Lease void by statute of frauds. 
 
 397- 
 
 Mortgagee against mortgagor. 
 
 380. 
 
 Tenant holding over. 
 
 398- 
 
 Infant plaintiff. 
 
 381. 
 
 Uncertain tenancies. 
 
 399- 
 
 Personal representatives. — Tenant 
 
 382. 
 
 Tenancy from year to year. 
 
 
 for life. 
 
 383- 
 
 Reasonable notice.-Tenancy from 
 
 400. 
 
 Notice by tenant to landlord. 
 
 
 year to year. 
 
 401. 
 
 Form of the notice. 
 
 383« 
 
 . From month to month. 
 
 402. 
 
 What notices held good. 
 
 384. 
 
 Tenant at will. 
 
 403. 
 
 Mistakes in notice. 
 
 385. 
 
 Tenant at sufferance. 
 
 404. 
 
 Parol notice. 
 
 386. 
 
 Possession under a void home- 
 
 405- 
 
 By whom notice should be given. 
 
 
 stead claim. 
 
 406. 
 
 Receiver in chancery. 
 
 387- 
 
 Disclaimer by tenant. 
 
 407. 
 
 Agent of a corporation. 
 
 388. 
 
 Disclaimer a question of fact. — 
 
 408. 
 
 By joint tenants. 
 
 
 Attornment. 
 
 409. 
 
 By tenants in common. 
 
 389- 
 
 Defense of adverse possession 
 
 410. 
 
 Who cannot give notice. 
 
 
 forfeits right to notice. 
 
 411. 
 
 Waiver of right to notice. 
 
 390. 
 
 When refusal to deliver posses- 
 
 412. 
 
 Service of notice. 
 
 
 sion not a disclaimer. 
 
 413 
 
 Plow served. 
 
 
 
 414 
 
 How proved. 
 
 § 372. Notice to quit. — The subjects of notice to quit 
 and demand of possession assume much prominence in 
 controversies over the possession of land, where the rela- 
 tionship 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 determin- 
 ing 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 plaintiff's action, and preclude inquiry into the 
 merits of the title or right of possession. Attention to 
 this subject is the more important because parties some- 
 
§§ 373, 374.J notice to quit. 269 
 
 times enter into a contest with the intention of trying the 
 title, and the defendant, when actually confronted with 
 a suit, having no substantial claim, or desiring to embar- 
 rass the litigation, finds it convenient to retreat behind a 
 claim of tenancy, or of occupation by the express or 
 implied consent of the owner, and a failure to demand 
 possession or to serve notice to quit. Every presumption 
 will 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 dam- 
 ages in an action at law. This feature of the law suggests 
 the importance of carefully considering this branch of our 
 subject. 
 
 §373. Defined. — When necessary. — A notice to quit is a 
 certain reasonable notice required by law, by custom or 
 by special agreement, to enable either a landlord or tenant 
 without the consent of the other to determine a tenancy 
 for an indefinite period. 1 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. 2 The right is an ancient one 3 and is founded upon 
 the theory that it would be unreasonable that a man who 
 had expended time and money in cultivating lands, and 
 making preparation for crops, while his estate was uncer- 
 tain, should be turned oif at a moment's warning. 4 There 
 is no distinction, however, between houses and lands as 
 regards the time of giving notice to quit, it being consid. 
 ered necessary that both should be governed by one rule. 5 
 
 § 374. Privity of estate. — It is clear that a party in 
 possession is not entitled to notice to quit unless there is 
 some privity of contract or of estate between the parties. 6 
 
 1 See Cole on Eject, p. 30. 
 
 2 See Jackson v. Miller, 7 Cow. (N. Y.) 747 ; Gregg v. Von Phul, I Wall. 274 ; 
 Stedman v, Mcintosh, 4 Ired. (N. C.) Law, 291 ; Smith v. Littlefield, 51 N. Y. 
 541 ; McCaslin v. State, 99 Ind. 428. 
 
 3 See Year Book, 13 Hen. VIII, 15, b. 
 
 4 Bedford v. McElherron, 2 S. & R. (Penn.) 49 ; Witt v. Mayor, &c. 6 Rob. 
 (N. Y.) 441. 
 
 s Right v. Darby, I T. R. 159. 
 
 6 See Livingston v. Tanner, 14 N. Y. 64-66 ; Gregg v. Von Phul, 1 Wall. 274 ; 
 
270 NOTICE TO QUIT. [§ 375. 
 
 And where the relation of landlord and tenant is not 
 shown between the claimant and occupant, 1 and the issue 
 is one of title only, no demand or notice is requisite.* 
 This subject has been recently considered in the Supreme 
 Court of £Tew Jersey in the case of Steffens v. Earl, 3 and 
 the rule relative to notices to quit is stated as follows : 
 "Where there is a lease for a certain period, the term 
 determines without notice. 4 In uncertain tenancies, rea- 
 sonable notice was necessary, which reasonable notice had, 
 from the time of Henry VIII, according to Lord Ellen- 
 borough, been six months. 5 This rule was applied to all 
 uncertain tenancies in New Jersey, whether rent was or 
 was not reserved. 6 ... 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." 7 
 
 § 375. Notice to quit necessary only in cases of tenancies. — 
 In order then 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 plaintiff or his lessor. If he is 
 not a tenant for years, or from year to year or from month 
 to month or at will, or even by sufferance, there can be no 
 pretense that a notice to quit, or demand of possession, is 
 necessary before the action is brought. 8 A person in pos- 
 session is not, as already shown, entitled to receive notice 
 to quit, unless there existed privity either of contract, or 
 of estate, between him and the plaintiff. 9 Thus it has been 
 
 Jackson v, Fuller, 4 Johns. (N. Y.) 215 ; Eberwine v. Cook, 74 Ind. 377; McCas- 
 lin v. Slate, 99 Ind. 428. 
 
 1 Waters v. Butler, 4 Cr. C. C. 371. 
 
 ! Eysaman v. Eysaman, 24 Hun (N. Y.), 430; Wood v. Wood, 18 Hun (N, Y.), 
 351 ; Herrell v. Sizeland, 81 111. 457 ; Woodward v. Brown, 13 Pet. I. 
 
 3 40 N. J. L. 128. 
 
 4 Citing Cobb v. Stokes, 8 East, 358; Right ■v. Darby, I T. R. 159; Decker ». 
 Adams, 12 N. J. L. 99. 
 
 6 Citing Doe d. Strickland v. Spence, 6 East, 120. 
 
 6 Citing Den v. Drake, 14 N. J. L. 523. Changed by statute in New Jersey to 
 three months. See Rev. 1877, page 575. 
 
 7 See Huffell v. Armitstead, 7 C. & P. 56; Towne v. Campbell, 3 C. B. 921. 
 
 8 Eaton v. George, 3 Jones (N. C.) Law, 385. 
 
 9 Livingston v. Tanner, 14 N. Y. 64; Jackson v. Fuller, 4 Johns. (N. Y.) 215- 
 See § 373. 
 
§§ 376, 377.] notice to quit. 271 
 
 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 sufferance taut a trespasser, and hence not entitled to 
 notice to quit. 1 An occupant under a license is not entitled 
 to notice, for he has no interest, term or estate. 2 
 
 § 376. Intruders. — Manifestly intruders cannot claim the 
 privilege of notice to quit. Where the plaintiff had pur- 
 chased the property under decree of foreclosure of a mort- 
 gage made by T., who had executed an unrecorded lease 
 for life to E., it was held, E. having died, and his daughter, 
 the defendant, having entered on the property, that she 
 was to be considered as a mere intruder, and therefore not 
 entitled to notice to quit. 8 Wood v. Wood, 4 decided in 
 the New York Court of Appeals, was an action of eject- 
 ment 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 prem- 
 ises, the husband remaining. It was held that the pos- 
 session taken under the deed was by virtue of the wife's 
 title, the defendant being upon the premises 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 suffer- 
 ance, because he never had any interest in the lands, nor 
 any possession growing out of an interest, 5 nor acquired 
 the possession by the consent of the plaintiff. The court, 
 compared the case to that of one who had by a trespass 
 come into the 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 
 
 1 Livingston v. Tanner, 14 N. Y, 64. See Horsey v. Horsey 4Harr, (Del.) 517. 
 8 Johns v. McDaniel, 60 Miss. 486. 
 
 3 Worthington's Lessee v. Etcheson, 5 Cr. C. C. 302 ; s. P. Lewis v. Ringo, 3 
 A. K. Marsh. (Ky.) 247; Chicago, B. & Q. R. R. Co. v. Knox College, 34 111. 195. 
 4 8 3 N. Y. 575. 
 6 Citing Knowles v. Hull, 99 Mass. 562. 
 
272 NOTICE TO QUIT. [§§ 378, 379. 
 
 ejectment against a party who sets up no right to the pos- 
 session, 1 The Supreme Court of California have held that 
 it would be absurd to require either a demand of posses- 
 sion or notice to quit in a case where the defendant was 
 a mere naked trespasser or intruder. 2 These cases pro- 
 ceed upon the theory that, as there is an entire want of 
 privity and absence of contract relationship, express or 
 implied, between the parties, the reasons do not apply 
 upon which the practice of giving the notice rests. 
 
 § 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. 3 The contract itself gives sufficient 
 notice. 4 Nor is notice necessary when the landlord gives 
 a tenant in possession written permission to remain two 
 years longer without charge. 5 
 
 § 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 
 inures as a tenancy from year to year, 6 which must be 
 
 ' Meeker v. Place, 7 Blackf. (Ind.) 169. 
 
 2 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. 
 
 3 Cobb v. Stokes, 8 East, 358; Messenger v. Armstrong, 1 T. R. 54, per Lord 
 Mansfield ; Right v. Darby, 1 T. R. 162 ; McCanna v. Johnston, 19 Penn. St. 434; 
 Roe v. Ward, 1 H. Bl. 97 ; McClure v. McClure, 74 Ind. 108; Kellogg v. Groves, 
 53 Iowa, 395 ; Doe d. Tilt v Stratton, 4 Bing. 446; Doe d. Godsell v. Inglis, 3 
 Taunt. 54: Smith v. Littlefield, 51 N. Y. 539 ; Alcorn v. Morgan, 77 Ind. 184; 
 Gibbons v. Dayton, 4 Hun (N. Y.), 451; Young v. Smith, 28 Mo. 65; Rich v. Key- 
 ser, 54 Pa. St. 86. 
 
 4 Doe d. Tilt v. Stratton, 4 Bing. 446; Bedford v. McElherron, 2 S. & R. 
 (Penn.) 49. See, especially, Decker v. Adams, 12 N. J. L. 99; Ellis v. Paige, 2 
 Pick. (Mass.) 71, and note reviewing cases ; Hendrick v. Cannon, 5 Tex. 248 ; 
 Young v. Smith, 28 Mo. 65 ; Dorrell v. Johnson, 17 Pick. (Mass.) 263; Stockwell». 
 Marks, 17 Me. 455; Gregg v. Von Phul, 1 Wall. 274 ; Allen v. Jaquish, 21 Wend. 
 (N. Y.) 628; Rich v. Keyser, 54 Penn. St. 86. 
 
 6 Hulett v. Nugent, 71 Mo. 131. 
 
 6 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, 4 Ad. & El. 478; Doe 
 v. Amey, 12 Ad. & El. 476; Schuyler v. Leggett, 2 Cow. (N. Y.) 660 ; Lounshery 
 v. Snyder, 31 N. Y 514; Edwards v. demons, 24 Wend. (N. Y.)48o; Morehead 
 v. Watkyns, 5 B. Mon. (Ky.) 228 ; Williams v. Ackerman, 8 Oregon, 405 ; Thurber 
 
§§380,381.] NOTICE TO QUIT. 273 
 
 terminated by a notice to quit, though resort may be had 
 to the void lease to determine the rights and duties of the 
 parties iu 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. 1 
 
 § 380. Tenant holding over. — In Schuyler v. Smith 2 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 tres- 
 passer, 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 landlord that he had hired other premises. 
 It is not in the power of the tenant to throw off his char- 
 acter as such, or deny his tenancy ; nor has he the right 
 to convert himself, at his option, into a wrong-doer, any 
 more than he could deny the landlord's title. To entitle 
 a tenant, who holds over a definite term, to notice the 
 holding over must be continued for such a length of time 
 after the expiration of the term, and under such circum- 
 stances, 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 
 Supreme 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 
 
 v. Dwyer, io R. I. 355 ; Chapman v. Towner, 6 M. & W. 100. Compare 19 Alb. 
 L. J. 46, article " Tenancies from year to year." 
 
 1 Geiger v. Braun, 6 Daly (N. Y.), 506 ; People v. Darling, 47 N. Y. 666. 
 
 '' 51 N. Y. 309. See Chase v. Second Ave R. R. Co. 97 N. Y. 389; Conway 
 v. Starkweather, 1 Denio (N. Y.), 113; Rowan v. Lytle, 11 Wend. (N. Y.) 616; 
 Allen v. Jaquish, 21 Wend. (N. Y.) 628 ; Garner v. Hannah, 6 Duer (N. Y.), 262- 
 270; Livingston v. Tanner, 12 Barb. (N. Y.) 484; Wolffe v. Wolff, 69 Ala. 549. 
 18 
 
274 NOTICE TO QUIT. [§ 382. 
 
 has been made between the parties as to the terms of the 
 ■occupancy ; provided the entry 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 impli- 
 cation, are, so far at least as to entitle the tenant to half 
 a year's notice to quit, constructively held to be tenancies 
 from year to year. 1 
 
 Where, however, the lease is dependent upon the per- 
 formance of conditions, or is to terminate upon the 
 happening of a contingency, the event determines the 
 tenancy without further notice. 2 
 
 § 382. Tenancy from year to year. — Notice to quit must 
 ordinarily be given in cases of tenancies from year to 
 year. 3 The necessity of notice and the length of time to 
 be allowed are matters regulated by statute in some 
 States ; in others the English rule prevails. In Hall v. 
 Myers, 4 the Maryland Court of Appeals held that, in order 
 to terminate a tenancy from year to year, notice should 
 be given six months prior to the expiration of the tenancy. 
 Then, where the defendant had been allowed to occupy 
 lands for several years, without any definite lease or spe- 
 cific contract as to the termination of the tenancy, he was 
 considered to be a tenant from year to year, and entitled 
 to notice to quit before the end of the year. 6 Either party 
 
 1 Den v. Drake, 14 N. J. L. 523, and cases cited. See Ellis v. Paige, 2 Pick. 
 (Mass.) 72, note. Changed by statute, in New Jersey, to three months. See Rev. 
 1877, p. 575- 
 
 2 See People v. Schackno, 48 Barb. (N. Y.) 551 ; Allen v. Jaquish, 21 Wend. 
 (N. Y.) 628 ; Davis v. Murphy, 126 Mass. 143 ; Horner v. Leeds, 25 N. J. Law, 
 106. 
 
 3 Boudette v. Pierce, 50 Vt. 212; Ridgely v. Stilhvell, 25 Mo. 570; Magaw v. 
 Cannon, 3 Watts (Pa ), 139 ; Vincent v. Corbin, 85 N. C. 108 ; Den v. Drake, 
 14 N. J. Law, 523 ; Herrell v. Sizeland, 81 111. 457 ; Larkin v. Avery, 23 Conn. 304; 
 Chapman v. Towner, 6 M. & W. 100 ; Right v. Darby, 1 T. R. 159 ; Doe v. Porter, 
 3 T. R. 13 ; Doe v. Browne, 8 East, 165 ; Den d. Snowhill v. Snowhill, 23 N. J. 
 Law, 447; Doe d. Hollmgsworlh v. Stennett, 2 Esp. 717; People v. Paulding, 22 
 Hun (N. Y.), 91 ; Garrett v. Clark, 5 Ore. 464; Thurber v. Dwyer, 10 R. I. 355- 
 An agreement to pay rent is regarded as an essential part of a tenancy from year to 
 year. Jackson v. Bradt, 2 Cai. (N. Y.) 169, per Kent, J. ; Rich v. Bolton, 46 Vt. 
 
 ' 43 Md. 446. See Doe d. Clarke v. Smaridge, 7 Q. B. 957 ; Thomas v. Wright, 
 9 S. & K. (Penn.) 87 ; Stedman v. Mcintosh, 4 Ired. (N. C.) Law, 291 ; 19 Alb. L. 
 J. 46, article " Tenancies from year to year." 
 
 6 Den d. Snowhill v. Snowhill, 23 N. J. L. 447 ; Jackson d. Livingston v. Bryan, 
 I Johns. (N. Y.) 322. See Hemphill v. Giles, 66 N. C. 512. 
 
§383.] NOTICE TO QUIT. 275 
 
 may, in England, 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, 1 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. 2 If the owner does any act from which the jury may 
 infer that he intended to acknowledge the party in posses- 
 sion as his tenant, a tenancy from year to year is created, 
 and can be terminated only by a regular notice to quit. 
 Thus where the lessor has allowed the tenant to remain in 
 possession for seventeen years after the expiration of the 
 lease, notice to quit was considered necessary before a 
 recovery could be had in ejectment. 3 The same rule pre- 
 vails where the tenant holds over by the permission of the 
 landlord. 4 And where a contract 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 was 
 held to create a tenancy from year to year, determinable 
 only by a notice to quit. 5 
 
 § 383. Reasonable notice. — Tenancy from year to year. — In 
 Boudette v. Pierce 6 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 plaintiff'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 
 thereafter receiving the stipulated compensation, plaintiff 
 confirmed the act. In April, plaintiff, without stating any 
 
 1 Doe d. Clarke v. Smaridge, 7 Q. B. 957. 
 
 2 Thompson v. Maberly, 2 Camp. 573. 
 
 8 Bedford v. McElherron, 2 S. & R. (Penn.) 49. 
 
 4 Doe v. Morse, 1 B. & Adol. 365 ; Doe d. Miller v. Noden, 2 Esp. 530. But see 
 Williams v. Deriar, 31 Mo. 13. 
 
 8 Thomas v. Wright, 9 S. & R. (Penn.) 87. 
 
 ' 50 Vt. 212. See Hemphill v. Giles, 66 N. C. 512. 
 
276 notice to quit. [§§ 383a, 384.. 
 
 time, requested defendant to remove the building and 
 vacate 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. 1 
 
 § 383a. From month to month. — Tenancies from month 
 to month must be terminated by a notice to quit, 2 and the 
 same has been held with regard to a weekly tenancy. 5 
 The length of the notice is a matter of common statutory 
 regulation. Generally monthly tenancies are determinable 
 by a month's notice, 4 and weekly tenancies by a week's 
 notice. 
 
 § 384. Tenant at will. — The rule of the common law was 
 that a tenancy at will could be terminated by any act of 
 the lessor inconsistent with the continuance of the estate,. 
 and that no formal notice to quit was essential. 5 A 
 demand of possession was the common method of indicat- 
 ing the landlord's election to terminate the relationship. 
 The English rule was extensively followed in America, 6 
 though cases may be found both in England 7 and this 
 country 8 going to support the theory that such tenancies 
 
 1 People v. Schackno, 48 Barb. (N. Y.) 551. 
 
 ! Geiger v. Braun, 6 Daly (N. Y.), 506; Steffens v. Earl, 40 N. J. L. 128; Ma- 
 thewson v. Thompson, 12 R. I. 288; Bonsall v. McKay, 1 Houst. (Del.) 520. 
 
 3 Doe d. Finlayson v. Bayley, 5 C. & P. 67. 
 
 4 See Eberlein v. Abel, 10 Bradw. (111.) 626; Hart v. Lindley, 50 Mich. 20. 
 Compare Hollis v. Burns, 100 Pa. St. 206 ; Geiger v. Braun, 6 Daly (N. Y.), 506. 
 
 6 Doe d. Jones v. Jones, 10 B. & C. 718 ; Pollen v. Brewer, 7 C. B. [N. S.] 371; 
 Turner v. Doe d. Bennett, 9 M. & W. 643 ; Doe d. Price v. Price, 9 Bing. 356; Dis- 
 dale v. lies, 2 Lev. 88 ; James v. Dean, 11 Ves. 383 ; Ball v. Cullimore, 2CM.4 R- 
 120; Doe d, Davies v. Thomas, 6 Exch. 854. 
 
 6 Herrell v. Sizeland, 81 111. 457; Robie v. Smith, 21 Me. 114; Chamberlin v. 
 Donahue, 45 Vt. 50; Esty v. Baker, 50 Me. 325; Clark v. Wheelock, 99 Mass. 14; 
 Den d. Howell v. Howell, 7 Ired. (N. C.) Law, 496 ; Harrison v. Middleton, II 
 Gratt. (Va.) 527. 
 
 ' Parker d. Walker v. Constable, 3 Wils. 25. 
 
 8 Silsby v. Allen, 43 Vt. 172 ; Clark v. Smith, 25 Pa. St. 137; Cody v. Quarter- 
 
§384.] NOTICE TO QUIT. 277 
 
 are constructively tenancies from year to year, at least for 
 the purpose of requiring the same notice to quit as tenan- 
 cies of that kind. Modern legislation has tended rather to 
 favor these interests, and, as a general result of the legis- 
 lation and the rulings of the courts, notice to quit must in 
 many States be given before instituting ejectment against 
 ■a tenant at will. 1 This is to avoid a sudden, harsh, and 
 unreasonable determination of the tenancy. The result is 
 that we have no fixed rule of universal application regulat- 
 ing either the necessity for notice, or the length of time to 
 be given as regards this relationship. 
 
 In a case which arose in Michigan, 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 tenaut at will, and entitled to 
 notice to quit before she could be disturbed. 2 In an eject- 
 ment case before the ~New York Court of Appeals, it was 
 decided that where a party entered upon land for an indefi- 
 nite 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. 8 In a case in the 
 Supreme Court of Maine it appeared that the defendant, 
 for several years prior to April 1, 1877, had been occupying 
 a wharf at an annual rent, payable quarterly, and on April 
 1, 1877, the agreement was renewed for another year, on 
 the same terms, under which the defendant occupied and 
 paid rent up to January 1, 1878. The court decided that, 
 under the statutes of that State, this agreement created a 
 tenancy at will, which could be terminated only by thirty 
 days' notice in writing, to be given by one party to the 
 other, or by mutual consent. 4 
 
 man, 12 Ga. 386; Larkin v. Avery, 23 Conn. 304; Squires v. Huff, 3 A. K. Marsh. 
 (Ky.) 17. 
 
 1 Blum v. Robertson, 24 Cal. 127; King 11. Connolly, 51 Cal. 181; Semmes v. 
 United States, 14 Ct. of Claims, 493; Thomas v. Sanford S. S. Co., 71 Me, 548 ; Burns 
 v. Bryant, 31 N. Y. 453; Davis v. Murphy, 126 Mass. 143. 
 
 s Wilson v. Merrill, 38 Mich. 707. 
 
 3 Lamed v. Hudson, 60 N. Y. 102; Post v. Post, 14 Barb. (N. Y.) 253; Burns 
 ». Bryant, 31 N. Y. 453. 
 
 4 Thomas v. Sanford S. S. Co., 71 Me. 548. See Rollins v. Moody, 72 Me. 135. 
 
278 NOTICE TO QUIT. [§ 385. 
 
 Chief Justice Kent said, in the case of Phillips v. 
 Covert, 1 decided in 1810, that though a tenancy at will 
 might be considered to be a tenancy from year to year, for 
 the purpose of notice to quit, yet the tenant had no right 
 to such notice, after he had determined the will by an act 
 of voluntary waste. The rule in England was that, with- 
 out a previous demand of possession, a tenant at will 
 could not be ousted in ejectment. 2 It was said by Kent,. 
 however, in 1804, in the case of Jackson v. Bradt, 3 that if 
 the defendant was strictly a tenant at will no notice to 
 quit was necessary. Where it appeared that the defend- 
 ants moved into the house of another, and resided with 
 and took care of him, until he died, but never agreed to 
 pay rent, and no definite term was agreed upon, they were 
 held by the Supreme Court of Illinois, not to be tenants 
 from year to year, or 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. 4 
 
 § 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 un- 
 necessary force, a tenant at sufferance who had received 
 reasonable notice to quit, was not liable to an action for 
 an assault. 5 At common law a tenant at sufferance was 
 not entitled to notice to quit, 6 and where a tenant for years 
 held over, he became a tenant at sufferance, and was not 
 entitled to this notice, 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 enter- 
 ing by act of the law. The former is a tenant at suffer- 
 ance, the latter becomes merely an abator, intruder, or 
 
 1 7 Johns. (N. Y.) 4. See Jackson v. Wilsey, 9 Johns. (N. Y.) 267; Jackson v.. 
 Miller, 7 Cow. (N. Y.) 747; and especially Harris v. Frink, 49 N. Y. 24, 32, 33. 
 
 'Right v. Beard, 13 East, 210. 
 
 8 2 Cai. (N. Y. ) 169, 174. See Lamed v. Hudson, 60 N. Y. 102. 
 
 4 Herrell v. Sizeland, 81 111. 457. 
 
 s Low v. Elwell, 121 Mass. 309. Compare Wood v. Phillips, 43 N. Y. 152. 
 
 6 Reckhow v. Schanck, 43 N. Y. 448 ; Hauxhurst v. Lobree, 38 Cal. 563 ; Doe L 
 Roby v. Maisey, 8 B. & C. 767 ; Howard v. Carpenter, 22 Md. 10 ; Reed v. Reed, 
 48' Me. 388 ; McClung v. Echols, 5 W. Va. 204 ; Stedman v. Gassett, 18 Vt. 34 6 - 
 
§§ 386, 387.] notice to quit. 279 
 
 trespasser. 1 la Michigan, however, a tenant at sufferance 
 is entitled to notice to quit." 2 But a tenant who wrong- 
 fully holds over his term does not acquire any equities 
 from a brief delay on the part of the landlord in proceed- 
 ing against him, and is not entitled to this notice. 3 To 
 entitle him to notice, the holding over must be continued 
 for such a length of time and under such circumstances as 
 to authorize the implication of assent on the part of the 
 landlord. 4 
 
 § 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. 5 
 
 § 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. 6 The tenant 
 by so doing becomes a trespasser ; his possession is for 
 some purposes adverse, and the landlord may bring eject- 
 ment with the same effect as though the possession had 
 originally been acquired by wrong. 7 And a disclaimer, 
 made subsequent to the demise, may be considered in 
 evidence to disprove the tenancy ; 8 and where the tenant 
 conveys the land in fee simple, it is a disclaimer of the 
 
 1 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 v. McLeod, 12 Johns. 
 (N. Y.) 182. See Co. Litt. 57 b; Moore v. Lawder, 1 Stark. 308. 
 
 2 Kunzie v. Wixom, 39 Mich. 384. 
 
 3 Benfey v. Congdon, 40 Mich. 283. 
 
 4 Smith v. Littlefield, 51 N. Y. 539. 
 
 5 Sherrid v. Southwick, 43 Mich. 515. 
 
 6 Grubb v. Grubb, 10 B. & C. 816 ; Doe d. William v. Pasquali, Peake, 196 ; 
 Van Winkle v. Hinckle, 21 Cal. 342 ; Doe d. Jefferies v. Whittick, Gow, 195 ; 
 Doe d. Clun v. Clarke, Peake's Add. Cases, 239 ; Vincent v. Corbin, 85 N. C. 108 ; 
 Kunzie v. Wixom, 39 Mich. 384 : Eberwine v. Cook, 74 Ind. 377 ; Herrell v. Size- 
 land, 81 111. 457; Murphy v. Williamson, 85 111. 149 ; Russell v. Fabyan, 34 N. H. 
 218; Den d. Hankinson v. Blair, 15 N. J. Law, 181 ; Ingraham v. Baldwin, 9 N. Y. 
 45 ; Duke v. Harper, 6 Yerg. (Tenn.) 280. 
 
 ' Willison v. Watkins, 3 Pet. 43-48. See Harrison v. Middleton, 11 Gratt. (Va.) 
 527 
 
 8 Horsey v. Horsey, 4 Harr. (Del.) 517. 
 
280 NOTICE TO QUIT. [§§ 388, 389. 
 
 tenancy which dispenses with the necessity of notice to 
 quit. 1 These cases follow the doctrine of Lord Mansfield 
 in Doe v. Williams, 2 to the effect that where the tenant's 
 possession is adverse from the very nature of things no 
 notice to quit is necessary. 
 
 § 388. Disclaimer a question of fact. — Attornment. — The 
 question as to whether or not particular expressions con- 
 stitute a disclaimer or repudiation of the tenancy, is ordi- 
 narily a question of fact for the jury. 3 But the mere pay- 
 ment of rent by a tenant to a third person does not amount 
 to a disclaimer of the title of the landlord so as to operate 
 as a forfeiture of the lease, 4 nor will the refusal to pay rent 
 to a devisee claiming under a contested will, accompanied 
 by a declaration that the tenant was ready to pay rent 
 to any person entitled to receive it, amount to a disavowal 
 sufficient to dispense with the necessity of a regular 
 notice, 5 nor a mere naked claim to hold adversely to the 
 landlord. Attornment to another, or some act of dis- 
 claimer, must appear in order to work a forfeiture. 6 
 
 " I have no rent for you, because A. B. has ordered me 
 to pay none," is evidence of a disclaimer of a tenancy ; ' so 
 it is a disclaimer where a tenant attorned to another, and 
 answered the demand for rent by saying that his connec- 
 tion as tenant with the plaintiff had ceased. 8 
 
 § 389. Defense of adverse possession forfeits right to notice. 
 — If the tenant, after entering under the lessor, sets up a 
 defense of adverse possession against him, in an action for 
 the recovery of the land, and hostile to the title under 
 which he entered, he cannot claim to be a tenant at will 
 and entitled to notice to quit. Such a defense is inconsis- 
 tent with the existence of a tenancy at will. 9 The rule has 
 
 1 Trustees of Wadsworthville School v. Meelze, 4 Rich. (S. C.) Law, 50. 
 
 2 Cowp. 621. 
 
 s Doe d. Bennett v. Long, 9 C. & P. 773. 
 
 4 Doe d. Dillon v. Parker, Gow, 180. 
 
 5 Doe d. Williams v. Pasquali, Peake, 196, per Lord Kenyon. See Den d. Snow- 
 hill v. Snowhill, 23 N. J. L. 447. But see Phillips v. Rollings, 4 C. B. 188 ; Doe 
 v. Frowd, 4 Bing. 557. 
 
 6 Montgomery v. Craig, 3 Dana (Ky.), 102 ; Steinhauser v. Kuhn, 50 Mich. 367. 
 1 Doe d. Whitehead v. Piltman, 2 N. & M. 673. 
 
 8 Grubb v. Grubb, 10 B. & C. 816. 
 
 9 Williams v. Cash, 27 Ga. 507. See Kunzie v. Wixom, 39 Mich. 384. 
 
§§390,391.] NOTICE TO QUIT. 281 
 
 been stated by the Supreme Court of Illinois to be that a 
 tenant's right to notice to quit may be superseded, and the 
 tenancy terminated by the denial by the tenant, by word 
 or act, of the title of the landlord. 1 This is, perhaps, too 
 broad and general a statement, , for, as we have already 
 shown, a parol disclaimer of the landlord's title does not 
 work a forfeiture of the lease. 2 
 
 § 390. When refusal to deliver possession not a disclaimer. 
 — A refusal to deliver possession, or a declaration that the 
 party will continue to hold the property at a time when the 
 landlord had no right to claim or demand the possession, 
 does not constitute a disclaimer. 8 There must be a direct 
 repudiation of the relation of landlord and tenant, or a 
 claim to hold possession which by necessary implication is 
 a repudiation of it. 4 Where a lease for a specified time 
 contained an express covenant that the tenant would " de- 
 liver up possession at the expiration of the term, without 
 further notice," and with a reservation of the right of the 
 landlord to " enter and repossess the premises at the end 
 of the period, or at anytime thereafter,'" it was held that 
 the landlord could maintain ejectment after the expiration 
 of the term without previous notice to quit, and that a new 
 lease from year to year, with right to three months' notice 
 to quit, could not be implied from the neglect of the land- 
 lord to dispossess the tenant. 5 
 
 §391. Tenants in common. — Demand of possession. — We 
 have already seen that in ejectment between tenants in 
 common, proof of actual ouster and denial of the plaintiff's 
 rights is essential to support the action. It is generally 
 safer, and often necessary, as already shown in discussing 
 this special subject, for the plaintiff to make demand of 
 his companion to be let into possession, before bringing 
 ejectment, where this relationship exists between the 
 
 1 Wood v. Morton, n 111. 547. 2 See § 369. 
 
 3 Doe d. Gray v. Stanion, 1 M. & W. 695-703. 
 
 4 Bates v. Austin, 2 A. K. Mar. (Ky.) 270 ; Tuttle v. Reynolds, I Vt. 80 ; 
 Willison v. Watkins, 3 Pet. 43 ; Tillotson v. Doe d. Kennedy, 5 Ala. 407 ; Brown v. 
 Keller, 32 111. 151 ; Bolton v. Landers, 27 Cal. 104. 
 
 5 McCanna v. Johnston. 19 Penn. St. 434. 
 
282 notice to quit. [§§ 392-394. 
 
 parties ; * for a specific demand by the plaintiff to be let 
 into possession, followed by a specific refusal on the part 
 of the defendant to comply with the demand, constitutes 
 the highest and best evidence of an ouster ; but the de- 
 mand is not necessary where the defendant relies on 
 adverse title, 2 or sets it up by answer. 3 
 
 § 392. Tenant of tenants in common. — Where the defend- 
 ant in ejectment had been put in possession or allowed to 
 occupy a portion of the premises by one of several tenants 
 in common, it was held, in California, that he could not 
 be sued as a trespasser by another tenant in common, 
 without notice to quit or other act showing a termination 
 of the license or tenancy. Being in possession by lawful 
 right, he could not be turned into a trespasser and held 
 liable for costs and damages, so long as his relations to 
 the owners remained unchanged. 4 
 
 § 393. Landlord defending in tenant's place.— One who 
 comes in to defend as landlord, in place of the tenant, can- 
 not object that no notice to quit has been given to the 
 original defendant. 5 The application of the landlord to 
 defend in place of the tenant presupposes that the defend- 
 ant is the applicant's tenant ; so that although the defend- 
 ant entered at first as the tenant of the plaintiff, he must 
 have subsequently attorned to the applicant, and thereby 
 disclaimed or disavowed the tenancy to plaintiff, and thus 
 put himself in the wrong, which dispensed with the neces- 
 sity of notice. 
 
 § 394. Vendor and vendee. — Under an executory contract 
 to purchase land, the possession of the vendee is originally 
 rightful, and until the party in possession has made de- 
 fault, or is called upon to restore the possession, he can- 
 not be ejected without a demand of possession or notice 
 
 1 See Newell v. Woodruff, 30 Conn. 492 ; Greer v. Tripp, 56 Cal. 209. See, 
 also, § 283. 
 
 2 Harrison v. Taylor, 33 Mo. 211. 
 
 3 Greer v. Tripp, 56 Cal. 209. See § 290. 
 
 4 Ord v. Chester, 18 Cal. 77. 
 
 6 Foust v. Trice, 8 Jones (N. C.) Law, 490; Whissenhunt v. Jones, 78 N. C. 
 361. See Doe d. Davies v. Creed, 5 Bing. 327. 
 
§ 394. J NOTICE TO QUIT. 283 
 
 to quit. 1 An executory contract of purchase and sale of 
 land, which gives the vendee the right to occupy until 
 default in the payment of the purchase money, is a license, 
 and not a lease. The license operates as an excuse for the 
 vendee's possession, and he cannot be treated as a wrong- 
 doer until after default. 8 
 
 The vendee, however, may forfeit his right of posses- 
 sion ; and if he fails to comply with the terms of sale 
 his after possession is tortious, and there is an imme- 
 diate right of action against him. 3 And if the vendor, 
 after default, finds the premises vacant, and peaceably 
 enters, this is not an intrusion. 4 It would be an idle cere- 
 mony to demand possession when the vendee refused to 
 respond to a previous demand for the money due on the 
 contract of purchase. The refusal, unaccompanied by any 
 promise to pay the money at a future day, is equivalent to 
 a direct notice to the vendor that the vendee declines to 
 execute the contract, 6 and he has no right to notice that 
 the vendor intends to assert his rights. 6 The same exemp- 
 tion as to demand or notice applies in case of the non- 
 performance by the vendee of any of the conditions or 
 covenants contained in the contract of sale. 7 This doc- 
 trine constitutes an exception to the general rule that 
 demand of possession, or notice to quit, is necessary in 
 cases of occupancy by the consent of the owner for no 
 definite term. 8 
 
 1 Right v. Beard, 13 East, 210 ; Moak v. Bryant, 51 Miss. 560; Pierce v. Tuttle, 
 53 Barb. (S. Y.) 155 ; Carson v. Baker, 4 Dev. (N. C.) Law, 220 ; Prentice v. Wil- 
 son, 14 III. 91. See Costigan v. Wood, 5 Cr. C. C. 507. 
 
 2 Dolittle v. Eddy, 7 Barb. (N. Y.) 74; Pierce 0. Tuttle, 53 Barb. (N. Y.) 155. 
 See Chap. X. 
 
 3 Gregg v. Von Phul, 1 Wall. 274 ; Baker v. Gittings, 16 Ohio, 489 ; Burnett v. 
 Caldwell, 9 Wall. 290; Prentices. Wilson, 14 111. 91; Hotaling v. Hotaling, 47 
 Barb. (N. Y.) 163; Wright v. Moore, 21 Wend. (N. Y.) 230; Candee v. Haywood, 
 34 Barb. (N. Y.) 349 ; Jackson v. Moncrief, 5 Wend. (N. Y.) 26 ; Dean v. Comstock, 
 32 111. 173; Moak v. Bryant, 51 Miss. 560; Pierce v. Tutlle, 53 Barb. (N. Y.) 155; 
 McClanahan v. Barrow, 27 Miss. 664. But see Stackhouse v. Reynolds, 5 Blackf. 
 (Ind.) 570; Twyman v. Hawley, 24 Gratt. (Va.) 512. 
 
 4 McHan v. Stansell, 39 Ga. 197. 
 6 Gregg v. Von Phul, I Wall. 274. 
 6 HcHan v. Stansell, 39 Ga. 197. 
 
 1 Pierce v. Tutlle, 53 Barb. (N. Y.) 155. 
 8 McClane v. White, 5 Minn. 178. 
 
284 notice to quit. [§§ 395, 396. 
 
 A different rule prevails in England. 1 It is that the 
 vendor, having put the vendee in possession, cannot, with- 
 out proof of a demand of possession and a refusal by the 
 vendee, or some wrongful act to determine the possession, 
 treat the latter as a wrong-doer or trespasser, as he must 
 assume him to be in instituting an action of ejectment. 
 This has been followed in Virginia, 2 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. 8 
 Of course these formalities are unnecessary where the 
 defendant's contract is with a stranger, between whom 
 and the plaintiff no connection is shown in respect to the 
 title. 4 In the case of Ross v. Van Aulen, 5 recently decided 
 in the Supreme Court of New Jersey, it was held that 
 where the defendant was let into possession under a con- 
 tract to purchase, which he failed to carry out, he was not 
 to be regarded as a tenant to the vendor in such a sense 
 as to entitle 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 
 
 1 Right v. Beard, 13 East, 210; Newby v. Jackson, 1 B. & C. 448. 
 
 2 Twyman v. Hawley, 24 Gratt. (Va.) 512 ; Williamson v. Paxton, 18 Gratt. (Va.) 
 475-505. 
 
 3 Day v. Solomon, 40 Ga. 32 ; McHan v. Stansell, 39 Ga. 197. 
 
 4 Petty v. Graham, 13 Ala. 568. 
 
 '42 N. J. L. 49. See Den v. Westbrook, 15 N. J. L. 371; Van Valkenbergh 
 v. Den d. Rahway Bank, 23 N. J. L. 583; Freeman v. Headley, 33 N. J. L. 523. 
 
§ 397.] NOTICE TO QUIT. 285 
 
 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. 1 
 In McOlung v. Echols 2 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 confeder- 
 ate treasury notes. It was held that his subsequent pos- 
 session 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 notice to quit must be given before ejectment is 
 brought by a mortgagee against a mortgagor, for the lat- 
 ter occupies with the mortgagee's consent, and with the 
 perfect understanding that the mortgagor 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 domin- 
 ion over' the land as the mortgagor. No person, it is 
 argued, 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 posses- 
 sion of the land, but m^y protect himself against an action 
 by payment of the money due. 3 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 he has defaulted or the day 
 of payment has passed, without notice to quit, the mort- 
 gagor being considered as a tenant at sufferance only. 4 
 
 1 Chilton v. Niblett, 3 Humph. (Term.) 404. See Den v. Webster, 10 Yerg. 
 (Tenn.) 513. 
 
 a 5 W. Va. 204. 
 
 3 Jackson v. Laughhead, z Johns. (N. Y.) 75. 
 
 4 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 ; Doe d. Garrod v. Olley, 12 Ad. & EI. 481 ; Doe d. 
 Roby v. Maisey, 8 B. & C. 767 ; Rockwell v. Bradley, 2 Conn. 1 ; Carroll v. Bal- 
 lance, 26 111. 9, and cases cited. But see Keech v. Hall, Doug. 21. See, also, § 333. 
 
286 notice to quit. [§§ 398-400. 
 
 The same rule applies in ejectment against the assignee 
 of the mortgagor. 1 
 
 A purchaser of public lands who has made default in 
 the payment of the purchase money, and has failed to 
 redeem after a resale, may be evicted by the second pur- 
 chaser without notice to quit. 3 
 
 § 398. Infant plaintiff. — Where an infant becomes enti- 
 tled 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. — Tenants for life. — If a 
 tenant from year to year dies, his personal representatives 
 are entitled to notice to quit, 4 unless by the terms of the 
 letting the interest ceases with the life of the tenant and 
 is not to vest in .the personal representatives, in which 
 case no notice is necesftiry. 6 It seems that in England the 
 lessee of a tenant for life was entitled to regular notice 
 from the remainderman ; 6 at least such a notice was given 
 in the case cited, and its form and regularity were a sub- 
 ject of controversy. A tenant for the life of another, hold- 
 ing over, is not entitled to notice in New York. 7 
 
 § 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 
 similar, mutatis mutandis, to those by which notices from 
 landlords are governed. They must be the same in form 
 and substance, expire at the like periods of the year, be 
 dependent upon like rules as to the time and mode of 
 
 1 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. 
 
 2 Candee v. Haywood, 34 Barb. (N. Y.) 349 ; affi'd, 37 N. Y. 653. 
 
 3 Maddon v. White, 2 T. R. 159. See Doe d. Miller v. Noden, 2 Esp. 530. 
 See, also, §§ 196, 198, 451. 
 
 4 Gulliver v. Burr, 1 W. Bl. 596 ; Doe v. Porter, 3 T. R. 13 ; Parker v. Con- 
 stable, 3 Wils. 25. 
 
 6 Doe v. Smith, 6 East, 530. 
 
 6 Jordan v. Ward, 1 H. Bl. 97. 
 
 7 Livingston v. Tanner, 14 N. Y. 65 ; Torrey v. Torrey, 14 N. Y. 430 ; Seaton 
 v. Davis, 1 T. & C. (N. Y.) 91. 
 
§ 401.] NOTICE TO QUIT. 287 
 
 service, and subject to waiver by similar acts. 1 To free him- 
 self from liability the tenant is frequently bound to give 
 notice to his landlord of the termination of the tenancy. 8 
 
 § 401. Form of the notice. — " Care should be taken," 
 says Mr. Adams, 3 "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 ambiguous, or optional, it will be sufficient to render 
 it ineffectual, as far at least as the action of ejectment is 
 concerned." 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 pos- 
 session, and being an emphatic way of showing to the 
 tenant that he is in earnest, by informing him of the con- 
 sequences if he holds over. His lordship said that had the 
 notice contained the words, " or else that you agree to pay 
 double rent," the ejectment could not have been supported. 4 
 A notice to quit will be held good if, upon the whole, it is 
 intelligible, and so certain that the tenant cannot reason- 
 ably 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. 6 A misdescription of 
 the premises, or a misstatement of dates which cannot 
 mislead, will not vitiate the notice ; nor need it be directed 
 to the person. Even if directed by a wrong name, yet if 
 the tenant keeps it without objection, the error is waived. 6 
 The notice is sufficient if it fairly shows the tenant what 
 
 1 Adams on Eject. (4th Am. ed. 1854) 182, [*I56], See Boynton v. Bodwell, 
 113 Mass. 531. 
 
 2 See Currier v. PerJey, 24 N. H. 219 ; Hall v. Wadsworth, 28 Vt. 410 ; Whit- 
 ney v. Gordon, 1 Cush. (Mass.) 266. 
 
 3 Adams on Eject. (4th Am. ed. 1854) 164, [*I33]. 
 
 4 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. 
 
 s Cook v. Creswell, 44 Md. 581. 
 
 6 Doe d. Cox v. Roe, 4 Esp. 185; Doe d. Matthewson v. Wrightman, 4 Esp. 5 ; 
 Doe v. Spiller, 6 Esp. 70; Doe d. Bedford v. Kightley, 7 T. R. 63. 
 
288 NOTICE TO QUIT. [§§ 402-404. 
 
 premises are demanded ; 1 and it should require him to quit 
 all the demised premises, and not a part only. 3 
 
 § 402. What notices held good. — A notice describing the 
 lands as lying in an adjoining parish has been held suffi- 
 cient. 3 In Massachusetts a tenancy at will may be termi- 
 nated by either party by a thirty days' notice to quit. 4 A 
 notice served by a tenant was held to be defective and 
 informal in that it did not state the time when he would 
 vacate and deliver up the premises; 5 but it was decided 
 that the landlord might waive the informality, and evi- 
 dence tending to show that after service of the notice the 
 landlord endeavored to induce the tenant to remain, and 
 offered to reduce the rents and make improvements, and 
 that upon the tenant's departure he received the keys, and 
 at no time objected 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 6 the 
 notice was addressed to John Clark, his true name being 
 Thomas B. Clark. The court held that the notice was 
 sufficient and lawful, both in substance and in mode of 
 service. There was no uncertainty as to the party for 
 whom it was intended, 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 tbe 
 existence of personal representatives, the notice was held 
 sufficient. 7 
 
 § 404. Parol notice. — Where a demise is by parol, notice 
 to quit need not be in writing. 8 And it is not necessary to 
 
 1 Whipple v. Shewalter, 91 Ind. 114. 
 
 8 Right d. fisher v. Cuthell, 5 East, 498; Doe v. Archer, 14 East, 245. 
 
 s Armstrong v. Wilkinson, 12 Ad. & El. 743; s. c. 40 Eng. C. L. 368. 
 
 4 Genl. Stat. Mass. i860, c. 90, § 31. 
 
 5 Boynton v. Bodwell, 113 Mass. 531; Currier v. Barker, 2 Gray (Mass.), 224. 
 
 6 107 Mass. 406; Doe v. Spiller, 6 Esp. 70. 
 ' Rees v. Perrot, 4 C. & P. 230. 
 
 8 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. 
 
§§ 405, 406.] NOTICE TO QUIT. 289 
 
 state to whom the possession is to be delivered up. 1 
 Though a parol notice to quit may suffice, the general 
 practice of serving a written notice is much safer, the 
 latter kind of notice being more easily susceptible of proof 
 and less open to dispute. 
 
 § 405. By whom notice should he given. — The notice to 
 quit must be given either by the landlord or his authorized 
 agent, 2 or by any person legally entitled to the rever- 
 sion, as assignee, devisee, heir, executor, or receiver with 
 power to let. If it be doubtful in whom the legal estate is 
 vested, all should join in the notice. 3 A notice to quit 
 given by an agent should purport to be given in the name 
 of and on behalf of the principal, 4 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. 5. 
 Bringing an action of ejectment is not a sufficient recogni- 
 tion of such authority to entitle the plaintiff to recover,, 
 because the recognition should at all events be before the 
 day of the demise laid in the declaration. 6 And a notice 
 to quit given by an agent of an agent, is not sufficient 
 without evidence of recognition by the plaintiff; 7 but an 
 agent to receive rent has power to determine a tenancy. 8 
 
 § 406. Receiver in chancery. — A receiver in chancery, 
 with power to let, is considered as the agent of the land- 
 lord sufficiently authorized to give a valid notice to quit, 9 
 though a mere receiver of rents, as such, has no authority 
 to determine a tenancy. 10 
 
 1 Doe d, Bailey v. Foster, 3 C. B. 215. 
 
 2 Reederw. Sayre, 70 N. Y. 180-188 ; Doe v. Browne, 8 East, 165. 
 
 3 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. 
 
 4 Cole on Ejectment, p. 44. 
 
 6 Doe d. Lyster v. Goldwin, 2 Q. B. 143 ; Adams on Eject. (4th Am. ed. 1854), 
 [*I27] 158. 
 
 6 Doe v. Walters, 10 B. & C. 626. See Right v. Cuthell, 5 East, 491. 
 
 1 Doe d. Rhodes v. Robinson, 3 Bing. N. C. 677. 
 
 8 Doe d. Manvers v. Mizem, 2 Moo. & R. 56. 
 
 9 Wilkinson v. Colley, 5 Burr. 2694 ; Doe d. Marsack v. Read, 14 East, 57-61. 
 
 10 Doe v. Walters, 10 B. & C. 633. 
 
 19 
 
290 NOTICE TO QUIT. [§§ 407-410. 
 
 § 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 ; 1 and it has been held that a notice 
 given by a person acting as steward of a corporation is 
 sufficient without evidence that he had authority under 
 seal from the corporation for such purposes. 3 
 
 § 408. By joint tenants. — Notice to quit by one of several 
 joint tenants who have demised jointly from year to year, 
 has been held to be good for his share only, and he was 
 allowed to recover on his separate demise ; s but the con- 
 trary, and what seems to us the better doctrine, was held in 
 the King's Bench, 4 and a notice signed by one of several 
 joint tenants, on behalf of his companions, was adjudged 
 sufficient. A notice signed by three of four trustees, who 
 were joint landlords of a house under a deed of trust, was 
 held to put an end to the relation of landlord and tenant 
 between all the parties. 5 
 
 § 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 plaintiffs title 
 was an undivided interest, and the defendant was in pos- 
 session 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 por- 
 tion 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 defendant to occupy the estate as lessee or tenant 
 of the plaintiff. 6 
 
 § 410. Who cannot give notice. — A vendee who has en- 
 tered into a contract with the landlord for a purchase of 
 
 1 Wolf v. Goddard, 9 Watts (Penn.), 544. 
 Roe v. Pierce, 2 Camp. 96. 
 
 3 Doe d. Whayman v. Chaplin, 3 Taunt. 120. See Goodtitle v. Woodward, 3 B, 
 & Aid. 689. 
 
 4 Doe v. Summersett, 1 B. & Adol. 135, 137. See Doe v. Hughes, 7 M. & W. 
 139. 
 
 6 Alford v. Vickery, Car. & M. 280. 
 
 * King v. Dickerman, 11 Gray (Mass.), 480. See § 300. 
 
§§ 411, 412.] NOTICE TO QUIT. 291 
 
 . the premises, but who has not obtained the legal title, can- 
 not give a valid notice to quit j 1 and notice to quit is not 
 necessary where the person holding the possession is a 
 mere bailiff or servant to the owner. 2 
 
 § 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. 3 Acceptance of subsequently 
 accruing rent is a waiver of the notice to quit. 4 Where 
 ejectment is brought against a tenant by a landlord, rely- 
 ing upon a disclaimer, any subsequent act of the landlord 
 acknowledging the party as his tenant, such as distraining 
 for rent, is a waiver of the disclaimer. 5 Serving a second 
 notice has been construed to be a waiver of the first. 6 The 
 right to demand and notice may, of course, be waived by 
 express stipulation in the lease. 7 And the tenant may, by 
 agreement, waive the notice ; 8 and where the service of the 
 notice has been admitted in the pleadings, it need not be 
 proved on the trial. 9 
 
 § 412. Service of notice. — It has been held in Walker v. 
 Sharpe, 10 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 tenant corporation should 
 be addressed to it by name, and served upon its officers ; u 
 and where a tenant dies, the notice may be served on the 
 
 1 Reeder v. Sayre, 70 N. Y. 180. 
 
 8 Jackson v. Sample, 1 Johns. Cas. (N. Y.) 231. See § 242. 
 
 3 Castro v. Gill, 5 Cal. 40. 
 
 4 Prindle v. Anderson, 19 Wend. (N. Y.) 391 ; s. c. 23 lb. 616 ; Goodright v. 
 Cordwent, 6 T. R: 219. See Collins v. Hasbrouck, 56 N. Y. 157. 
 
 6 Doe d. David v. Williams, 7 C. & P. 322. 
 
 6 See Doe v. Palmer, 16 East, 53-56. 
 
 1 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. See Moody v. Seaman, 46 Mich. 74. 
 
 8 Banks v. Carter, 7 Daly (N. Y.), 417. 
 
 9 Chandler v. Kent, 8 Minn. 536. 
 
 " 103 Mass. 154. See Cook v. Creswell, 44 Md. 581. 
 11 Doe v. Woodman, 8 East, 228. 
 
292 NOTICE TO QUIT. [§§ 413, 414. 
 
 administrator who pays the rent. 1 Where there are two 
 tenants of premises held in common, notice to one is suffi- 
 cient ; s 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. 8 
 
 413. How served. — It has been held in New York, that 
 the notice in writing given under the statute, 4 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 agree- 
 ment can be terminated ori 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. 5 Where the ten- 
 ant 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 dwelling house, is strong presumptive evi- 
 dence that the master received the notice. 6 
 
 § 414. How proved. — A copy of a notice to quit is com- 
 petent evidence, 7 and may be proved by the person who 
 served it, and in case of neglect to take a copy, or pre- 
 serve a counterpart, the contents of the notice may be 
 proved by a witness without notice to produce the origi- 
 nal. 8 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. 9 
 
 1 Prior v. Ongley, io C. B. 25. 
 
 2 Doe d. Macartney v. Crick, 5 Esp. 196. 
 
 3 Walker v. Sharpe, 103 Mass." 154. 
 
 4 R. S. Part II, ch. 1, t. 4, §§ 7, 8. 
 
 5 Banks v. Carter, 7 Daly(N. Y.), 417. Compare Earle v. McVeigh, 91 U. S. 
 509, and cases cited. 
 
 6 Jones d. Griffiths v. Marsh, 4 T. R. 464. 
 
 1 Eisenhart v. Slaymaker, 14 S. & R. (Penn.) 153. 
 
 8 See 1 Greenleaf's Ev. § 561 ; Jory v. Orchard, 2 B. & P. 39-41 ; Doe v. 
 Somerton, 7 Q. B. 58 ; Doe v. Durnford, 2 M. & S. 62 ; Doe v. Turford, 3 B. & 
 Adol. 890; Falkner v. Beers, 2 Doug. (Mich.) 117. 
 
 ' Doe v. Biggs, 2 Taunt. 109; Doe v. Forster, 13 East, 405. 
 
CHAPTER XIV. 
 
 ATTORNEY'S AUTHORITY TO PROCEED. 
 
 j 415. Attorney not generally required to 
 produce authority. 
 
 416. Rule more strict in action to re- 
 
 cover 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. 
 421a. Champertous agreements. 
 
 § 415. Attorney not generally required to produce authority. 
 — That an appearance of an attorney at law for a party 
 in an action may be recognized by the adverse party as 
 authentic and valid if no collusion is shown, is a rule of 
 practice almost universal in the administration of justice. 1 
 And while the courts clearly possess the power, 3 in the 
 •exercise of a sound discretion, 3 to compel an attorney to 
 «xhibit or prove his authority to represent litigants, yet, in 
 the absence of circumstances indicative of fraud, the court 
 will not ordinarily exercise this prerogative, as against a 
 reputable and responsible attorney, in the preliminary 
 stages of the action. 4 The presumption will ordinarily be 
 indulged that the attorney, who is an officer of the court, 
 has full authority to prosecute. 5 
 
 Where a judgment has been rendered upon an appear- 
 ance by an attorney, and rights have accrued under it, 
 
 1 Hamilton v. Wright, 37 N. Y. 502 ; s. c. 5 T. R. App. (N. Y.) 1. See Hallett 
 v. Hastie, 35 Ala. 164. 
 
 2 Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer (N. Y.), 632 ; ». c. 1 Abb. Pr. 
 <N. Y.) 193 ; Allen v. Green, 1 Bailey (S. C.) Law, 448. See Allen v. Bone, 4 Beav. 
 493- 
 
 3 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 T. B. 
 Mon. (Ky.) 189; Ex parte Gillespie, 3 Yerg. (Tenn.) 325. 
 
 4 Republic of Mexico v. Arrangois, 1 Abb. Pr. (N. Y.) 437 ; s. c. 5 Duer (N. Y.), 
 '<H3; Denton v. Noyes, 6 Johns. (N. Y.) 296, per Chief Justice Kent; Jackson v. 
 -Stewart, 6 Johns. (N. Y.) 34; Anon. 1 Salk. 86-88; Anon. 6 Mod. 16; Cart- 
 well v. Menifee, 2 Ark. 356 ; Hamilton v. Wright, 37 N. Y. 502 ; American Ins. 
 ■Co. v. Oakley, 9 Paige (N. Y.), 496; Stewart v. Stewart, 56 How. Pr. (N. Y.) 258. 
 
 5 Esley v. People, 23 Kan. 510; Rogers v. Park, 4 Humph. (Tenn.) 480. 
 
294 attorney's authority to proceed. [§ 417, 
 
 the burden of establishing want of jurisdiction is upon the 
 party questioning it, and the absence of authority should 
 be established in a most satisfactory manner. 1 There is 
 said to be, however, no distinction between a forged notice 
 of appearance and a notice given by an attorney without 
 authority, and jurisdiction is not acquired in either case. 8 
 
 § 416. Eule more strict in action to recover land. — When 
 the title or right of possession of land is in dispute, a 
 stricter rule has been applied 8 than governs in personal 
 actions, so cherished are the rights of the actual occupant 
 of land in the eye of the law. In New York, for instance, 
 it is provided by statute that the defendant in an action 
 to recover real property, or the possession of it, may, at 
 any time before answer, demand and, in a proper case, 
 obtain, an order requiring the plaintiff's attorney to pro- 
 duce written evidence of his authority from the plaintiff' 
 or his agent to commence the action, or written recog- 
 nition of his authority to do so. 4 The court, upon such an 
 application being made to it, has no discretion, but is com- 
 pelled to grant the order, with a stay of proceedings in the 
 action, until the authority called for has been produced.^ 
 The practice requiring the attorney to produce his author- 
 ity to prosecute actions in the nature of ejectment pre- 
 vails in several States. 
 
 § 417. Proof of authority after issue joined.— It was held 
 while the system of real actions prevailed in Virginia, that 
 where a writ of right was sued out, and the issue regularly 
 joined upon the mere right, and the tenant subsequently 
 produced affidavits tending to show that the demandant 
 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 
 
 1 Ferguson v. Crawford, 86 N. Y. 609. 
 
 2 Burton v. Sherman, 20 Weekly Dig. (N. Y.) 419. 
 
 3 See Stewart v. Stewart, 56 How. Pr. (N. Y.) 258. 
 
 4 N. Y. Code of Civil Procedure, §§ 1513, 1514. See Harris v. Mason, 10 Wend. 
 (N. Y.) 568; Turner v. Davis, 2 Denio (N. Y.) 187. 
 
 8 McDermott v, Davison, 1 How. Pr. (N. Y.) 194; Howard v. Howard, II How„ 
 Pr. (N. Y.) 80. See Carpenter v. Allen, 13 J. & S. (N. Y.) 322. 
 
§ 419.] attorney's authority to proceed. 295 
 
 demandant was living when the writ issued. 1 In eject- 
 ment in Pennsylvania the rule was recognized that a 
 defendant could require the plaintiff'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 pleading and putting the cause at issue. 2 It 
 may be here observed that the rule permitting the defend- 
 ant 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 plaint- 
 iff to testify as to whether or not, in bringing the eject- 
 ment 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 govern- 
 ing confidential communications between attorney and 
 client. 3 
 
 § 418. Authority of general agent to bring ejectment. — In 
 New York 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 authorized to employ an 
 attorney to bring ejectment.'' 
 
 § 419. Autliority by one or more of several co-tenants. — An 
 instrument executed by one of two joint or common own- 
 ers of land, in the name of himself and his co-tenant, with 
 the verbal consent of the latter who is absent, requesting 
 the attorney to continue the ejectment, is sufficient. 5 So a 
 power of attorney from four out of five of the owners of 
 the land, authorizing the commencement of the ejectment, 
 the fifth owner, a married woman, having signed the power 
 without procuring her husband to join, has been held suf- 
 ficient in Illinois. 6 In an action of ejectment which arose 
 
 1 Howard v. Rawson, 2 Leigh (Va.), 733. See Gynn v. Kirby, I Stra. 402. 
 
 2 Campbell v. Galbreath, 5 Watts (Penn.), 423; Mercier v. Mercier, 2 Dall. 
 142. 
 
 8 Stephens v. Mattox, 37 Ga. 289. 
 1 See Howard v. Howard, II How. Pr. (N. Y.) 80. 
 
 1 Howard v. Howard, 11 How. Pr. (N. Y.) 80. But see N. Y. Code of Civil 
 P rocedure, § 1514. 
 
 6 Lockwood v. Mills, 39 III. 602. 
 
296 attorney's authority to proceed. [§ 421. 
 
 in Tennessee, in which the name of E. was used as a lessor 
 without his authority by co-plaintiffs claiming a joint 
 interest in the land, on proof by defendants that E. was 
 dead at the time the action was commenced, and that his 
 name was used without authority, the court refused to 
 dismiss the action, but struck out his name and allowed 
 the survivors to continue the cause. 1 
 
 § 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 molest 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 ejectment, yet the court will not for that rea- 
 son dismiss the action, unless it also clearly appear that 
 the claimant himself is without such authority. 2 And 
 where it is apparent to the court that such use is impor- 
 tant for the vindication of the rights of the claimant the 
 name of a party may be used as lessor by the plaintiff, 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 dam- 
 ages. 3 
 
 § 421. Hamilton v. Wright. — In a case in the New York 
 Court of Appeals it appeared that the plaintiffs Hamilton 
 and Livingston had, while the defendant was in posses- 
 sion holding adversely, conveyed the premises in dispute 
 to the plaintiff Gleason. Gleason was compelled to insti- 
 tute an ejectment in the name of his grantors, 4 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 appearance, and were liable 
 
 1 Greer v. Smith, 7 Yerg. (Tenn.) 487. 
 
 2 Shanks v. White, 36 Ga. 432; Kinsey v, Sensbough, 17 Ga. 540; Adams v. 
 McDonald, 29 Ga. 571. See § igo. 
 
 3 Shanks v. White, 36 Ga. 432 ; Fain v. Garthright, 5 Ga. 6. 
 
 4 See § 190. See Smith v. Long, 12 Abb. N. C. (N. Y.) 113. 
 
§421«.J attorney's authority to proceed. 297 
 
 to defendant for the costs, notwithstanding the ejectment 
 was prosecuted without their knowledge or sanction, and 
 at the sole instance and for the exclusive benefit of the 
 grantee ; furthermore, that the defendant was not guilty 
 of laches in failing to avail himself of the statutory right 
 of demanding evidence of the attorney's authority to 
 institute the action. 1 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 attor- 
 ney authorizing the grantee to employ the grantor's name 
 as plaintiff in ejectment. 8 
 
 § 421a. Champertous agreements. — We may note in this 
 general connection that an agreement to the effect that 
 an attorney is to receive one half or a portion of the lands 
 in litigation as compensation for his services is champer- 
 tous, 3 especially if the attorney is to pay the expenses. 4 
 A contract to pay an attorney for his services in actions 
 concerning land a fixed sum out of the proceeds when sold 
 by the client is, on the other hand, not regarded as cham- 
 pertous, because he neither pays the costs nor takes any 
 part of the land for his compensation. 5 The champertous 
 agreement is, however, no defense to the action to which 
 it relates, and can only be set up between the client and 
 attorney. 6 . 
 
 1 Hamilton v. Wright, 37 N. Y. 502 ; s. c. 5 Tr. App. (N. Y.) 1 ; 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. 1 Salk. 86-88 ; McCullough v. Guetner, 1 Binney 
 (Penn.), 214 ; Reinholdt v. Alberti, 1 Binney (Penn.), 469; Lorymer v. HolHster, 
 2 Stra. 693 ; Alleley v. Colley, Cro. Jac. 695 ; Shepherd v. Orchard, 6 Mod. 40, and 
 cases cited ; Gibson v. Bishop of Bath, Barnes, 239. 
 
 ! See § igo. 3 Jenkins v. Bradford, 59 Ala. 400. 
 
 4 Thompson v. Reynolds, 73 111. II. See Coleman v. Billings, 89 III. 187. 
 
 5 McPherson v. Cox, 96 U. S. 416 ; s. P. Kersey v. Garton, 77 Mo. 645 , s. c. 
 16 Cent. L. J. 472. Compare Duke v. Harper, 8 Mo. App. 296; Duson v. Dupre, 
 33 La. Ann. 113 1 ; Schomp v. Schenck, 40 N. J. Law, 195. 
 
 6 Courtright v. Burnes, 3 McCra. 63 ; s. P. Whitney v. Kirtland, 27 N. J. Eq. 
 333 J Allison v. C. & N. W. R. Co. 42 Iowa, 274. The Hen of a lawyer upon lands 
 for professional services may be preferred over the lien of a judgment creditor of the 
 client. Brown v. Bigley, 3 Teun. Ch. 618. See Hunt v. McClanahan, I Heisk. 
 (Tenn.) 503. 
 
CHAPTER XV. 
 
 OF THE COMPLAINT. 
 
 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 plead- 
 ed. 
 
 In California seizin must be 
 averred. 
 
 Precision in pleading. — Forfeit- 
 ure. 
 
 Mortgagor against mortgagee. 
 
 Joint title. — Title of trustee. 
 
 Joinder of hostile claimants. 
 
 Ejectment by infant. 
 
 Declaration against several de- 
 fendants holding different por- 
 tions of same premises. 
 
 Co-tenants. 
 
 Damages for withholding posses- 
 sion. 
 i. Prayer for relief. 
 
 Amendment of complaint. 
 Supplemental complaint. 
 
 § 422. The fictitious lease. — It has been shown in tracing 
 the history of ejectment that the parties were formerly 
 imaginary or fictitious, and that the action was instituted 
 by serving the declaration upon the tenant in possession, 
 accompanied by a notice, signed by Eichard Roe, the 
 casual ejector, advising the tenant in possession to appear 
 and procure himself to be made a party, and defend the 
 action. 1 The declaration constituted the writ or process 
 of the court, 3 and the service of the declaration and notice 
 was considered to be the commencement of the action of 
 ejectment. 3 
 
 1 See §§ 37, 38, 39. 2 Rex v. Unitt, Stra. 567. 
 
 3 Pindell v. Maydwell, 7 B. Mpn. (Ky.) 314 ; Atwell v. McLure, 4 Jones (N. C.) 
 Law, 371 ; Barron v. Abeel, 3 Johns. (N. Y.) 481. See § 32. 
 
 § 422. 
 
 The fictitious lease. 
 
 § 441- 
 
 423. 
 
 How set forth in the declaration. 
 
 442. 
 
 424. 
 
 Demise, though a fiction, must be 
 consistent. — Amendment. 
 
 
 425. 
 
 Modern pleading. — Facts to be 
 alleged. 
 
 443- 
 
 426. 
 
 Names of the parties. 
 
 444. 
 
 427. 
 
 Written pleadings required. 
 
 
 428. 
 
 Pleadings, how construed. 
 
 445- 
 
 429 
 
 Pleadings in real actions. 
 
 
 43°- 
 
 Declaration in a writ of entry in 
 Maine. 
 
 446. 
 
 431. 
 
 Modern declaration or complaint. 
 
 447- 
 
 432. 
 
 Must allege possession by de- 
 
 
 
 fendant. 
 
 448. 
 
 433- 
 
 Must allege wrongful or unlawful 
 
 449- 
 
 
 withholding of possession. 
 
 450. 
 
 434- 
 
 Plaintiffs seizin. 
 
 451. 
 
 435- 
 
 Allegations as to plaintiffs title. 
 
 45 2 - 
 
 436. 
 
 Under claim of fee simple, life 
 estate cannot be recovered.— 
 
 
 
 Variance, 
 
 453- 
 
 437- 
 
 Declaration on legal title will not 
 support equitable recovery. 
 
 454- 
 
 438. 
 
 Nature of the interest claimed. 
 
 454" 
 
 439- 
 
 Nature of estate. — How set forth. 
 
 454^ 
 
 440. 
 
 Pleading an estate in fee simple. 
 
 454c 
 
§§423-425.] OF THE COMPLAINT. 299 
 
 § 423. How set forth in the declaration. — In the declara- 
 tion 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 con- 
 tinuance of the term, he was ousted from possession 
 by the casual ejector Eichard Eoe. 1 When the tenant 
 entered into the consent rule, and was substituted as 
 defendant in the place of the casual ejector, it was neces- 
 sary to file a new declaration against him, and if the court 
 proceeded to trial and judgment without anew declara- 
 tion, it was error which was not cured by the tenant plead- 
 ing to the original declaration against Eichard Eoe, the 
 casual ejector. 2 
 
 § 424. Demise, though a fiction, must he consistent. — 
 Amendment. — 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 ; s 
 for the fictitious lease and ouster were tested by the same 
 rules as if they were realities and had been proved at the 
 trial, and were required to be consistent with the plaintiff's 
 legal rights, and within the scope of his legal powers. 4 
 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 amendments in 
 matters of form, such as enlarging the term and changing 
 the date of the demise. 5 
 
 § 425. Modem pleading. — Facts to he alleged. — The use of 
 fictitious or imaginary parties, and the practice of declaring 
 on a fictitious lease, is so nearly obsolete that further dis- 
 cussion 6 of this novel method of judicial procedure would 
 
 1 See §§ 37, 38, 39. 
 
 2 Ayres v. McConnel, 3 111. 307; Harney v. Lamborn, 3 111. 480. See Jackson 
 v. Wood, 6 Cow. (N. Y.) 586. 
 
 3 Binney v. Chesapeake & Ohio Canal Co. 8 Pet. 214; Doe v. Butler, 3 Wend. 
 (N.Y.)i 4 9,i54. See §28. 
 
 4 Den u. McShane, 13 N. J. L. 35. 
 
 5 Blackwell v. Patton, 7 Cranch, 471 ; McDaniel v. Wailes, 4 Cranch C. C. 201 ; 
 Shattuck v. Tucker, N. Chip. (Vt.) 69 ; Walden v. Craig, 9 Wheat. 576; Smith v. 
 Vaughan, 10 Pet. 366. See § 53. 
 
 6 See§§ 27, 34, 37- 
 
300 OF THE COMPLAINT. [§ 426. 
 
 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. 1 The real parties in interest 2 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 possession the defendant. Although the reformed 
 procedure has dispensed with the old form of pleading, 
 still, as we shall see, facts must be pleaded sufficient to 
 show the plaintiff's right of recovery, and not mere conclu- 
 sions of law. 8 The ultimate facts constituting the cause 
 of action, and not other subsidiary matters of fact or law 
 which go to make up, or are evidence of, such ultimate 
 facts, are to be pleaded. 4 
 
 § 426. Names of the parties. — By a name, in law, must be 
 understood the full Christian name, as received in baptism, 
 prefixed to the surname received from the party's ances- 
 tors. Initials 6 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. 6 And where parties whose names are unknown are 
 
 1 Greer v. Mezes, 24 How. 268; Kitchen v. Wilson, 80 N. C. 191. 
 
 8 Hubbell v. Lerch, 62 Barb. (N. Y.) 295 ; affirmed, 58 N. Y. 237; Hogan v. 
 Kurtz, 94 U. S. 773 ; Beard v. Federy, 3 Wall. 493. 
 
 3 Payne v. Treadwell, 5 Cal. 310. 
 
 4 Prickhardt v. Robertson, 4 N. Y. Civ. Pro. 112. Johnson, C, said, in 
 People v. Comm'rs of Highways, 54 N. Y. 279: " Matter "of law is never mat- 
 ter to be alleged in pleading. No issue can be framed upon an allegation as to the 
 law. Facts only are pleadable ; and upon them, without allegation, the courts pro- 
 nounce and apply the law. This is true alike in respect to statute and to the com- 
 mon law." Prof. Pomeroy observed : "The material facts which constitute the 
 ground of relief, or the defense of new matter (confession and avoidance) should be 
 averred as they actually existed or took place, and not the legal effect or aspect of 
 those facts, and not the mere evidence or probative matter by which their existence 
 is established." Pomeroy's Remedies, § 517. 
 
 5 The use of initials to designate a party to an action is an irregularity which will 
 be cured by eighteen years' delay before motion made. Grant v. Birdsall, 16 J. & S. 
 (N. Y.) 427 ; s. c. 22 N. Y. Daily Reg. 1137. 
 
 6 People v. Cook, 14 Barb. (N. Y.) 259; s. c. affi'd, 8 N. Y. 67; Van Voorhis 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, 11 Wend. (N. Y.) 524; See Chapman v. Phoenix 
 Nat. Bank, 85 N. Y. 437 ; s. c. 12 Weekly Dig. (N. Y.) 525; Franklin v. Talmadge, 
 S Johns. (N. Y.) 84; Rex v. Newman, I Ld. Raym. 562; McKay v. Speak, 8 Tex. 
 376 ; States. Martin, 10 Mo. 391; Edmundston v. State, 17 Ala. 179; Simpson v. 
 Dix. 131 Mass. 179; San Francisco v. Randall, 54 Cal. 408- Padgett v. Lawrence, 
 10 Paige (N. Y.), 170; s. c. 40 Am. Dec. 240, and note. 
 
§§ 427, 428.] OF THE COMPLAINT. 301 
 
 sued by fictitious names, the record should so state. 1 In 
 tracing titles identity of names is prima facie evidence of 
 identity of persons. 2 
 
 § 427. Written pleadings required. — As controversies over 
 titles to land are in most cases restricted to courts of 
 record, the universal practice is to require written plead- 
 ings. These can not be dispensed with by agreement. 5 
 Oral pleadings were not tolerated in the system of real 
 actions as originally practiced in Virginia, 4 and ought not 
 to be countenanced under any circumstances. The subject- 
 matter of contention in actions to try title being practically 
 indestructible and unchangeable, the highest considera- 
 tions of public policy and convenience require that all 
 statements or proofs affecting the title in such controver- 
 sies be preserved upon the court records for future inspec- 
 tion, instead of being left to the uncertain memories of 
 witnesses. 
 
 § 428. Pleadings, how construed. — The general common 
 law rule is that doubtful phraseology in pleadings is to be 
 taken most strongly against the pleader ; 5 and any ambi- 
 guity, uncertainty, or omission in the pleadings must be at 
 the peril of the party in whose allegations it occurs. 6 This 
 rule, however, is being gradually superseded in the 
 
 1 Ford v. Doyle, 37 Cal. 346. See § 220. 
 
 ! Stebbins v. Duncan, 108 U. S. 32; Brown v. Metz, 33 III. 339; Cates v. Lof- 
 tus, 3 A. K. Marsh. (Ky.) 202; Gitt v. Watson, 18 Mo. 274; Balbec v. Donaldson, 
 2 Grant (Pa.), 459; Bogue v. Bigelow, 29 Vt. 179; Chamblee v. Tarbox, 27 Tex. 
 139; Lessem v. Wilson, 43 Iowa, 488. 
 
 3 Hicks v. Marshall, 67 Ga. 713. 
 
 4 Taylors v. Huston, 2 H. & M. (Va.) 161. 
 
 6 In Hawes v. Ryder, 100 Mass. 216, 218, Gray, J., said : " By a general rule of 
 law, pleadings, like other statements in writing, are to be construed most unfavora- 
 bly to the party making them." See Clark v. Dillon, 97 N. Y. 373 ; Nation v. Cam- 
 eron, 2 Dakota, 347. 
 
 6 Hill v. Allison, 51 Tex. 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 11 ; Bac. Max. Reg. Ill; Gold- 
 ham 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. Transp. Co. v. Central R. R. Co., 33 N. J. L. 
 229; Rogers v. Shannon, 52 Cal. 99; Henley v. Wilson, 77 N. C. 216; Wright v. Mc- 
 Cormick, 67 N. C. 27. In proceedings to determine conflicting claims to real prop- 
 erty the pleader must be careful to make the allegations of his complaint square with 
 the requirements of the act. Austin v. Goodrich, 49 N. Y. 266; Churchill z/. Onder- 
 donk, 59 N. Y. 136. 
 
302 OF THE COMPLAINT. [§ 429. 
 
 reformed procedure as to matters of form. In Evans v. 
 Woniack 1 the Supreme Court of Texas held that the 
 petition in trespass to try title is not that sort of pleading 
 which is required to be "certain to a certain 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 
 obtain, the allegations being liberally construed with a 
 view to substantial justice between the parties. 2 In a New 
 York case the court say it is not true that, under the code, 
 if there be uncertainty in respect to the nature of the 
 charge, it is to be strictly construed against the pleader; 
 the allegations must be liberally construed with a view to 
 substantial justice. 2 In Wisconsin the court observe, that 
 " contrary to the common law rule, every reasonable in- 
 tendment and presumption is to be made in favor of the 
 pleading." 4 The modification of the ancient rale was 
 held, however, in a late case in the New York Court of 
 Appeals " to extend only to matters of form and not to 
 a l'ply to the fundamental requisites of a cause ofaction;" 5 
 and the rule of strict construction against the pleader was 
 applied in an ejectment action in that State. 6 Uncertainty 
 in the pleadings must generally be reached by motion and 
 not by demurrer; 7 and motions designed to affect the 
 pleadings should be brought to a hearing before the trial. 8 
 
 § 429. Pleadings in real actions. — The demandant in real 
 actions was required to allege, and, if traversed, to prove a 
 seizin either in himself or in his ancestors through whom he 
 claimed ; and in general it was also necessary to aver that 
 
 1 48 Texas, 230. 
 
 2 Foster v. Elliott, 33 Iowa, 216 ; Gray v. Coan, 23 Iowa, 344. 
 
 3 Olcott v. Carroll, 39 N. Y. 438. 
 
 4 Morse v. Gilman, 16 Wis. 504, 507; s. p. Doolittle v. Greene, 32 Iowa, 124; 
 Clay v. Edgerton, 19 Ohio St. 549; McGlasson v. Bradford, 7 Bush(Ky.), 250. 
 
 6 Clark v. Dillon, 97 N. Y. 373; citing Spear v. Downing, 34 Barb. (N. Y.) 522; 
 Ciuger v. Hudson River R. R. Co , 12 N. Y. 190; Bunge v. Koop, 48 N. Y. 225. 
 
 6 Moores v. Lehman, 52 N. Y. Superior, 283. 
 
 7 Hampson v. Fall, 64 Ind. 382. See Cairo & F. R. R. Co. v. Parks, 32 Ark. 131 ; 
 Lonllard v. Clyde, 86 N. Y. 384. 
 
 s Kahn v. Old Telegraph Min. Co., 2 Utah, 187; Smith v. Countryman, 30 N. 
 y. 668. 
 
§§ 430-432.] OF THE COMPLAINT. 303 
 
 he was seized by taking the esplees or profits. 1 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 
 possession of the land, and the perception of the profits, or 
 taking the esplees. 2 
 
 § 430. Declaration in a writ of entry in Maine. — Under 
 the practice in Maine four things are necessary in a decla- 
 ration in a writ of entry. Firrst. The premises must be 
 clearly described. Secondly. The estate which the demand- 
 ant 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 within twenty years 
 the demandant was seized of the estate claimed. Fourthly. 
 A disseizin by the tenant. 3 
 
 § 431. Modern declaration or complaint. — The requisites 
 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 require- 
 ments in some instances differ essentially in the several 
 States, yet it is important to notice the substantial alle- 
 gations which are of general and almost universal appli- 
 cation. 
 
 § 432. Must allege possession by defendant. — Actions in 
 the nature of ejectment must, as we have seen, 4 be insti- 
 tuted against the occupant or party in possession of the 
 lands ; 5 and the declaration must generally allege that 
 
 1 See Payne v. Treadwell, 5 Cal. 310; Roscoe on Actions relating to Real Prop- 
 erly, 174; Dally v. King, 1 H. Bl. 1; Stearns on Real Actions (ed. 1824), 153 ; see 
 Plummer v. Walker, 24 Me. 14. 
 
 2 Dawson v. Watkins, 2 Rob. (Va.) 259; Dally v. King, 1 H. Bl. 1. See Plum- 
 mer v. Walker, 24 Me. 14; Widdowson v. Earl of Harrington, I Jac. & W. 532. 
 
 3 Wyman v. Brown, 50 Me. 139. 
 
 4 See §§ 231-236. 
 
 5 Hawkins v. Reichert, 28 Cal. 534 ; Wheelock v. Warschauer, 21 Cal. 309 ; 
 Garner v. Marshall, 9 Cal. 268; Rodgers v. Bell, 53 Ga. 94 ; Lockwood v. Drake, 
 1 Mich. 14; Schuyler v. Marsh, 37 Barb. (N. Y.) 350 ; Child v. Chappell, 9 N. Y. 
 246 ; Redtield 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. In 
 McCauley v. Gilmer, 2 Mont. 202-205, the court, following Payne v. Tread- 
 well, 16 Cal. 220, held that the only facts necessary to be alleged in an action of 
 ejectment are that the plaintiff is seized in fee, or for life or for years, as the case 
 may be, and that the defendant is in possession and withholds the lands. See Mer- 
 rill v. Dearing, 22 Minn. 376. 
 
304 OP THE COMPLAINT. [§433. 
 
 the defendant is in possession of the disputed property, 1 
 for if the plaintiff is clothed with the possession, he cannot 
 support ejectment, which is a possessory action. 3 It has 
 been held in Illinois that the allegations of the declaration 
 should be the same whether the defendant is in the actual 
 occupation or possession of the premises, or, the premises 
 being unoccupied, is exercising acts of ownership thereon, 
 or claiming title thereto or an interest therein. 8 It has 
 been decided in North Carolina to be sufficient to plead 
 that the defendant is in possession of a part of the prem- 
 ises without specifying the particular portion. 4 The 
 objection that the complaint was defective in that it did 
 not positively allege that the defendants were in posses- 
 sion, but merely stated that they withheld the land, has 
 been considered in that State to be cured by verdict. 5 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 undoubtedly have constituted 
 good ground of special demurrer. 6 
 
 § 433. Must allege wrongful or unlawful withholding of 
 possession. — The complaint or declaration should also con- 
 tain an averment that the defendant wrongfully or unlaw- 
 fully withholds the possession of the premises claimed 7 
 or has ousted the plaintiff. 8 The allegation as to the exact 
 time of the ouster is immaterial, provided it is alleged to 
 exist before the commencement of the action. 9 Ejectment, 
 as already shown, was originally an action of trespass, 1 * 
 
 1 Tetherow v. Chambers, 74 Mo. 183. 
 
 ! Corley v. Pentz, 76 Penn. St. 57; Buchanan v. Streper, 12 Phila. (Penn.) 529; 
 Cooper v. Smith, g S. & R. (Penn.) 26 ; Jackson v. Hakes, 2 Cai. (N. Y.) 335; Tay- 
 lor v. Crane, 15 How. Pr. (N. Y.) 358. 
 
 3 Dickerson v. Hendryx, 88 111. 66. See Platto v. Jante, 35 Wis. 629. 
 
 4 Johnson v. Nevill, 65 N. C. 677. 
 
 5 Wiseman v. Penland, 79 N. C. 197. 
 
 6 Parr v. Van Horn, 38 111. 226. 
 
 ' Vance v. Schroyer, 77 Ind. 501 ; Levi v. Engle, 91 Ind. 330. 
 
 8 Tetherow v. Chambers, 74 Mo. 183. 
 
 9 Kidder v. Stevens, 60 Cal. 420 ; Yount v. Howell, 14 Cal. 468 ; Stark v. Bar- 
 rett, 15 Cal. 361 ; Woodward v. Brown, 13 Pet. I. 
 
 10 See § I. 
 
§§ 434, 435.1 OF THE COMPLAINT. 305 
 
 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 com- 
 plaint which does not set out affirmatively that the pos- 
 session of the premises is unlawfully withheld from the 
 claimant is fatally defective. 1 The Supreme Court of 
 Wisconsin has decided that, under the statute of that 
 State, it is necessary to allege in the complaint in an 
 action to recover real estate that the defendant " unlaw- 
 fully withholds the possession" of the premises claimed, 
 although the premises may not be actually occupied at the 
 commencement of the action. 2 In the same State the 
 statute requires that the complaint should specifically 
 allege that the plaintiff is entitled to the possession of 
 the premises. 3 
 
 §434. Plaintiff's seizin. — In New York the plaintiff in 
 ejectment must aver in the complaint that he is lawfully 
 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, 4 
 and that the defendant unlawfully withholds the posses- 
 sion from him. 5 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. 6 
 
 §435. Allegations as to plaintiff's title. — The claimant 
 
 1 Taylor v. Crane, 15 How. Pr. (N. Y.) 358. 
 
 2 Platto v. Jante, 35 Wis. 629. See Barclay v. Yeomans, 27 Wis. 682; Lee v. 
 Simpson, 29 Wis. 338. 
 
 8 Barclay v. Yeomans, 27 Wis. 682 ; s. P. Miller v. Shriner, 87 Ind. 143 ; Mc- 
 Caman v. Cochran, 57 Ind. 169. 
 
 4 See, also, Jamison v. Smith, 4 Mo. 202. 
 
 6 People v. Mayor, &c, of N. Y., 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 JfcUlicott v. Mosier, 7 
 N. Y. 201, also § 129. 
 
 6 Clark v. Crego, 47 Barb. (N. Y.) 599. 
 20 
 
306 OF THE COMPLAINT. [§ 436. 
 
 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 ; 1 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. 2 An allegation that the 
 plaintiff " claims " the premises "in fee simple absolute" 
 is, under the practice in California, equivalent to a direct 
 averment of such title in the plaintiff. 3 In Steinback v. 
 Fitzpatrick 4 it was held in the Supreme Court of Cali- 
 fornia, that the plaintiff must either aver title or posses- 
 sion, and that the mere taking from the land of a portion 
 of the herbage growing thereon was not sufficient to give 
 a right of possession that would support the action, It is 
 doubtful, however, whether an averment of possession will 
 suffice, as it has been asserted that the rule, presently to be 
 considered, that possession is prima facie evidence of title, 
 has no application to pleading, and where a title is neces- 
 sary it is not enough to allege possession. 5 
 
 § 436. Under claim of fee simple, life estate cannot oe recov- 
 ered. — Variance. — In many of our States the statutes re- 
 quire 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; 6 and a real action in which 
 the writ claims an estate in fee simple cannot be main- 
 tained by proof of an estate in fee tail only. 7 
 
 But on a writ of entry for land in fee the declaration 
 may be so amended as to claim merely a life estate in an 
 undivided portion, 8 and under an averment of title in fee, 
 
 1 Armstrong v. Hinds, 8 Minn. 254. 
 
 '' Pilkin v. Yaw, 13 111. 251; Wood v. Morton, 11 111. 547; Holt v. Rees, 44 111. 
 30; Joy v. Berdell, 25 111. 542. 
 
 * Marshall v. Shafter, 32 Cal. 176. 
 
 4 12 Cal. 295. 
 
 6 Meriden Britannia Co. v. Whedon, 31 Conn. 118. 
 
 6 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. l)ut see Harrison v. Stevens, 12 Wend. (N. Y.) 
 170 ; Holmes v. Seely, 17 Wend. (N. Y.) 75. A claim of a fee is not supported by 
 proof of an equitable title. Hunt v. Campbell, 83 Ind. 54 ; Stout v. McPheeters, 
 84 Ind. 585 ; Rollins v. Henry, 78 N. C. 342. 
 
 1 Hamilton v. Wentworth, 58 Me. 101. 
 
 8 Howe v. Wildes, 34 Me. 570. 
 
§§ 437, 438.] OF THE COMPLAINT. 307 
 
 an action may be upheld by proof of* title as mortgagee in 
 possession by agreement with the mortgagor. 1 
 
 § 437. Declaration on legal title will not support equitable 
 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 Las de- 
 clared upon a legal title has only the equitable title, it is 
 not regarded as a variance, but is considered to be a failure 
 of proof? The rule requiring the plaintiff to plead an 
 equitable title, to enable him to give evidence of it, is 
 obviously just and reasonable, because such titles are 
 usually founded upon a complex state of facts often pecul- 
 iarly within the claimant's knowledge, and which the 
 opposing party is entitled to have spread upon the records 
 for his information. So, as we shall presently see, where 
 the defendant in ejectment relies in his answer upon a 
 legal title, he cannot at the trial avail himself of an equi- 
 table title. 3 
 
 § 438. Nature of the interest claimed. — Chief Justice 
 Savage, in Harrison v. Stevens, 4 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 claim- 
 ant to state the nature and extent of the interest sought 
 to be recovered in the lands in controversy, in effect pre- 
 clude a recovery 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 was decided in Wisconsin that a com- 
 plaint for an undivided interest in lands was properly dis- 
 
 ' Chapman v. Delaware, L. & W. R. R. Co., 3 Lans. (N. Y.) 261. See § 454*. 
 
 ! 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; Stout v. McPheeters, 84 Ind. 585; Hunt v. 
 Campbell, 83 Ind. 48 ; Rollins v. Henry, 78 N. C. 342. 
 
 ' Kennedy v. Daniels, 20 Mo. 104. 
 
 4 12 Wend. (N. Y.) 170. See Baker v. Chastang, 18 Ala. 417 ; Van Alstyne v. 
 Spraker, 13 Wend. (N. Y.) 578. But see Holmes v. Seely, 17 Wend. (N. Y.) 75. 
 
308 OP THE COMPLAINT. [§ 439. 
 
 missed when it appeared that the plaintiff's share was less 
 than that claimed. 1 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. 2 In Illinois it is clear 
 that, under a declaration claiming the whole estate, an un- 
 divided interest cannot be recovered. 3 While the courts 
 generally possess power to grant amendments to remedy 
 difficulties of this nature," yet the exercise 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, in the incipient 
 stages of the action, the interest and estate of the claimant 
 ought never to be overlooked by the pleader. If the 
 plaintiff declares on a particular estate or interest, the de- 
 fendant is justified in preparing to disprove, at the trial, 
 only the allegations of the complaint, and it would he un- 
 fair to the latter to grant at the trial amendments, 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 
 erroneous pleading. The plaintiff may recover a part of 
 the premises for which he declared, 5 and the complaint in 
 such a case may be amended so as to conform to the 
 proofs. 6 
 
 § 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 
 
 1 Riehl v, Bingenheimer, 28 Wis. 84-89. 
 
 s AUie v. Schmitz, 17 Wis. 169 ; Bresee v. Stiles, 22 Wis. 120 ; Eagan v. Delaney, 
 16 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. 
 
 s Murphy v. Orr, 32 111. 489 ; Clark v. Thompson, 47 111. 25 ; Hardin v. Kirk, 
 49 111. 153. 
 
 4 See § 454*. 
 
 5 McArthur v. Porter, 6 Pet. 205. 
 
 6 Kellogg v. Kellogg, 6 Barb. (N. Y.) 116-131. 
 
 1 Thompson v. Wolf, 6 Oregon, 308 ; Walter v. Lockwood, 23 Barb. (N. Y.) 
 228 ; Bridges v. Cundiff, 45 Tex. 440. 
 
§§440,441.] OF THE COMPLAINT. 309 
 
 Supreme Court of New "5^)rk the general rule is stated to 
 be that the plaintiff' must allege the nature of his claim. 
 But it is not considered necessary to state it in detail, nor 
 need the facts evidencing the estate or interest claimed 
 in the land be set forth, but the general form or character 
 of the interest must be averred. 1 The plaintiff, in other 
 words, must allege that he is seized of some certain estate. 2 
 It is unnecessary to recite how the plaintiff's estate was 
 derived. 3 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 and unlawfully withheld 
 and detained the premises. Otherwise the complaint 
 would be considered defective both under the statute of 
 that State and at common law. 4 
 
 § 440. Pleading an estate in fee simple. — In Tennessee, 
 where the declaration averred an estate in fee in the 
 plaintiff, the court decided that the estate claimed was 
 sufficiently set forth, and that the pleader need not specify 
 the claim or title under which defendant entered. 5 
 And in Maine, under a statute which required the demand- 
 ant 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. 6 An estate in fee simple may be pleaded 
 in general terms without showing when or how the estate 
 arose or was created. 7 
 
 § 441. Particular estates. — It is a general rule of pleading 
 
 1 Austin v. Schluyter, 7 Hun (N. Y.), 275 ; Ensign v. Sherman, 13 How. Pr. 
 (N. Y.) 39 ; Castro v. Richardson, 18 Cal. 479; Walter v. Lockwood, 23 Barb. (N. 
 Y.) 228. See Bridges v. Cundiff, 45 Tex. 440. 
 
 8 People v. Mayor, &c.,of N. Y., 28 Barb. (N. Y.) 248 ; Rawlings v. Bailey, 15 111. 
 178. See Rogers v. Sinsheimer, 50 N. Y. 646. 
 
 3 Kansas Pacific Ry. Co. v. McBratney, 12 Kans. 9, 
 
 4 Bush v. Glover, 47 Ala. 167. 
 
 s Smith v. Cox, 6 Heisk. (Tenn.) 462; Hunt v. Campbell, 83 Ind. 54; McMan- 
 nus v. Smith, 53 Ind. 211. 
 
 6 Jordan v. Record, 70 Me. 529. See 2 Bla. Com. 104-106; Stephen on Plead- 
 ln g s . PP- 304, 305- 
 
 7 Silly v. Dally, 12 Mod. 191; Parr v. Van Horn, 38 111. 226; Marshall v. Shatter, 
 32 Cal. 176. 
 
310 OF THE COMPLAINT. [§ 442. 
 
 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, be 
 must show the derivation of that title from its commence- 
 ment ; that is, from the last seizin in fee simple. 1 The 
 distinction between pleading estates in fee simple and 
 particular estates, originates in the nature of the estates. 
 A fee simple may be acquired 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 be spread upon 
 the records for the information of the court. Hence a 
 general allegation of a seizin in fee simple is traversable. 
 Particular estates, on the other hand, are carved out of a 
 fee simple, and can be created only by contract, convey- 
 ance, or operation 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. 2 The strict- 
 ness of this rule of pleading 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 claim- 
 ant vested with a particular estate, who has merely asserted 
 ownership of such an estate, in the complaint, without 
 tracing its origin. 8 
 
 § 442. General allegation of ownership, seizin and posses- 
 sion. — What may be proved under. — In a case in the Supreme 
 Court of Texas i the plaintiffs made no effort in their 
 pleadings to set out the commencement or derivation of 
 their title, but only averred, in general terms, their owner- 
 ship and the legal seizin and possession. Under 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 different rule might 
 
 1 See Stephen on Pleading, p. 307; Hendy v. Stephenson, 10 East, 60; Johns ». 
 Whitley, 3 Wils. 72; Silly v. Dally, 12 Mod. 191; McMannus v. Smith, 53 Ind. 211; 
 Hunt v. Campbell, 83 Ind. 54. 
 
 s Scilly v. Dalby, Comb. 476; s. c. 12 Mod. 191; s. c. 2 Salk. 562; especially 
 Johns v. Whitley, 3 Wils. 65-72. 
 
 3 See §§ 439, 445. 
 
 4 Bridges v. Cundiff, 45 Tex. 440. See Ufford v. Wells, 52 Tex. 612. 
 
§§ 443, 444. J OF THE COMPLAINT. 311 
 
 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, 1 and, while it is not ne- 
 cessary to aver the evidences of the plaintiff's title, yet, if 
 these be alleged, the substantial elements of the title must 
 be stated, 2 and the complaint should contain all that the 
 demandant would be required to prove in order to re- 
 cover. 3 In Hill v. Allison 4 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 
 that the property was homestead at the time of the levy 
 and sale. The answer was a plea of not guilty. It was 
 held that the plaintiff assumed the entire burden of the 
 issue thus made and tendered by him. 
 
 § 444. Muniments and chain of title not to he set forth. — It is 
 not necessary for the plaintiff to set out his muniments in an 
 action for the recovery of the possession of real property, 
 these being merely part of his evidence. In the case of 
 Pease v. Hannah, 5 in Oregon, a motion was granted striking 
 out that portion of the complaint which set forth the plaint- 
 iff's chain of title. 6 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 proxjerty 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 complaint cannot be supplied by reference 
 
 'Turner v. Ferguson, 39 Tex. 505. See Custard v. Musgrove, 47 Tex. 217; 
 Eaganzi. Delaney, 16 Cal. 85; s. c. 5 Mor. Min. Rep. 223; Rivers v. Foote, 11 Tex. 
 670. 
 
 2 Hughes v. Lane, 6 Tex. 289. 
 
 'Castro v. Richardson, 18 Cal. 479. 
 
 4 51 Tex. 390. See Harlan v. Haynie, '9 Tex. 462. 
 
 " 3 Oregon, 301. See Boardman v. Beckwith, 18 Iowa, 293. 
 
 6 s. p. Larco v. Casaneuava, 30 Cal. 560. 
 
 'Burkholder v. Casad, 47 Ind. 418. See Cairo & F. R. R. Co. v. Parks, 32 Ark. 
 
312 OP THE COMPLAINT. [§ 445 . 
 
 to exhibits. 1 In Fitch v. Cornell 2 it was held that an exhibit 
 was no part of a pleading in an action at law, and that a 
 record or instrument should be stated in a pleading either 
 according to its tenor or legal effect. 8 
 
 § 445. Evidence of title not to oe pleaded.— It is not 
 proper in any form of action to plead the evidence by 
 which a cause of action is to be established. 4 In Oolman 
 v. Clements 5 it was held, by the Supreme Court of Cali- 
 fornia, that the complainant, who had averred ownership 
 in general terms, was not required to set forth, in the 
 pleadings, the rules and customs of mining upon which his 
 
 131 ; Hannibal & St. J. R. R. Co. v. Knudson, 62 Mo. 569; Buck v. Fischer, 2 Col. 
 182. See, also, § 464a. 
 
 1 Watkins v. Brunt, 53 Ind. 208 ; City of Los Angeles v. Signoret, 50 Cal. 298. 
 
 * 1 Sawyer, 160. But see Montgomery v. Gorrell, 51 Ind. 309. 
 
 3 See Oh Chow v. Hallett, 2 Sawyer, 259. 
 
 Statute and rule as to disclosing chain of title. — To prevent surprise and secure a 
 full hearing upon the absolute merits, and to bring sharply in issue the exact points 
 in controversy, a statute was enacted in Arkansas which provides — ''Sec. I. That 
 hereafter in all actions for the recovery of lands, except in actions of forcible entry 
 and unlawful detainer, the plaintiff shall set forth in his complaint all deeds and 
 other written evidences of title on which he relies for the maintenance of his suit, 
 and shall file copies of the same, as far as they can be obtained, as exhibits, there- 
 with, and shall state such facts as shall show a prima facie title in himself to the 
 land in controversy, and the defendant, in his answer, shall plead in the same man- 
 ner as above required from the plaintiff. Sec. 2. That the defendant, in his answer, 
 shall set forth exceptions to any of said documentary evidence relied on by the 
 plaintiff, to which he may wish to object, which exceptions shall specifically note the 
 objections taken; and the plaintiff shall in like manner, within three days after the 
 filing of the answer, unless longer time is given by the court, file like exceptions to 
 any documentary evidence exhibited by the defendant, and all such exceptions shall 
 be passed on by the court, and shall be sustained or overruled as the law may 
 require; and if any exception is sustained to such evidence, the same shall not he 
 used on the trial unless the defect for which the exception is taken shall be cured by 
 amendment. Sec. 3. That all objections to such evidence not specifically pointed 
 out in the manner provided above shall be waived." This slatute is said to work 
 successfully in practice. It seems to be open to the objection, however, that it 
 might be used by unscrupulous litigants as a convenient means of dishonestly secur- 
 ing a disclosure of the strength of the opposing title. In the St. Louis Circuit the 
 defect of general pleading was sought to be remedied by a rule of the court, providing 
 as follows : " In all actions of ejectment, each party shall, on or before the day of 
 trial, make out and deliver to the judge, at 'special term,' an abstract of his title, 
 which abstract shall state the derivation of the title, parties to each deed, dates of 
 execution, acknowledgment, and recording, and the tract of land conveyed. If 
 either party fail to file such abstract, the cause shall, on motion of the opposite 
 party, be continued; but if no motion is made for a continuance by the opposite 
 party, then the cause shall be tried or continued at the discretion of the court." 
 This is for the information of the court, however, and is of little value as an aid to 
 counsel in preparing for trial or argument the exact points in controversy. 
 
 4 Badeau v. Niles, 9 Abb. N. C. (N. Y.) 48. See Prickhardt v. Robertson, 4 
 N. Y. Civ. Pro. 117, and note; Ilobson v. McArthur, 3 McL. 244. See § 49 2 '- 
 
 " 23 Cal. 245 ; s. c. 5 Mor. Min. Rep. 247. 
 
§§ 446, 447.] OP THE COMPLAINT. 313 
 
 title partly depended. The plaintiff is not bound to plead 
 or disclose the evidence of his title ; tacts, 1 and not the 
 evidence of facts, 8 must be stated ; 8 nor should he set 
 forth the mesne conveyances through which the title is 
 deraigued. 4 
 
 § 446. In California, seizin must be averred. — None of 
 the allegations peculiar to the old action of ejectment are 
 neaessary in an action to recover the possession of real 
 property in California. 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 fol- 
 lows the seizin and need not be alleged. 5 
 
 § 447. Precision in pleading. — Forfeiture. — The Supreme 
 Court of California, in McCarthy v. Yale, 6 advert to the 
 prevalent opinion that a style of pleading in the action of 
 ejectment should be adopted which would show with pre- 
 cision 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. Con- 
 ceding that the change might be preferable to the existing 
 general system of pleading, since 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. 7 
 
 Pleadings in cases of forfeiture must be specific. 
 
 1 Hughes v. Lane, 6 Tex. 289. 
 
 2 Depuy v. Williams, 26 Cal. 309. 
 
 3 Coryell v. Cain, 16 Cal. 567 ; s. C. 5 Mor. Min. Rep. 226 ; Bruck v. Tucker, 
 42 Cal. 346. 
 
 4 Coryell v. Cain, 16 Cal. 567. 
 
 5 Payne v. Treadwell, 16 Cal. 220. See McCarthy v. Yale, 39 Cal. 585 ; Kidder 
 v. Stevens, 60 Cal. 422. 
 
 6 39 Cal. 585. ' See § 42. 
 
314 OF THE COMPLAINT. [§ 448. 
 
 Where a municipal corporation conveyed land to a party, 
 who covenanted to build streets through it when required 
 by the grantor, it was held, on demurrer to a complaint in 
 ejectment to enforce a forfeiture for breach of the cove- 
 nant, that to place the grantee in default the complaint 
 should show that the streets were in condition to receive 
 the improvements, that no impediment to the prosecution 
 of the work proceeded from the plaintiff, and that the 
 ordinance must direct the work to be done by the defend- 
 ant, a mere general ordinance being insufficient. 1 
 
 Conditions subsequent, as already stated, are not fa- 
 vored in the law, being construed strictly 2 against the 
 grantor and his heirs, because they tend to destroy 
 estate's. 3 Complaints seeking to enforce these conditions 
 also receive a strict construction. 4 An entry or demand, 
 as we have shown, is necessary to enable the grantor or 
 his heirs to recover for breach of a condition subsequent, 5 
 and where no such entry or demand is alleged in the com- 
 plaint it is defective. 6 
 
 § 448. Mortgagor against mortgagee. — The rights of 
 mortgagees and mortgagors as regards the remedies we 
 are considering have already been discussed. 7 We note 
 a single case, Holt v. Bees, 8 which was ejectment insti- 
 tuted by a mortgagor against a mortgagee. The title, 
 
 1 Mayor, &c, of N. Y. v. Smith, 64 How. Pr. (N. Y.) 89. See § 486. 
 
 2 See § 212. 
 
 3 Clark v. Holton, 57 Ind. 567 ; Hunt v. Beeson, 18 Ind. 380 ; Heaston v. 
 Board of Comm'rs, &c, 20 Ind. 398 ; Crane v. Hyde Park, 135 Mass. 149. 
 
 4 Clark v. Holton, 57 Ind. 567. 
 
 6 Lindsey v. Lindsey, 45 Ind. 552: 4 Kent Coram. 127; Nicoll v. N. Y. & Erie 
 R. P.. Co. 12 N. Y. 121 ; Fonda v. Sage, 46 Barb. (N. Y.) ipg ; Lincoln & K. Bark 
 v. Drummond, 5 Mass. 321 ; Chalker v. Chalker, 1 Conn. 79. 
 
 6 Clark v. Holton, 57 Ind. 567. See § 464^. In a suit for breach of covenant 
 of seizin in a deed, where the complaint alleged that defendant was not seized, &c, 
 negativing the words of the covenant, and the answer admitted the conveyance but 
 denied the other allegations of the complaint, it was held in New York that the 
 affirmative of the issue was on the plaintiff to prove the breach. Woolley v. New- 
 combe, 87 N. Y. 605 ; s. p. Ingalls v. Eaton, 25 Mich. 32. This is a departure 
 from the English rule in an action for breach of covenant of seizin which required 
 the defendant to establish his title and cast that burden upon him. Marston v. 
 Hobbs, 2 Mass. 437; Swafford v. Whipple, 3 Greene (Iowa). 264; Schofield v. Iowa 
 Homestead Co. 32 Iowa, 321; Baker v. Hunt, 40 111. 266; Mecklem u Blake, 16 
 Wis. 102; Beckmann v. Henn, 17 Wis. 412; Potter v. Kitchen, 5 Bosw. (N. Y.) 
 566. 
 
 1 See Chap. XI. s 44 t u . 3a 
 
§§ 449, 450.J OE THE COMPLAINT. 315 
 
 entry and ouster were laid in the declaration, 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 supported. 
 
 § 449. Joint title. — Title of trustee. — The title must be 
 truly stated in the declaration. A joint demise can only 
 he supported by showing a title in each to demise the 
 whole. If one of the plaintiffs has no title, 1 or the title is 
 several, 3 the action must fail ; and a joint demise by hus- 
 band and wife when the title was in the husband alone 
 cannot be maintained. 8 
 
 A trustee holding the legal title need not, as we have 
 seen, 4 set forth in a writ of entry that he is trustee. 5 
 
 § 450. Joinder of hostile claimants. — We have already 
 seen that hostile claimants cannot join in any suit or 
 action. 6 In Hubbell v. Lerch,' in the New York Court of 
 Appeals, a case which we have heretofore noticed, the 
 principles regulating the joinder of plaintiffs in ejectment, 
 claiming under titles hostile to each other, are discussed. 
 The complaint 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 com- 
 plaint, 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 
 
 1 Hoyle v. Stowe, 2 Dev. (N. C.) Law, 318. See Bryan v. Manning, 6 Jones 
 (N. C.) Law, 334 ; Teal v. Terrell, 48 Tex. 491 ; Taylor v. Taylor, 3 A. K. Marsh. 
 (Ky.) 19 ; Taylor v. Whiting, 4 T. B. Mon. (Ky.) 365. See, contra, Miller v. Bled- 
 soe, 61 Mo. 96; Tormey v. Pierce, 42 Cal. 335. See, also, §§ 187-189. 
 
 ! Teal v. Terrell, 48 Tex. 491. See §§ 187-189. 
 
 3 Tucker v. Vance, 2 A. K. Marsh. (Ky.) 45S. 
 
 4 See § 222. 
 
 5 Simpson v. Dix, 131 Mass. 179. 
 
 6 See § 188. 
 
 1 58 N. Y. 239. See s. c. below, 62 Barb. (N. Y.) 295 ; Bunce v. Gallagher, 5 
 Blatchf. 489 ; Fulham v. McCarthy, I H. L. Cas. 703 ; Walker v. Powers, 104 U. S. 
 245. See also § 188. 
 
316 OF THE COMPLAINT. [§§ 451, 452. 
 
 be regarded as containing only one count, it showed no 
 right of action in either plaintiff. Each plaintiff in the 
 same breath stated facts showing that he was and that he 
 was not entitled to recover. If no answer had been inter- 
 posed the court would have been unable to determine 
 which plaintiff was entitled to judgment. On the other 
 hand, if the complaint was to be regarded as containing 
 two counts or statements 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. 1 
 
 § 451. Ejectment ~by infant. — The rights of infants as 
 plaintiffs in ejectment, and questions affecting their power 
 to disaffirm deeds of land, have already been noticed. 8 It 
 seems the disaffirmance must be pleaded as well as proved. 
 In Voorhies v. Voorhies 3 it was held, in ejectment brought 
 to recover possession of lands conveyed by plaintiff during 
 his iufancy, 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. Decla/ration against several defendants holding 
 different portions of same premises. — One declaration in 
 ejectment will lie against several defendants holding dif- 
 ferent portions of the same tract* And where the defend- 
 ants 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. 6 
 
 1 See St. John v. Pierce, 22 Barb. (N. Y.) 362 ; affi'd, 26 How. Pr. (N. Y.) 
 Sgg ; Hubbell v. Lerch, 62 Barb. (N. Y.) 295. 
 4 See §§ 196-198. 
 8 24 Barb. (N. Y.) 150-153. See §§ 196-198. 
 
 4 Needham v. Branson, 5 Ired. (N. C.) Law, 426 ; Marshall v. 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. See §§ 238-240. 
 
 5 Pearce v. Ferris, 10 N. Y. 280 ; Pearce v. Colden. 8 Barb. (N. Y.) 522. Com- 
 
§§453-454a.] op the complaint. 317 
 
 §453. Co-tenants. — As already shown, the complaint in 
 ejectment between co-tenants should aver an actual ouster, 
 or some act amounting to a total denial of the plaintiff's 
 right of possession ; for ouster must be shown to sustain 
 ejectment between co-tenants. 1 The rules governing this 
 important relationship have been elsewhere considered. 3 
 
 § 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 pos- 
 session, and the jury, upon finding for the plaintiff ou the 
 main issue, should give a verdict for damages up to the day 
 of the trial. 3 The claims for damages, and for mesne prof- 
 its, as we shall presently see, are separate and distinct 
 causes of action, which must be pleaded, and it has been 
 considered to be error to allow evidence of the value of the 
 use and occupation where only damages are claimed in the 
 complaint. 4 This subject will be presently considered. 5 
 
 In a suit to recover damages for an invasion of plaint- 
 iff's possession or right of possession a complaint is bad 
 which fails to show that plaintiff was ever in possession or 
 that defendant's acts were wrongful. 6 
 
 § 454a. Prayer for relief. — As a general rule under the 
 reformed procedure, a complaint alleging facts entitling 
 the plaintiff to any relief, is good on demurrer, though the 
 pleader may have prayed for the wrong relief. 7 Where no 
 answer is interposed the judgment will be restricted to 
 what is asked for in the complaint, but if an answer is 
 served the court will grant any relief embraced within the 
 issues. 8 
 
 pare Davidson v. Barclay, 63 Penn. St. 406 ; Beard v. Federy, 3 Wall. 478. See 
 §§ 238-240. 
 
 1 Edwards v. Bishop, 4 N. Y. 61. See Nicholson v. Caress, 76 Ind. 24. 
 
 ! See § 276 and succeeding sections, Chap. IX. 
 
 '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; Bottorff v. Wise, 53 Ind. 32; Woodhull v. Rosenthal, 61 N. Y. 382; 
 Beard v. Federy, 3 Wall. 478. 
 
 4 Lamed v. Hudson, 57 N. Y. 151. 
 
 6 See Chap. XXV. 
 
 6 Garner v. McCullough, 48 Mo. 318. 
 
 ' Lovely v. Speisshoffer, 85 Ind. 455. 
 
 8 Dusenbury v. Dusenbury, 4 N. Y. Civ. Pro. 126; Marquat v. Marquat, 12 N. 
 Y. 336. 
 
318 OP THE COMPLAINT. [§§ 4546, 454c. 
 
 §4546. Amendment of complaint. — The liberality of the 
 courts in granting amendments in matters of form in 
 ejectment such as enlarging the term, 1 is in marked con- 
 trast with the strange disinclination of the judges to per- 
 mit the demandant in real writs to amend. 3 The com- 
 pleteness of the collection of these latter writs from which 
 the demandant could choose, evidently led to the conviction 
 that the pleader was not justified in making a mistake in 
 the selection of his writ, but acted at his peril. Indeed, 
 the exercise of the power of amendment might have ren- 
 dered many of the real writs practically obsolete, as the 
 courts and the profession would have at once ceased to 
 carefully consider the distinctions between the writs. 
 
 The power of amendment is most liberally bestowed 
 and freely exercised in the modern reformed procedure. 
 The description, as we shall see, may be amended 8 so as to 
 embrace new lands, though such amendments will not 
 relate back as regards the defense of the statute of limita- 
 tions. 4 A fee simple claim may be changed to a demand 
 for a life interest ; 6 though, on the other hand, equitable 
 relief cannot be converted into ejectment. 6 Where the 
 whole estate is claimed, an undivided interest cannot be 
 recovered without an amendment of the complaint,' but 
 such an amendment may be granted. 8 The plaintiff may 
 be permitted to amend by enlarging the amount of dam- 
 ages. 9 
 
 § 454c. Supplemental complaint. — " The first rule govern- 
 ing in the production of evidence is, that the evidence 
 offered must correspond with the allegations, and be con- 
 fined to the point in issue." 10 Enforcing this rule, it has 
 been held that a deed executed after suit brought, convey- 
 
 1 See § 424 ; Smith v. Vaughan, 10 Pet. 366. 
 
 8 See § 3. 3 See § 464. 
 
 4 Sicard v. Davis, 6 Pet. 124; Kaul v. Lawrence, 73 Pa. St. 410. 
 
 5 Howe v. Wildes, 34 Me. 566. 
 
 6 Bockes v. Lansing, 74 N. Y. 442. 
 
 7 Smith v. Long, 3 N. Y. Civ. Pro. 397. 
 
 6 Kellogg v. Kellogg, 6 Barb. (N. Y.) 116-131. 
 
 9 Dew v, Katz, 8 C. & P. 315. 
 10 1 Greenleaf Ev.,§ 51. 
 
§ 454c] OF THE COMPLAINT. 319 
 
 ing the disputed land to the plaintiff could not be received 
 in evidence. 1 It did not tend to prove any of the issues in 
 the pleadings. If the plaintiffs desired the benefit of any 
 rights that may have accrued to them under a conveyance 
 made since the suit was instituted the proper practice is 
 to file a supplemental complaint or petition. 2 
 
 Where a plaintiff conveys pending the action, the suit 
 may be continued in his name ; 3 or in the name of the 
 grantee, 4 and a demandant may have judgment on review, 
 although after a verdict in his favor, but before judgment, 
 he made a conveyance of the property. 5 
 
 1 See Doe d. Baylor v. Neff, 3 McL. 302. 
 
 s Porter v. Wells, 6 Kans. 453. See Boorman v. Sunnuchs, 42 Wis. 235, §§ 495, 
 645. 
 
 3 French v. Edwards, 4 Sawyer, 125 ; Camarillo v. Fenlon, 49 Cal. 202. 
 
 4 Warner v. Turner, 18 B. Mon. (Ky.) 758. 
 6 Berry v. Whitaker, 58 Me. 422. 
 
CHAPTER XVI. 
 
 HOW THE LANDS ARE TO BE DESCRIBED. 
 
 § 455. Descriptions under the early prac- 
 tice. 
 
 456. Examples. 
 
 457. Modern practice. 
 
 458. General and particular descriptions. 
 
 459. Johnson v. Nevill. 
 
 460. Property described by street num- 
 
 bers, etc. 
 
 § 461. Description by reputed name. 
 
 462. Sections of townships. 
 
 462a. Descriptions considered sufficient. 
 
 463. Defective description. 
 
 464. Amendment of description. 
 464a. Bill of particulars. 
 
 464^. Particulars of breaches. 
 
 § 455. Descriptions under the early practice. — A general 
 and imperfect description, in the declaration, of the lands 
 sued for was sufficient under the practice, as established in 
 the early action of ejectment. It is true that when the 
 action was originally adapted to its new uses the same 
 certainty of description was, according to some of the 
 cases, held to be requisite as in a precipe quod reddat. 1 
 But the strict rules prevailing in real actions, regulating 
 the pleading, and the manner of describing the lands, if 
 ever fully enforced were soon relaxed in ejectment, and no 
 greater certainty of statement was required than in an 
 ordinary action of trespass. In this respect the peculiari- 
 ties of a personal action clung to ejectment after it had 
 been transformed and adopted as a remedy for trying titles. 
 The practice which is said to have prevailed for a consider- 
 able time, of requiring a description sufficiently specific and 
 definite to enable the sheriff to find the premises recov- 
 ered and deliver the possession, by consulting the writ 
 solely, and without any suggestion or information from the 
 lessor of the plaintiff, as to the situation or boundaries of 
 the lands, 3 was soon relaxed. 3 In Connor v. West 4 Lord 
 
 1 Macduncoh v. Stafford, 2 Rolle, 166. See Adams on Ejectment (4th Am. ed.), 
 p. *26. 
 
 * See Bindover v. Sindercombe, 2 Ld. Raym. 1470, and cases. 
 
 3 See Connor v. West, 5 Burr. 2672; Cottingham v. King, 1 Burr. 623-630; St- 
 John v. Commyn, Yelv. 117. 
 
 4 5 Burr. 2672. See Johnson v. Nevill, 65 N. C. 677. 
 
§ 456.] DESCRIPTION. 321 
 
 Mansfield explains the reason of the change as follows : 
 " A prcecipe in a real action requires exactness and preci- 
 sion ; 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, without 
 any information from the plaintiff, what he is to give pos- 
 session 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 1 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 ; 2 for 
 a messuage or tenement called the Black Swan ; 3 for corn 
 mills, without stating whether wind or water mills, 4 and 
 for a stable or cottage. 5 So a declaration in ejectment for 
 a place called a passage room has been held sufficient, 6 
 and for a room and a chamber in the second story ; 7 and 
 for "part of a house in A;" 8 and for a certain place 
 called a vestry; 9 and for ten acres of underwood; 10 and 
 for "one hundred acres of gorse and furze;" 11 and for 
 
 1 Adams on Ejectment (4th Am. ed.), p. 27. 
 
 2 Barnes v. Peterson, 2 Stra. 1063 ; Bennington v. Goodtitle, 2 Stra. 1084. 
 8 Burbury v. Yeomans, I Sid. 295. 
 
 * Fitzgerald v. Marshall, 1 Mod. 90. 
 
 5 Hill v. Giles, Cro. Eliz. 818; Lady Dacres' Case, 1 Lev. 58; Royston v. 
 Eccleston, Cro. Jac. 654 ; s. c. Palm. 337. 
 
 6 Bindover v. Sindercombe, 2 Ld. Raym. 1470. 
 ' Anon. 3 Leon. 210. 
 
 8 Sullivane v. Seagrave, 2 Stra. 695 ; Rawson v. Maynard, Cro. Eliz. 286. 
 8 Hutchinson v. Puller, 3 Lev. 95. 
 
 10 Warren v. Wakeley, 2 Rolle, 482. 
 
 11 Fitzgerald v. Marshall, 1 Mod. 90. 
 
 21 
 
322 DESCBIPTION. [§ 457. 
 
 " fifty acres of moore and marsh ; " 1 and for " ten acres of 
 pease ; " 2 and for a manor or moiety of a manor generally, 
 without any mention of the number of acres. 3 
 
 § 457. Modem 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. The ancient strictness of real writs is 
 much relaxed. 4 The property should be described if prac- 
 ticable by metes and bounds, but this is not essential. 5 
 The general requisites of a sufficient description of lands 
 are so obviously apparent that most of the numerous mis- 
 takes and miscarriages of actions to be found in the re- 
 ports, resulting from imperfect descriptions of the locus 
 in quo in the pleadings, must be attributed to the careless- 
 ness of pleaders. The requirements as to correctly 
 pleading the geographical position of the lands will be 
 noticed in discussing the subject of venue. 6 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 subdivi- 
 sion of the county should be added. These allegations 
 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. 1 
 
 It is sufficient if the demanded premises are described 
 with such substantial accuracy in the declaration that 
 they can be identified by the application of the evidence 
 
 1 Connor v. West, 5 Burr. 2672. 
 
 2 Odingsal v. Jackson, 1 Brownl. & G. 149. 
 
 3 Warden's Case, Hetley, 146; Cole v. Aylott, Litt. 299-301; Hems z;. Stroud, 
 Latch, 61. Speaking of a description in a writ of dower the Supreme Court of 
 Massachusetts says, (1839) : "When lands are demanded, the description of them 
 must be so certain that seizin may be delivered by the sheriff without reference to 
 any description dehors the writ. It is not necessary in every case to describe the 
 land demanded by metes and bounds, but there must be a certain description in 
 the writ itself, and no defect can be cured by a reference to any existing convey- 
 ance." Atwood v. Atwood, 22 Pick. (Mass.) 287. See College Corner & R. G. 
 Road Co. v. Moss, 92 Ind. Iig. 
 
 4 Barclay zi. Howell, 6 Pet. 498. 
 
 5 Beard v. Federy, 3 Wall. 494. 
 
 6 See Chapter XVII. 
 
 7 See Leary v. Langsdale, 35 Ind. 74. In order that lands may be subjected 
 to an injunction they should be clearly designated. Snyder v. Canal R. R- Co., 13 
 Weekly Dig. (N. Y.) 329. 
 
§§ 458, 459.] description. 323 
 
 to the description ; 1 and that the sheriff will be able to know 
 how to execute the mandate of the court. 8 
 
 § 458. General and particular descriptions. — In Inge v. 
 Garrett, 8 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 descrip- 
 tion of the same lands mentioned in the general descrip- 
 tion. 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 together, would require the court to adopt 
 the more particular and reject the general description. 4 
 The same rule, it was held, should be applied to a plead- 
 ing. Hence a deed which did not contain the particular de- 
 scription set forth in the 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 descrip- 
 tion of the lands. 5 
 
 § 459. Johnson v. Nevill. — The Supreme Court of North 
 Carolina remarked, in Johnson v. Nevill, 6 that particularity 
 of description admitted of many degrees, and its suffi- 
 ciency 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. 
 Secondly. To enable the sheriff to determine from the exe- 
 cution itself of what premises he is to put the plaintiff in 
 possession. The court further remark that though these 
 reasons seem plausible, yet "their weight is much dimin- 
 ished by the reflection, that however particular and defi- 
 
 1 Munson v. Munson, 30 Conn. 425. 
 
 8 Cunningham v. McCollum, 98 Ind. 40, and cases cited. 1 
 
 3 38 Ind. 96. 
 
 4 See Gano v. Aldridge, 27 Ind. 294 ; Moore v. Griffin, 22 Me. 350 ; College 
 Corner & R. G. Road Co. v. Moss, 92 Ind. 128. 
 
 5 Den d. Phillips v. Phillips, 21 N. J. L. 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 ; Johnson v. Nevill, 65 N. C. 677. 
 
 6 65 N. C. 677. 
 
324 DESCRIPTION. [§ 460. 
 
 nite (short of a photograph) a description of an object may 
 be, it always requires 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 wit- 
 nesses, or to act on the representations for the plaintiff. 
 It has, therefore, been the modern practice of the plaint- 
 iff, at his peril, to point out the land recovered to the 
 sheriff, who puts him in possession accordingly. Such a 
 practice sometimes produces inconvenience, as when the 
 plaintiff seeks to obtain possession 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 experience that the 
 contrary course of requiring a precise and minute descrip- 
 tion of the land in the declaration was attended with in- 
 conveniences 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 constant dan- 
 ger that a plaintiff may lose his cause from a variance in 
 minute particulars, not entering into the merits, and the 
 delay and expense of trials are 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." l 
 
 § 460. Property described by street numbers, etc. — A decla- 
 ration in ejectment "for the premises situated No. 136 
 South Third street, in the city of Philadelphia," is suffi- 
 cient in a city having a known system of street numbers 
 regulated by municipal laws, recognized in the transac- 
 tion of general business, and acted upon by every one. 2 
 A description by metes and bounds is required in eject- 
 ment only so far as is necessary to identify the property 
 with certainty. 8 And a declaration in ejectment for prop- 
 
 1 See Seward v. Jackson, 8 Cow. (N. Y.) 427; Clark v. Clark, 7 Vt. 190. 
 
 2 Flanigen v. City of Philadelphia, 51 Penn. St. 491. 
 
 3 Doll v, Feller, 16 Cal. 432. 
 
§ 461.] DESCRIPTION. 325 
 
 erty "lying between Water Street and the river Monon- 
 gahela, with the appurtenances, situate and being in the 
 city of Pittsburgh," has been sustained, as being suffi- 
 ciently specific, by the Supreme Court of the United States. 1 
 
 § 461. Description ly reputed name. — Describing the land 
 by a name is a sufficient substitute for metes and bounds 
 if it can be rendered sufficiently certain by the evidence. 3 
 A description in a will of "all my lands on both sides of 
 Haw river in Chatham County, and all the mills and appur- 
 tenances and improvements 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. 3 So designating 
 land as " The Home Place," "The Lynn Place," and " The 
 Leonard Greeson Place," have been held sufficient descrip- 
 tions if the property was well known by that name. 4 The 
 name of a place may serve to identify it to the apprehen- 
 sion 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 0. Indeed the name of 
 a place frequently overrules a mistaken description. 5 A 
 count in a writ of right, demanding " a certain tenement, 
 consisting of the oue stone house with the appurten- 
 ances," was held to be a demand for the land on which 
 the house stands, and sufficiently certain. 6 And in a dec- 
 laration in trespass to try title, although advantageous, 
 it is not necessary to describe a close by its abuttals ; "a 
 
 1 Barclay v. Howell, 6 Pet. 498. 
 
 s Castro v. Gill, 5 Cal. 40 ; Whitney v. Buckman, 19 Cal. 300; Beard v. Federy, 
 3 Wall. 494. 
 
 3 Henley v. Wilson, 81 N. C. 405. 
 
 1 Smith v. Low, 2 Ired. (N. C.) Law, 457. 
 
 5 See Proctor v. Pool, 4 Dev. (N. C.) Law, 370. See, further, Ritter v. Barrett, 
 4Dev. & Bat. (N. C.) Law, 133; Kitchen v. Herring, 7 Ired. Eq. (N. C.) 190; 
 Fouke v. Kemp's Lessee, 5 Harr. & J, (Md.) 135 ; Lahiffe v. Hunter, Harper (S. C.) 
 Law, 184. 
 
 6 Snapp v. Spengler, 2 Leigh (Va.), I. See Beverley v. Fogg, I Call (Va.), 
 484. 
 
326 description. [§§ 462-463. 
 
 certain plantation, close and tract of land " has been held 
 to be a sufficient description. 1 
 
 § 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. 8 A 
 complaint in ejectment for a "part of the southwest 
 quarter of section — , township nineteen, range four west, 
 containing one hundred and fourteen and sixty-five hun- 
 dredths acres," has been held, by the Supreme Court of 
 Indiana, to be bad. The court remarks: "A judgment, 
 founded on such a complaint, would hardly authorize the 
 issuing of a writ which would justify the officer in put- 
 ting the plaintiff in possession of any particular prop- 
 erty." 3 
 
 § 462a. Descriptions considered sufficient. — Where the 
 premises were described as about fifty acres in the south- 
 ern part of a lot, the boundaries of which were fully and 
 particularly given, this was considered sufficient. 4 A cor- 
 rect description of the premises in ejectment, save that 
 they are located in another city, will not vitiate the com- 
 plaint. 5 A description of the premises giving the number 
 of acres, of what kind, the county, town, etc., and that 
 the land was surveyed pursuant to a warrant granted to 
 A. B., was held to be sufficient after verdict. 6 
 
 § 463. Defective description. — In Budd v. Bingham,' in 
 the Supreme Court of Eew York, the following description : 
 '" Northwardly, by lands of said plaintiff; eastwardly, by 
 lands of said plaintiff ; southwardly, by lands of said 
 •defendant ; and westwardly, by lands of said plaintiff," 
 
 1 Broughton v. Broughton, 4 Rich. (S. C.) Law, 491. 
 
 8 Dart v, Hercules, 34 111. 395. See, further, Sims v. Thompson, 30 Ala. 158 ; 
 Rayburn v. Elrod, 43 Ala. 700 ; Heifnerw. Porter, 12 Ala. 470; Pickett v. Doe, 13 
 Miss. 470. 
 
 3 Jolly v. Ghering, 40 Ind. 139. 
 
 4 St. John v. Northrup, 23 Barb. (N. Y.) 31. Compare Spect v. Gregg, 51 Cal. 
 198 ; White v. Den d. Woodruff, 24 N t J. Law, 754. But see Hammond v. Stoy, 
 85 Ind. 457. 
 
 6 Brake v. Stewart, 88 Ind. 422. 
 
 6 Fisher v. Larick, 7 S. & R. (Pa.) 99. 
 
 1 18 Barb. (N. Y.) 494. 
 
§ 464.] DESCRIPTION. 327 
 
 was held to embrace nothing whatever, or rather to de- 
 scribe only a straight line ; because, assuming that which 
 the complaint asserts to be true, the lands of the plaintiff 
 and the defendant 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. 
 " Three and one half acres off of" a specified tract is not 
 a good description in a complaint in forcible entry proceed- 
 ings. 1 Describing land as "six of lot number five," 
 
 etc., is incurably bad. 2 Where the writ was " indescriptive 
 except by adjoiners," and no shape or form of the land was 
 given, the court held that delivery of possession could not 
 be made by the sheriff. 8 
 
 § 464. Amendment of description. — A misdescription in 
 the writ may be amended 4 in the discretion of the court, 5 
 and a new description filed, but the amendment, where it 
 includes new lands, will not relate back to the commence- 
 ment 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 amendment. 6 The 
 defendant may on motion, as we have seen, compel the 
 plaintiff to give a more particular description. 7 It seems to 
 have been held in Maine, on a writ of entry, that an amend- 
 ment embracing a different piece of land from that de- 
 scribed in the declaration, was inadmissible, 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 
 
 1 Klingensmith v. Faulkner, 84 Ind. 331. 
 8 Unversaw ■v. Myers, 37 Ind. 487. 
 
 3 Hunt v. McFarland, 38 Pa. St. 71. 
 
 4 Leeds v. Lockwood, 84 Penn. St. 70; Sample v. Robb, 16 Penn. St. 305; Pic- 
 Tcett v. Doe ex dem. Pope, 74 Ala. 132. 
 
 5 Russell v. Conn, 20 N. Y. 83. 
 
 6 Kaul v. Lawrence, 73 Penn. St. 410; Trego v. Lewis, 58 Penn. St. 463; Kille 
 w. Ege, 82 Penn. St. 102; Sicard v. Davis, 6 Pet. 124. See § 454^. 
 
 1 Johnson v. Nevill, 65 N. C. 677. See Stevens v. Webb, 17 Weekly Dig. (N. 
 Y.) 213, as to when a bill of particulars will not be ordered. See § 458. 
 
328 description. [§ 464a. 
 
 be unobjectionable. 1 But in trespass to try title in Texas, 
 the plaintiff may, by an amended petition, describe land of 
 different location, and allege a chain of title other tban that 
 set forth and relied upon in the original petition. 2 A com- 
 plaint 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 billiard 
 saloon, and situate in said village and adjoining the Mor- 
 rison House in said Forrestville, together with the cellar 
 under said store, being the cellar and first floor of the 
 building of the defendants, adjoining the Morrison House 
 in the village 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 defendants moved, after a jury had been impan- 
 eled, to dismiss the complaint, on the ground that it con- 
 tained 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 defective, 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 discre- 
 tion was not the subject of review. 8 The complaint in 
 ejectment, or in a real action, may be amended, even after 
 the evidence is closed, to correct a misdescription of the 
 land in controversy. 4 
 
 § 464a. Bill of particulars. — The Court of Appeals of 
 New York 5 said (1874), that the constant course of prac- 
 tice in that State was to obtain a bill of particulars to as- 
 certain the precise premises for which the plaintiff was 
 
 1 Wyman v. Kilgore, 47 Maine, 184. 
 
 2 Hunter v. Morse, 49 Tex. 219. See Beard v. Federy, 3 Wall. 478. 
 3 01endorf v. Cook, 1 Lansing (N. Y.), 37. 
 
 4 Russell v. Erwin's Adm'r, 38 Ala. 44; Bird v. Decker, 64 Maine, 550. A 
 clerical error in the description in a lis pendens will not vitiate it. Watson v. Wil- 
 cox, 39 Wis. 643. 
 
 6 Tilton v, Beecher, 59 N. Y. 188. 
 
§ 4646.] description. 329 
 
 proceeding. 1 The right to a bill of particulars seems ap- 
 plicable to all actions in which the plaintiff declares 
 generally without specifying particularly the subject of 
 the action. 2 
 
 It is only under special circumstances in England that 
 the court will order particulars of the premises sought to 
 be recovered in ejectment, 8 and the order does not operate 
 as a stay of proceedings unless it is so expressed. 4 The 
 claimant may be compelled to furnish a map with the bill 
 of particulars. 5 But the plaintiff cannot compel production 
 of documents in the defendant's possession which the latter 
 swears relate solely to the defense of his title. 6 
 
 § 4646. Particulars of breaches. — In ejectment for forfeit- 
 ure of a lease, the plaintiff may be compelled to furnish 
 particulars of the breaches of covenant upon which he 
 intends to rely, with the dates, and will only be permitted to 
 give in evidence at the trial matters set forth in the bill of 
 particulars. 7 And where a remainder man brings eject- 
 ment to avoid a lease granted by the life tenant, as not 
 being in execution of the power of leasing vested in him, 
 the court may order the particulars of the alleged defects 
 in the execution of the power. 8 So the court may order an 
 inspection of a lease. 9 Where the particulars delivered 
 were "for selling hay and straw off the land, removing 
 manure, and non-cultivation," evidence of a breach of 
 covenant by mismanagement in over-cropping, or by 
 deviating from the usual rotation of crops, was held to be 
 inadmissible. 10 
 
 1 Vischer v. Conant, 4 Cow. (N. Y.) 396, per Savage, Ch. J., and note ; Good- 
 right v. Rich, 7 T. R. 332 in notis ; Longfield on Eject, p. 79 ; Graham v. Whitely, 
 26 N. J. Law, 254. 
 
 2 See Den d. Phillips v. Phillips, 21 N. J. L. 436. Compare Summers v. Brady, 
 56 Miss. 10. View will not be granted unless it be absolutely necessary. Ostrander 
 v. Kneeland, 20 Johns. (N. Y.) 276, and note. See Freeholders of Graveseud v. 
 Voorhis, 1 Johns. Cas. (N. Y.) 237. 
 
 3 Doe d. Saxton v. Turner, 11 C. B. 896. 
 
 4 Doe d. Roberts v. Roe, 13 M. & W. 691 ; Doe d. Vernon v. Roe, 7 A. & E. 14. 
 
 5 Ross v. Ejector, 2 Irish Law Rep. 25. 
 
 6 1.yell v. Kennedy, L. R. 20 Ch. D. 484. 
 
 7 Doe d. Birch v. Philips, 6 T. R. 597 ; Cole on Ejectment, p. 120. 
 
 8 Doe d. Egremont v. Williams, 7 Q. B. 686. 
 
 9 Doe d. Child v. Roe, I El. & B. 279. 
 
 10 Doe d. Winnall v. Broad, 2 Man. & G. 523. See § 444, and note, also § 447. 
 
CHAPTER XVII. 
 
 VENUE.— LOCAL AND TRANSITORY ACTIONS. 
 
 5 465. Actions affecting realty are local. 
 
 466. Residence of the parties immate- 
 
 rial. 
 
 467. Local actions not maintainable in 
 
 foreign jurisdictions. 
 467a. Lex loci rei sita. 
 
 468. Ejectment for lands lying in several 
 
 counties. 
 
 469. Questions as to venue. — How raised. 
 
 § 470. Distinctions between actions local 
 by nature and actions local by 
 statute. 
 
 471. Change of venue. 
 
 472. Practice in New 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 ; J and conflict- 
 ing titles and rights to the possession of lands must be de- 
 termined by the courts of the State wherein the lands lie. 2 
 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. 3 Lord Mansfield stated, in 1774, that 
 ejectment was a local action, and in its nature a proceed- 
 
 1 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. Jefferson, 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 & P. Tel. Co. v. Baltimore & O. R. R. Co. 14 J. & S. (N. Y.) 377; Stark 
 v. Burr, 56 Tex. 130. , 
 
 2 Clopton v. Booker, 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 & P. Tel. Co. v. Baltimore & O. R. R. Co. 14 J. & S. (N. Y.) 377: 
 People v. Central R. R. Co. 42 N. Y. 283 ; Northern Ind. R. R. Co. v. Michigan 
 Cent. R. R. Co. 15 How. 233. 
 
§ 465.] venue. 331 
 
 ing in rem, in which possession was to be delivered by the 
 sheriff of the county, and that, therefore, the judgment 
 oould have no effect if the action was not laid in the county 
 in which the lands were situated. 1 The same rule prevailed 
 in the system of real actions, 3 and is still generally applic- 
 able to mixed actions, waste, quare impedit, 3 trespass, 4 case 
 for nuisances, 5 and all actions for injuries to real property. 6 
 In Oasey v. Adams 7 Chief Justice Waite, in delivering the 
 opinion of the United States Supreme Court, said: "Local 
 actions are in the nature of suits in rem, and are to be 
 
 1 Mostyn v. Fabrigas, Cowp. 161-176 ; Gardner v. Granniss, 57 Ga. 550. See 
 Goodtitle v. Lammiraan, 2 Campb. 274 ; Mayor of London v. Cole, 7 T. R. 588 ; 
 Casey v. Adams, 102 U. S. 66. 
 
 8 Booth on Real Actions, p. 1. 
 
 3 Gould's Pleadings, p. 105. 
 
 4 American Union Tel. Co. v. Middleton, 80 N. Y. 408; Dodge v. Colby, 28 N. 
 Y. Daily Reg. 737. 
 
 6 Warren v. Webb, 1 Taunt. 379. See Miss. & Mo. R. R. Co. v. Ward, 2 Black, 
 485. 
 
 6 Jacks v. Moore, 33 Ark. 31 ; Huenermund v. Erie Ry. Co. 48 How. Pr. (N. Y.) 
 55; Champion v. Doughly, iS N. J. L. 3 ; Oliver v. Loye, 59 Miss. 320; Hurd v. 
 Miller, 2 Hilt. (N. Y.) 540 ; Cragin v. Lovell, 88 N. Y. 263 ; De Courcy v. Stewart, 
 20 Hun (N. Y.), 561 ; Thompson v. Crocker, 9 Pick. (Mass.) 59. As to the distinc- 
 tion between local and transitory actions, see Webb v. Goddard, 46 Me. 505 ; Mason 
 ■v. Warner, 31 Mo. 508; Henwood v. Cheeseman, 3 S. & R. (Penn.) 500-503 ; 
 Livingston v. Jefferson, 1 Brock C. C. 203, per Chief Justice Marshall ; Casey v. 
 Adams, 102 U. S. 66; Vermont & 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, n Abb. Pr. N. S. (N. Y.) 27. 
 SeeLelandz\Hathorne, 9 Abb. Pr. N. S. (N.Y.) 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 conveyance 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 v. McCoun, 3 Sandf. (N. Y.), 524; affi'd, 10 N. Y, 268. 
 See Newton v. 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 opposite 
 sides of the highway, the plaintiff claiming that the erection would injure his prop- 
 erty 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. Actions on real covenants are local. 
 White v. Sanborn, 6 N. H. 220 ; Lienow v. Ellis, 6 Mass. 331 ; Clark v. 
 Scudder, 6 Gray (Mass.), 122. 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, 16 W. Va. 443. In Texas a suit brought to procure a decree canceling a 
 deed for fraud in its execution may be properly instituted in the county of the de- 
 fendant's residence, without regard to the locality of the land. Lehmberg v. Biber- 
 stein, 51 Tex. 457 ; Vandever v. Freeman, 20 Tex. 336. Use and occupation is 
 not local. Gray v. Johnson, 14 N. H. 419; King v. Fraser, 6 East, 348; Kirtland 
 v. Pounsett, 1 Taunt. 570. 
 
 ' 102 U. S. 66. 
 
332 venue. [§§ 466-467a. 
 
 prosecuted where the thing on which they are founded is 
 situated." 1 The court further said, that the distinction be- 
 tween local and transitory actions was as old as the actions 
 themselves, 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 charac- 
 ter, either by statute or at common law, unless the statute 
 so declared. 
 
 § 466. Residence of tlie 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. 2 Jt 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. 3 
 
 § 467. Local actions not maintainable 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. 4 In Leary v. Langsdale, 5 
 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. 
 
 § 467«. Lex loci rei sitae. — Land is held and alienated 
 according to the law of the place where it is situated ; and 
 
 1 s. p. Turnipseed v. Fitzpatrick, 75 Ala. 301. 
 
 ' Elder v. Hilzheim, 35 Miss. 231. 
 
 3 Doll v. Feller, 16 Cal. 432. 
 
 4 Mostyn v. Fabrigas, Cowp. 176; Bac. Abr. Actions Local, &c. A (a). See 
 Clopton v. Booker, 27 Ark. 482 ; Burbank v. Payne, 17 La. Ann. 15 ; American 
 Union Tel. Co. v. Middleton, 80 N. Y. 408 ; Howe v. Willson, 1 Demo (N. Y.), 
 181 ; Watts' Adm'rs v. Kinney, 23 Wend. tN. Y.) 484; Bozeman v. Browning, 3 1 
 Ark. 377. See § 542. 
 
 6 35 Ind. 74. 
 
§ 468.1 venue. 333 
 
 cannot be owned or appropriated otherwise than according 
 to the will of the local sovereign, the lex loci rei sitce. 1 
 The probate of a will in one State does not necessarily 
 pass title in another State. The validity of the will must 
 be determined by the law of the State in which the land 
 lies. 3 In Clark v. Graham 3 the court said : " It is perfectly 
 clear, that no title to lands can be acquired or passed, unless 
 according to the laws of the State in which they are situ- 
 ate." This is the underlying principle that leads the 
 Federal courts to follow the State decisions in land con- 
 troversies. Otherwise rights might be recognized in one 
 court which were denied in another. 4 In McGoon v. Scales 5 
 the court observed : "It is a principle too firmly estab- 
 lished to admit of dispute at this day, that to the law of 
 the State in which land is situated must we look for the 
 rules which govern its descent, alienation, and transfer, 
 aud for the effect and construction of conveyances." 6 
 
 § 468. Ejectment for lands lying in several counties. — The 
 rule at common law was that only lands lying within the 
 county in which the ejectment was instituted could be re- 
 covered by the judgment ; 7 and when the lands were situat- 
 ed within the borders of several counties, it was necessary 
 to make several entries, and bring as many ejectments, 8 as 
 the recovery in one county did not extend to another. 9 
 This inconvenient practice has been practically abrogated 10 
 by statute in this country. Thus in Tennessee, when the 
 
 ' Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460; s. c. 22 Am. Dec. 47; Danner v. 
 Brewer, 69 Ala. 192; Knox v. Jones, 47 N. Y. 395; Abell v. Douglass, 4 Denio(N. 
 Y.), 305. See § 542; United States v. Crosby, 7 Cranch, 115; Clark v. Graham, 6 
 Wheat. 577; Baxter v. Willey, 9 Vt. 276; s. c. 31 Am. Dec. 623; West v. Fitz. 109 
 111. 428; Kerr v. Moon, 9 Wheat. 566; McCormick v. Sullivant, 10 Wheat. 192; 
 Brine v. Insurance Co., 96 U. S. 635; Hawley v. James, 7 Paige (N. Y.), 213. See 
 <? 6io«. 
 
 2 Robertson v. Pickrell, 109 U. S. 608. 
 
 3 6 Wheat. 577, 579. 
 
 4 01cott v. Bynum, 17 Wall. 44; Brine v. Insurance Co. 96 U. S. 635. 
 9 Wall. 23, 27. 
 
 "See United States v. Fox, 94 U. S. 315. 
 
 ' Hord v. Walker, 5 Litt. (Ky.) 23; Hackett v. Carter, 738 Wis. 398. See Bellas 
 •». Houtz, 8 Watts (Penn.), 373. 
 
 8 Co. Litt. 252 b., and see 35 Hen. VI, 30. Compare Mayor v. Coffin, 90 N. Y. 
 312. 
 
 9 Sowder v. McMillan, 4 Dana (Ky.), 456. 
 
 10 See Bates v. Ray, 102 Mass. 458. 
 
334 venue. [§ 469. 
 
 lands are situated within the limits of more than one 
 county, an ejectment for the entire tract may be brought 
 in either county. 1 
 
 § 469. Questions as to venue. — How raised. — Questions as 
 to the correctness of the venue are raised by answer, 
 demurrer, motion, or at the trial. 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 com- 
 plaint, the defendant could demur. 2 If the venue is appar- 
 ently correct in the title, the question of want of jurisdic- 
 tion must be raised by answer. 3 The absence of an allega- 
 tion 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. 4 It has been held 
 in Maine that when an action, local in its nature, is com- 
 menced 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. Otherwise 
 the defendant may avail himself of it at the trial under the 
 general issue. 5 In an action of ejectment, which arose in 
 Tennessee, the court decided that the venue must he 
 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 examina- 
 tion of witnesses, or direct proof as to that fact was unne- 
 cessary. 6 Nor is it competent for the defendant, merely 
 
 1 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. 
 But compare Horsley v. Garth, 2 Gratt. (Va.) 471 ; s. c. 44 Am. Dec. 393. See Bar- 
 rett v. Watts, 13 S. C. 441. 
 
 5 Vermilya v. Beatty, 6 Barb. (N. Y.) 429. 
 
 3 Wilcox v. Moudy, 82 Ind. 220. 
 
 4 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 v. People, 5 Wend. 
 (N. Y.) 530. See St. Louis, J. & C. R. R. Co. v. Thomas, 47 111. 116. 
 
 5 Hathorne v. Haines, 1 Me. 239 ; 1 Tidd Pr. 369. See Thrale v. Cornwall, I 
 Wils. 165 ; Bruckshaw v. Hopkins, Cowp. 409, 410; Santler v. Heard, 2 W. Bla. 
 1033. 
 
 6 Gorham v. Jones, n Humph. (Tenn.) 353. 
 
§§ 470, 471.] venue. 335 
 
 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 he located in a different place from that in which 
 it is actually established and known. 1 ISTor will courts 
 interfere to decide disputes between independent countries 
 as to sovereignty over particular territory. 2 
 
 § 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 ques- 
 tions 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 substantial merits of the controversy, nor the regular 
 and fair administration of justice, are held to be waived 
 if not excepted to at an early stage of the cause. 4 Hence, 
 a naturally transitory action brought in a county other 
 than that prescribed by statute will be upheld, unless the 
 objection to the jurisdiction is promptly urged. 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. 5 
 
 § 471. Change of venue. — In Texas it is held 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 pro- 
 ceeding of that character ; 6 and in an action of trespass to 
 try title it was decided that the fact that the j ndge had 
 given an opinion in regard to the validity of the title in 
 controversy was not a sufficient reason to sustain an order 
 
 1 Hathorne v. Haines, I Me. 239. 
 
 8 Williams v. Suffolk Ins. Co., 3 Sumner, 270. 
 
 3 Elder v. Dwight Mfg. Co. 4 Gray (Mass.), 201. 
 
 4 Webb v. Goddard, 46 Me. 505; Richardson v. Welcome, 6 Cush. (Mass.) 331; 
 Demuth v. Cutler, 50 Me. 298. 
 
 5 Ryan v. Jackson, 11 Tex. 391. See Heath v. Whidden, 29 Me. 108. 
 
 6 Warren v. Kelly, 17 Tex. 544. 
 
336 venue. [§ 471. 
 
 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. 2 In 
 Illinois if a party in his application for a change of venue 
 conforms strictly with the requirements of the statute, 3 
 the granting of the change of venue is not considered dis- 
 cretionary, but a matter of absolute right.* This doctrine 
 has been extended to an action of ejectment. 5 The statute 
 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 plaintiff's 
 success. 6 The party moving for change of venue waives 
 the right to view, as the court cannot send its jury into 
 another county.' 
 
 In Minnesota a condemnation proceeding may be taken 
 by a change of venue to another county from that in which 
 the land lies. 8 In England the venue may be changed 
 under certain circumstances. 9 This change will, however, 
 be effected only in cases where it is tolerably plain that 
 justice will not be attained by a trial in the county where 
 the lands lie, or that justice and convenience require a 
 change. 10 The affidavits should show that from local causes 
 or from other specified reasons an impartial trial cannot 
 
 1 Houston & T. Ry. Co. v. Ryan, 44 Tex. 426. 
 
 2 Phipps v. Mansfield, 62 Ga. 209. 
 
 3 R. S. Illinois, p. 1094, § 11. 
 
 4 Knickerbocker Ins. Co. v. Tolman, 80 111. 106. 
 
 5 Mapes v. Scott, 94 111. 379. 
 
 6 Mapes v. Scott, 94 111. 379. 
 
 1 Rockford, R. I. & St. L. K. R. Co. v. Coppinger, 66 111. 510. 
 
 8 Simmons v. St. Paul & C. Ry. Co. 18 Minn. 184. 
 
 9 I.ongfield on Ejectment, p. 15; Keon v. Keon, 3 Ir. Law Rec. N. S. 137; 
 Jackson v. Lodge, 1 Ir. L. R. 161 ; Doe d. Williams v. Lloyd, 7 Scott, 143 ; Doe 
 d. Hickman v. Hickman, 9 Dowl. 364. 
 
 10 Robertson v. Hayne, 16 C. B. 560. 
 
§§ 472, 473.] venue. 337 
 
 be had where the venue is laid, 1 though the change may 
 be made for convenience of witnesses only. 8 
 
 § 472. Practice in New York. — The ~New York Court of 
 Appeals held that under the practice in that State, a judge 
 had no power to adjourn the trial of a local action to 
 another county. 3 The statute of that 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. 4 In Meldrum v. Sarvis, 5 decided in 1793 in the 
 New Jersey Supreme Court, the power of the court to 
 change the venue in ejectment for proper cause is as- 
 serted, but in the later case of Deacon v. Shreve, 6 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 
 more closely to the current of modern authority, and ac- 
 cords with the general legislative policy of this country. 
 We may here remark that the Supreme Court of the 
 United States decided, in Cook v. Burnley, 7 that an ex- 
 ception 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, pending an action of ejectment, trans- 
 ferred from one county to another, 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 possessionem issued to the sheriff of the county 
 in which the land lies. Otherwise a new action would be 
 
 1 Rex v. Harris, 3 Burr. 1333; The King v. Hunt, 3 B. & Aid. 444. 
 * Pashley v. Mayor, &c. of Birmingham, 14 C. B. 421. 
 
 a Birmingham Iron Foundry v. HatHeld, 43 N. Y. 224 ; Gould v. Bennett, 59 
 N. Y. 124. 
 
 4 Newton v. Bronson, 13 N. Y. 587. 
 6 1 N. J. L. 203. 
 8 23 N. J. L. 204. 
 ' II Wall. 659. 
 22 
 
338 venue. [§ 473, 
 
 necessary. 1 And where, after ejectment brought, and be- 
 fore 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 the sheriff to restrain evic- 
 tion thereunder. 2 On the other hand, where the land in 
 dispute had been included in another 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 jurisdic- 
 tion of the Court of Chancery having once attached, it was 
 retained until the court fully and finally acted upon the 
 subject matter before it. 3 During the pendency of a real 
 action in Maine, the town in which the land lay was set 
 off to another county, and it was held that the action must 
 proceed and be tried in the county in which it was com- 
 menced. 4 And it has been decided in Wisconsin that where 
 the action was commenced in the proper county, but while 
 it was pending the lands were set off into another county, 
 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, the jurisdiction of the court not being 
 entirely dependent upon the locus of the real estate. 5 
 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. 6 It is held in the United States Circuit 
 Court, that an act taking certain counties out of the west- 
 
 1 Murdock v. Little, 18 Ga. 719. See, contra, Blake -v. Freeman, 13 Maine, 
 130. 
 
 2 Kelly v. Tate, 43 Ga. 535. Compare Champion v. Doughty, 18 N. J. L. 4. 
 
 3 Arnold v. Styles, 2 Blackf. (Ind.) 391. 
 * Blake v. Freeman, 13 Maine, 130. 
 
 'Cornell University v. Wisconsin Central R. R. Co., 49 Wis. 158. 
 6 Jackson v. Dains, 2 Cow. (N. Y.), 526. 
 
§§ 474, 475.J VENUE. 339 
 
 era district, and placing them in the eastern district of 
 Arkansas, does not disturb the jurisdiction to try pend- 
 ing causes, which are to be heard the same as though no 
 such legislation existed. 1 
 
 §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 "cut off," the abandoned channel continues to be the 
 boundary. 2 
 
 § 475. Yenue 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 Cir- 
 cuit Court sitting within that district. An action of eject- 
 ment cannot be maintained in a district other than that 
 in which the land is located ; nor can an action of trespass 
 quare clausum fregit be prosecuted where the act com- 
 plained of was not committed in the district. These ac- 
 tions, being local in their character, must be prosecuted 
 where the process of the court can reach the locus in quo. s 
 
 1 Culver v. Woodruff Co., 5 Dillon, 3Q2 ; s. P. United States v. Dawson, 15 How. 
 407' See, also, as to divesting jurisdiction, Rhoades v. Selin, 4 Wash. 725 ; Dunn 
 v. Clarke, 8 Pet., 1; Mollan v. Torrance, g Wheat. 537 ; Morgan v. Morgan, 2 
 Wheat. 290 ; Hatfield v. Bushnell, 1 Blatchf. 393. 
 
 2 Collins v. The State, 3 Tex. App. 323. See Holbrook v. Moore, 4 Neb. 437 ; 
 Missouri v. Kentucky, 11 Wall. 395. 
 
 3 Northern Ind. R. R. Co. v. Mich. Cent. R. R. Co., 15 How. 233; s. c. 5 McL. 
 444 ; Livingston v. Jefferson, 1 Brock. 203. See Foot v. Edwards, 3 Bla. C. C. 
 310. So a liil] to abate a nuisance is local, and can only be brought in the dis- 
 trict 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. 
 I, 477. Evidence admissible under general 
 issue. 
 
 478. Denial of plaintiff's title under 
 
 modern practice. 
 
 479. Effect of plea of general issue on 
 
 question of possession. 
 
 480. Disclaimer and denial inconsis- 
 
 tent. 
 480a. Writs of right and of entry. — 
 Non-tenure. 
 
 481. Special plea and general denial. 
 
 482. Pleading statute of limitations and 
 
 adverse possession. 
 
 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. 
 
 492a. Pleading easement or outstanding 
 
 title. 
 492(5. Evidence not to be pleaded. 
 
 493. Reply to affirmative or other de- 
 
 fense. 
 
 494. Demurrer to answer. 
 
 494a. Misjoinder of parties. — Demurrer. 
 
 495. Supplemental answer or plea fids 
 
 darrein continuance. 
 
 % 476. The general issue. — Under the early practice the 
 general issue in ejectment was "not guilty;" 1 and after 
 the entry of the plea no objection could be taken to the 
 declaration, or to the indorsement on the writ. 3 The filing 
 of the plea is still considered in Illinois to be a full appear- 
 ance. 3 This plea afforded the party interposing it many 
 advantages, and was a dangerous one to a claimant who, 
 
 1 Kirkland v. Thompson, 51 Penn. St. 216; Gallagher v. McNutt, 3 S. & R. 
 (Penn.)4og; 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, 8t* 
 Penn. St. 281. In an action in Montana where the complaint to recover real prop- 
 erty was in the usual form, and the answer denied the right of the claimant to the 
 possession, and denied the wrongful withholding of the land and the damages, the 
 allegaiions of the answer were held to state conclusions of law, and not to constitute 
 issues joined by pleading. Judgment was rendered upon the answer as sham. 
 McCauley v. Gilmer, 2 Mont. 202. In a case which arose in Ohio, an answer to a 
 petition for dower by a widow, simply denying the right of the petitioner to the 
 dower claimed, was held to be a mode oi pleading inadmissible either under the 
 code or in chancery. Finch v. Finch, 10 O. S. 501. An answer alleging that a 
 party is entitled to the possession of land sets forth a conclusion of law. Parks v. 
 Barkley, 1 Mont. 514. 
 
 2 See James v. Tait, 8 Port. (Ala.) 476. 
 
 3 Dart v. Hercules, 34 111. 395. 
 
§ 477. J PLEA OR ANSWER. 341 
 
 though vested with a meritorious title, might 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 dis- 
 proved had the real issue been disclosed by the pleadings, 
 or brought to his notice. The plea was broadened in 
 scope in view of the fact that usually no specific title to 
 the land in dispute was set forth in the complaint, and a 
 general denial was therefore the only defense possible by 
 way of pleading. The true issues were suppressed until 
 the day of trial. Some of the authorities held that " not 
 guilty " was the only proper plea in the action of eject- 
 ment. 1 It is certain that a most liberal tendency existed 
 and still prevails in the courts, and in modern legislation, 
 to favor this plea, and to admit evidence of available legal 
 defenses of almost every class or nature under it. 
 
 § 477. lEoidence admissible under general issue. — Thus, in 
 actions to recover real property in Indiana, all defenses 
 may be given in evidence without special plea ; a and in 
 California, after pleading the general issue, the defendant 
 need not set up title in himself. 3 In Pennsylvania cover- 
 ture or any other available defense may be given in 
 evidence under it ; 4 so in Illinois may a defense of home- 
 stead right, as a special plea of homestead right has no 
 proper place in ejectment as practiced in that State. 5 In 
 Wisconsin any matter which would defeat the plaintiff's 
 title, or render the deed on which he relies ineffectual, 
 may be proved without setting it up. 6 Under the general 
 issue, or a general denial, the defendant, if not a mere 
 trespasser or intruder, 7 may show title out of the plaintiff 
 
 1 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.)4og; 
 Bratton v. Mitchell, 5 Watts (Penn.), 69. 
 
 8 Poffenberger v. Blackstone, 57 Ind. 238; Dale v. Frisbie, 59 Ind. 530; Wood- 
 ruff v. Garnor, 20 Ind. 174; Hogg v. Link, 90 Ind. 346; Tracy v. Kelley, 52 Ind. 
 535; s. p. Kahn v. Old Telegraph Mining Co., 2 Utah, 174. 
 
 3 Brack v. Tucker, 42 Cal. 346. 
 
 4 Black v. Tricker, 52 Penn. St. 436. 
 
 'Johnson v. Adleman, 35 111. 265. See Patterson v. Kreig, 29 111. 514. 
 6 Begg v. Begg, 56 Wis. 536. 
 
 ' But compare Henderson v. Tennessee, 10 How. 323; Love v. Simms, g Wheat. 
 524. See § 718. 
 
342 PLEA OB ANSWEB. [§§ 478, 479. 
 
 at the commencement of the action, without even connect- 
 ing himself with such outstanding title in any way. 1 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. 
 
 A denial, when properly pleaded, does not state facts: it 
 simply denies facts ; 2 and in California, unless the answer 
 denies allegations of the complaint, they stand admitted 
 without further proof. 8 
 
 § 478. Denial of plaintiff's title under modern practice. — 
 It is, then, ordinarily sufficient, under the modern practice, 
 to deny generally the title set forth in the declaration or 
 petition, and under such a denial the defendant may prove 
 any facts tending to establish that the plaintiff is not 
 vested with the title or right of possession ; 4 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 plain- 
 tiff's title in issue, nor raise the question of adverse pos- 
 session. To question the plaintiff's title, in such a case, 
 the defendant must set up title in himself or out of the 
 plaintiff. 5 
 
 A defendant, as we shall see, may set forth as many 
 defenses as he has. 6 
 
 § 479. Effect of plea of general issue on question of posses- 
 sion. — 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. 
 
 1 Love v. Simms, g Wheat. 524; Raynor v. Timerson, 46 Barb. (N. Y.) 518-526; 
 Gillett v. Stanley, 1 Hill (N. Y.), 121; Schauber v. Jackson, 2 Wend. (N. Y) 13-48; 
 Styles v. Gray, 10 Tex. 503; Kinney v. Vinson, 32 Tex. 125; Townsend v. Downer, 
 32 Vt. 183. 
 
 ! See Town of Venice v. Breed, 65 Barb. (N. Y.) 603. 
 
 3 Patterson v. Ely, ig Cal. 28; McLaughlin v. Kelly, 22 Cal. 212; Tucker v. 
 Hamilton, 108 111. 464. 
 
 4 Wicks v. Smith, 18 Kan. 508. 
 
 5 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. 
 
 • Crary v. Goodman, 12 N. Y. 266; Ransoms. Anderson, g S. C. 438; McClane 
 v. White, 5 Minn. 178 ; Shawhan v. Long, 26 Iowa, 488 ; Penny v. Cook, 19 Iowa, 
 
I 480. J PLEA OR ANSWER. 343 
 
 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 ; 1 and that if he desires to dispute or 
 controvert the question of possession, the proper method 
 to accomplish that result is by special plea, in order to 
 avoid this admission of possession. 2 Thus, under the prac- 
 tice in Massachusetts, on a writ of entry, the tenant who 
 pleads the general issue only, is estopped to deny that he 
 was in possession of the premises and claiming a freehold 
 therein ; s and in a real action in Maine the defendant ad- 
 mits himself to be in possession of the entire premises un- 
 less he riles a disclaimer 4 as to the whole or some part 
 thereof. 5 An answer setting up title to only a portion of 
 the demanded premises should, as we shall see, 6 particu- 
 larly describe the part to which title is claimed. 7 In North 
 Carolina, if the defendant in ejectment intends to disavow 
 possession, it has been held that he should not enter any 
 defense. 8 
 
 § 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 defend- 
 
 1 Ulsh v. Strode, 13 Penn. St. 433 ; Hill v Hill, 43 Perm. St. 521; Holman v. 
 Elliott, 86 Ind. 231; Callan v. Mcbaniel, 72 Ala. 102 ; Alexander v. Wheeler, 6g 
 Ala. 332 ; Cocheco Man'fg. Co. v. Whittier, 10 N. H. 309 ; Graves v. Amoskeag 
 Co., 44 N. H. 463. 
 
 "Bernard v. Elder, 50 Miss. 336; Cumming v. Butler, 6 Ga. 88; Stevens v. 
 Griffith, 3 Vt. 448 ; Mooberry v. Marye, 2 Munf. (Va.) 453. Contra, Stroud v. 
 ■Springfield, 28 Tex. 649. 
 
 'Swan 0. 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. 
 
 4 See Jordan v. Stevens, 55 Mo. 361. 
 
 6 Blake v. Dennett, 49 Me. 102. See Perkins v. Raitt, 43 Me. 280; Mills v. 
 Peirce, 2 N. H. 10. 
 
 6 See § 492. 
 
 7 Anderson v. Fisk, 36 Cal. 625; Guy». Hanly, 21 Cal. 397. 
 
 8 McClennan v. McCleod, 75 N. C. 64. See Thomas v. Orrell, 5 Ired. (N. C.) 
 "Law, 569 ; Judge v. Houston, 12 Ired. (N. C.) Law. 108. An answer denying 
 that the defendant has "unlawfully, wrongfully and in violation of plaintiff's rights, 
 had the possession," does not thereby put in issue the fact of possession. Burke v. 
 The Table Mountain Water Co., 12 Cal. 403 ; s. c. 5 Mor. Min. Rep. 209. A denial 
 that " defendants wrongfully and unlawfully entered and dispossessed," plaintiff ad- 
 units entry and ouster. Busenius v. Coffee, 14 Cal. 91 ; s. c. 5 Mor. Min. Rep. 214. 
 
344 PLEA OR ANSWER. [§ 480a. 
 
 ant to admit the fictitious averments as to lease, entry and 
 ouster. 1 In an action in the nature of ejectment, in that 
 State, an answer, "disclaiming all right, interest or pos- 
 session in the premises sued for, at or since the commence- 
 ment 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. 2 
 
 A disclaimer by the defendant, unless withdrawn or 
 amended, operates as an estoppel by record as to the land 
 disclaimed. 3 The party disclaiming is relieved from future 
 costs. 4 
 
 § 480a. Writs of right and of entry. — Non-tenure. — If the 
 demandant in a writ of right claims more lands than the' 
 tenant holds, the latter may plead non-tenure, but the writ 
 abates only as to the parcel as to which non-tenure is 
 pleaded. 5 To most real writs in Massachusetts non-tenure 
 was considered a good plea either in bar or abatement, * 
 though some of the authorities considered it matter plead- 
 able in abatement only.' A plea of non-tenure or dis- 
 claimer is regarded in New Hampshire as being in the 
 nature of a plea in abatement, 8 while in Maine it can only 
 be pleaded in abatement and within the time prescribed by 
 the rules of court. 9 Judge Story considered also that a 
 better subsisting adverse title in a third person was no de- 
 fense to a writ of right which brought in controversy only 
 the mere rights of the parties to the suit, 10 but this is not 
 the modern view. 
 
 ' Bernstein v. Humes, 60 Ala. 582 ; King v. Kent, 29 Ala. 542 ; Clarke v.. 
 Clarke, 51 Ala. 498; Sledges. Swift, 51 Ala. 386. See Creighton v. Proctor, 12: 
 Cush. (Mass.) 433; Contra Miller v. Chandler, 59 Cal. 540. 
 
 2 Morris v. Beebe, 54 Ala. 300. 
 
 3 Greeley v. Thomas, 56 Pa. St. 35. Compare Noe' v. Card, 14 Cal. 576. 
 
 4 Killen v. Compton, 60 Ga. 116. 
 1 Green v. Liter, 8 Cranch. 230. 
 
 6 Fiedler v. Carpenter, 2 Woodb. & M. 211. 
 
 ' Mills v. Peirce, 2 N. H. 10 ; Brown v. Miltimore, 2 N. H. 442 ; Booth on 
 Real Actions, 28 ; Liter v. Green, 2 Wheat. 306. 
 
 8 Tappan v. Tappan, 31 N. H. 41 ; Stark v. Brown, 40 N. H. 345. 
 
 9 Newbegin v. Langley, 39 Me. 200. 
 
 10 Green u. Liter, 8 Cranch. 230, 250. No formal joinder of issue by Ihe de- 
 mandant in a real action is necessary in Massachusetts, as the case is at issue when. 
 •the plea is filed. Provident Institution for Savings v. Burnham, 128 Mass. 462. 
 
§§481,482.] PLEA OR ANSWER. 345 
 
 § 481. Special plea and general denial. — Under the prac- 
 tice in Texas a general denial is not abandoned, defeated 
 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. 1 
 
 § 482. Pleading statute of limitations and adverse posses- 
 sion. — 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 posses- 
 sion, is regulated by statute in many of the States. Where 
 no statute governs, the cases are contradictory. In the 
 famous case of Taylor v. Horde, 2 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 possession within twenty 
 years, or accounting for the want of it, under some of the 
 exceptions allowed by the statute. Twenty years' adverse 
 possession is a positive title to the defendant ; it is not a 
 bar to the action or remedy of the plaintiff only ; but takes 
 away his right of possession. Every plaintiff in ejectment 
 must shew a right of possession, as well as of property ; 
 and therefore the defendant need not plead the statute." 
 The statute of limitations, if relied upon as a defense in 
 ejectment, must be pleaded in Wisconsin ; s and it was held 
 to be matter resting entirely in the sound discretion of the 
 court and not error, to allow a defendant to amend his 
 pleadings so as to set up the statute of limitations. 4 It 
 has been decided in Mississippi 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 
 
 1 Hurt v. Blackburn, 20 Tex. 6oi. But see Custard v. Musgrove, 47 Tex. 217. 
 
 2 I Burr. 119. 
 
 3 Lawrence v. Kenney, 32 Wis. 281 ; Orton v. Noonan, 25 Wis. 672. 
 
 4 Meade v. Lawe, 32 Wis. 261; Fogarty v. Horrigan, 28 Wis. 142 ; Eldred v. 
 The Oconto Co., 30 Wis. 206. See Ferguson v. Miles, 8 111. 358. 
 
346 PLEA OR ANSWER. [§ 482. 
 
 the plea of not guilty. The court said further that it was 
 error to sustain a demurrer to a special plea merely be- 
 cause the defendant could prove the same defense under 
 the general issue, which had originally been pleaded. 1 It 
 is difficult to see how the defendant could have been prej- 
 udiced or affected by sustaining the demurrer, 2 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. 3 In Alabama adverse pos- 
 session may be given in evidence under the plea of the 
 general issue ; * and the same rule prevails in Illinois. 5 In 
 North Carolina an outstanding title by adverse possession 
 may be shown under this plea. The reason given is that 
 the inquiry in ejectment is intended to ascertain whether or 
 not the plaintiff has title to the land claimed ; not whether 
 the defendant has no title. 6 In Hogan v. Kurtz, 7 the Su- 
 preme Court of the United States recognize the rule that 
 proof of title by adverse possession is admissible under 
 the general issue. The same rule prevails in Florida, 8 
 though in that State a plea of 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 ac- 
 tion, or before the accruing of the right of action, was held 
 bad, because it did not set forth facts showing that during 
 the same period the defendant had been in adverse posses- 
 sion. 9 Pleading that the entry was under a claim of title 
 
 1 Tegarden v. Carpenter, 36 Miss. 404. 
 
 2 Poffertberger v. Blackstone, 57 Ind. 288 ; Johnson v. Adleman, 33 111. 265. 
 
 3 Ellis v. Murray, 28 Miss. 129. 
 
 4 Lay v. Lawson, 23 Ala. 377. 
 
 5 Stubblefield v. Borders, 92 111. 279. See Wicks v. Smith, 18 Kan. 508. 
 
 6 Freeman v. Sprague, 82 N. C. 366 ; Davis v. McArthur, 78 N. C. 357. 
 
 1 94 U. S. 773. Stearns on Real Actions, 241. See McConnel v. Reed, 5 111. 
 124; Wade v. Doyle, 17 Fla. 522 ; Zeigler v. Fisher, 3 Penn. St. 367; Zeilin 11, 
 Rogers, 21 Fed. Rep. 103. 
 
 8 Weiskoph v. Dibble, 18 Fla. 24; Spratt v. Price, 18 Fla. 300. 
 
 9 Wade v. Doyle, 17 Fla. 522. 
 
§ 482.] PLEA OR ANSWER. 347 
 
 exclusive of any other right, and that the possession had 
 been continued the statutory period is, however, a suffi- 
 cient answer. The particulars of the possession defining 
 its character need not be set forth. 1 A mere squatter 
 claiming no title, or a person in possession in subordina- 
 tion to the legal title, cannot, as we shall see, acquire the 
 title by adverse possession, because there has been no 
 actual entry or actual possession by the owner during 
 the statutory period, and it is therefore useless to plead 
 the statute in bar in such cases. 3 
 
 On the other hand, title by adverse possession cannot 
 be shown under a general denial under the practice in 
 California ; 8 and in that State an answer in ejectment set- 
 ting 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. 4 In 
 New York adverse possession must be pleaded, and evi- 
 dence of a title so acquired cannot be given under the 
 general issue. 5 Tn a partition action where the complaint 
 showed a tenancy in common between the parties, a para- 
 graph 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, notori- 
 ously, continuously, and adversely to any other claim or 
 title whatsoever," was held not to constitute a good de- 
 fense to the cause of action set forth in the complaint. 
 The averments of the answer were construed to mean 
 that the defendant, as tenant in common, 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 a holding adverse to the 
 
 1 Bartlett v. Secor, 56 Wis. 520; s. c. 14 N. W. Rep. 714. 
 
 J Sharp v. Daugney, 33 Cal. 505 ; Neddy v. The State, 8 Yerg. (Term.) 249 
 See Stevens v. Hauser, 39 N.' Y. 302. 
 
 3 McCreery v. Duane, 52 Cal. 262. 
 
 4 McCreery v. Sawyer, 52 Cal. 257. 
 
 ' Dezengremel v. Dezengremel, 24 Hun (N. Y.), 457; s. c. 12 Weekly Dig. (N. 
 Y.) 286; Hansee v. Mead, 2 N. Y. Civ. Pro. 175 ; s. c. 27 Hun (N. Y.), 162; Butler 
 ». Mason, 16 How. Pr. (N. Y.) 546. See Sands v. St. John, 36 Barb. (N. Y.) 62S. 
 
348 PLEA OR ANSWER. [§ 483. 
 
 co-tenant. 1 Some of the authorities assert that a general 
 denial is sufficient to raise the defense of the statute of 
 limitations, because it negatives the plaintiff's averment 
 of title. 2 This, we submit, is not the case. The evicted 
 party may have a title enforceable against all the world ex- 
 cept the disseizor. Then, as we have seen, the defendant, 
 though incapable of acquiring title to land, may, neverthe- 
 less, succeed with a defense of adverse possession. 3 This 
 proves that the defense is not one operating upon the 
 title. 
 
 Adverse possession of lands only affects or operates 
 upon the remedy; it shields the possessor in that it de- 
 prives the true owner of the power to assert and enforce 
 his title. The theory, as we shall see, 4 is that prescription 
 relates to incorporeal hereditaments, and is founded upon 
 a title based upon a presumed grant, while title by adverse 
 possession refers to corporeal hereditaments, and has no 
 such presumption upon which to rest, but is merely a pos- 
 session acquired by wrong, and protected from invasion ou 
 the part of the true owner by cutting off the latter's 
 remedy. 5 The better policy would seem, therefore, to be 
 that the defense of adverse possession should be pleaded. 
 It admits the title but avoids it. 6 
 
 § 483. Practice in Texas. — Under the practice in Texas 
 a plea of "not guilty" in trespass to try title, lets in all 
 defenses except the statute of limitations; 1 and by inter- 
 posing this plea the defendant is not regarded as admitting 
 anything. The plea puts in issue not only the title of the 
 
 1 Nicholson v. Caress, 76 Ind. 24. See Sandford w. Tucker, 54 Ind. 219 ; Bowen 
 v. Preston, 48 Ind. 367 ; Nelson v. Davis, 35 Ind. 478 ; Tenkins v. Dalton, 27 Ind. 
 78. See Chap. IX. 
 
 5 Nelson v. Brodhack, 44 Mo. 596 ; Bledsoe v. Simms, 53 Mo. 307 ; Kyser v. 
 Cannon, 29 O. S. 359 ; Wintermute v. Montgomeiy, 11 O. S. 444; Hill v. Bailey, 
 76 Mo. 454. 
 
 3 Overing v. Russell, 32 Barb. (N. Y.) 263. See § 25301. 
 
 4 See § 726. 
 
 5 In Hansee v. Mead, 27 Hun (N. Y.), 164, Learned, P. J., said: "I do not 
 know that adverse possession of land has any other effect than to bar an opposing 
 claimant's action, under Code Civil Procedure (§§ 365, 368). I know of no statute 
 declaring that the possessor acquires title.'' 
 
 6 The question of the application of the statute of limitations must be raised in 
 the court of original jurisdiction to be available on appeal. Upton v. McLaughlin, 
 103 U. S. 640, and cases cited. 
 
 7 Dalby v. Booth, 16 Tex. 563. 
 
§§ 484, 485.J PLEA OR ANSWER. 349 
 
 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 plaint- 
 iff's right of action. 1 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 necessary. 2 In Johnson v. Byler, 3 in the 
 Supreme Court of Texas, it was held to be settled doc- 
 trine that under the plea of the general issue in trespass 
 to try title, either a legal or an equitable defense, which 
 amounted to an estoppel, 4 could be introduced without 
 being specially pleaded. But issues which involve affirm- 
 ative equitable relief must be specially pleaded and the 
 facts set forth in accordance with equitable principles and 
 accompanied by an appropriate prayer for relief. 5 
 
 § 484. General issue in trespass to real property. — In tres- 
 pass 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 lioerum 
 tenementum. 6 
 
 § 485. Equitable defenses and affirmative relief. — As eject- 
 ment 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 affirma- 
 tive 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 
 
 1 Stroud v. Springfield, 28 Tex. 649. 
 
 ! Mann v. Falcon, 25 Tex. 271. 
 
 a 38 Tex. 606, 610. See Herrington v. Williams, 31 Tex. 448 ; Ragsdale v. 
 Gohlke, 36 Tex. 286. 
 
 1 Compare Creque v. Sears, 17 Hun (N. Y.), 124; Mayer v. Ramsey, 46 Tex. 
 371 ; Suttle v. Richmond F. & P. R. R. Co. 76 Va. 291. 
 
 5 Williams v. Barnett, 52 Tex. 130; Catlin v. Bennatt, 47 Tex. 165; Ayres 
 v. Duprey, 27 Tex. 604 ; Rippetoe v. Dwyer, 49 Tex. 498 ; Powers v. Armstrong, 
 36 0. S. 357. 
 
 6 Cooley v. O'Connor, 12 Wall. 391-399; Monumoi Beach v. Rogers, 1 Mass. 
 160. 
 
 ' See Neave v. Avery, 16- C. B. 328. 
 
350 PLEA OR ANSWER. [§ 486. 
 
 were frequently granted to restrain ejectment by the 
 holder of the legal title during the pendency of the pro- 
 ceedings in equity upon the equitable title. The modern 
 innovations in systems and forms of judicial procedure, 
 especially the blending of legal and equitable jurisdictions, 
 have wrought radical and highly important changes in the 
 nature and uses of the statutory action of ejectment for 
 the trial of controverted titles. The defendant in many 
 of our States may interpose equitable as well as legal titles 
 or defenses ; x and when equitable defenses are set up 
 against legal titles the same rule and measure of justice is 
 to be applied as if the proceeding was in equity. 2 Thus, 
 in an action to recover possession of land for non-payment 
 of rent, the tenant may plead and show by way of counter- 
 claim partial eviction from an easement connected with 
 the land, and is not driven to a cross- action. 8 
 
 The equities set up should, as a general rule, be such as 
 would have entitled the party to relief in equity against 
 the judgment at law under the old practice. 4 
 
 § 486. Equitable defenses must be pleaded. — As a general 
 rule equitable defenses must be distinctly pleaded and 
 proved. 6 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 con- 
 veyance of the premises, or to other appropriate relief. 
 
 1 Nevvsome 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 ; McCauley 
 v. Fulton, 44 Cal. 355; JSTeill v. Keese, 5 Tex. 22 ; Allison v. Elder, 45 Ga. 17; 
 Elder v. Allison, 45 Ga. 13 ; Herrington v. Williams, 31 Tex. 448 ; Bartlett v. 
 Judd, 21 N. Y. 200 ; Suttle v. Richmond F. & P. R. R. Co. 76 Va. 284; Rosierz v. 
 Van Dam, 16 Iowa, 175 ; Ten Broeck z/. Orchard, 74 N. C. 409 ; Reece v. Roush, 
 2 Mont. 586 ; Pearsall v, Mayers, 64 N. C. 549; Webster v. Bond, 9 Hun (N. Y.), 
 437 J Jones v. Manly, 58 Mo. 559 ; Stalnaker v. Morrison, 6 Neb. 364; Rollins v. 
 Henry, 78 N. C. 342. See § 483. 
 
 2 Sower v. Weaver, 78 Penn. St. 443; Blair v. Claxton, 18 N. Y. 529 ; Jones v. 
 Brinker, 20 Mo. 87 ; Vasquez v. Ewing, 24 Mo. 31; Lombard v. Cowham, 34 Wis. 
 486.; Dale v. Hunneman, 12 Neb. 224. 
 
 3 Blair v. Claxton, 18 N. Y. 529. 
 
 4 See Spratt v. Price, 18 Fla. 300 ; Kentfield v. Hayes, 57 Cal. 409. 
 
 5 McCauley v. Fulton, 44 Cal. 355 ; Cadiz v. Majors, 33 Cal. 288; Millhollin ». 
 Jones, 7 Ind. 715 ; Powers v. Armstrong, 36 O. S. 357 ; Kentfield v. Hayes, 57 
 Cal. 409; Crecelius v. Mann, 84 Ind. 147; Dale v. Hunneman, 12 Neb. 221; Kahn 
 v. Old Telegraph Min. Co. 2 Utah, 174. 
 
§ 487.] PLEA OR ANSWER. 351 
 
 The facts which would formerly have entitled a defend- 
 ant to be relieved in equity, may be set up in his answer 
 as a full defense. 1 A parol gift of land, accompanied 
 by possession, and valuable improvements made upon the 
 strength of the gift, will be upheld, but the answer setting 
 up the gift is defective if it fails to allege the improve- 
 ments. 2 And in ejectment to recover a mining claim, 
 if the defendant relies upon a forfeiture by plaintiff 
 for failure to comply with the local rules and regulations 
 of the mining district, the forfeiture must be specially 
 pleaded. 3 It is analogous to a plea in confession and 
 avoidance. 
 
 § 487. Elements of an equitable defense. — It has been held 
 in New York* 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 relief ; 5 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 plaintiff 
 convey to him on such terms as the court shall adjudge. 
 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 aver- 
 ments of a bill in equity. 6 The defendant becomes an 
 
 1 Crary v. Goodman, 12 N. Y. 266; Phillips v. Gorham, 17 N. Y. 270; Stone 
 v. Sprague, 20 Barb. (N. Y.) 509; Hoppough v. Struble, 60 N. Y. 430 ; Lamont v. 
 Cheshire, 65 N. Y. 42 ; Cayalli v. Allen, 57 N. Y. 508; Traphagen v. Traphagen, 
 4° Barb. (N.Y.) 537; Thurman u. Anderson, 30 Barb. (N. Y.) 621. 
 
 a Montgomery 71. Carlton, 56 Tex. 364. 
 
 3 Morenhaut v. Wilson, 52 Cal. 263. But compare Steel v . Gold Lead M. Co. 
 18 Nev. 86. 
 
 4 Dewey v. Hoag, 15 Barb. (N. Y.) 365 ; Lombard v. Cowham, 34 Wis. 486; 
 Follett v. Heath, 15 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 0. 
 Benton, 60 Barb. (N.Y.) 216; Stone v. Sprague, 20 Barb. (N. Y.)sog; 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; 
 Du Pont v. Davis, 35 Wis. 634. As to when equity will reform a deed or instru- 
 ment for fraud or mistake, see Waring v. Somborn, 82 N. Y. 604; Bryce v. Lor- 
 illardFire Ins. Co. 55 N. Y. 240. 
 
 6 Kentfield v. Hayes, 57 Cal. 409 ; s. p. Allen v. Douglass, 29 Kans. 412. 
 
352 PLEA OE ANSWEB. [§ 488. 
 
 actor with respect to the matters alleged by him, 1 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, 3 and, until it is 
 disposed of the assertion of the legal remedy is in effect 
 stayed. It will not be available unless specially pleaded.' 
 The necessity of proceeding further with the action at law 
 depends upon the adjudication by the court as to the right 
 to the relief sought by the answer. 4 
 
 § 488. Defendant need not become an actor. — On the other 
 hand, in Hoppough v. Struble, 5 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 plaint- 
 iff, 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 right to the 
 possession, and constitute a defense as effectual as the 
 legal title. In Cramer v. Benton, 6 affirmed in the New 
 York Court of Appeals on the opinion of the court below,' 
 in which the defense to an action of ejectment proceeded 
 upon the ground that the language and legal effect 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- 
 
 1 See Kahn v. Old Telegraph Mining Co. 2 Utah, 174, 197. 
 
 2 See. also, Gibson v. Chouteau, 13 Wall. 103. 
 
 3 Cadiz v. Majors, 33 Cal. 288; Hartley v. Brown, 51 Cal. 465. See Carman v. 
 Johnson, 20 Mo. 108: Murray v. Walker, 31 N. Y. 300: Safford v. Hynds, 39 
 Barb. (N. Y.) 625. 
 
 4 Estrada v. Murphy, 19 Cal. 248-272 ; Lestrade v. Barth, 19 Cal. 660 ; Blum 
 v. Robertson, 24 Cal. 127 ; Downer v. Smith, 24 Cal. 114; Brack v. Tucker, 42 
 Cal. 346-352. 
 
 6 60 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 ; 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. 
 
 6 60 Barb. (N. Y.) 216. 
 
 1 56 N. Y. 638. See Webster v. Bond, 9 Hun (N. Y.), 437. 
 
§ 488.] PLEA OR ANSWER. 353 
 
 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. In this case 
 the court also held that it was impossible to reform the 
 deed, because the statutory period for such a species of 
 relief had elapsed. 
 
 The cases are rare 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, 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 equit- 
 able defense in an action at law must not be overlooked. 
 A person bringing an action at law cannot generally be 
 compelled to sue any person, except such as he may elect 
 to prosecute. Equitable defenses frequently require the 
 presence of additional parties in the action, without whose 
 presence an affirmative judgment, which would be res: 
 adjudicate/, upon the parties in interest, could not be ren- 
 dered, 1 and the plaintiff may refuse to bring them before the> 
 court. By interposing an equitable defense the defendant 
 does not convert the legal action into an equitable one, nor 
 change the plaintiff's right to have his legal rights deter- 
 mined in a legal forum, nor can he ordinarily be forced to 
 bring in the additional parties. 2 A vendee in possession, un- 
 der 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 he can compel a specific per- 
 formance. 3 In Harris v. Vinyard, in the Supreme Court of 
 Missouri, the defendant set up as a defense his purchase 
 
 1 See Cramer v. Benton, 4 Lans. (N. Y.) 291 ; s. C. 60 Barb. (N. Y.) 216 ; Call 
 v. Chase, 21 Wis. 511. 
 
 8 Webster v. Bond, 9 Hun (N. Y.), 437; Waters v. Perkins, 65 Ga. 34. See 
 Sawyer v. Chambers, 11 Abb. Pr. (N. Y.) no; Shaw v. Millsaps, 50 Miss. 380; 
 contra Ten Broeck v. Orchard, 74 N. C. 409. 
 
 "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 v. 
 Watkins, 40 Cal. 547; Tibeau v. Tibeau, 19 Mo. 78 ; S. C. 6 Am. Rep. 624. See S 
 322. 
 
 23 
 
354 PLEA OK ANSWER. [§§ 489, 490. 
 
 of the land under a contract with the plaintiff's deceased 
 father. The court decided 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 pray- 
 ing for a decree of title in himself was stricken out. 1 
 
 In Minnesota the defendant may set up by answer his 
 equities, so far at least as they relate to the right of 
 possession, and 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. 3 We may say in conclusion that the general principle 
 underlying the admission of equitable defenses to the 
 action of ejectment under the reformed procedure, is that 
 if the plaintiff, upon the application of such principles as 
 govern the determination of his rights in courts of equity, 
 ought not to be put in possession of the premises, he can- 
 not recover. 3 
 
 § 489. Counter-claim, or set-off. — A widow's claim for 
 dower of real estate is not subject to a set-off for damages, 
 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. 4 
 
 § 490. Title admitted by answer. — In Pryor v. Madigan, 5 
 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 
 
 1 Harris v. Vinyard, 42 Mo. 568. 
 
 2 Williams v. Murphy, 21 Minn. 534. 
 
 3 Chase v. Peck, 21 N. Y. 581, per Denio, J. ; Pomeroy's Rem. & Rem. Rights, 
 116. 
 
 4 Bogardus v. Parker, 7 How. Pr. (N. Y.) 303. See Elliott v. Gibbons, 31 N. Y. 
 67. 
 
 "51 Cal. 178. See § 476, note; Finch v. Finch, 10 O. S. 501; McCauley v. 
 Gilmer, 2 Mont. 202. 
 
§§ 491, 492.] PLEA OR ANSWER. 355 
 
 action, the claimant owned the premises in fee, and while 
 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 deraign title under an administrator's sale. The admin- 
 istrator'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 administra- 
 tor's sale, and that it was not a denial of the plaintiff's 
 title, except as predicated upon that fact ; and the admin- 
 istrator'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, set 
 up a tax deed, it was held that 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. 1 
 
 § 492. Pleading a special title.— In a case which arose in 
 Texas the court decided that where the defendant in tres- 
 pass to try title tiled a special plea, claiming title in him- 
 self, and setting it out specially, he should be confined to 
 the title so pleaded in giving evidence of his defense, 
 and the plea of not guilty, if also interposed, would be 
 considered as thereby waived. 2 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 pre- 
 pared with evidence to meet other defenses than those 
 which the pleadings disclose. 3 But this rule does not 
 apply where the special defense is the statute of limita- 
 
 'Nicoll v. Fash, 59 Barb. (N, Y.) 275; Blackwell on Tax Titles, [*5oil 579; 
 Russell v. Mann, 22 Cal. 132; McMinn v. O'Connor, 27 Cal. 246. Compare Wake- 
 ley v. Nicholas, 16 Wis. 588 ; Morgan v. Bishop, 56 Wis. 284. 
 
 8 Custard v. Musgrove, 47 Tex. 217; Shields v. Hunt, 45 Tex. 424; Rivers v. 
 Foote, 11 Tex. 670. 
 
 8 Shields v. Hunt, 45 Tex. 424. 
 
356 PLEA OE AN S WEE. [§ 492«f. 
 
 tions, and in such a case the defendant may show the 
 invalidity of the plaintiff's title with the same effect as 
 if the special plea had not been made. 1 The defendant 
 may plead specially though his defenses were equally avail- 
 able under the plea of not guilty. 3 Thus in Kansas the 
 defendant may state his defenses specifically, and his 
 answer is then governed by the ordinary rules of plead- 
 ing. The pleadings must determine the relevancy 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. 8 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 ; 4 and when the defendant sets up 
 title to an undivided interest he must specify what share 
 or interest he owns. 5 The rule obtains in California, that 
 an answer setting up title to only a portion of the de- 
 manded 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. 6 It has been held 
 in New York, 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. 7 
 
 § 492a. Pleading easement or outstanding title. — Under a 
 plea of nul disseizin to a writ of entry, the tenant cannot 
 set up an easement in the demanded premises, for an ease- 
 ment is no defense to a recovery in a real action. 8 As 
 we have seen, the right to the fee and a right to an ease- 
 ment are independent rights, which may subsist together 
 though vested in different persons. 9 The recovery in eject- 
 
 1 Sheirburn v. Hunter, 3 Woods, 281. 
 
 5 Hollingsworth v. Holshousen, 17 Tex. 41 ; Hunt v. Turner, 9 Tex. 385. 
 
 3 Wicks v Smith, 18 Kan. 508. 
 
 4 Stark v. Starr, 1 Sawyer, 15; Fitch v. Cornell, 1 Sawyer, 156; Phillippi v. 
 Thompson, 8 Oregon, 428; Hill v. Austin, 1 Deady, 104. 
 
 5 Pease v. Hannah, 3 Oregon, 301. 
 
 6 Anderson v. Fisk, 36 Cal. 625. 
 
 ' Henderson v. Scott, 12 Week. Dig. (N. Y.) 363. 
 
 8 Kenniston v. Hannaford, 58 N. H. 28. Compare Blair v. Claxton, 18 N. Y. 
 529. 
 
 9 See §§ 130, 132. 
 
§§ 492&, 493.] PLEA OR ANSWER. 357 
 
 ment would not estop the owner of the easement from 
 invoking any of the usual remedies for the protection of 
 such an incorporeal interest. 1 Under the plea of nul dis- 
 seizin, it is no defense to show a better title in a third 
 person. 3 
 
 § 4926. Evidence not to be pleaded. — The defendant in 
 ejectment should state in his answer the nature and 
 duration of the estate he claims, if any, but not the evi- 
 dence of it. 3 A statement of the grounds upon or means 
 by which the defendant claims to be the owner of the 
 property, may be stricken out on motion. 4 This question 
 has already been incidentally considered. 5 
 
 § 493. Reply to affirmative or other 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 improvements and paid taxes, are not admitted 
 by failure to reply. 6 In Wisconsin the plaintiff may show 
 any facts invalidating a tax deed introduced in evidence 
 against him without pleading such facts. 7 But in Colo- 
 rado, if the defendant sets up title, plaintiff must reply. 8 
 In Texas a plaintiff, relying upon an exception in his favor 
 to the running of the statute of limitations pleaded by 
 the defendant, must specially plead the exception by way 
 of replication. 9 This scientific and rigid rule of pleading is 
 not of universal application, though courts sometimes 
 compel a reply where the statute of limitations is inter- 
 posed, 10 or a discharge in bankruptcy is pleaded," or the 
 
 1 In a suit concerning the diversion of a water course, the defendant claiming an 
 uninterrupted right to user by adverse enjoyment, should tender such an issue by 
 answer. American Co. v. Bradford, 27 Cal. 367, 368. 
 
 2 Emerson v. Emerson, 58 N. H. 413. 
 
 3 Fitch v. Cornell, I Sawyer, 156. 
 
 4 Wythe v, Myers, 3 Sawyer, 595. 
 6 See § 445. 
 
 6 Reed v. Newton, 22 Minn. 541. See McCarty v. Roberts, 8 Ind. 150. 
 ' Morgan v. Bishop, 56 Wis. 286. But see § 491. 
 
 8 Newman v. Newton, 14 Fed. Rep. 634; s. c. 3 Col. Law Rep. 193. 
 
 9 Hughes v. Lane, 25 Tex. 356, and see Miller v. M'Intyre, 6 Pet. 61. 
 
 10 Hubbell v. Fowler, 1 Abb. Pr. N. S. (N. Y.) 1; Jarvis v. Pike, 11 Abb. Pr. 
 N. S. (N. Y.) 398. 
 
 11 Poillon v. Lawrence, 77 N. Y. 209. 
 
358 PLEA OR ANSWER. [§§ 494-495. 
 
 defendant in an action for dower has set up that the 
 plaintiff was divorced from the deceased. 1 The reply may, 
 however, be waived in certain cases. 2 
 
 § 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. 3 
 
 § 494a. Misjoinder of parties. — Demurrer. — If there is an 
 improper joinder of parties defendant, the objection, to be 
 available, must be taken by answer or demurrer ; 4 by de- 
 murrer if apparent upon the face of the pleading, other- 
 wise by answer. The objecting party will lose the right 
 to urge the misjoinder if the case goes to trial without 
 dissent on this point. 
 
 § 495. Supplemental answer or plea puis darrein continu- 
 ance. — The rights of litigants are usually determined with 
 reference to the state of facts existing at the commence- 
 ment of the litigation, 6 and, ordinarily, evidence of mat- 
 ters which transpired during the pendency of the action 
 cannot be introduced upon the trial. 6 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 pleadinga 
 
 1 Brinkerhoff v. Brinkerhoff, 8 Abb. N. C. (N. Y.) 207. Compare Leslie v. 
 Leslie, n Abb. Pr. N. S. (N. Y.) 314 ; O'Gorman v. Arnoux, 63 How. Pr. (N. Y.) 
 163. 
 
 2 Woodward v. Sloan, 27 O. S. 592. 
 
 3 Stringfellow v. Alderson, 12 Kan. 112. See Lorillard v. Clyde, 86 N. Y. 384. 
 * Fosgate v. Herkimer Mfg. Co., 12 N. Y. 580; Dillaye v. Wilson, 43 Barb. 
 
 (N. Y.) 261. See Liter v. Green, 2 Wheat. 306. 
 
 6 " In a real action, judgment must be rendered upon the title as it stood at the 
 date of the writ." Reed v. Crapo, 133 Mass. 203; citing Andrews v. Hooper, 13 
 Mass. 472 ; Hall v. Bell, 6 Mete. (Mass.) 431 ; Hooper v. Bridgewater, 102 Mass. 
 512. 
 
 6 Mills v. Graves, 44 111. 50 ; Jackson v. Leggett, 7 Wend. (N. Y.) 377 ; Wood 
 v. McGuire, 21 Ga. 576. See § 645. 
 
§ 495.] PLEA OR ANSWER. 359 
 
 setting forth the new facts, and presenting the additional 
 issues, or by the common law plea puis darrein continu- 
 ance. 1 If the practice were otherwise, the utmost confu- 
 sion and uncertainty would result, for evidence could be 
 introduced 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 evi- 
 nence a title acquired pending the action, unless his plead- 
 ings have been amended by averments showing that the 
 title was acquired since the commencement of the action ; 2 
 or by supplemental answer in the nature of a plea puis dar- 
 rein continuance. 3 Thus, it has been held in Michigan that 
 a deed from the plaintiff to the defendant's wife, convey- 
 ing the disputed premises after the commencement of the 
 ejectment, is not admissible in evidence as a defense with- 
 out a special notice in the nature of a plea^wis darrein con- 
 tinuance} 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. 5 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 de- 
 mandant's concurrence, since the commencement of the 
 action. 6 In a number of cases it has been held, however, 
 that a plea puis darrein continuance in ejectment, setting 
 
 1 The filing of this plea waives all prior issues. Wallace v. McConnell, 13 Pet. 
 137 ; Spafford v. Woodruff, 2 McL. 191 ; Wisdom v, Williams, Hempst. 460. See 
 Kentfield v. Hayes, 57 Cal. 409. 
 
 2 Reily v. Lancaster, 39 Cal. 354; McMinn v. O'Connor, 27 Cal. 238 ; McLane 
 a. Bovee, 35 Wis. 27; Mossi/. Shear, 30 Cal. 472 ; Anon. 1 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 ; 
 Kahn v. Old Telegraph M. Co., 2 Utah, 174; Thompson v. McCay, 41 Cal. 221 ; 
 Spratt v. Price, 18 Fla. 289; Foscalina v. Doyle, 47 Cal. 437 ; Pollard v. Hanrick, 
 74 Ala. 334. 
 
 3 Hardy v. Johnson, 1 Wall. 371-374. See Thompson v. Red, 2 Jones (N. C.) 
 Law, 412. 
 
 i Jenney v. Potts, 41 Mich. 52. See Buell v. Irwin, 24 Mich. 149. 
 
 5 Maus v. Montgomery, 11 S. & R. (Penn.) 329. 
 
 6 Hooper v. Bridgewater, 102 Mass. 512; Andrews v. Hooper, 13 Mass. 472 ; 
 Hall v. Bell, 6 Met. (Mass.) 431 ; Curtis v. Francis, 9 Cush. (Mass.) 427. 
 
360 PLEA OR ANSWER. [§ 495. 
 
 up that the plaintiff had entered upon the lands described 
 in the declaration, and still retained the possession, was 
 bad, and constituted no bar to the further maintenance of 
 the action. 1 If the defendant had offered to fully sur- 
 render 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. 2 
 
 Granting leave to serve a supplemental answer usually 
 rests in the sound discretion of the court. 3 
 
 1 Tyler v. Canaday, 2 Barb. (N. Y.) 160 ; Den d. Price v. Sanderson, 18 N. J. 
 Law, 426; McChesney v. Wainwright, 5 Ohio, 452; Venner v. Underwood, 1 Root 
 (Conn.), 73. But see Thompson v. Red, 2 Jones (N. C.) Law, 412. 
 
 2 Tyler v. Canaday, 2 Barb. (N. Y.) 160 ; Jackson v. Stiles, 3 Wend. (N. Y.) 
 429. 
 
 3 Spears v. Mayor, &c , 72 N. Y. 442 ; Holyoke v. Adams, 59 N. Y. 233 ; Med- 
 kury v. Swan, 46 N. Y. 200. 
 
CHAPTER XIX. 
 
 OF THE VERDICT. 
 
 j 496. 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 com- 
 
 mon. 
 
 505. Misjoinder cured by verdict. 
 
 § 496. Questions of fact to ~be tried T)y jury. — When ques- 
 tions of fact are involved in ejectment the issues are almost 
 uniformly submitted to a jury, under proper instructions 
 from the court, for the reason that litigants ordinarily 
 have a constitutional right to a trial by j ury. 1 The disin- 
 clination 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 in question the title to land. In such 
 cases the court calls the jury to enlighten its conscience 
 and not to control its judgment. 2 
 
 The changes in procedure, by virtue of which equitable 
 defenses may be interposed in ejectment cases, have led to 
 some confusion as to the method and order of trial of the 
 legal and equitable issues. It is the proper province of 
 the court to determine questions involving equitable con- 
 siderations, and the trial judge should be permitted, on 
 the hearing of the equitable issues, to submit controversies 
 of fact to the jury, either separately or in connection with 
 
 ' "The jury may be controlled in their determination of a question by a peremp- 
 tory instruction, if the testimony is of such a conclusive character as would compel 
 the court, in the exercise of a sound legal discretion, to set aside a verdict if one 
 were returned in opposition to such testimony." Montclair v. Dana, 107 U. S. 162. 
 Citing Hendrick v. Lindsay, 93 U. S. 143; Phcenix Ins. Co. ». Doster, 106 U. S. 30. 
 
 2 Basey v. Gallagher, 20 Wall. 680. 
 
3G2 OP THE VEKDIOT. [§ 497. 
 
 the trial of questions involved in the legal part of the 
 controversy. 1 The practice prevailing in California of 
 hearing the equity side of the controversy first is perhaps 
 to be commended. 2 
 
 § 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 iu ejectment upon a 
 question of location than upon an ordinary question of 
 fact. 8 It becomes important to keep this principle in view, 
 for uncertainty 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 practice prevailed it was commonly held that the 
 verdict could relate only to the lands described in the 
 consent rule. 4 Under the modern practice the verdict 
 must be limited to the lands claimed in the declaration, 
 and must correspond with the evidence, 5 and must also be 
 limited to the lands to which the plaintiff proved title. 6 
 The verdict must comprehend the whole issue, otherwise 
 the judgment founded upon it will be reversed. 7 Thus, 
 where the jury found for all the plaintiffs but one, whom 
 they failed to mention, the verdict was held to be defect- 
 ive, because it was impossible to tell whether they in- 
 tended to find for or against him. 8 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. 9 
 
 1 See Hewlett v. Wood, 62 N. Y. 78. 
 
 2 See § 487. 
 
 3 Mathews v. Horlbeck, I Rich. (S. C.) Law, 382; Bank v, Bobo, 14 Rich. (S. 
 C.) Law, 51. 
 
 4 See White v. Den d. Woodruff, 24 N. J. L. 753. 
 ' Hughes v. Holliday, 3 G. Gr. (la.) 30. 
 
 6 City of East St. Louis v. Hackett, 85 111. 382. 
 
 7 Patterson v. United States, 2 Wheat. 222; Miller v. Trets, 1 Ld. Raym. 324. 
 8 AVood <j. McGuire, 17 Ga. 361. 
 
 9 Stearns on Real Actions, p. 243. 
 
§§ 498, 499.] OF THE VERDICT. 363 
 
 § 498. Verdicts liberally construed. — It was held in Turber- 
 ville v. Long, 1 an early case in Virginia, that the statute of 
 jeofails extended to writs of right, and therefore, 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 mentioned 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 meaning 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 more right to have them as he 
 demandeth them. One seems to be an irresistible conse- 
 quence of the other." In M'Murray v. Oneal, 2 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 mentioned, and one cent damage." 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. 8 
 
 § 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 observed, has 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 rec- 
 
 '3 H. & M. (Va.) 309. 
 
 '' I Call. (Va.) 246. See Kershner v. Kershner, 36 Md. 309-336. 
 
 3 Kershner v. Kershner, 36 Md. 309-336. 
 
364 OP THE VERDICT. [§ 500. 
 
 ord 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 which 
 practically becomes a part of it by being made the object 
 of a reference." 1 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 or declaration. Hence 
 where the jury found for " the land on which the defendant 
 lives," it was held sufficiently definite to enable the plain- 
 tiff to take possession. 2 
 
 § 500. Verdict must specify the nature of the estate. — In 
 some of our States the verdict must specify the nature of 
 the estate found, 3 and if the verdict fails so to do, it may 
 be treated as a nullity and a new trial ordered. 4 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 as 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. 5 On the 
 other hand, in Hawley v. Twyman, 6 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 boundaries, 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 
 
 1 Miller v. Casselberry, 47 Perm. St. 376. 
 
 9 Manning v. Dove, 10 Rich. (S. C.) Law, 395. 
 
 3 Van Fossen v. Pearson, 4 Sneed (Tenn.), 362. 
 
 4 Rivier v. Pugh, 7 Heisk. (Tenn.) 715 ; Rogers v. Sinsheimer, 50 N. Y. 646. 
 See Goodtitle v. Alker, 1 Burr. 133. 
 
 6 Long v. Linn, 71 111. 152. See Rawlings v. Bailey, 15 111. 178. 
 6 24 Gratt. (Va.) 516. 
 
§ 501.J OF THE TEKDICT. 365 
 
 complained." The court held that though the verdict did 
 not expressly find an estate in fee in the plaintiff, as re- 
 quired 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- 
 tween the parties, the verdict was held sufficiently cer- 
 tain ; 1 and low water-mark is a boundary sufficiently certain, 
 in a judgment in a real action, to enable the sheriff to ex- 
 ecute the judgment by an habere facias. 2 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 de- 
 livery of possession under an habere facias? Under the 
 practice in California, 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 re- 
 garded as a finding of fact or conclusion of law. 4 Unless 
 the defendants demand separate verdicts they will be 
 bound by a general verdict. 5 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. 6 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 over- 
 ruled. 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 nominal. 7 In trespass to try 
 
 1 Hopkins v. Myers, Harper (S. C), 57. 
 5 Adams v. Frothingham, 3 Mass. 352. 
 
 3 Miller v. Casselberry, 47 Penn. St. 376. 
 
 4 Frazier v. Crowell, 52 Cal. 399. 
 
 5 Ellis v. Jeans, 7 Cal. 409. 
 
 6 Chapman v. Holding, 60 Ala. 522. 
 
 ' Russell v. Maloney, 39 Vt. 579. See Coleman v. Henderson, 3 111. 251. 
 
368 OF THE VEEDICT. [§ 502. 
 
 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 laud 
 belongs to the plaintiff," was held sufficient, under the pre- 
 vailing liberal rules of intendment, to support ajudgment 
 in favor of plaintiff for damages and costs, and to authorize 
 the court to award a writ habere facias possessionem. 1 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 suf- 
 ficiently certain. 3 A verdict for "the property in ques- 
 tion " is good. 3 Where the writ described the premises as 
 " a tract of land in Jackson township, containing 185 acres 
 or thereabouts, bounded by lands of M. J. and V.," a ver- 
 dict "for the farm as it stands in the writ," was held 
 good. 4 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. 5 An award in ejectment showing a 
 plain mistake of fact in misdescribing the premises, should 
 be sent back to the referees for correction, so as to make 
 the award certain and consistent. 6 
 
 § 502. Verdicts held insufficient. — A verdict in ejectment 
 for a certain number of acres, "part of the premises in 
 the declaration mentioned," is too uncertain to warrant a 
 judgment upon it, 7 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 uncer- 
 tainty. 8 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 
 
 1 Stephens v. Westwood, 25 Ala. 716. 
 
 2 Tryon v. Carlin, 5 Watts (Penn.), 371. 
 
 3 Patrick v. Young, 18 Fla. 50. 
 
 4 Emig v. Deihl, 76 Penn. St. 359. 
 
 5 Clement v. Youngman, 40 Penn. St. 341 ; s. c. 5 Mor. Min. Rep. 230, 
 
 6 Kidd v. Emmett, 72 Penn. St. 150. Compare further as to a sufficient verdict 
 Collins v. Riley, 104 U. S. 322. 
 
 7 Gregory v. Jacksons, 6 Munf. (Va.) 25. 
 
 8 Stewart v. Speer, 5 Watts (Penn.), 79. See White v. Hapeman, 43 Mich. 267. 
 
§503.] OF THE VEEDICT. 367 
 
 of the improvement as practicable," &c, has been held 
 void for uncertainty, in Pennsylvania. 1 So a verdict "for 
 2 acres, 2&nnr perches, with 6 cents damages," is incurably 
 bad, it being a part of the lot for which the action was 
 brought. 2 So "the middle of a stone wall" is too indefi- 
 nite 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 uncertainty could not be 
 tolerated. 3 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 rendering 
 judgment thereon. 4 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 ren- 
 dered for the land in severalty, though it was owned in 
 common. It was held that the verdict should have been 
 for an undivided interest. 5 
 
 § 503. Boberti 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 1, 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 em- 
 
 1 Martin v. Martin, 17 S. & R. (Penn.) 431. 
 
 2 Borough of Harrisburg v. Crangle, 3 W. & S. (Penn.) 460. 
 
 3 Hagey v. Detwei'er, 35 Penn. St. 409. 
 
 * Smith v. Jenks, 10 S. & R. (Penn.) 153. 
 5 Nolan v. Sweeny, 80 Penn. St. 77. 
 
368 OF THE VBEDIOT. [§§ 504, 505. 
 
 bodied in it. 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 practi- 
 cally declared themselves unable to agree upon one within 
 legal limits, and we cannot perfect that which they left 
 thus imperfect." 1 
 
 § 504. Verdict between tenants in common. — And in eject- 
 ment between tenants in common, if the jury return a 
 special verdict, actual ouster must be found therein to 
 entitle the plaintiff to judgment. 8 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 spe- 
 cific 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. 3 
 
 § 505. Misjoinder cured oy 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. 4 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 j ury in putting the verdict in 
 proper form, by interrogating them as to their real inten- 
 tion, and suggesting the appropriate method of giving 
 expression to it ; or by calling their attention to infor- 
 malities or elements of uncertainty in the verdict as ten- 
 dered, and sending them back to further consider it. For 
 this reason, errors in the form of verdicts are of infrequent 
 occurrence. 
 
 1 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. 
 
 2 See §§ 277-283 ; Carpentier v. Mendenhall, 28 Cal. 484. 
 
 4 Bird v. Snell, Hob. 249, See Dalston v. Janson, 5 Mod. 90. After verdict 
 any mistake as to venue is cured by the statute of jeofails. Mayor, &c. of London v. 
 Cole, 7 T. R. 583 : Bailiffs, &c. of Litchfield v. Slater, Willes, 431, cited by Parke,. 
 B., in Simmons v. Lillystone, 8 Exch. 439. 
 
CHAPTER XX. 
 
 OF THE JUDGMENT. 
 
 J 506. Judgments in personal actions con- 
 clusive. 
 
 507. Test as to the conclusiveness of a 
 
 judgment. 
 
 508. Matters adjudicated. 
 
 509. Judgment in real actions. 
 
 510. Origin of ejectment reviewed. — 
 
 Fiction of seizin. 
 
 511. ) Judgment in ejectment not con- 
 
 512. j 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. ) renders judgment conclusive. 
 
 517. Conflict of the cases. 
 
 ' \ Kimmel v. Benna criticised. 
 
 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 show 
 
 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. 
 532a. Judgment in partition. 
 
 532^. In condemnation proceedings. 
 532c. Action to quiet title. 
 
 533. Judgment in California. 
 
 534. Judgment in Vermont. 
 
 535. Judgment specifying particular es- 
 
 tate. 
 
 536. Vendor and vendee. 
 
 ^?Z - I Landlord and tenant. 
 
 539. Avoidance of the estoppel. 
 
 540. Government officials. 
 
 541. After acquired title. 
 
 542. Judgment affecting foreign lands. 
 
 543. Form of judgment in Texas. 
 
 544. In California. 
 
 545. Judgment for possession and dam- 
 
 ages. 
 
 § 506. Judgments in personal actions conclusive. — The 
 legal effect of the judgment in ejectment has been briefly 
 adverted to in the opening chapter of this treatise. 1 The 
 importance of this branch of our subject, the peculiar 
 nature of the action, and the absence of harmony in the 
 authorities and in the legislative policy in the several 
 States determining the interests of the litigants, render 
 necessary a more extended and detailed statement and 
 discussion 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 
 
 24 
 
 1 See §§ 41, 42, 43, 44, 47. 
 
370 OP THE JUDGMENT. [§ 507. 
 
 for the same cause, and that allegations of record, upon 
 which issue has been taken and fouud, are conclusive upon 
 the parties 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. 1 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. 2 
 
 § 507. Test as to tlie conclusiveness of a judgment. — If the evi- 
 dence which will sustain the second action would have au- 
 thorized a recovery in the first action under the allegations 
 of the complaint, the first judgment is an absolute bar 
 to a recovery in the second action. 3 This is the usual and 
 the 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 4 and the causes of 
 action still the same, 5 that is, the same evidence may be 
 available to support either action. 6 The judgment is 
 
 1 Ferrer's Case, 6 Rep. 7 (3 Coke, 271). See Stowell v. Chamberlain, 60 N. Y. 
 272; Sturdy v. Jackaway, 4 Wall. 174; Cromwell v. County of Sac, 94 U. S. 351; 
 Bendernagle 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 & North Ala. R. R. Co. 
 v. Henlein, 56 Ala. 368 ; Perry v. Dickerson, 85 N. Y. 345 ; Castrique v. Imrie, 
 7 Jur. (N. S.) 1076. 
 
 5 Stowell v. Chamberlain, 60 N. Y. 272 ; Barrs v. Jackson, 1 Y. & C. N. R. 585; 
 Bigelow v. Winsor, 1 Gray (Mass.), 299; Bagot v. Williams, 3 B. & C. 235 ; Nelson 
 v. Couch, 15 C. B. (N. S.) 99 ; Smith v. Hemstreet, 54 N. Y. 644; Blair v. Bartlett, 
 75 N. Y. 150; Gates v. Preston, 41 N. Y. 113; While v. Coatsworth, 6 N. Y. 137; 
 Duchess of Kingston's Case, 20 Howell's St. Tr. 538 ; Toles v. Gardner, n Week. 
 Dig. (N. YO395; Masten v. Olcott, 24 Hun(N. Y.), 587; East N. Y. & J. R. R.Co. 
 *. Elmore, 53 N. Y. 624. A judgment of dismissal for want of jurisdiction is not a 
 bar to a second suit for the same cause, whether the action relate to realty or person- 
 alty. Smith ?'. McNeal, 109 U. S. 426; Walden v. Bodley, 14 Pet. 156; Hughes 
 v. United States, 4 Wall. 232; Van Vliet v. Olin, 1 Nev. 495. 
 
 "Sleinbach v. Relief Fire Ins. Co., 77 N. Y. 498 ; Stowell v. Chamberlain, 60 
 N. Y. 272. 
 
 4 Strang v. Moog, 72 Ala. 465. 
 
 s A judgment in ejectment in favor of the grantee of a deceased person against 
 the executors of his estate is not a bar to a bill in -equity filed by the executors or 
 creditors to set aside the deed upon which the judgment in ejectment was procured 
 as having been made to defraud creditors. Hills v. Sherwood, 48 Cal. 386. 
 
 6 Rice v. King, 7 Johns. (N. Y.) 20; Miller v. Manice, 6 Hill (N. Y), 114 I 
 Martin v. Kennedy, 2 B. & P. 69 ; especially Stowell v. Chamberlain, 60 N. Y. 27 2 i 
 
§508.] OF THE JUDGMENT. 371 
 
 equally conclusive upon the parties in a second action 
 depending upon the same questions involved in the first 
 action, although the subject-matter of the second action 
 maybe different. 1 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 appear that the question of property was passed 
 upon in the first action. 2 A difference in the form of the 
 action will not prevent the application of the estoppel ; 3 
 nor is the estoppel avoided by the fact that the first judg- 
 ment was rendered upon erroneous grounds. 4 
 
 § 508. Matters adjudicated. — The courts have even gone 
 so far in giving full effect to the binding force of a judg- 
 ment, 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 rea- 
 sonable diligence have litigated, and had decided in the 
 former action, either as matter of claim or of defense. 5 
 The estoppel is not confined to the judgment, but extends 
 to all facts involved in it as necessary steps, or the ground- 
 work upon which it must have been founded. It is allow- 
 able to reason back from a judgment to the basis on which 
 it stands, " upon the obvious principle that, where a con- 
 clusion is indisputable and could have been drawn only 
 from certain premises, the premises are equally indisput- 
 
 Dawley v. 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; 
 Hall v. Dodge, 38 N. H. 346. 
 
 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. u. Traube, 59 Mo. 355-362 ; Agnew v. McElroy, 18 Miss. 555. 
 
 8 See Stowell v. Chamberlain, 60 N. Y. 272 ; Ware v. Percival, 61 Me. 391 ; 
 Steinbach v. Relief Fire Ins. Co. 77 N. Y. 498 ; Washburn v. Great Western Ins. 
 Co., 114 Mass. 175. 
 
 4 Morgans. Plumb, 9 Wend. (N. Y.) 287; Steinbach v. Relief Fire Ins. Co. 77 
 N. Y. 498. The frauds which will sustain a bill in equity to set aside a judgment 
 or decree between the same parties, rendered by a court of competent jurisdiction, 
 must be extrinsic or collateral to the matter tried, and not matters which were in 
 issue in the former suit. United States v. Throckmorton, 98 U. S. 61. See Foster 
 v. Wood, 6 Johns. Ch. (N. Y.) 87. Ross v. Wood, 70 N. Y. 11. It may be observed 
 that a court of equity cannot turn itself into a court of review and correct the errors 
 of a court of law. This is alien to its jurisdiction and beyond the sphere of its 
 power and duties. Tilton v. Cofield, 93 U. S. 167. 
 
 s Bruen v. Hone, 2 Barb. (N. Y.) 586; Le Guen v. Gouverneur, 3 Johns. Cas. 
 (N. Y.) 605 ; Jordan v. Van Epps, 85 N. Y. 427; Chamberlain v. Gaillard, 26 Ala. 
 
372 OF THE JUDGMENT. [§ 509. 
 
 able with the conclusion." * Thus in Doak v. Wiswell, 8 in 
 the Supreme Court of Maine, it appeared that after a 
 demandant had recovered a judgment in a real action, and 
 had taken possession under it, the tenant brought assump- 
 sit 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 
 directly against the tenant, it was his duty to have de- 
 fended and protected, in that action, all his rights con- 
 nected with the land. It did not appear whether he had 
 set up, in the real action, by betterment claim or other- 
 wise, his right to the buildings, 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 rendered after an actual litigation 
 upon the merits of the matter in controversy, but also to 
 judgments rendered upon default, or by confession. 8 It 
 is to be observed 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 ; 4 and an interlocutory 
 order has been held, in New York, not to be such a judg- 
 ment. 5 
 
 § 509. Judgment in real actions.— We have already shown 6 
 that in the system of real actions writs of different degree 
 
 504; Stafford v. Clark, 2 Bing. 382 ; Miller v. Covert, 1 Wend. (N. Y.) 487 ; Rob- 
 erts v. Heim, 27 Ala. 678 ; Bloomer v. Sturges, 58 N. Y. 176 ; Clemens v. Clemens, 
 37 N. Y. 74 ; Marriot v. Hampton, 7 T. R. 269. See Foster v. Evans, 51 Mo. 39. 
 
 1 Burlen v. Shannon, 99 Mass. 200-203 ; Reg. v. Hartington, 4 El. & Bl. 794 ; 
 Gilbert v. Thompson, 9 Cush. (Mass.) 349; Dickinson v. Hayes, 31 Conn. 417. See 
 Packet Co. v. Sickles, 5 Wall. 580. 
 
 2 33 Me. 355. 
 
 3 Brown v. Mayor, &c, 66 N. Y. 390; Gates v. Preston, 41 N. Y. 113; Newton 
 v. Hook, 48 N. Y. 676 ; Bradford v. Bradford, 5 Conn. 127. 
 
 4 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; Baughy. 
 Baugh, 4 Bibb, (Ky.) 556; McLane v. Spence, 11 Ala. 172 ; Thompson v. Mylne, 
 4 La. Ann. 206. 
 
 6 Webb v. Buckelew, 82 N. Y. 555. 
 6 See Chapter II. 
 
§510.] OE THE JUDGMENT. 373 
 
 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 
 to those acquired under or conferred by an inferior writ. 1 
 A judgment upon a writ of right, 3 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. 8 By selecting a writ of a lower rank the demand- 
 ant under this system was enabled to secure more than one 
 trial of his title. Lord Ellenborough, in the leading case 
 of Outram v. Morewood, 4 after discussing the different 
 species of actions affecting lands and chattels real, uses 
 this significant 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 possession to be, as between the plaintiff and 
 defendant, in the plaintiff at the time of the trespass com- 
 mitted. In the real action, it affirms a right to the free- 
 hold 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 subject 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 con- 
 clusive upon the general right of property in the land than 
 the other. What, therefore, Lord Coke says, that in per- 
 sonal 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 what- 
 soever, quoad their subject matter." 5 
 
 § 510. Origin of ejectment reviewed. — Fiction of seizin. — 
 Before considering the effect of the judgment in ejectment 
 
 1 See §§ 66, 67. 2 See § 69. 
 
 8 See Outram v. Morewood, 3 East, 358 ; s. c. 5 T. R. 121 ; Stearns on Real 
 Actions, pp. 370, 387; Booth on Real Actions, p. 85; Jackson on Real Actions, 
 pp. 2, 16. See § 516. 
 
 4 3 East, 346. See Stevens v. Hughes, 31 Penn. St. 381. 
 
 5 See § 67. 
 
374 OP THE JUDGMENT. [§ 511. 
 
 a brief review of the origin of the action, at the risk of 
 slight repetition, will facilitate the discussion. Ejectment 
 was originally a writ of trespass brought by a tenant for 
 years to recover compensation for damages resulting from 
 eviction from the demised premises during the continu- 
 ance of his term. 1 The money judgment for damages- 
 proved in many cases an inadequate redress, so the prac- 
 tice of awarding the lessee a writ of possession sprung 
 up.* This was followed by the introduction of imaginary 
 parties, 3 declaring on a fictitious lease, and the consent 
 rule, 4 by which the party desiring to protect the posses- 
 sion 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 
 action, and was placed in possession by the sheriff, he was 
 said to be seized "according to his right." 5 "This," says 
 Mr. Adams, 6 "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 pos- 
 session according to his title ; and, therefore, when pos- 
 session 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, 7 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 a writ of possession. 
 
 § 511. Judgment in ejectment not conclusive. — The record 
 or judgment in the action did not disclose the title claimed 
 
 1 See §§ I, 23, 24, 25, 27. ! See § 23. 
 
 3 See § 37. " See § 36. 
 
 6 See Minke v. McNamee, 30 Md. 294. See § 41. 
 
 6 Adams on Ejectment (4th Am. ed.), p. 391. 
 
 1 Taylors. Horde, 1 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, also,. 
 §§ 41, 42, 43, 44- 
 
§512.] OF THE JUDGMENT. 375 
 
 by the parties ; and, unlike a real action, an inspection of 
 it would not reveal the character of the estate or interest 
 adjudicated ; for no particular estate or interest was 
 claimed in the writ or found or awarded by matter of 
 record by the court. Indeed the declaration negatived the 
 ownership of the freehold by the plaintiffs. 1 It is true the 
 judgment clothed the successful claimant with the posses- 
 sion of the land, which was an important acquisition, but 
 it went no further. It did not in form declare or estab- 
 lish the title, or protect or continue the possession so 
 awarded. The record afforded no evidence of the claim- 
 ant's right to the possession 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. 2 
 
 § 512. When we recall the substantial reasons iipon 
 which the practice is based of holding the judgment in 
 personal actions or on a writ of right, the highest real writ, 
 conclusive upon parties and privies, it becomes impor- 
 tant to consider more fully the causes which rendered the 
 judgment in ejectment inconclusive as a muniment of 
 title, or evidence of the right of possession, and of no avail 
 as a protection against further vexatious litigation over 
 the same title. The inconclusiveness of the judgment, as 
 we have seen, constituted the basis of Lord Coke's lament 
 over the disuse of real actions. 3 In New England, too, 
 
 1 Stevens v. Hughes, 31 Penn. St. 381. 
 
 2 Strother v. Lucas, 12 Pet. 410 ; Jones v. De Graffenreid, 60 Ala. 145 ; Shaw v. 
 Lindsey, 60 Ala. 344; Camp v. Forrest, 13 Ala. 114; White v. Kyle, 1 S. & R. 
 (Penn.)5i5; Doe v. Harlow, i2Ad.&E.4o; Bailey v. Fairplay, 6 Binn. (Penn.) 450; 
 Eldridge v. Hill, 2 Johns. Ch. (N. Y.) 281; Kimmel v. Benna, 70 Mo. 52 ; Taylor v. 
 Horde, 1 Burr. 114; Jackson v. Dieffendorf, 3 Johns. (N. Y.J270; 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 ; Chapman v. Armistead, 4 Munf. 
 (Va.) 382; Hopkins v. McLaren, 4 Cow. (N. Y.) 667; Jackson v. Tuttle, g 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. (".. 
 Q. B. 612. See Sherman v. Dilley, 3 Nev. 21 ; Cagger v. Lansing, 64 N. Y. 417. In 
 Wright v. Doe d. Tatham, 1 Ad. & El. 19, Tindal, C. J., said: " The result of the 
 authorities is, that the lessor of the plaintiff is the real party in an ejectment, that the 
 nominal plaintiff has no interest, and that in an ejectment between Doe on the demise 
 of J.S. against B., J. S. is bound by a verdict for the defendant" (1834). But that " a 
 judgment in ejectment is no bar to any number of other ejectments by the same 
 party for the same premises " was stated in the Queen's Bench by Lord Denman, C. 
 J., in 1839, during argument of counsel. Doe v. Wright, 10 Ad. & El. 777. The 
 statement of Tindal, C. J., was not recognized as good law. 
 
 3 See §45. 
 
376 OF THE JUDGMENT. [§§ 513, 514, 
 
 this imperfection in the remedy was appreciated, and it 
 was largely instrumental in inducing the colonists to 
 attempt the experiment of reforming and restoring the 
 worn out system of real writs. 1 
 
 § 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 adj udicated. 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 disclosed by the pleadings, are of comparatively 
 modern origin. 2 Besides this there was no privity between 
 the successive fictitious plaintiffs, and each successive 
 ejectment was based upon a new lease and a fresh trespass. 
 Hence the technical reasons upon which to found an 
 estoppel did not exist. The right of property, 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, 3 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 plaintiff'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. Henna and Camp v. Forrest discussed. — 
 The action is now divested of fictitious parties, and the 
 practice of declaring on a fictitious lease is practically 
 obsolete ; 4 but it is not yet universally conceded, though 
 it seems to be 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. 
 
 1 See § 74. 2 See g 523 , 
 
 3 4 Conn. 276. Oetgen v. Ross, 54 111. 79. * See § 55. 
 
§514.] OP THE JUDGMENT. 377 
 
 Benna 1 the Supreme Court of Missouri say : " It is a mis- 
 taken assumption that the sole reason for the ancient rule 
 in regard to the want of finality of judgments 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 quote from 
 Mr. Adams, 2 who says, " that the judgment can never be 
 final, arid that it is always in the power of the party failing, 
 whether claimant or defendant, to bring a new action ;" 
 and continue : " This reason is just as applicable since the 
 abolishment of lease, entry and ouster as before." 3 In 
 Camp v. Forrest, 4 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 observe that a judgment in ejectment confers no 
 title upon the party in whose favor it is given, and is not 
 evidence 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 say, further : " Although such may 
 be the condition of the record, yet the inconclusiveness of 
 the judgment does not rest on the form of the declaration 
 and consequent 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 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 applied to the action of trespass to try titles." 
 
 1 70 Mo. 52. 
 
 '' Adams on Ejectment (4th Am. ed.), p. 420. See § 519. 
 
 8 See Carter v. Scaggs, 38 Mo. 302 ; Holmes v. City of Carondelet, 38 Mo. 551; 
 Slevin v. Brown, 32 Mo. 176; Foster v. Evans, 51 Mo. 39; Gibson v. Chouteau, 50 
 Mo. 85. 
 
 4 13 Ala. 114. 
 
378 OF THE JUDGMENT. [§ 515. 
 
 The court considered that, under the wording of this 
 statute, no greater effect could be given to the judgment 
 iu 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 transpire 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 judgment con- 
 clusive. — 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 recon- 
 ciled 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, 1 Mr. Justice Miller, 
 delivering the opinion of the first named court, refers to the 
 common law rule, that the verdict and judgment in actions 
 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 
 applicable 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 iu place of Eichard 
 Eoe, the casual ejector, it is plain that A. B. cannot plead 
 the verdict and judgment in bar of another suit brought by 
 Johu Den against Eichard 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 
 ejectment, that induced courts of equity (which, unre- 
 strained by the technicality, could look past the nominal 
 
 1 2 Wall. 35. 
 
§ 516.] OF THE JUDGMENT. 379 
 
 parties to the real ones) to interfere, after a sufficient num- 
 ber of trials had taken place, to determine fairly the valid- 
 ity of the title, and by injunction, directed to the unsuc- 
 cessful litigant, compel him to cease from harassing his 
 opponent by useless litigation. There was, perhaps, an- 
 other reason why the English common law refused to con- 
 cede to the action of ejectment, which is a personal action, 
 that conclusive effect which it gave to all other actions, 
 namely, the peculiar respect, 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 personal action, but permitted the 
 unsuccessful party to have other opportunity of establish- 
 ing 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 Sturdy v. Jackaway, 1 in which Mr. Jus- 
 tice Grier 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 Bichard Boe, in forci- 
 bly expelling him from a term of years, no verdict between 
 these parties for the supposed trespass could be pleaded 
 in bar to another action of trespass by Thomas Trouble- 
 some or Timothy Peaceable. It was in this way that the 
 doctrine crept in that a verdict and judgment were con- 
 clusive 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 
 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. — Mr, Justice Davis said in Blanchard v. Brown 8 
 
 1 4 Wall. 174-176. 
 
 '' 3 Wall. 245. See Hogan v. Kurtz, 94 U. S. 775. 
 
380 OF THE JUDGMENT. [§ 516. 
 
 "On account of the fictitious character of the common law 
 action of ejectment, a judgment was not a complete bar, 
 as in other actions." x Miller, J., observed in Equator Oo. 
 v. Hall : 2 "At the common law, the fiction in an action of 
 ejectment, by which John Doe andEichard Eoe were made 
 respectively the plaintiff and the defendant, permitted any 
 number of trials after verdict and judgment between the 
 same parties in interest on the same question of title, by 
 the use of other fictitious names, and other allegations of 
 demise, entry and ouster." In Marshall v. Shafter, 3 the 
 Supreme 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. 
 ~So argument can be drawn from the fact that the judg- 
 ment is not that the plaintiff recover the title, but only the 
 possession, for a similar result accrues in the action of re- 
 plevin, though the title to the personal property is con- 
 fessedly 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, 4 the losing party is es- 
 topped in another action from averring contrary to the 
 title, as found in the former suit." 5 So, in Doyle v. Hal- 
 lam, 6 the Supreme Court of Minnesota, after citing some 
 of the authorities which we have been discussing, declare 
 that, as the fictions accompanying the common law action 
 of ejectment have no existence in the practice of that State, 
 the inconclusiveness which attached to judgments in eject- 
 ment on account of those fictions, is no longer admitted. 
 In Stevens v. Hughes 7 the Supreme Court of Pennsylvania 
 
 1 See Spence v. McGowan, 53 Tex. 30-35. 
 ■' to6 U. S. 87. 
 
 3 32 Cal. 176-198. See Amesti w. Castro, 49 Cal. 325. 
 
 4 3 East, 346. See § 509. 
 
 6 See cases cited in note to Duchess of Kingston's Case, 2 Smith's Leading Cases, 
 784. 
 
 6 21 Minn. 515. See Sherman v. Dilley, 3 Nev. 21-25. 
 ' 31 Penn. St. 381-385. 
 
§517.] OF THE JUDGMENT. 381 
 
 say : "The in conclusiveness 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 nowhere else exists. That there is no 
 charm about land, as land, which relieves it from the opera- 
 tion 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 question, 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." 
 
 § 517. 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- 
 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, 
 otherwise the uncertainty as to ownership will be attended 
 with waste, disuse or destruction of the subject matter of 
 contention, whatever may be its character. The object 
 of litigation is to put disputed rights at rest forever. If 
 
382 OF THE JUDGMENT. [§§ 518, 519. 
 
 this result cannot be achieved in ejectment, it is idle to 
 subject the parties to the trouble and expense of a trial. 
 
 § 518. Kimmel v. Benna criticised. — In Kimmel v. Benna, 1 
 the leading case holding that the judgment in ejectment is 
 not conclusive even where no fictions are employed, it 
 is practically conceded that the inconclusiveness of the 
 judgment was in part due to the peculiarities and effect of 
 the fictions. The court remark (p. 65) : " It is a mistaken 
 assumption that the sole reason for the ancient rule in re- 
 gard to the want of finality of judgments in ejectments was 
 the employment of fictitious parties in the proceeding." 
 The additional reasons for the continuance of the rule are 
 skillfully suppressed. We have seen already, especially in 
 the cases of Sturdy v. Jackaway, 2 Blanchard v. Brown, 3 and 
 Miles v. Caldwell, 4 iu the Supreme Court of the United 
 States, and Stevens v. Hughes, 5 in the Supreme Court of 
 Pennsylvania, that the want of finality is rested upon the 
 fictitious and peculiar form of the action. It must be con- 
 ceded that legislative acts, abolishing the fictions in actions 
 of ejectment, do not abolish the action as such, nor con- 
 vert 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 iu other 
 actions, yet it still remains an action of ejectment, and 
 falls under the rule of limitation applicable to that action. 6 
 But what are the reasons for holding that the judgment is 
 inconclusive other than the fictitious form of the action, 
 and the use of imaginary parties, which technically pre- 
 vented the application of the estoppel? 
 
 § 519. The Supreme Court of Missouri, in Kimmel v. 
 Benna, 1 remark further: "A judgment in ejectment con- 
 fers no title upon the party in whose favor it is given. 'It 
 is therefore manifest,' observes Mr. Adams, 8 ' that the 
 
 1 70 Mo. 52-65; followed in Dunn v. Miller, 8 Mo. App. 467 ; Hogan v. Smith, 
 II Mo. App. 314. 
 
 2 4 Wall. 174. 3 3 Wall. 245. 
 4 2 Wall. 35. 
 
 6 31 Penn. St. 381-385. See Cromwell v. County of Sac, 94 U. S. 351-354. 
 
 6 Hogan v. Kurtz, 94 U. S. 773-775. 
 
 1 70 Mo. 65. 
 
 8 Adams on Ejectment (4th Am. ed.), p. 420. 
 
§520.] OF THE JUDGMENT. 383 
 
 judgment can never be final, and that it is always in the 
 power of the party failing, whether claimant or defend- 
 ant, to bring a new action.' This reason is just as applic- 
 able since the abolishment of lease, entry and ouster as 
 before." The latter remark is a mere assertion of the 
 opinion of the court without fact, argument, or precedent 
 to support it. It begs the question and states the con- 
 clusion without explaining the reason, or assigning any 
 cause, meritorious or technical, why the rule should be as 
 applicable since the change in the form of the remedy as 
 before. The non-existence of the reason for the rule as 
 to the non-finality of the judgment is ignored. The quota- 
 tion from Mr. Adams' excellent 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 be- 
 fore the practice of making the issue in the name of the 
 real parties in interest had been introduced or its effect 
 considered. It is true that he says, " a judgment in eject- 
 ment confers no title upon the party in whose favor it is 
 given," and then adds, "it is not evidence in a subsequent 
 action even between the same parties," because the struc- 
 ture 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." 1 It thus appears that the rea- 
 son for the inconclusiveness of the judgment is founded by 
 Mr. Adams solely upon the fictitious nature of the remedy, 
 and the attempt by an incomplete citation to appropriate 
 the weight of his name as authority for the proposition 
 that the judgment is still inconclusive when the issue is 
 made in the names of the real parties in interest fails. 
 
 § 520. Judgment not a source of title. — But a judgment 
 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 
 
 1 Adams on Ejectment (4th Am. ed.), p. 420. 
 
384 OF THE JUDGMENT. [§ 521. 
 
 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 has been proved, and 
 its sufficiency judicially determined. 1 True the judgment 
 in ejectment does not award the seizin of the land to 
 the successful party, but only the possession. The posses- 
 sion being thus lawfully acquired, however, the party 
 clothed with it, as we have seen, 2 becomes lawfully seized 
 according to his estate or interest in the land, so that the 
 result of a judgment in a real action is attained, except 
 that no available record, muniment, or evidence of the 
 title,, or estate, upon which the recovery was had, is made 
 or preserved. In Mahoney v. Middle ton, 3 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 commencement of the 
 action, and because the losing party had no title, or not 
 such title as would authorize him to withhold the posses- 
 sion ; but it neither directly nor indirectly transfers the 
 title." 
 
 § 521. Judgment operates as an estoppel. — It is not a ques- 
 tion as to what title has been conferred upon the success- 
 ful litigant by the judgment, but whether or not the judg- 
 ment 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 we have seen, be an 
 estoppel in contentions over the title to personalty, and 
 the j udgment in the latter class of actions does not usu- 
 ally, in terms or in form, confer the title upon the prevail- 
 
 1 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. 
 
 2 See §§ 510, 513. 
 
 3 41 Cal. 41-53. 
 
§§ 522, 523.] OF THE JUDGMENT. 385 
 
 ing 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 
 declared that there is no charm about land, as land, which 
 relieves it from the operation of the general and salutary 
 rale 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. 1 This sweeping declaration must be 
 accepted with some caution. A peculiar sanctity derived 
 from the old feudal system attached to this right of pos- 
 session, 2 and the courts evinced a strong disinclination to 
 bold 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 ad- 
 judication is avoided should properly be discouraged. It 
 must be remembered that the plaintiff's lessor in the early 
 action of ejectment was compelled to prove a superior 
 title in himself, or a right of immediate possession and 
 entry against the defendant. The 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 judgment 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 judg- 
 ment. This principle has been expressly applied to judg- 
 
 1 Stevens v. Hughes, 31 Penn. St. 381, 385. See § 516. 
 
 2 Miles v. Caldwell, 2 Wall. 35. 
 25 
 
386 OF THE JUDGMENT. [§§ 524, 525. 
 
 merits in ejectment, 1 as well as other actions, 2 and is 
 distinctly recognized by the Supreme Court of Missouri in 
 Kimmel v. Benna. 8 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 example, in Foster ». 
 Evans 4 the court remark: " In regard to the effect of a judg- 
 ment in ejectment, it may be remembered that it is not a 
 bar to another 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 deduc- 
 ible 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 between 
 rights to realty and to personalty which renders necessary 
 the application of a different rule exempting the former 
 from the effect of the usual estoppel incident to a judg- 
 ment. 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 parties 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. Judgment must conform to complaint and verdict. — 
 The judgment in ejectment should of course follow and 
 conform to the verdict in designating the extent of the 
 
 1 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; Masten v. Olcott, 24 Hun (N. Y.), 587. 
 
 5 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.)457i 
 Wood v. Jackson, 8 Wend. (N. Y.) 9; Packet Co. v. Sickles, 5 Wall. 580; Strauss 
 v. Meertief, 64 Ala. 299. 
 
 3 70 Mo. 65. 
 
 4 51 Mo. 39, 40 (decided in 1872). 
 
§§ 526, 527.] OF THE JUDGMENT. 387 
 
 interest recovered, 1 and must be rendered for the premises 
 described in the complaint, 2 and must follow the complaint 
 in respect to the description of the lands, and as to the 
 plaintiff' s estate or interest in the premises. 3 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. 4 This some- 
 what harsh ruling must not be taken as establishing the 
 uniform practice, for appellate tribunals, under the modern 
 practice, frequently reform, reduce, or correct verdicts or 
 judgments so as to render substantial justice between the 
 parties. 
 
 § 526. Judgment for land subject to easement, servitude or 
 ■public use. — Where land is subject to an easement, servitude, 
 or public use, it has been shown that the owner of the fee in 
 the dominant estate may recover it in ejectment subject to 
 such servitude or use. 5 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 
 easement ; and, under the practice in New York, it should 
 define the nature and extent of the claimant's interest. 6 
 So a judgment maybe rendered for land subject to a home- 
 stead 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. 8 The recitals 
 concerning incorporeal hereditaments in a judgment in 
 ejectment have been held by the Supreme Court of Michi- 
 
 1 Meraman v. Caldwell, 8 B. Mon. (Ky.) 32-35. See § 497. 
 
 2 Bentley v. Brownson, 2 111. 240. 
 
 s AUie v. Schmitz, 17 Wis. 169; Ortonw. Noonan, 18 Wis. 447. See Holmes v. 
 Seely, 17 Wend. (N. Y.) 75. 
 
 4 City of East St. Louis v. Hackett, 85 111. 382. 
 
 5 Tillmes v. Marsh, 67 Perm. St. 507; Goodtitle v. Alker, 1 Burr. 133 ; Reformed 
 Church v. Schoolcraft, 65 N. Y. 134; Ayer v. Phillips, 69 Me. 50; Doe d. The 
 Queen v. Archbishop of York, 14 Q. B. 81. See §§ 130-132. 
 
 6 Rogers v. Sinsheimer, 50 N. Y. 646. See Goodtitle v. Alker, I Burr. 133. 
 'Castle v. Palmer, 6 Allen (Mass.), 401; Stebbins v. Miller, 12 Allen (Mass.), 
 
 59 1 ; Swan v. Stephens, 99 Mass. 7; Letchford v. Cary, 52 Miss. 791. See § 141. 
 8 See § 95, 146, 147, 148. 
 
388 OF THE JUDGMENT. [§§ 528-530. 
 
 gan to be merely nugatory, and not to affect the validity 
 of the judgment for the land; 1 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. 2 
 
 § 528. Relief incident to interference with property in posses- 
 sion. — 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, states 
 a simple action of ejectment, and a plaintiff in a complaint 
 of this nature, is not under the practice in New York, 
 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. 3 The 
 title to land may, however, be established in certain cases, 
 in equity, and the defendant restrained from interfering 
 with the possession. 4 
 
 § 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. 5 The estoppel is 
 complete, except that a statutory new trial is allowed and 
 the judgment may be reversed for error. 
 
 § 530. Judgment by default. — In New York State it has 
 been provided by statute, 6 that a judgment by default in 
 ejectment shall not be considered conclusive upon the title 
 
 1 Taylor v. Gladwin, 40 Mich. 232. See § 102 and note; Provident Institution 
 v. Burnham, 128 Mass. 458. 
 
 1 Crocker v. Fothergill, 2 B. & Aid. 652-661 ; Voorheesw. Burchard, 55 N. Y. 98. 
 
 3 Vrooman v. Tackson, 6 Hun (N. Y.), 326. See Aiken v. Benedict, 39 Barb. 
 (N. Y.) 400. See, also, §§ 156, 157. 
 
 4 Broiestedt v. South Side R. R. Co., 55 N. Y. 220; Corning v. Troy Iron and 
 Nail Factory, 40 N. Y. igr. 
 
 "Cagger v. Lansing, 64 N. Y. 417; (below) 4 Hun (N. Y.), 812; Dawleyfl. 
 Brown, 79 N. Y. 390; Sheridan v. Andrews, 49 N. Y. 478 ; s. c, below, 3 Lans. 
 (N. Y.) 129; Sheridan v. Linden, 81 N. Y. 182; Beebe v. Elliott, 4 Barb. (N. Y.) 
 457- 
 
 8 R. S. (N. Y.) P. III., ch. v., tit. 1, § 38. 
 
§§ 531, 532.] OP THE JUDGMENT. 389 
 
 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, 1 in construing these provisions, 
 held that the "judgment book " required to be kept by the 
 statute, 2 was a separate and distinct book from the " docket 
 book," which the statute also provided should be kept, 3 and 
 that an entry or record in the judgment book was not suf- 
 ficient to render the judgment an estoppel, unless it was 
 also entered in the docket book. 4 Tn Colorado a judgment 
 rendered for the defendants for want of a replication to an 
 answer is a final judgment. 5 In Pennsylvania judgment by 
 default cannot be rendered in ejectment without an affi- 
 davit of the sheriff setting forth the manner of the service 
 of the writ, 6 and such we assume to be the general require- 
 ment. A liberal disposition prevails in the modern pro- 
 cedure to vacate judgments rendered by default in personal 
 actions so as to permit a hearing upon the merits. There 
 are many reasons why a still stronger inclination should 
 exist not to bar the real property rights of litigants on an 
 ex parte determination. 
 
 § 531. Judgment by consent binding. — 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 undertak- 
 ing furnished to procure a restraining order, and a judg- 
 ment was entered accordingly, it was held in Nevada, that 
 such judgment of dismissal was a bar as to the identical 
 title or cause of action involved in the former action. 7 
 
 § 532. Judgment by confession. — The authorities are not 
 
 1 Sheridan v. Andrews, 49 N. Y. 478. 
 s N. Y. Code Civ. Proc. § 1236. 
 8 N. Y. Code Civ. Proc. § 1245. 
 
 4 Sheridan v. Linden, 81 N. Y. 182. See Ryerss v. Rippey, 25 Wend. (N. Y.) 
 432. 
 
 5 Newman v. Newton, 14 Fed. Rep. 634; s. c. 3 Col. L. R. 193. 
 
 6 Bolard v. Mason, 66 Pa. St. 140. 
 
 ' Phillpotts v. Blasdel, 10 Nev. 19 ; citing Merritt v. Campbell, 47 Cal. 542 ; 
 
390 OF THE JUDGMENT. [§ 532a. 
 
 uniform as to the effect of a judgment by confession in 
 ejectment. In Botts v. Shields, 1 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 decided 
 in Pennsylvania that a judgment by confession in eject- 
 ment 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. 2 
 
 § 532a. Judgment in partition. — Questions concerning 
 partition proceedings and judgments frequently arise in 
 ejectment. A distinction must be noticed as to the effect 
 on the title between a judgment and writ of partition at 
 common law and a partition by a decree in chancery. The 
 former operates by way of delivery of possession and es- 
 toppel ; in the latter the transfer is effected by the execu- 
 tion of conveyances between the parties. 8 Partition at 
 common law was a possessory action which divided the 
 property but left the title undisturbed. 4 Story, J., said : 
 " No judgment in a writ or petition for partition will con- 
 stitute any bar to the maintenance of a writ of right be- 
 tween the same parties." 5 But in our modern practice it 
 is becoming the general rule that the judgment is an estop- 
 pel, especially if the title is in any way drawn in contro- 
 versy. 6 Partition is now generally a statutory action, and 
 
 Bank of the Commonwealth v. Hopkins, 2 Dana (Ky.), 395; Jarboe v. Smith, 10 
 B. Mon. (Ky.) 257. 
 
 1 3 Litt. (Ky.) 32. 
 
 2 Secrist v. Zimmerman, 55 Penn. St. 446. 
 
 3 Gay v. Parpart, 106 U. S. 679. Compare 7 Va. L. J. 65. In the case of Wha- 
 ley v. Dawson, 2 Sch. & Lef. 367, 371, Lord Redesdale says : " Partition at law and in 
 equity are different things. The first operates by the judgment of a court of law, 
 and delivering up possession in pursuance of it ; which concludes all the parties to 
 it. Partition in equity proceeds upon conveyances to be executed by the parties, 
 and if the parties be not competent to execute the conveyances, the partition cannot 
 be effectually had." 
 
 4 McClure v. McClure, 14 Pa. St. 136; Nash v. Cutler, 16 Pick. (Mass.) 500; 
 Pierce v. Oliver, 13 Mass. 212 ; Goundie v. Northampton Water Co., 7 Pa. St. 238; 
 Johnson v. Britt, 9 Heisk. (Tenn.) 756 ; McBainV. McBain, 15 O. S. 350; Tabler 
 v. Wiseman, 2 O. S. 211; Utterback v. Terhune, 75 Ind. 363. See Traver v. 
 Baker, 15 Fed. Rep. 186. See, also, § 166. 
 
 6 Mallett v. Foxcroft, 1 Story, 475, 476 ; Nicely u. Boyles, 4 Humph. (Tenn.) 
 177 ; s. c. 40 Am. Dec. 638, and valuable note as to partition judgments. 
 6 Burghardt v. Van Deusen, 4 Allen (Mass.), 375. 
 
§§5326-533.] OF THE JUDGMENT. 391 
 
 the effect of the judgment is in some cases regulated by 
 statute ; and a tendency exists to empower the courts to 
 pass upon certain questions of title in the action. 1 In 
 Ihmsen v. Ormsby, 2 Strong, J., said : " The decree in parti- 
 tion, like any other judgment of a court of competent 
 jurisdiction, is conclusive between the parties as to all 
 matters which were adj udicated directly, and as to all facts 
 which were essential to the adjudication." s 
 
 § 5326. In condemnation proceedings. — The rule seems 
 to be fully established that a judgment of a court of com- 
 petent jurisdiction in condemnation proceedings is as con- 
 clusive upon the parties as any other judgment. 4 
 
 § 532c. Action to quiet title. — A decree in an action to 
 quiet title is conclusive, " putting all litigation at rest," as 
 regards the parties to it, and the titles involved. 5 In 
 Indiana this statutory suit combines and enlarges the 
 equity proceedings, known as bills of peace and bills quia 
 timet? 
 
 § 533. Judgment in California. — The rule and practice 
 is firmly established in California of holding the judgment 
 conclusive upon parties and their privies, as to the title 
 adjudicated. But in Amesti v. Castro, 7 it was held that 
 
 1 Breit v. Yeaton, ioi 111. 245 ; Knapp v. Burton, 7 N. Y. Civ. Pro. 448. See § 
 166. 
 
 1 32 Pa. St. 200. 
 
 3 See s. p. Foxcroft v. Barnes, 29 Me. 129 ; Herr v. Herr, 5 Pa. St. 428 ; Whit- 
 temore v. Shaw, 8 N. H. 397; Clapp v. Bromagham, 9 Cow. (N. Y.) 569; Forder 
 v. Davis, 38 Mo. 115 ; Hewlett v. Wood, 62 N. Y. 78. A judgment for partition 
 may conclude contingent interests not in being, but this only in cases where the 
 judgment provides for and protects such interests by substituting the fund derived 
 from the sale of the land in place of the land, and preserving it to the extent neces- 
 sary to satisfy such interests as they arise. Monarque v. Monarque, 80 N. Y. 326; 
 Mead v. Mitchell, 17 N. Y. 210; Brevoort v. Brevoort, 70 N. Y. 136. We may 
 note that a reversioner or remainder-man cannot institute partition against others 
 not seized of a like estate in common with him. Sullivan v. Sullivan, 66 N. Y. 37. 
 See Wager v. Wager, 23 Hun. (N. Y.) 441. There is no possession. 
 
 4 Balto. & O. R. R. Co. v. Pittsburg, W. & Ky. R. R. Co., 17 W. Va. 812; But- 
 man v. Vermont Cent. R. R. 27 Vt. 500; Secombe w. Railroad Co., 23 Wall. 117; 
 Hueston v. Eaton & H. R. R. Co., 4 O. S. 685 ; Allen u. Utica, I. & E. R. R. Co., 
 15 Hun (N. Y.), 80 ; Evans v. Haefner, 29 Mo. 141. 
 
 6 Farrar v Clark, 97 Ind. 447 ; Green v . Glynn, 71 Ind. 336 ; Pomeroy's Rems. 
 § 369 ; Hays v. Carr, 83 Ind. 275 ; Cooter v. Baston, 89 Ind. 185. 
 
 6 Trittipo v. Morgan, 99 Ind. 269, and cases cited. 
 
 7 49 Cal. 325 ; citing Waterman v. Smith, 13 Cal. 417, 418 ; Merryman v. 
 Bourne, 9 Wall. 592. 
 
392 OF THE JUDGMENT. [§§ 534^536. 
 
 the claimant of an inchoate Mexican grant, who had insti- 
 tuted 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 judg- 
 ment in ejectment, rendered against him before the con- 
 firmation of the grant and the issuance of the patent. 
 
 § 534. Judgment in Vermont. — 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 therefore 
 necessary than would be required in ejectment at common 
 law, where the action was possessory merely, and the judg- 
 ment not conclusive of the title. 1 
 
 § 535. Judgment specifying particular estate. — Under the 
 practice in Illinois the finding and judgment must specify 
 the particular estate in the premises to which the plaintiff 
 is entitled ; 2 and it is provided by statute in many of our 
 States, that the verdict or finding should set forth the 
 nature of the estate or interest recovered, 8 and in some 
 States the interest must be specified in the complaint. 
 
 § 536. Vendor and vendee. — The relationship of vendor 
 and vendee has already been considered somewhat at 
 length. 4 The Supreme Court of Illinois has decided that 
 a judgment in ejectment by default against a vendee hi 
 possession under an executory contract of sale is not con- 
 clusive 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 ejectment 
 subsequently brought by the vendor for the same prop- 
 erty. 6 
 
 1 Davis v. Judge, 44 Vt. 500-506. See Marvin v. Dennison, 1 Bla. C. C. 159; 
 Edwards v. Roys, 18 Vt. 473. 
 
 2 Koon v. Nichols, 63 111. 163. See Lillianskyoldt v. Goss, 2 Utah, 292. See, 
 also, § 500. 
 
 3 See Rogers v. Sinsheimer, 50 N. Y. 646-649. 
 
 4 See Chap. X. 
 
 6 Cadwallader v. Harris, 76 111. 370. See Ryerss v. Rippey, 25 Wend. (N. Y.)' 
 432. See Chap. X. 
 
§ 537.J OF THE JUDGMENT. 393 
 
 § 537. Landlord and tenant. — The rights of landlord and 
 tenant are elsewhere treated. We may observe again 1 that 
 the customary practice is to make the tenant or party in 
 possession defendant in ejectment. 2 As to him, a judg- 
 ment rendered in the action is, of course, binding and con- 
 clusive under the modern practice ; but a different ques- 
 tion 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 3 is not conclusive against his 
 landlord, who was not made a party to the action, and is not 
 named in the record or judgment ; for judgments are ordi- 
 narily conclusive only upon the parties named therein, 
 and those claiming under them ; but the 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, 4 it was held that a judgment 
 in ejectment recovered against a tenant in possession 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, 5 and, of course, the judg- 
 ment 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 
 under 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. 6 A 
 judgment against the tenant is, of course, not binding upon 
 his landlord, if the tenant failed to notify him of the pen- 
 
 1 See Chap. XII. 
 
 ' See Finnegan v. Carraher, 47 N. Y. 493. See, also, §§ 231, 432. 
 
 a See Oetgen v. Ross, 47 III. 142 ; Lowe v. Emerson, 48 111. 160. 
 
 4 Bennett v. Leach, 25 Hun (N. Y.), 178. 
 
 5 See Fosgate v. Herkimer Mfg. Co., 12 N. Y. 580. 
 
 6 Bennett v. Leach, 25 Hun (N. Y.), 178; s. c. 13 Weekly Dig. (N. Y.) 96 ; 
 Ainsliej/. Mayor, &c., 1 Barb. (N. Y.) 168; Thompson ■v. Clark, 4 Hun (N. Y.), 
 164; Leland v. Tousey. 6 Hill (N. Y.), 328; Sheridan ■</. 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 v. Cook, Brayton (Vt.), 89; Kent v . 
 Lasley, 48 Wis. 257. 
 
394 OF THE JUDGMENT. [§ 538. 
 
 dency of the action, 1 and allowed judgment to be entered 
 by default, or attorned to the defendants, and let them 
 into possession. 2 In Alabama, on the other hand, if, pend- 
 ing 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. 3 As a general rule if the 
 landlord undertakes the defense of the action in the ten- 
 ant's name, and is unsuccessful, the court will, ordinarily, 
 require him to pay the plaintiff's costs upon a return of 
 an execution unsatisfied against the defendant of record. 4 
 
 § 538. In California, a landlord is not concluded by a 
 judgment in ejectment against the tenant, unless he had 
 notice of the pendency of the action, and an opportunity 
 to defend in the name of the tenant ; 6 nor does a judgment 
 in that State, in favor of the plaintiff in an action of eject- 
 ment, against his tenant, determine the question of title, 
 or the right of possession, as between the plaintiff and a 
 third person whom the tenant collusively placed in posses- 
 sion of the premises after the action was instituted. 6 In 
 that State, however, if the landlord, in an action of eject- 
 ment 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 ; 7 and after the tenant has 
 permitted the landlord to appear and defend in the ten- 
 ant's name, the tenant cannot interfere with any of the 
 subsequent proceedings to the prejudice of the landlord; 8 
 
 1 We may note that a parol notice, given by a grantee to a grantor or warrantor, 
 of the pendency of a suit has been considered good. Miner v. Clark, 15 Wend. 
 (N. Y. ) 425. And if after notice the grantee is evicted, the judgment is conclusive 
 upon the warrantor. Bridger v. Pierson, 45 N. Y. 603. Compare Bridgeport Ins. 
 Co. v. Wilson, 34 N. Y. 275 ; Taylor v. Barnes, 69 N. Y. 433. 
 
 ' Lmn v. Reed, 53 Miss. 73. 
 
 3 Smith v. Gayle, 58 Ala. 600. 
 
 4 Finnegan v. Carraher, 47 N. Y. 493 ; Farmers' L. &. T. Co. v. Kursch, 5 N. Y. 
 558 ; Johnston v. Manns, 21 W. Va. 20 ; Jackson v. Van Antwerp, 1 Wend. (N. Y.) 
 295. See Miller v. Adsit, 18 Wend. (N. Y.) 674. 
 
 5 Chant v. Reynolds, 49 Cal. 213. 
 
 6 Calderwood v. Brooks, 45 Cal. 519. 
 
 1 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. 
 
§§ 539-541.] OF THE JUDGMENT. 395 
 
 and in Texas, where a judgment is recovered against a 
 tenant without notice to the landlord, the latter may pro- 
 cure the judgment to be set aside, and be admitted to 
 defend the suit. 1 
 
 § 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. 2 
 
 § 540. Government officials. — A judgment in ejectment 
 against an agent of the government negatives all presump- 
 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. 3 The judgment against a 
 government agent is not conclusive against the govern- 
 ment. 4 
 
 §541. After-acquired title. — The judgment in ejectment 
 is conclusive only upon the title established in the action, 5 
 and only between the parties or their privies, and for the 
 same land, 6 or where the title and defenses are precisely 
 alike.' It seems to be clearly settled that a defeated 
 plaintiff 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 judg- 
 ment will be no bar to the second action, 8 for the judgment 
 has no binding effect as to a subsequently acquired title, 
 because the merits of the new title were not in issue. 9 
 
 1 Hough v. Hammond, 36 Tex. 657. 
 
 2 Sherman v. Dilley, 3 Nev. 21 ; Chase v. Irvin, 87 Penn. St. 286. 
 8 Langford v. United States, 12 Ct. of CI. 338. 
 
 4 See§245. 
 
 5 Dawley v. Brown, 79 N. Y. 398; Bank v. Bridges, 11 Rich. (S. C.) Law, 87; 
 Sherman v. Dilley, 3 Nev. 21. 
 
 8 Chase v. Irvin, 87 Penn. St. 286. 
 'Foster v. Evans, 51 Mo. 39. 
 
 8 Merryman v. Bourne, 9 Wall. 592 ; Barrows v. Kindred, 4 Wall. 399 ; Sherman 
 v. Dilley, 3 Nev. 21. 
 
 9 McLane». Bovee, 35 Wis. 27; Whitney v. Nelson, 33 Wis. 365; Montgomery 
 ». Whiting, 40 Cal. 294; Mann v. Rogers, 35 Cal. 316; Reed v. Calderwood, 32 
 Cal. 109; Mahoney v. Van Winkle, 33 Cal. 448; Emerson v. Sansome, 41 Cal. 552; 
 
396 OF THE JUDGMENT. [§ 542. 
 
 § 542. Judgments affecting foreign lands. — It has been 
 held in the Supreme Court of Texas, and, indeed, is of 
 necessity the general rule, that the records, judgments 
 and proceedings in one State can, in no particular, affect 
 or pass the title to land situated in another State. 1 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.* 
 " Where the necessary parties are before a court of equity," 
 said Swayne, J., " it is immaterial that the res of the con- 
 troversy, whether it be real or personal property, is beyond 
 the territorial jurisdictiou of the tribunal. It has the 
 power to compel the defendant to do all things necessary, 
 according to the lex loci rei sitce which he could do volun- 
 tarily, to give full effect to the decree against him." 8 
 Actions for the trial of title to land are, as we have seen, 
 local, and cannot be maintained in foreign jurisdictions. 4 
 Ejectment is in the nature of a proceeding in rem. 5 This 
 principle was involved in Oragin v. Lovell, 6 an action 
 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 committed by 
 the plaintiff while in possession of the plantation in ques- 
 tion, which was located in Louisiana. Plaintiff demurred 
 to the counter-claim, and the court held that the demurrer 
 was well taken, as actions for injuries to real estate must 
 
 Burt v. Sternburgh, 4 Cow. (N. Y.) 559; Doe d. Brayne v. Bather, 12 Q. B. 941; 
 Haigh v. Paris, 16 M. & W. 145; Hunt v. O'Neill, 44 N. J. Law, 566, citing ihe text; 
 Hawley v. Simons, 102 111. 115. 
 
 1 See In re Hawthorne, 23 Ch. D. 743 ; s. c. 48 L. T. (N. S.) 701. See, also, 
 § 467a. 
 
 5 Paschal v. Acklin, 27 Tex. 173; Newton v. Bronson, 13 N. Y. 591; Williams 
 v. Fitzhugh, 37 N. Y. 444; Booth v. Clark, 17 How. 332; Williams v. Ayrault, 31 
 Barb. (N. Y.) 368; Wait on Fraud. Conv., Sj 405 ; Fenner v. Sanborn, 37 Barb. (N. 
 Y.) 610; Burnley v. Stevenson, 24 O. S. 474; Penn v. Hayward, 14 O. S. 302; 
 Chautauque Co. Bank v. Risley, 19 K. Y. 374; Miller v. Sherry, 2 Wall. 249; Gard- 
 ner v. Ogden, 22 N. Y. 327; Bailey v. Ryder, 10 N. Y. 363. As to the conclusive- 
 ness of foreign judgments, see Pennoyer v. Neff, 95 U. S. 714; Boswell v. Otis, 9 
 How. 336; Harkness v. Hyde, 98 U. S. 476. 
 
 3 Phelps v. McDonald, 99 U. S, 308. 
 
 4 See Chap. XVII, especially §§465-467; Newton z». Bronson, 13 N. Y. 587; 
 Green v. Biddle, 8 Wheat. 1. 
 
 6 Casey v. Adams, 102 U. S. 66. 
 6 88N. Y. 263. See § 467. 
 
§§ 543-545.] OF THE JUDGMENT. 397 
 
 be brought in the forum rei sitce, 1 and this rule prohibited 
 the defendant from alleging as a counter-claim damages 
 sustained by waste committed upon land outside of the 
 State. 
 
 § 543. Form of judgment in Texas. — Under the practice 
 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 
 plaintiff's claim as a cloud, was held to be erroneous. 2 
 
 § 544. In California. — In California the plaintiff cannot 
 ask that he be adjudged the owner, and put in possession, 
 and that the defendant be enjoined from claiming title to 
 the land recovered. He must rely upon his judgment as a 
 bar. 3 The principles governing the practice by which 
 affirmative relief may be sought by answer have already 
 been considered. 4 
 
 § 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. 5 
 
 1 See Story on Conflict of Laws, § 554; Watts v. Kinney, 23 Wend. (N. Y.) 
 485 ; s. c. 6 Hill (N. Y.), 82 ; American Union Tel. Co. v. Middleton, 80 N. Y. 
 408 ; De Courcy v. Stewart, 20 Hun (N. Y.), 561. 
 
 8 Johnson v. Newman, 35 Tex. 166. See Pixley v. Rockwell, I Sheldon (N. Y.), 
 267. See, also, § 154. 
 
 8 Doyle v. Franklin, 40 Cal. 106. 
 4 See §§485, 487, 488. 
 
 6 Cannon v. Davies, 33 Ark. 56. See Lamed v. Hudson, 57 N. Y. 151; Cam- 
 arillo v. Fenlon, 49 Cal. 202. See, also, § 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 judg- 
 ment must be evicted. 
 
 563. Possession to be given of fixtures 
 
 and improvements. 
 
 564. Interference by the court before 
 
 execution. 
 
 565. Mandamus or order to officer to 
 
 execute writ — Indemnity. 
 
 566. Officer's duties defined. 
 
 567. Officer cannot file counter affidavit 
 
 of party in possession to excuse 
 non-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 firmce, as already shown, 1 at first recovered com- 
 pensation in damages only, as in any other action of tres- 
 pass, but this limited relief often afforded inadequate re- 
 dress by reason of the defendant's insolvency. The courts, 
 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 claim- 
 ant in the quiet and peaceable possession of the lands. 
 
 § 547. Its purpose. — The writ of habere facias possessionem, 
 or its statutory substitutes, under the modern practice, 
 
 1 Ante, § 23. 
 
§548.] WRIT OP POSSESSION. 399 
 
 commonly called writs of possession, constitute the basis 
 and evidence of the sheriff's or marshal's authority for 
 performing a task which, in many instances, involves deli- 
 cate questions 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 per- 
 sonal expulsion of the defeated party, and the removal of 
 his goods and personal property from the lands. It is 
 obvious that a clear understanding of the nature and pro- 
 visions of this writ, and of the rights and liabilities of the 
 parties in connection with it, and especially a statement or 
 specification 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 consider- 
 ing this writ, we will briefly notice the nature of the final 
 writ in the system of real actions. Upon the rendition of 
 a judgment upon a real writ, process of execution 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 re- 
 covered. 1 "This writ," says Professor Stearns, 3 "being 
 executed by the sheriff's 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 demandant 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 de- 
 mandant while the writ habere facias possessionem, the nature 
 and uses of which we are about to discuss, merely conferred 
 the possession upon the plaintiff. 
 
 In equity a writ of assistance is allowed to render the 
 decree of the court effectual, and to place the purchaser or 
 successful party in possession. 3 It is the equitable equiva- 
 
 1 Stearns on Real Actions, pp. 15, 245, 388; Pilford's Case, 10 Rep. 116 (5 Coke, 
 460) ; Jackson on Real Actions, p. 193. 
 
 2 Steams on Real Actions, p. 388. 
 
 8 Terrell v. Allison. 21 Wall. 291 ; Kershaw v. Thompson, 4 Johns. Ch. (N. Y.) 
 
400 WRIT OF POSSESSION. [§ 549. 
 
 lent of the writ which we are about to consider, and is- 
 governed largely by the same rules. 1 
 
 § 549. Peaceable possession without a writ. — The success- 
 ful plaintiff in ejectment may, at his election, if opportunity 
 presents itself, take peaceable possession of the lands in 
 controversy without the aid of the sheriff, and without pro- 
 curing a writ of possession to be issued. 2 The defeated 
 party, in some cases, surrenders the possession voluntarily, 
 and in others the lands are unoccupied, or the defendant 
 may have had only technical possession. 3 In such cases 
 the necessity of entering by virtue of the writ, or any court 
 process, is obviated. The judgment is a complete protec- 
 tion to the plaintiff against an action of trespass for enter- 
 ing and taking possession of the land under such circum- 
 stances. 4 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 restricted to the writ as a 
 justification for removing a party from the lands. 5 There 
 would seem to be no greater propriety 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 
 of which was not withheld. In an early case in Massachu- 
 setts 6 on a writ of right, the court said: "That a man, 
 who has a judgment for possession, may enter without a 
 
 609 ; Frelinghuysen v. Colden, 4 Paige (N. Y.), 204; Applegarth v. Russell 25 Md. 
 317; Storch v. Carr, 28 Pa. St. 135 ; Jones v. Hooper, 50 Miss. 510; Montgomery 
 v. Tutt, 11 Cal. 190; Harney v. Morion, 39 Miss. 508; Blauveltw. Smith, 22 N.J. 
 Eq. 31. 
 
 1 See Wilson v. Polk, 21 Miss. 131 ; s. c. 51 Am. Dec. 151, and valuable note 
 at page 152. 
 
 2 Taylor v. Horde, 1 Burr. 60-88 ; Caldwell v. Walters, 22 Penn. St. 378 ; 
 Anon. 2 Sid. 155, 156; Witbeck v. Van Rensselaer, 64 N. Y. 27-37; Hinton v. 
 McNeil, 5 Ohio, 509. 
 
 3 Craft v. Yeaney, 66 Penn. St. 210 ; Roe v. Dawson, 3 Wils. 49. 
 
 4 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 d. Morgan 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. 
 
 6 People v. Cooper, 20 Hun (N. Y.), 486-491. 
 
 6 McNeil v. Bright, 4 Mass. 282-300. See Farwell v. Rogers, 99 Mass. 33—35- 
 
 Ji 
 
§§ 550, 551.] writ op possession. 401 
 
 writ, is common learning." It is hardly prudent to adopt 
 the practice of taking possession without process 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, 1 the court said : " It ought not to go forth that a 
 party having obtained judgment in ejectment may enter 
 without a writ of possession, unless by consent of the 
 person holding." It appeared, in that case, that a success- 
 ful plaintiff in ejectment had sued out a writ of possession 
 in 1834, which was never executed. In 1837 a second writ 
 of possession was issued and the possession obtained under 
 it. The second writ was subsequently set aside for irregu- 
 larity. The court held that the plaintiff could not be 
 allowed to retain the possession, because it had been ac- 
 quired with an appearance and color of authority from the 
 court to which he was not entitled. The possession 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 some- 
 times 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 3 and judgment, 3 and is usu- 
 ally addressed to the sheriff of the county in which the 
 premises in controversy are located ; 4 and commands him 
 to deliver 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 is di- 
 rected were inserted by interlineation after the writ had 
 been sealed and placed in the officer's hand. 5 
 
 § 551. Return-day of the writ. — Usually there is no ne- 
 cessity for making the writ returnable except where a rule 
 of the court, or statutory regulation on the subject exists, 
 
 1 7 Ad. & El. 610-614. See Wood v. Coghill, 7 T. B. Mon. (Ky.) 601. 
 
 2 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. 
 
 4 Roscoe on Real Actions, 608. 
 
 s The King v. Harris, 2 Leach C. C. 929. 
 26 
 
402 WRIT OF POSSESSION. [§ 551. 
 
 and therefore the sheriff may, while he has the writ, re- 
 move the defendant, or his privies, from the land as often 
 as he or they intrude upon it. 1 In some States the writ 
 merely directs the officer to deliver possession, "without 
 delay," a and it is not always essential that any return-day 
 .should be named in it ; 3 and the writ cannot be avoided 
 ■for mere irregularities and erroneous recitals in its form. 4 
 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. 6 A command to return the writ 
 within a given time has been considered in New York to 
 be directory merely, and it was held by 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 simplj 7 to carry the judgment into effect with 
 reference to that particular piece of laud. 6 In the same 
 ease, the court below decided that, in the absence of any 
 evidence 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. 7 In United 
 States v. Slaymaker, 8 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 
 officii. In Dent v. Simmons, 9 the Court of Appeals of Ken- 
 tucky held that where a judgment in ejectment had 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 afterward re-entered, the proper remedy 
 for restitution was by a warrant for forcible entry, and that 
 
 1 See Witbeck v. Van Rensselaer, 64 N. Y. 27-31 ; Crocker on Sheriffs, § 575. 
 
 3 See People v. Cooper, 20 Hun (N. Y.), 486-489. 
 a Jackson v. Hawley, 11 Wend. (N. Y.) 182. 
 
 4 Franklin v. Merida, 50 Cal. 289. 
 
 6 Lowry v. Jenkins, 3 Bibb (Ky.), 315. 
 
 6 Witbeck v. Van Rensselaer, 64 N. Y. 27-31. 
 
 ' Wilbeck 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. 
 
 4 7 J. J. Marsh. (Ky.) 42. See Smith v. Hornback, 3 A. K. Marsh. (Ky.) 39 2 ' 
 
§ 552.] WRIT OP POSSESSION. 403 
 
 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 Eensselaer, 1 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 Eensselaer 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 
 <y. Simmons and similar cases were 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. 2 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 de- 
 fendant's title, an alias writ is awarded, although the return- 
 day of the first writ has not arrived ; s and if the sheriff de- 
 liver possession to the plaintiff on an alias writ, and before 
 its actual return the defendant regains possession, the 
 plaintiff may have aplwries writ. 4 
 
 1 64 N. Y. 27-31. 
 
 8 Dent v. Simmons, 7 J. J. Marsh. (Ky.) 42. See Romero v. Munos, 1 New 
 Mex. 314. 
 
 3 Jackson v. Hawley, 11 Wend. (N. Y.) 182. See Batchelder v. Moore, 42 Cal. 
 412; People v. Dwinelle, 29 Cal. 632. 
 
 4 Van Rensselaer v. Witbeck, 2 Lans. (N. Y.) 498. Mr. Longfield says : " Even 
 should the sheriff give possession, and the writ be returned, yet, if the plaintiff be 
 
404 WKIT OP POSSESSION. [§§ 553, 554. 
 
 § 553. Wifbeclc v. Van Rensselaer discussed,. — The prac- 
 tice intended to be established by the New York Court of 
 Appeals, in Witbeck v. Van Eensselaer, 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 ren- 
 ders the entire redress afforded by the judgment in eject- 
 ment transitory and unsatisfactory. The court is bound 
 in good conscience to maintain and continue the party in 
 the possession of the lands to which it has adjudged him 
 to be entitled. Otherwise, the defeated party might con- 
 stantly undo the. action of the court and practically nullify 
 its mandate. 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 ex- 
 pense, 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 stat- 
 utes regulating forcible entries. 1 If the plaintiff was un- 
 able to proceed under these statutes, his only redress 
 would be to institute another 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 -circumstances it seems unreason- 
 able to refuse to issue process to render its binding force 
 practically effectual. 2 
 
 § 554. Plaintiff talcing possession at his peril. — In eject- 
 ment at common law, when the declaration, verdict and 
 judgment described the property in general terms, the 
 plaintiff might take possession of the lands at his peril, 
 
 shortly afterwards disturbed by the late tenants, the defendants, or by any one in 
 collusion with them, the court will order a new habere to issue, and not compel the 
 plaintiff to resort to another ejectment." Longfield on Ejectment, p. 205, citing 
 Linehan v. Anthony, Batty, 454 ; Lee v. Ejector, 5, Ir. L. R. 172 ; Graydon v. 
 Ejector, 5 Ir. L. R. 436 ; Doe d. Pitcher v. Roe, 9 Dowl. 971. 
 
 1 See Romero v. Munos, 1 New Mex. 314. 
 
 2 See §§ 43, 44, 524, and Chapter XX. 
 
§555.] WRIT OF POSSESSION. 405 
 
 subject to be put rigbt by tbe court if he took more or 
 other lands than those which constituted the subject-mat- 
 ter of the controversy. 1 The propriety 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 practice there required that the verdict and writ 
 should describe with reasonable certainty the lands in- 
 tended to be covered thereby. 8 
 
 § 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 ; s 
 then to take possession in the name of the law ; and 
 afterwards to deliver the vacant possession to the plaint- 
 iff in the ejectment. 4 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 win- 
 dows, and use all the force that may be needed to over- 
 come any resistance to the enforcement of the process. 5 
 If there is a house on the premises the writ must be exe- 
 cuted by putting the tenant out of the house and the 
 plaintiff into it. 6 And in contemplation of law a delivery 
 of the possession to the plaintiff's agent is equivalent to a 
 delivery to the plaintiff in person.' 
 
 1 Jackson v. Rathbone, 3 Cow. (N. Y.) 291 ; Doe d. Drapers' Co. v. Wilson, 2 Stark. 
 477; Cottingham v. King, 1 Burr. 629; Shaw v. Bayard, 4 Penn. St. 257 ; Johnson v. 
 Nevill, 65 N. C. 677 ; Ex-parte Reynolds, I Cai. (N. Y.) 499 ; Bayard v. Colefax, 
 4 Wash. C. C. 38, 43; Camden v. Haskill, 3 Rand. (Va.) 462-465; Den v. John- 
 son, 12 N. J. L. 275 ; Fassit v. Richard, 2 Harr. (Del.) 289. See §§ 455-459- 
 
 2 Bennet v. Morris, 9 Porter (Ala.), 171. See, also, Hildreth v. Thompson, 16 
 Mass. 191, 
 
 3 Johnson v. Mcllwain, Rice (S. C.) Law, 368. 
 
 4 United States v. Lowry, 2 Wash. C. C. 169 ; Ex-parte Black, 2 Bailey (S. C.) 
 Law, 8. 
 
 s 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. 
 
 6 Den d. Smallwood v. Bilderback, 16 N. J. L. 497. 
 
 ' People v. Cooper, 20 Hun (N. Y.), 486-491 ; Kercheval v. Ambler, 4 Dana 
 
406 writ of possession. [§§ 556, 557. 
 
 § 556. When execution considered complete. — The case of 
 Kingsdale v. Mann 1 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 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 plaint- 
 iff 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 re- 
 garded as an interference with or disturbance of the exe- 
 cution, 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. Un- 
 doubtedly it is the duty of the sheriff, if required so to do,, 
 to remove from the premises all the personal property 
 found thereon belonging to the defendant. But in a 
 recent case before the New York Court of Appeals, that 
 tribunal declared that no authorities had been cited to the 
 court tending to show that the omission so to do vitiated 
 the execution of the writ when possession of the land had 
 been actually and in fact delivered. 3 
 
 §557. Removal of personal property. — People v. Cooper* 
 in the New York Supreme Court, is an important and 
 interesting case concerning the rights and duties of the 
 sheriff 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 
 
 (Ky.), 166 ; Higginbotham v. Higginbotham, io B. Mon. (Ky.) 370 ; Smith ft. 
 White, 5 Dana (Ky.), 376; Witbeck v. Van Rensselaer, 64 N. Y. 27. 
 
 1 1 Salk. 321 ; s. c. 6 Mod. 27. See Farnsworth v. Fowler, I Swan (Tenn.), I. 
 In Smith v. White, 5 Dana (Ky.), 376, the court said : " A defendant may surely 
 yield obedience to the process of the court, without being forcibly turned out, neck 
 and heels. The object of the process is to obtain possession. If that be yielded up 
 peaceably, or tacitly, or expressly acknowledged to be in the plaintiffs, and they or 
 their agent accepted it, that is surely sufficient without an expulsion in fact." 
 
 8 Witbeck v. Van Rensselaer, 64 N. Y. 27-32 ; People v. Cooper, 20 Hun (N„ 
 Y.), 486-491. 3 20 Hun ( N y.), 486. 
 
§558.] WRIT OP POSSESSION. 407 
 
 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 refusing 
 his request for delay, demanded the immediate possession 
 from Scudder, and proceeded at once to carry out the furni- 
 ture, taking the door keys and putting them in his pocket. 
 At 1 p. M. of the same day the sheriff was served with an 
 order staying all proceedings 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 hetter go out, as he was about to lock up the house, 
 and having locked the doors went away leaving a deputy 
 sheriff in possession. Upon an appeal from an order ad- 
 judging the sheriff 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 proceedings Arnot, by virtue of 
 what had transpired, was already in possession of the 
 premises ; that the sheriff 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 he evicted. — It is the duty of the 
 sheriff to remove not only the defendant named in the writ 
 and his family, employees and servants, but also all per- 
 sons 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. 1 Tenants at will or 
 at sufferance, whether they entered before or after the com- 
 mencement of the action, may be evicted. 8 Parties not 
 bound by the judgment, when threatened with expulsion, 
 may stay the writ, 3 or secure a perpetual injunction. 4 
 
 1 Hickman v. Dale, 7 Yerg. (Term.) 149 ; Wallen v. Huff, 3 Sneed (Term.), 82 
 McCreery v. Everding, 54 Cal. 166; Higginbotham **. Higginbotham, 10 B. Mon. 
 (Ky.)372; Johnson v. Fullerton, 44 Penn. St. 466 ; Wattson v. Dowling, 26 Cal. 
 124 ; Satterlee v. 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 ; Huerstal v. Muir, 64 
 Cal. 450. 
 
 2 Mattox v. Helm, 5 Litt. (Ky.) 185 ; s. c. 15 Am. Dec. 64. 
 
 3 McLeran v. McNamara, 60 Cal. 610. 
 
 4 Charter Oak L. I. Co. v. Cummings, 13 Mo. App. 76 ; High on Injunctions, (2d 
 ed § 357 ; Goodnough v. Sheppard, 28 111. 81 ; Banks v. Parker, 80 N. C. 157. 
 
408 wkit of possession. [§§ 559, 560. 
 
 § 559. Removal of wife under writ against her husband. — It 
 has even been said in Pennsylvania, that the 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 decided 
 that a judgment against the head of the family was a judg- 
 ment against his family and servants, and against all ten- 
 ants 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 Ms 
 landlord notice, or to defend under his title, though this 
 title may be perfect." x The court concede that the title of 
 the wife cannot be affected by the judgment against her 
 husband alone, but only her possession. This 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. — The facts in this 
 case, however, were peculiar. The husband did not appear 
 in the court below, and judgment against him was rendered 
 on a plea entered by the court. This the court above held 
 to be irregular, and, notwithstanding what was said in the 
 opinion, affirmed the order of restitution to the wife. The 
 case is, therefore, not authority for the proposition that a 
 wife can be dispossessed while claiming an independent 
 title. Such a view could not be supported on principle. 
 Title to land is but another name 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 jurisdiction, to which he is a party, 
 
 ' Johnson v. Fullerton, 44 Penn. St. 466. 
 
§561.] WRIT OF POSSESSION. 409 
 
 and which is binding and conclusive upon him, and not by 
 the circumstance that he or she is so unfortunate as to be 
 related to or a member of the family of another person, 
 who has been adjudged to be without title. 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 she is not to be prej- 
 udiced by the breach of duty of the husband in failing so 
 to do, or to forfeit her possession in obedience to a judg- 
 ment 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 diffi- 
 cult or impossible to prove, and to become an actor, and 
 assume the burden of a litigation, which, but for the loss 
 of the possession, would have been cast upon her opponent. 
 Her title is clearly affected, abridged and impaired to this 
 extent at least by her expulsion under the writ ; 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 advan- 
 tages which the possession confers, and which belonged to 
 her. In Tevis v. Hicks, 1 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 
 
 38 Cal. 234. 
 
410 writ op possession. [§§ 562, 563. 
 
 parties whose possession he has refused to disturb, are not 
 bound or affected by the judgment. 1 
 
 § 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 who 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 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 ? 2 If so they must be 
 evicted. Prima facie, all parties entering after suit brought 
 acquire the possession in subordination to the defendant. 3 
 But the facts may be shown, and the rule will 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 para- 
 mount title. His most effective remedy, if evicted, is not 
 to apply to open the judgment, but to get a writ of restitu- 
 tion, 4 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 improvements. 
 — The sheriff should also place the plaintiff in possession of 
 all the fixtures 5 and improvements upon the premises, that 
 is to say, the disseizor, when obliged by law to yield the 
 possession, must surrender the land in its improved state; 5 
 and, as between the successful plaintiff in an action of 
 ejectment and the evicted defendant, the crops growing 
 
 1 Leese v. Clark, 29 Cal. 664. 
 
 2 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 v. 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 v. Burget, 38 Tex. 396 ; Kelly v. Fritz, 11 Heisk. (Tenn.) 7; Fogarty 
 v. Sparks, 22 Cal. 143. See Terrell v. Allison, 21 Wall. 289; Howards. Railway 
 Co. 101 U. S. 837-849. 
 
 8 Hall v. Dexter, 3 Sawyer, 434 ; Leese v. Clark, 29 Cal. 664. 
 
 4 Smith v. Pretty, 22 Wis. 655 ; Hall v. Dexter, 3 Sawyer, 434; Gelpeke ». Mil. 
 & H. R. R. Co. n Wis. 462; McChord's Heirs v. McClintock, 5 Litt. (Ky.) 304; 
 Raw v. Stevenson, 24 Pittsb. L. J. (Pa.) 145. See § 575. 
 
 5 McMinn v. Mayes, 4 Cal. 209. 
 
 6 Russell v. Blake, 2 Pick. (Mass.) 507. 
 
§§ 564, 565.] WRIT OF POSSESSION. 411 
 
 upon the land are a part of the realty, and belong to the 
 plaintiff. 1 
 
 § 564. Interference by the court 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. 2 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 tbe action requiring him 
 to do so, s or possibly lie may procure a peremptory manda- 
 mus against the sheriff. 1 The court in New York, as we 
 have already shown, 5 refused to instruct the sheriff to re- 
 move so much of the wall of defendant's building as stood 
 upon the strip of land recovered, which was one and seven- 
 eighths inches wide, upon the theory that the sheriff must 
 act on his own responsibility in the execution of process.* 
 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 sub- 
 ject. 7 
 
 1 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 v, 
 Gascoigne, 5 B. & Aid. 88 ; Doe d. Upton v. Witherwick, 3 Bing. 11 ; Croity v. 
 Collins, 13 111. 567 ; Brolhers -v. Hurdle, 10 Ired. (N. C.) Law, 490 ; Strode v. Swim, 
 I A. K. Marsh. (Ky.) 271 ; Adams on Ejectment (4th Am. ed.), [*347] 416. 
 
 8 Doe d. Forster v. Wandlass, 7 T. R. 118, in notis. See Brookes d. Mence v. 
 Baldwyn, Barnes, 468 ; Wallen v. Huff, 3 Sneed (Tenn.), 82 ; Blair v. Painkiller, 
 5 Yerg (Tenn.) 230; Jackson v. Rathbone, 3 Cow. (N. Y.)29i; Leese v. Clark, 
 29 Cal. 664; Roe d. Blair v. Street, 2 Ad. & El. 329 ; Adams on Ejectment (4th ed.), 
 p. 412 [*342]. 
 
 8 Jackson v. Rathbone, 3 Cow. (N. Y.) 291 ; Leese v. Clark, 29 Cal. 664. 
 
 4 Fremont v. Crippen, 10 Cal. 211; Moses on Mandamus, p. 59; Fogarty v. 
 Sparks, 22 Cal. 143. See § 158. 6 § 158. 
 
 "Bowie v. Brahe, 2 Abb. Pr. (N. Y.) i6t : s. c. 4 Duer (N. Y.). 676. See 
 Ansonia Brass & Copper Co. v. Babbitt, 74 N. Y. 403 ; Matter of Steamship Cir- 
 cassian, 50 Barb. (N. Y.) 500. 
 
 7 Adams on Ejectment (4th Am. ed.), [*342] 412 ; Gilbert on Ejectment, no ; 
 Crocker on Sheriffs, § 572; Long v. Neville, 36 Cal. 455 ; Dupont v. Ervin, 2 Brev. 
 (S. C.) Law, 400; Hall v. Dexter, 3 Sawyer, 434. 
 
412 wkit of possession. [§§ 566, 567. 
 
 § 566. Officer's duties defined. — The duties of the officer 
 with regard to the execution of the writ have been care- 
 fully considered and defined by Mr. Justice Field, of the 
 United States Supreme Court, sitting at circuit, in a com- 
 paratively 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 pre- 
 viously adverse to that of the parties, stand in a different 
 position. Their title is in no respect affected by the judg- 
 ment. But the determination of the question, whether 
 parties thus entering into possession have such antedating 
 title, is not left to the judgment 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 defend- 
 ant. 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 determined.. But 
 when a sufficient bond of indemnity is tendered, 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 
 removal of all occupants." 1 
 
 § 567. Officer cannot file counter -affidavit of party in posses- 
 sion to excuse non-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 eject- 
 ment, 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 
 
 1 Hall v. Dexter, 3 Sawyer, 434. 
 
§§568, 569.] writ of possession. 413 
 
 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 author- 
 izing 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 to be tried by returning the 
 papers to the court in the manner indicated. 1 
 
 § 568. Injunction improper in order for restitution. — In 
 Dawley v. Brown 2 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 
 restraining 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 entry or interference with the possession. 
 
 § 569. Landlord and tenant. — According to some of the 
 cases, the landlord who receives the possession from his 
 tenant 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, 3 and this rule has been extend- 
 ed to include the landlord's widow and heirs who entered 
 subsequent to the commencement of the suit. 4 But in 
 Oetgen v. Boss, 5 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 enforce- 
 
 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. 
 
 4 Wallen v. Huff, 3 Sneed (Tenn.), 82. 6 47 HI- 142. 
 
414 WE1T OF POSSESSION. [§§ 570-572. 
 
 merit of the writ and permitted the landlord to come in 
 and try the case 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. 1 
 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. 2 
 Thus, where the defendants were two out of eight of the 
 lessor's 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. 3 This subject has been considered at length in 
 discussing the special subject of ejectment between ten- 
 ants in common. 4 
 
 § 571. Land subject to easement. — The owner of the fee of 
 a public highway over which the public have an easement 
 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 deliv- 
 ered to him by the sheriff, subject to the use or easement. 5 
 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. 6 
 
 § 572. Inaccessible lands.— As shown in a former chapter, 
 it is no obstacle to a recovery in ejectment that the land 
 
 1 Stokes v. Morrow, 54 Ga. 597. 
 
 2 Ash v. McGill, 6 Whart. (Penn.) 391; Withrow v, Biggerstaff, 82 N. C. 82; 
 Ewald v. Corbett, 32 Cal. 499; Tevis v. Hicks, 38 Cal. 234; Dupont v. Ervin, 2 
 Brev. (S. C.) 400. 
 
 3 Wilson v. Hall, 13 Ired. (N. C.) Law, 489. 
 
 4 See Chap. IX. 
 
 5 Reformed Church v. Schoolcraft, 65 N. Y. 134; Kenniston v. Hannaford, 58 
 N - H - 28 - 6 See §§ 130-132, 492a, 526. 
 
§§ 573-575.] writ op possession. 415 
 
 in controversy is inaccessible at the time of trial, so that 
 the sheriff cannot deliver possession. 1 Nor does the fact 
 that the land is covered with water necessarily prevent the 
 sheriff from delivering possession. 3 
 
 § 573. Writ issued on behalf of lieirs. — 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 
 defendant, 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 obtained 
 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 plaintiff 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. 5 
 
 § 575. Restitution. — A writ, or an order for restitution, 
 will be granted in cases where the sheriff has delivered 
 possession of lands not embraced in the writ, or has 
 evicted parties who were not legally subject to the opera- 
 tion of the writ or bound by the judgment, 6 or where the 
 judgment in ejectment has been reversed on appeal, 7 or 
 
 1 Woodhull v. Rosenthal, 61 N. Y. 382. See § 127. 
 
 2 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. See, also, § 205. 
 
 4 Howell v. Eldridge, 21 Wend. (N. Y.) 678. 
 
 5 Kercheval v. Ambler, 4 Dana (Ky.), 169. 
 
 6 City of Natchez v. Vandervelde, 31 Miss. 706; Smith v. Pretty, 22 Wis. 655 ; 
 South Beach Land Assoc'n 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. 
 
 'Breading v. Blocher, 29 Penn. St. 347; Polack v. Shafer, 46 Cal. 270; Hall v. 
 Wells, 54 Miss. 290. 
 
416 WRIT OF POSSESSION. [§ 575. 
 
 vacated for irregularity, 1 or a party has been turned out by 
 mistake. 2 But the sheriff has no authority, by virtue of a 
 writ of restitution, to remove from the premises persons 
 who were not parties to the judgment, and who did not 
 enter under the defendant pending the suit. 3 The party 
 moving for a writ, or order of restitution, must make out a 
 clear case, free from ambiguity, 4 and restitution will be 
 denied to a party who has been removed from possession, 
 if he is without color of right to the possession. 5 In New 
 York, since the adoption of the Code, when a regular 
 judgment is entered awarding the plaintiff the possession 
 of real property, and execution has issued putting hirn in 
 actual possession, on setting aside the judgment and 
 execution, the proper remedy of the defendant, to compel 
 restoration 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. 6 Disobedience 
 of such an order may be punished as for a contempt. But, 
 as we have seen, the order cannot properly contain an in- 
 junction clause restraining the plaintiff from using the prem- 
 ises. 7 In Pennsylvania 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 restitution ; 8 and in New York where the plaintiff 
 takes possession 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. 9 
 
 1 Dawley v. Brown, 43|How. Pr. (N. Y.), 17; Lowry v. Jenkins, 3 Bibb. (Ky.) 
 314. 
 
 2 Ex-parte Reynolds, I Cai. (N. Y.) 500. 
 
 3 Tevis v. Ellis, 25 Cal. 515. 
 
 4 California Q. Min. Co.Sk. Redington, 50 Cal. 160. See Franklin u. Merida, 
 50 Cal. 289. 
 
 5 McQuade v. Emmons, 38 N. J. L. 397. 
 
 6 Compare Martin v. Rector, 2 McC. Civ. Pro. (N. Y.) 134, reversed 28 Hun (N. 
 Y.) 409. 
 
 7 Dawley v. Brown, 43 How. Pr. (N. Y.) 22. 
 
 8 Greer v. McClelland, 1 Phila. (Penn.) 128. 
 
 9 Ostvander v. Hasbrouck, 5 Johns. (N. Y.) 366; Jackson v. Stiles, 5 Cow. (N. 
 Y) 4 i8. 
 
CHAPTER XXII. 
 
 STATUTORY NEW TRIALS, OR SECOND ACTIONS TO TRY 
 
 TITLE. 
 
 § 576. Early practice as to new trials in 
 ejectment. 
 
 577. New trials at common law. 
 
 578. Origin of statutory new trials. 
 
 579. Reasons for granting statutory new 
 
 trial to plaintiff. 
 
 580. Statutes in effect restrictive of com- 
 
 mon law rights. 
 
 581. Statutory and common law new 
 
 trials independent. 
 
 582. Abuses under the statutes. 
 
 583. Successful plaintiff not allowed to 
 
 discontinue ejectment to avoid 
 second trial. 
 
 584. How the statutes are interpreted. 
 
 585. Actions to which the statutes ap- 
 
 ply. 
 
 586. Suits to quiet title. 
 
 587. Defeated defendant cannot become 
 
 plaintiff in second action. 
 
 588. Effect of entry of erroneous judg- 
 
 ment. 
 
 589. Statutes not applicable to equitable 
 
 actions. 
 
 590. Granting new trials in equity in 
 
 analogy to the statutes. 
 
 591. Disputed boundaries. 
 
 §592. 
 593- 
 
 594- 
 595- 
 
 596- 
 597- 
 
 598. 
 
 599- 
 600. 
 601. 
 
 602. 
 603. 
 604. 
 605. 
 
 606. 
 
 607. 
 
 608 
 609 
 
 Actions to determine conflicting 
 claims to real property. 
 
 Actions between landlord and ten- 
 ant. 
 
 Forcible entry statutes. 
 
 Actions of trespass, specific per- 
 formance, and to set aside con- 
 veyances 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. 
 
 y 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 j 1 
 but Lord Mansfield decided in the case of Goodtitle v. 
 Clayton, in 1768, 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 
 
 1 Argent v. Darrell, 2 Salk. 648 ; s. C. I Ld. Raym. 514; Fenwick v. Grosvenor, 
 2 Salk. 650. 
 
 27 
 
418 new trials. [§§ 577, 578. 
 
 would be effected under the first judgment, by which the 
 defeated party would suffer. 1 
 
 § 577. New 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 
 admission 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. 2 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 con- 
 sidered manifestly insufficient. 3 Ejectments, as we have 
 seen, were substituted in the place of real writs in which 
 the title appeared upon the pleadings or was indicated by 
 the form of the writ, and gave no room for surprise. Hence 
 the courts leaned in favor of defendants in ejectment who 
 sought a new trial on the footing of surprise. 4 A new trial 
 will not 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 ; 5 and a third trial will rarely be allowed on an 
 application at common 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; 9 and 
 will be denied if the purpose is to enable the party to in- 
 troduce cumulative evidence. 7 
 
 § 578. Origin of statutory new trials. — In many of our 
 States a more certain and effective method of procuring a 
 
 1 Goodtitle v. Clayton, 4 Burr. 2224, 2225. 
 
 2 Emmons v. Bishop, 14 111. 152 ; Taylor v. Sutton, 15 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 Iowa. 108. 
 
 4 Clymer v. Littler, 3 Burr. 1244 ; s. c. I W. Bla. 346. 
 
 8 Peck v. Carmichael, 9 Yerg. (Tenn.) 325. 
 
 6 Frost ads. Brown, 2 Bay (S. C.) 133 ; Phyfe v. Masterson, 13 J. & S. (N. Y.) 
 338 ; Wright v. Milbank, 9 Bosw. (N. Y.) 672. 
 
 7 Laflin v. Herrington, 17 111. 399. 
 
§§579,580.] NEW TRIALS. 419 
 
 rehearing than the common law application for a new or 
 second trial, peculiar to actions tor 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 
 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, were inclined to 
 afford the unsuccessful party another opportunity of estab- 
 lishing his title. 1 
 
 § 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 defects 
 in his claim of title as first exhibited, and especially to 
 avoid or overcome the defendant's title concerning the 
 evidence in support of which he may have been ignorant 
 in the first instance. 3 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, 3 
 was not conclusive, and fresh ejectments could be insti- 
 tuted until a court of equity intervened by injunction. 
 
 1 See Miles v. Caldwell, 2 Wall. 35-41 ; Spence v. McGowan, 53 Tex. 30-35; 
 Gregory v. Lincoln, 13 Neb. 352. See § 42. In Equator Co. v. Hall, 106 U. S. 87, 
 the learned Justice Miller said : " A title to real estate has, under the traditions of 
 the common law, been held, in all the States where that law prevailed, to be too im- 
 portant, we might almost say too sacred, to be concluded forever by the result of 
 one action between the contesting parties. Hence, those. States which, by abolish- 
 ing the fictions of the action at the common law, and substituting a direct suit be- 
 tween the parties actually claiming under conflicting titles, which, according to the 
 nature of this new proceeding, would end in a judgment concluding both parties, have 
 found it necessary to provide for new trials to such extent as each State legislature 
 has thought sound policy to require. These provisions for new trials in actions of 
 ejectment are not the same in all the States, but it is believed that almost all of them 
 which have abolished the common law action have made provision for one or more 
 new trials as a matter of right." 
 
 2 Spence v. McGowan, 53 Tex. 30-35. 3 See Chapter XX. 
 
420 NEW TRIALS. [§§ 581, 582. 
 
 Hence, Baron Gilbert observes that the proceeding of 
 ejectment was generally preferred to an assize "from the 
 convenience of repeated trials." 1 These statutes, gener- 
 ally speaking, are, therefore, in effect restrictive of the 
 common law rights of the defeated party in ejectment - t 
 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 
 somewhat varied in details as to matters of practice, are 
 substantially alike in the several States in which they 
 prevail. 
 
 § 581. Statutory and common law new trials independent. — 
 It is clear that these statutes furnish a remedy additional 
 to and independent of the ordinary new trials at common 
 law, 3 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. 3 
 
 § 582. Abuses under the statutes. — Despite the wise pur- 
 pose intended to be subserved by the law-making power, 
 statutory new trials are frequently resorted to by unscru- 
 pulous claimants as instruments of vexatious delay and op- 
 pression. An honest litigant, after a tedious and expen- 
 sive 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 appar-. 
 ently 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 opera- 
 tion of these statutes. Judge Foster, in delivering the 
 opinion of the New York Court of Appeals in the case of 
 Shumway v. Shumway, 4 says : " It was not very uncommon 
 
 1 Gilbert on Eject., p. 8. 
 
 2 Laflin v. Herrington, 17 111. 399. 
 
 s Walker v. Armour, 22 111. 658. See Frost ads. Brown, 2 Bay (S. C), 133- 
 4 42 N. Y. 143. See Masten v. Olcott, 24 Hun (N. Y.), 587. As to the estop- 
 pel of a judgment in trespass when pleaded in ejectment, see, further, Small ». Has- 
 Icins, 26 Vt. 209 ; Morse v. Marshall, 97 Mass. 519; Dunckel v. Wiles, 11 N. Y. 
 420. Compare Arnold v. Arnold, 17 Pick. (Mass.) 4 ; Graham v. Peat, I East, 244. 
 
§§ 583, 584.] new teials. 421 
 
 • 
 
 for a party, claiming the title to land and the right of pos- 
 session, and who desired to avoid „the delays consequent 
 upon the statutory right to new trials in an action of eject- 
 ment, to bring his action in trespass, and so establish his 
 light upon a single trial, and recover his damages for the 
 trespass ; and when judgment was perfected, if the defend- 
 ant 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 hopeless any attempt to obtain 
 a new trial." 
 
 § 583. Successful plaintiff not allowed to discontinue eject- 
 ment to avoid second trial. — In Carleton v. Darcy, 1 a plaintiff 
 who had succeeded in an ejectment was put into posses- 
 sion under the judgment. The defendant paid the costs 
 and took a new trial. The plaintiff, still retaining posses- 
 sion of the lands, applied to the court for permission to 
 discontinue the action. The application was denied, the 
 <court holding that the plaintiff 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 possession of the lands in dispute, so long as the de- 
 fendant desired to avail himself of the further litigation 
 which the law afforded him. 
 
 § 584. How the statutes are interpreted — In Illinois it has 
 been held that the statutes should receive a liberal con- 
 struction, 2 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. 3 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 con- 
 strued, and confined to actions for the trial of title proper, 
 
 ' 75 N. Y. 375 ; s. c, below, n J. & S. (N. Y.) 373. 
 
 2 Chamberlin v. McCarty, 63 111. 262. 3 Myers v. Phillips, 68 111. 269. 
 
422 NEW TRIALS. [§ 585. 
 
 which came within the mischief intended to be obviated. 1 
 We shall presently show that these statutes have practi- 
 cally outlived their usefulness 2 and the wisdom of apply- 
 ing 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. 
 
 § 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 con- 
 tained averments sufficient to warrant an application for a 
 receiver, and supplemented the ordinary prayer by asking 
 for an injunction, accounting, and receiver, the suit was 
 held to be ejectment, and the defeated plaintiff was allowed 
 a new trial under the statute. 3 In a 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 which was in form for the recovery 
 of real property, the statutory rights incident to actions of 
 that class were in no way prejudiced by the character of 
 the defense interposed. 4 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 de- 
 fendant be quieted in the possession of the lands. 5 Where 
 the judgment 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. 6 The plaintiff has been held to be entitled to 
 
 1 Spence v. McGowan, 53 Tex. 30-36. But see Magee v. Chadoin, 44 Tex. 488- 
 496. 
 
 2 See §§ 608, 609. > Bucher v. Carroll, 19 Hun (N. Y.), 618. 
 
 4 Cheesebrough v. Parker, 25 Kan. 566. 
 
 5 Houston & T. C. R. R. Co. v. McGehee, 49 Tex. 481. 
 
 • Blessing v. Edmonson, 49 Tex. 333. See Cheesebrough v. Parker, 25 Kan. 566. 
 
§§ 586-588.] new trials. 423 
 
 a second action though the judgment in the first was 
 rendered on demurrer and not on a verdict, the court hold- 
 ing 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. 1 But in Michigan 
 the statutes were interpreted to cover the case of an actual 
 trial, and not simply of a nonsuit. 2 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. 3 
 
 § 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 laud, with the same effect as in actions for 
 the recovery of the possession. 4 And this is so where such 
 issue is raised only by defendant's cross complaint. 5 
 
 § 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. 6 
 
 § 588. Effect of entry of erroneous judgment. — The right 
 to a new trial is not generally affected by errors of form. 
 A judgment in ejectment, entered by defendant's attorney, 
 erroneously 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 judgment, 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 com- 
 plaint was dismissed. A new trial was granted, the court 
 
 1 Edgar v. Galveston City Co., 46 Tex. 421. 
 
 2 People v. St. Clair Circuit Judge, 37 Mich. 131. 
 
 3 Ward v. Drouthett, 44 Tex. 365. 
 
 4 Shuman v. Gavin, 15 Ind. 93; Galletley v. Williams, 15 Ind. 468; Wills v. 
 Dillinger, 17 Ind. 253; Shucraft v. Davidson, ig Ind. 98 ; Zimmerman v. March- 
 land, 23 Ind. 474; Truitt v. Truitt, 37 Ind. 514; Physio-Medical College v. Wil- 
 kinson, 89 Ind. 23. But see Russell v. Nelson, 32 Iowa, 215 ; Blackford v. Lov- 
 eridge, 10 Kan. 101. 
 
 6 Adams v. Wilson, 60 Ind. 560; Moorz/. Seaton, 31 Ind. II. 
 6 Thomas v. Geiger, 2 N. & McC. (S. C.) Law, 528. See Brownsville v. Ca- 
 vazos, 100 U. S. 138. See § 598. 
 
424 new trials. [§§ 589, 590. 
 
 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 question as to whether or not a judg- 
 ment 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 the meaning of the statute 
 allowing second trials as a matter of right in such cases. 1 
 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 adjudicata? 
 
 § 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 judgment 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 that the statute grant- 
 ing 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. 3 
 
 §590. Granting new trials in equity in analogy to the 
 statutes. — But a tendency exists to grant new trials in 
 analogy with these statutes in equitable actions, which in 
 effect determine the title to land, upon grounds which ordi- 
 
 1 Towle v. Dewitt, 7 Hun (N. Y.), 93. 
 
 2 Dangerfield v. Paschal, 20 Tex. 536. 
 
 3 Shumway v. Shumway, 42 N. Y. 143. See Somerville v. Donaldson, 26 Minn. 75. 
 
§§ 591, 592.] NEW TRIALS. 425 
 
 narily would be deemed wholly insufficient, 1 and this prin- 
 ciple has been extended even to cases in which the verdict 
 was satisfactory to the court. 2 Daniels s 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 cases in which the issue has been properly tried 
 and the verdict is satisfactory upon the evidence, the prac- 
 tice 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 marriage, 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. 4 
 
 § 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 
 nominally 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. 5 
 
 § 592. Actions to determine conflicting claims to real prop' 
 erty.— The statutes in Kansas have been considered not to 
 apply to an action brought by a party in possession to 
 determine conflicting claims to real property, 6 and this 
 doctrine was maintained in New York 7 until a second trial 
 was conferred by statute. 8 In a proceeding of this charac- 
 
 1 Clayton v. Yarrington, 33 Barb. (N. Y.) 144. 
 
 ! Stevens v. Church, 8 Phila. (Penn.) 642. See /White v. Wilson, 13 Ves. 88. 
 a 2 Daniels' Ch. Pr. 1124. 
 4 Banker v. Banker, 4 Hun (N. Y.), 259. 
 
 " Bird v. Montgomery, 34 Tex. 713. See Spence v. McGowan, 53 Tex. 30-33 ; 
 Corporation of San Patricio v. Mathis, 58 Tex. 242 ; Barbee v. Stinnett, 60 Tex. 167. 
 Northup v. Romary, 6 Kan. 240. See Swartzel v. Rogers, 3 Kan. 374. 
 ' Malin v. Rose, 12 Wend. (N, Y.) 258. 
 8 New York Code of Civil Procedure, § 1646. 
 
426 new trials. [§§ 5^3- 595. 
 
 ter in Minnesota, iu which the defendant answered, deny- 
 ing 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 secured as a matter of right under 
 the statutes allowing a second trial to the defeated party 
 in an action to recover real property. 1 Practically the 
 same doctrine has been maintained in Texas. 2 
 
 § 593. Actions between landlord and tenant. — The statutes 
 in Michigan are not applicable to ejectments between land- 
 lord and tenant for non-payment of rent, for the reason 
 that in such actions the title could not be disputed. 3 A 
 similar interpretation was placed upon the statute in New 
 York, in Christie v. Bloomingdale, 4 but the doctrine of this 
 case was disapproved in the later case of Reed v. Loucks, 5 
 at special term. The new Code of that State has excepted 
 actions of ejectment founded upon an allegation of rent in 
 arrear from the operation of the statutes. 6 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 ; 7 and they are not applicable to eject- 
 ments commenced prior to the enactment of the statutes. 8 
 
 § 594. Forcible entry statutes. — In Minnesota a novel 
 practice (chiefly statutory) has grown up of making use of 
 the statutory proceedings of forcible entrj and unlawful 
 detainer 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 
 second trial is allowed as a matter of right under the sta- 
 tute providing for new trials in actions for the recovery of 
 real property. 9 
 
 § 595. Actions of trespass, specific performance, and to set 
 
 1 Eastman v. Linn, 20 Minn. 433. See Laws of Minnesota, 1867, ch. 72, § 2. 
 
 2 Magee v. Chadoin, 44 Tex. 488-496. 
 
 3 Whitaker v. McClung, 14 Minn. 170. See Chap. XII. 
 * 18 How. Pr. (N. Y.) 12. 
 
 6 61 How. Pr. (N. Y.) 434. 6 N. Y. Code Civ. Proc. § 1528. 
 
 ' Lang v. Ropke, 1 Duer (N. Y.), 701; s. c. 10 N. Y. Leg. Obs. 70. 
 
 8 Jackson v. Coe, 5 Wend. (N. Y.) 101. 
 
 9 Ferguson v. Kuraler, 25 Minn. 183. Compare § 94 and note. 
 
§§ 596, 597.] new trials. 427 
 
 aside conveyances not within the statutes. — The statutes do 
 not apply to trespass quare clausum fregit in New York, 
 though it is strictly a legal action, and involves the title 
 and right of possession ; l nor in Kansas to actions of par- 
 tition. 2 These statutes are not applicable to actions to 
 compel a specific performance of a contract to convey real 
 estate, 8 or to actions to set aside conveyances as fraudu- 
 lent. 4 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, 5 to test the validity of an ap- 
 parent devise of real estate. 6 A new trial, it is clear, can- 
 not 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 Gilman v. Judge of Wayne 
 Circuit, 8 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 reversed, the case stood in the same position as though 
 no 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, 
 reversing 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 appeared 
 in an action of trespass to try title, which arose in Texas, 
 that the plaintiffs were defeated in the first action, and 
 
 1 Shumway v. Shumway, 42 N. Y. 143. 
 
 2 Swartzel v. Rogers, 3 Kan. 374. 
 
 3 Blackford v. Loveridge, 10 Kan. 101. See Main v. Payne, 17 Kan. 608; Benner 
 v. Benner, 10 Ind. 256; Allen v. Davison, 16 Ind. 416; Walker v. Cox, 25 Ind. 271; 
 Truitt v. Truitt, 37 Ind. 514. 
 
 4 Somerville v. Donaldson, 26 Minn. 75; Shumway v. Shumway, 1 Lans. (N. 
 Y.), 474; affi'd, 42 N. Y. 143 ; Perry v. Ensley, 10 Ind. 378. 
 
 ' This act is constitutional. See Ward v. Ward, 23 Hun (N. Y.), 431. 
 
 6 Marvin v. Marvin, 11 Abb. Pr. N. S. (N. Y.) 102. 
 
 'Sydnor v. Palmer, 32 Wis. 406. See Jackson v. Coe, 5 Wend. (N. Y.) ioi. 
 
 ' 21 Mich. 372. 
 
428 NEW TEIALS. [§ 598. 
 
 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. 1 The court did not 
 accept this view, but followed the case of Barrows v. 
 Kindred, 2 in the Supreme Court of the United States, 
 which maintains the doctrine that a defeated plaintiff in 
 ejectment 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 accom- 
 panied the title into the hands of a stranger. It was held 
 in the case of Menifee v. Hamilton, 3 in which the judg- 
 ment rendered 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 different 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 
 the defendant may on the second trial repudiate the de- 
 fense interposed at the first trial, and defeat the plaintiff's 
 recovery on other grounds. 4 
 
 § 598. Conditions of procuring the order. — Payment of 
 costs is generally made a condition precedent to granting 
 a new trial, 5 and the entry of the order is absolutely with- 
 out effect unless the costs, and in some States the dam- 
 
 1 Connolly v. Hammond, 51 Tex. 635. 
 
 - 4 Wall. 399. a 32 Tex. 495. 
 
 4 Rice v. Bixler, 1 W. & S. (Penn.) 445. Where the title to real estate is tried 
 in an action for divorce, a second trial may be had as to the real estate, but not as 
 to the issues concerning the right to a divorce. Schmitt v. Schmitt, 32 Minn. 130. 
 
 5 Oetgen v. Ross, 36 111. 335. See Davidson v. Lamprey, 16 Minn. 445 ; Shaw 
 v. McMaren, 2 Hill (N. Y.), 417; Dawson v. Shillock, 29 Minn. 189; Railsback 
 -v. Walke. 81 Ind. 409. Under the early practice, the courts granted a rule to stay 
 proceedings in the second action of ejectment, till the costs of a former ejectment 
 were paid. See Bass v. Firmen, 1 Ld. Raym. 697 ; Keene v. Angel, 6 T. R. 74°. 
 per Lord Kenyon, C. J.; Hullock on Costs, p. 449, and cases cited. 
 
§§ 598, 599.] new trials. 429 
 
 ages awarded by the first trial, are paid, 1 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. 2 Where the costs were paid and the motion for a 
 new trial granted within a year, but no formal order en- 
 tered, the moving party's right to the new trial was never- 
 theless declared complete ; 3 and the order is effectual, 
 even though a judgment has not been entered upon the 
 verdict. 4 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. 5 In Brownsville v. Cavazos, 6 
 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 defendant 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 posses- 
 sion of real property was made conclusive, unless he com- 
 menced 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 before the year 
 elapsed, and within ten days after the suit was 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 
 relitigate the title, did not preclude him or his grantees 
 from setting up his or their chain of title, if within the 
 required 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 
 litigation 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 
 
 1 Golden v. Snellen, 54 Ind. 282; Oetgen z-. Ross, 36 111. 335; Dennison v. 
 Genesee Circuit Judge, 37 Mich. 281 ; Dawson v. Shillock, 29 Minn. 189. 
 
 2 Myers v. Phillips, 68 111. 269. 
 
 3 Rountree v. Talbot, 89 111. 246. 4 Delano v. Bennett, 61 111. 83. 
 5 Dennison v. Genesee Circuit Judge, 37 Mick 281. 6 100 U. S. 138. 
 
430 NEW TRIALS. [§ 599. 
 
 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, 1 and a second new trial may be had in 
 the discretion of the court, in cases where justice will be 
 promoted, 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 are inclined to remit the appli- 
 cant to the ordinary rights of a defeated suitor by appeal. 2 
 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 thejudgmentis 
 perfected it be thereupon vacated upon payment of costs, 
 and a new trial granted without further order of the court. 3 
 Under the former statute of that State, the courts held that 
 it was essential to this form of relief that there should have 
 been a trial by jury, and a verdict rendered, upon which 
 judgment was entered, 4 though a verdict subject to the 
 opinion of the court at general term, was regarded as bring- 
 ing the application within the statute. 5 The statute is now 
 extended to judgments in actions for the trial of title ren- 
 dered upon the decision of a single judge, or the report of 
 a referee. 6 The application for the first new trial must be 
 made within three years from the entry of the first judg- 
 ment, 1 and not three years from the affirmance of the judg- 
 ment in the court of last resort, 8 and an order, allowing a 
 new trial under the statute, was held, under the former 
 
 ' Burrows v. Miller, 5 How. Pr. (N. Y.) 51 ; *N. Y. Code Civ. Proc. § 1525. 
 
 2 Brown v. Crim, 1 Demo (N. Y.), 665 ; Bellinger v. Martindale, 8 How. Pr. 
 (N. Y.) 113 ; Harris v. Waite, 54 How. Pr. (N. Y.) 113 ; Wright v. Milbank, 9 
 Bosw. (N. Y.) 672-677 ; Phyfe v. Masterson, 13 J. & S. (N. Y.) 338. 
 
 3 Post v. Moran, 61 How. Pr. (N. Y.) 122. See Cooke v. Passage, 4 How. Pr. 
 (N. Y.) 360; s. c. 3 Code R. 88. 
 
 4 Chautauqua Co. Bk. z: White, 23 N. Y. 347 ; Holmes v. Davis, 21 Barb. (N. 
 Y.) 265 ; Langt>. Ropke, I Duer (N. Y.), 701. 
 
 6 Phyfe v. Masterson, 13 J. &. S. (N. Y.) 33S. 
 
 6 Bucher v. Carroll, 19 Hun (N. Y.), 618 ; N. Y. Code of Civil Procedure, Chap. 
 XIV., art. 1. 
 
 7 N. Y. Code of Civil Procedure, § 1525. 
 
 8 Chautauqua Co. Bk. v. White, 23 N. Y. 347. 
 
§§ 600, 601.] NEW TRIALS. 431 
 
 practice of that State, not to be appealable to the Court of 
 Appeals. 1 
 
 §600. Sacia v. O'Connor. — In Sacia v. O'Connor, 3 an 
 application was made on behalf of the defendant, and a 
 party claiming to be his landlord, for a new trial as a mat- 
 ter of right. It was shown that when the action was ready 
 for trial the defendant, who was the tenant in possession, 
 withdrew his answer, and the judgment was rendered by 
 consent. The application in question was made by an at- 
 torney 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 plaintiff's affidavits. The 
 application was denied in the court below with leave to 
 renew. The Court of Appeals held, that as the motion was 
 made 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 
 «onsent, it was very doubtful whether a case within the 
 statute had been made out, and the moving party not hav- 
 ing 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 fail- 
 ing 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 hav- 
 ing 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. 3 
 
 § 601. Strangers to tlie record not entitled to new trial. — 
 In Forsyth v. Van Winkle, 4 in the United States Circuit 
 
 1 Evans v. Millard, 16 N. Y. 6ig. 2 79 N. Y. 260. 
 
 3 Sacia v. O'Connor, 15 J. & S. (N. Y.) 53 ; s. c. 11 Weekly Dig. (N. Y.) 440. 
 See 2 N. Y. R. S. p. 3o 9 , §§ 36-38. 
 
 4 9 Fed. Rep. 247. 
 
432 NEW TKIALS. [§ 602. 
 
 Court for the District of Indiana, it has been held that 
 only a party concluded by the judgment, or his heirs, as- 
 signees 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 statute will not be in- 
 terpreted to include strangers to the record. In Howell v. 
 Leavitt, 1 however, the New York Court of Appeals decided 
 that a mortgagee by purchasing the mortgaged premises 
 at foreclosure sale became the assignee of the mortgagor, 
 or person to whom he had conveyed, and was entitled to 
 apply for a new trial of an action of ejectment to which he 
 was not a party, and in which judgment had been entered 
 by default against a purchaser from the mortgagor. 
 
 § 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. 2 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 from the dismissal of an 
 appeal, 3 and the right was given to the plaintiff only, 4 and 
 not to the defendant, though he set up and relied upon 
 title. 5 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 plaintiffs 
 or defendants, but upon the relations which they bore to 
 the case. 6 In Indiana a defaulted party is not entitled to 
 a new trial as a matter of right, for there has been no trial.' 
 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 
 
 1 go N. Y. 238 ; s. c. 2 N. Y. Civ. Pro. 447. 
 
 2 Davidson v. Lamprey, 16 Minn. 445. 
 
 3 Martin v. Wayman, 38 Tex. 649. 
 
 4 Fisk v. Miller, 20 Tex. 572 ; Lewis v. San Antonio, 26 Tex. 316. 
 
 6 Fisk v. Miller, 20 Tex. 572 ; Lewis v. San Antonio, 26 Tex. 316. See, also, 
 Magee v. Chadoin, 44 Tex. 488. 
 
 6 Magee v. Chadoin, 44 Tex. 488-496. 
 
 7 Fisk v. Baker, 47 Ind. 534. 
 
§602.1 NEW TRIALS. 433 
 
 plaintiff had ho right of appeal. 1 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. 2 In Wisconsin the statute is 
 interpreted so as to grant but one new trial as a matter of 
 right, and not one new trial to each party. 3 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. 4 In that State each 
 party is entitled to a new trial as a matter of right, 5 but 
 as the right is itself a matter of grace and favor, it must be 
 insisted upon within the time specified. 6 In Pennsylvania 
 a second ejectment may be brought by the successful party 
 before he has attempted to take possession under the first 
 verdict. 7 It seems difficult to conceive of any greater legal 
 absurdity. 
 
 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 eject- 
 ment. 8 And in a case which arose in Tennessee, the court 
 held that when a complainant's title was both legal and 
 equitable, a trial of 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. 9 But one verdict for the plaintiff in 
 ejectment, and a disclaimer filed by the defendant in a 
 
 1 Smith v. Anderson. 20 Ohio St. 76 ; S. & C. Stat. (Ohio), 1157, sec. 294. 
 
 2 City of Marietta v. Emerson, 5 Ohio St. 283. 
 
 3 Boland v. Gillett, 44 Wis. 329. See Gilman v. Judge Wayne Circuit, 21 Mich. 
 372 ; Wright v. Milhank, 9 Bosw. (N. Y.) 677 ; Bellinger v. Martindale, 8 How. Pr. 
 (N. Y.) 113; Brown v. Crim, 1 Denio (N. Y.), 665. 
 
 4 Rountree v. Talbot, 89 111. 246. See Myers v. Phillips, 68 111. 269 ; Becker v. 
 Sauter, 89 111. 596 ; Pugh v. Reat, 107 111. 440. But see Delano v. Bennett, 61 111. 
 83. 
 
 5 Chamberlin v. McCarty, 63 111. 263. 
 e Emmons v. Bishop, 14 111. 152. 
 
 7 Ross v. Pleasants, 19 Penn. St. 157. 
 
 8 Ives v. Leet, 14 S. &. R. (Penn.) 301. 
 
 9 Winchester v. Gleaves, 3 Hayw. (Tenn.) 213. 
 
 28 
 
434 new trials. [§§ 603, 604. 
 
 second action, are equivalent, under the statute in Penn- 
 sylvania, to two verdicts for plaintiff, and end the con- 
 troversy. 1 
 
 § 603. Under the practice in Kansas, if the defeated 
 party applies for a new trial at common law, for errors 
 occurring 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. 8 
 Nor will a statutory new trial be granted in an equity 
 action. 3 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 allowing the plaintiff to bring 
 a second action within two years after the termination of 
 the first action was in force, it appeared 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 held that the 
 obvious intent of the statute was to quiet possession, and 
 to take away the right of one out of possession, claiming 
 to be the owner of land against a party in possession, after 
 one trial or one decision, unless the second action was 
 brought within two years. The plaintiff in the first action 
 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 clausum f regit, for her 
 possession was not disturbed. 5 
 
 § 604. New trial waived by stipulation. — In the case of 
 Ladd v. Hildebrant, 6 it appeared that the defendant, as a 
 
 1 Crea v. Hertzler, 8 Phila. (Penn.)644. 
 ! Anderson v. Kent, 14 Kan. 207. 
 
 3 Larkin v. Wilson, 28 Kans. 515. 
 
 4 O'Blinskie v. Judge Kent Co. 34 Mich. 62. 
 
 6 Henderson v. Kenner, 1 Rich. (S. C.) Law, 474. 
 8 27 Wis. 135. 
 
§§ 605-607.] new trials. 435 
 
 -condition of procuring a continuance of the cause, had 
 stipulated to waive his right to a new trial if a verdict was 
 rendered 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 
 «ourt holding that full effect should be given to the stipu- 
 lation, and that a party might waive the statutory remedy 
 as a future contingent right. 
 
 § 605. Pendency of writ of error or appeal. — The pendency 
 of a writ of error does not preclude the court below from 
 granting a statutory new trial, and if the year within which 
 to make the application under the statute expires pend- 
 ing an appeal from the judgment rendered on the first 
 trial, the right to a new trial, as a matter of course, is 
 lost. 1 Nor does the granting of a new trial operate to 
 discontinue 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.* 
 
 § 606. Second action must be instituted in same court. — 
 In Michigan a defeated plaintiff in ejectment vacated the 
 judgment and took a new trial under the statute bring- 
 ing 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. 3 
 
 § 607. Statutes controlling in Federal courts. — It is well 
 settled that local statutes and decisions constituting, rules 
 of property, and especially respecting titles to real estate, 
 are binding rules of decision in the Federal courts, and 
 this applies to State statutes defining the effect of a 
 
 1 Gibson v. Manly, 15 111. 140. See Chautauqua Co. Bank v. White, 23 N. Y. 
 347; Martin v. Wayman, 38 Tex. 649; O'Blinskie v. Judge Kent Co., 34 
 Mich. 62. 
 
 8 Rees v. City of Chicago, 40 111. 107. 
 
 ' Fraser v. Weller, 6 McL. 11. See, also, Cunningham v. City of Milwaukee, 
 13 Wis. 120. 
 
436 NEW TBIALS. [§ 608. 
 
 judgment in ejectment, and either permitting or barring 
 new trials. 1 Any uncertainty as to the enforcement of the 
 rules granting new trials as a matter of right in Federal tri- 
 bunals, pursuant to State statutes, has been set at rest by 
 a recent decision of the United States Supreme Court. 2 
 
 § 608. Repeal of tlie 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 has already been noticed, and will be again con- 
 sidered presently. 8 Irresponsible and unscrupulous defend- 
 ants eagerly avail themselves of this excessive regard for 
 possessory rights, and, not satisfied with pilfering the rent& 
 and profits accruing during the pendency of the first action, 
 hasten to pay the costs, vacate thejudgment, and continue 
 their depredation pending the second trial. The unfortu- 
 nate owner of the title, who has been deforced of the pos- 
 session, is, in many cases, under the existing practice, 
 virtually deprived of redress, for the delays and embarrass- 
 ments by which the proceedings are hampered are so 
 numerous, the advantages of the possessor so important, 
 and the expense of the litigation often 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. There is a superabundance of cumu- 
 lative investigation. 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 in- 
 junction was obtained against further ejectments. 1 The 
 
 1 Hiller v. Shattuck, I Flippin, 272 ; Forsythe v. Van Winkle, II Biss. III. See 
 Sturdy v. Jackaway, 4 Wall. 174; Polk v. Wendal, 9 Cranch, 87 ; Shipp v. Miller, 
 2 Wheat. 316-325 ; Gardner v. Collins, 2 Pet. 58 ; Green v. Neal, 6 Pet. 291 ; 
 Thatcher v. Powell, 6 Wheat. 119; Shelby v. Guy, 11 Wheat. 361-367 ; Jackson v. 
 Chew, 12 Wheat. 153; Blanchard v. Brown, 3 Wall. 245-249; Barrows v. Kindred, 
 4 Wall. 399 ; Miles v. Caldwell, 2 Wall. 35-44. 
 
 s Equator Co. v. Hall, 106 U. S, 88. See Britton v. Thornton, 112 U. S. 526. 
 
 3 See Chapter XXIII. ; §§ 631, 632. 
 
 4 Stark v. Starrs, 6 Wall. 409. In Equator Co. v. Hall, 106 U. S. 86, 87, Miller, 
 J., said, " The evil of this want of conclusiveness in the result of this form of action 
 [fictitious ejectment] led to the interposition of a court of equity, in which, after 
 repeated verdicts and judgments in favor of the same party and upon the same title, 
 that court would enjoin the unsuccessful party from further disturbance of the one 
 who had recovered these judgments." 
 
§ 608.J NEW TRIALS. 437 
 
 statutes abolishing fictions, and in effect or in words, 
 making the judgment in ejectment conclusive after a given 
 number of trials, were formerly 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 dis- 
 cretion of the court to grant a third trial, the question 
 cannot but suggest itself whether a further curtailment or 
 ■entire revision 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 in- 
 junction against further ejectments under the early prac- 
 tice. It must be remembered that these statutes are not 
 enacted to furnish relief against judgments erroneously 
 rendered, for manifestly such judgments can be avoided by 
 .appeal or application at common law for a new trial. 1 
 
 Of course it would not be beneficial to restore the old 
 .system of practice. It was ineffective and illogical in its 
 whole structure and operations. A judge and jury were 
 required to retry the same issue indefinitely, and had no 
 power to curb the litigants or bring the action to a con- 
 clusion. A worse condition of affairs could not well exist 
 in any form of procedure. The supervisory jurisdiction of 
 •chancery to pass in review the efficiency and thoroughness 
 ■of the various inquiries as to the title had in a court of law 
 was very ineffectual. 
 
 But the statutory new trials are in some respects no 
 better than the early system. Several trials are allowed, 
 two at least as a rule, but the final trial is, in itself and by 
 itself, the determining one. The verdicts that preceded it 
 are not averaged or considered, and it may well happen 
 that the party who was victorious on the last trial was de- 
 feated upon the other trials. Thus the general object of 
 permitting these repeated trials in ejectment, whether it 
 be commendable or not, fails of accomplishment. The 
 first trials are often practically examinations before trial or 
 preliminary hearings. The prudent litigant naturally will 
 
 1 Gilman v. Judge of Wayne Circuit, 21 Mich. 372. 
 
438 NEW TRIALS. [§ 609- 
 
 hold the strongest aspect of his case in reserve for the last 
 contest. The prejudices, errors, and even surprises, against 
 which these statutes are intended to relieve a defeated 
 party are almost as likely to exist at the last trial as the 
 first, and the statute is then powerless to extend relief. 
 
 § 609. We have stated that no inference is to be drawn 
 that all actions relating to real property are within the 
 provisions of these statutes. On the contrary, the almost 
 uniform tendency of the decisions is to confine the opera- 
 tion 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. These classes of actions have been devised espe- 
 cially to facilitate the thorough adjudication of titles, and 
 have been moulded after centuries of experience into their 
 present forms, embodying all the safeguards to litigants; 
 which the wisdom of generations could suggest. In these 
 actions, as opposed to all other remedies involving title to 
 land, the least likelihood of a miscarriage of justice exists.. 
 Why limit the new trials to these remedies ? The great 
 field of equitable suits and proceedings is generally con- 
 sidered not to be within the supposed beneficial provisions 
 of the statutes. Does it make any practical difference 
 whether an occupant is evicted by a writ of assistance or 
 by a writ of possession ? It is well known that many of 
 the most bitter and protracted land litigations in this 
 country have been heard on a bill in equity, or that the 
 litigation in some of its phases was passed upon in an 
 equitable forum. The title is frequently established in 
 equity. Keeping in view the fact that transfers of real 
 property must usually be effected by written instruments 
 and not by parol, and that titles such as are litigated 
 in actions at law are, in most cases, spread upon the public 
 records, it would seem that trials could be had in these 
 actions without greater risk of a miscarriage of justice 
 than in chancery, where the parties are compelled to deal 
 with " a bundle of equities," and the field of inquiry is un- 
 certain. 
 
 There seems no well-founded reason for extending the- 
 statutes to actions at law and excluding suits in equity. 
 
§609.] NEW TRIALS. 439 
 
 In other words, if statutory new trials are not considered 
 essential in equity, the whole fabric should fall. In any 
 case, if the defeated party in a land litigation, having 
 suffered no wrong by reason of errors occurring at the first 
 trial, is afforded the great privilege of a new presentation 
 of the 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 a 
 second trial as a matter of right to the plaintiff, has recent- 
 ly been repealed, 1 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 grant- 
 ing statutory new trials in such actions no longer exist. 
 
 1 Spence v. McGowan, 53 Tex. 30-36. 
 
CHAPTER XXIII. 
 
 PROVISIONAL REMEDIES AND ANCILLARY RELIEF IN 
 ACTIONS TO TRY TITLE. 
 
 ; 610. Provisional remedies. 
 
 611. 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 ap- 
 
 pointed before judgment. 
 
 616. When receiver will be appointed. 
 
 617. When receiver will not be appoint- 
 
 ed in Georgia. 
 
 618. In Illinois — Mapes v. Scott criti- 
 
 cised. 
 618a. Receiver of oil well. 
 
 619. Receiver after judgment. 
 
 620. Defendant's right to move for re- 
 
 ceiver. 
 
 621. Receiver to prevent waste and 
 
 harvest crops. 
 
 § 621a. Receivers for co-tenants. 
 621A Effect of lis pendens on applica- 
 tion. 
 
 622. Injunctions against trespass ot 
 
 waste pending ejectment. 
 
 623. Practice in North Carolina, 
 
 624. Injunction to restrain trespass in 
 
 the nature of waste. 
 
 625. Failure to prosecute ejectment for- 
 
 feits right to injunction. 
 
 626. Jurisdiction to grant injunction. 
 
 627. Storm v. Mann. 
 
 628. Practice in Pennsylvania. 
 
 629. Injunction by mortgagee against 
 
 mortgagor. 
 
 630. Executions against the person, and 
 
 orders of arrest. 
 
 631. Tendency of the modem cases. 
 
 632. Hardships incident to withholding 
 
 provisional relief. 
 
 § 610. Provisional remedies. — Occasions often arise, pend- 
 ing actions for the trial of title to land, where more speedy 
 redress becomes necessary than is afforded by final judg- 
 ment and writ of possession. The object of the action 
 might be practically defeated pending the litigation. 1 The 
 party in possession may be unscrupulous, improvident, or 
 insolvent, and desirous of profiting by his occupancy of the 
 land at the expense of the inheritance. Oases of this char- 
 acter, in which prompt relief is of vital importance to the 
 party out of possession, occur so frequently that the 
 propriety of considering the principles and cases affecting 
 provisional remedies, and applications for ancillary relief 
 pending the delays incident to the trial of the title, is 
 apparent. 2 
 
 1 See Sartwell v. Field, 68 N. Y. 342. 
 
 s Provisional remedies are governed by the lex fori. Story on Conflict of Laws, 
 556-557 ; Carter v. Hoffman, 2 N. Y. Civ. Pro. 328 ; Castree v. Kirby, 2 N. 
 Y. Civ. Pro. 334, and cases cited ; Baxter v. Drake, 85 N. Y. 502 ; Johnson v. 
 
§§ 611-613.] PROVISIONAL REMEDIES. 441 
 
 § 611. Provisional relief at common law. — In ejectment at 
 common law the law courts, not having equitable or chan- 
 cery jurisdiction, were powerless 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 
 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 be had in certain cases in the 
 action to try the title. 
 
 § 612. Forms of provisional relief. — The usual and most 
 effectual provisional relief is either by the appointment of 
 a receiver 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 prin- 
 ciples which govern courts of equity in passing upon appli- 
 cations by bill in equity for provisional relief pending the 
 ejectment, control the policy of the courts when the relief 
 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, 1 " to be governed by a view of the 
 whole circumstances of the case," 2 and this relief is usually 
 granted only at the instance of a party having an acknowl- 
 edged interest or strong presumption of title. 3 There 
 must be reasonable probability of the plaintiff's success, 4 
 and the subject-matter of the suit must be in danger. 5 
 The appointment is made with a sole view of preserving 
 the property, and not to inquire into the merits. 6 
 
 Whitman, io Abb. Pr. N. S. (N. Y.) Ill; Scudder v. Union Nat. Bk., gl U. S. 406; 
 Miller v. Brenham, 68 N. Y. 83 ; though this principle has little practical applica- 
 tion to real actions. See § 467a. 
 
 'Verplank v. Caines, 1 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 v. 
 Notrebe, Hempst. C. C. 225. 
 
 ! Copper Hill Mining Co. u. Spencer, 25 Cal. 16. 
 
 3 Chase's Case, 1 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. 
 
 'Gregory v. Gregory, 33 N. Y. Superior, 2. 
 
 6 Bainbrigge v. Baddeley, 3 Macn. & G. 413-419 ; Willis v. Corlies, 2 Edw. (N. 
 
 "Bitting v. Ten Eyck, 85 Ind. 360. 
 
442 PROVISIONAL REMEDIES. [§ 614. 
 
 § 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. 1 a much 
 criticised case Which arose in the New York Superior 
 Court, a receiver was appointed ; but in Thompson v. Sher- 
 rard, a in the Supreme Court, it was held that the action of 
 ejectment, and for mesne profits, was brought against the 
 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 8 
 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 court said that the absurdity of seeking to remove the 
 occupant because his possession was unlawful, and, at the 
 same time, accepting rent as for a lawful occupation, was 
 thus avoided. But this objection itself seems to be un- 
 founded. The mesne profits are now considered as, and 
 recovered largely upon the basis of, rent, as in an action 
 for use and occupation. 4 The remedy of ejectment has ad- 
 vanced from its early stages when it was a simple action of 
 trespass to recover damages ; it is now a real action, and 
 the mesne profits or rents are measured in great part upon 
 the basis of contract. The argument that 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 judgment, is more 
 substantial. Though the appointment does not operate as 
 an immediate transfer, yet, if the plaintiff succeeds, it is a 
 a transfer by relation from the time of the entry of the re- 
 ceiver. Hence it is considered that proof of an apparently 
 
 1 37 How. Pr. (N. Y.) 222 ; s. c. 1 Sweeney (N. Y.) 208. A receiver was ap- 
 pointed in that court in an action to have dower set off. Egan v. Walsh, 11 J. & S. 
 (N. Y.) 402 ; and where the defendants were aliens and there was danger that the 
 rents and profits would be removed out of the jurisdiction of the court, an injunction 
 restraining such removal was granted. Rentier v. Muller, 12 J. & S. (N. Y.) 537. 
 
 2 35 Barb. (N. Y.) 593. See Guernsey v. Powers, 9 Hun (N. Y.), 78. 
 
 3 People v. Mayor, &c, of N. Y., 10 Abb. Pr. (N. Y.) in. 
 
 4 See Chap. XXV. 
 
§§ 615, 616.] PROVISIONAL REMEDIES. 443 
 
 good title in plaintiff to the premises 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 vitally essential to his 
 protection. 
 
 § 615. In New York, receiver not appointed before judg- 
 ment. — In the later cases of Burdell v. Burdell i and Guern- 
 sey v. Powers 8 it was expressly held by the Supreme Court 
 of New York that a receiver would not be appointed in 
 ejectment before judgment. The cases follow Thompson 
 v. Sherrard and overrule Ireland v. Nichols, while no refer- 
 ence 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. 8 Where 
 the defendant is solvent the motion for a receiver will be 
 denied. 4 In a suit brought in New York to set aside a 
 deed on the ground that the grantor was of unsound mind, 
 a receiver was appoiuted, it appearing that the grantee de- 
 fendant was insolvent. 5 Learned, P. J., however, dissented, 
 holding that the plaintiff could have proceeded in eject- 
 ment as well as by suit in equity, 6 and as no receiver could 
 be appointed in ejectment, by analogy none should be al- 
 lowed in the action under consideration. 
 
 § 616. When receiver will be appointed. — The uniform rule 
 is that as against the legal title the court will interpose 
 with reluctance to deprive the defendant of the possession 
 or of the rents, and then only in cases of fraud clearly 
 proved and danger to the property. 7 A receiver will be ap- 
 pointed 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 
 
 1 54 How. Pr. (N. Y.) 91 (decided in 1877). 
 
 8 9 Hun (N. Y.), 78. See Huerstel v. Lorillard, 7 Rob. (N. Y.) 251 ; Congden v. 
 Lee, 3 Edw. (N. Y.) 304 ; Willis v. Corlies, 2 Edw. (N. Y.) 281. 
 
 3 Guernsey v. Powers, 9 Hun (N. Y.), 78. 
 
 4 Post v. Moran, 3 Mo. Law Bui. (N. Y.) 37. 
 6 Mitchell v. Barnes, 22 Hun (N. Y.), 194. 
 
 6 Van Deusen v. Sweet, 51 N. Y. 378. 
 
 ' Vause v. Woods, 46 Miss. 120; Lloyd v. Passingham, 16 Ves. Jr. 59; Mitchell 
 v. Barnes, 22 Hun (N. Y.), 194, dissenting opinion of Learned, P. J. 
 
444 PROVISIONAL REMEDIES. [§§ 617, 618. 
 
 timber or pulling down the buildings ; 1 or when there is 
 actual danger of a total loss of the rents, and the defend- 
 ant is irresponsible. 2 Unless some equitable principle is 
 shown by which the Court of Chancery can " affect the 
 conscience of the defendant," it will not interfere at the 
 instance of a person claiming a mere legal title to deprive 
 of his possession one occupying the lands. 8 
 
 § 617. When receiver will not oe appointed in Georgia.— 
 During the pendency of an action of ejectment in Georgia 
 the plaintiff filed a bill in equity alleging that the defend- 
 ant was insolvent, and asking that a quantity of corn and 
 some bags of cotton, raised upon the land, and then in de- 
 fendant'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 
 holding that the claimant of the title had no lien upon the 
 crops above other creditors.* It has been held in the same 
 State that a count of mesne profits in an action of eject- 
 ment was a claim for money which entitled the plaintiff to 
 process of garnishment. 5 
 
 § 618. In Illinois. — Mapes v. Scott criticised. — The case 
 of Mapes v. Scott, 6 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- 
 
 1 Talbot v. Scott, 4 Kay & J. 96-126 ; Haigh v. Jaggar, 2 Collyer, 231. 
 
 2 Payne v. Atterbury, Harr. Ch. (Mich.) 414; Ireland v. Nichols, I Sweeney 
 (N. Y.), 208 ; s. c. 37 How. Pr. (N. Y.) 222; Rogers v. Marshall, 6 Abb. Pr. N. S. 
 (N. Y.) 457- 
 
 3 Talbot v. Scott, 4 Kay & J. 96 ; Lenox v. Notrebe, Hempst. C. C. 225 ; Vause 
 v. Woods, 46 Miss. 120; Mapes v. Scott, 4 Bradw. (111.) 268; Carrow v. Ferrior, 
 L. R. 3 Ch. Ap. 719; Cofer v. Echerson, 6 Iowa, 502. The court has power in 
 England under the Judicature Act, 1873, § 2 5> to appoint a receiver where the title 
 to the property is disputed. Berry v. Keen, 51 L. J., Ch. 912. 
 
 4 Walker v. Zovn, 50 Ga. 370. 
 
 6 Walker v. Zorn, 56 Ga. 35. « 4 Bradw. (111.) 268. 
 
§§ 618«, 619.] PROVISIONAL REMEDIES. 445 
 
 ant haying obtained a continuance, when the bill in ques- 
 tion was filed, praying for the appointment of a receiver to 
 care for and rent the property, and retain the profits sub- 
 ject 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 application of a party out of possession claiming a 
 dry legal title only, but will remit him to his remedies at 
 law. 
 
 618a. Receiver of oil well. — Ejectment was brought in 
 Pennsylvania for land containing an oil well, and a writ of 
 estrepement issued against the parties in possession. 1 
 Subsequently a bill was filed, and a receiver appointed to 
 prevent alleged irreparable injury. In vacating the ap- 
 pointment, the learned Chief Justice Sharswood said : " It 
 may be very convenient, wherever there is an adverse 
 claimant to an oil well, that the court should have power 
 to appoint a receiver to take possession of it and work it for 
 the benefit of the successful litigant. It may be that if the 
 tenant in possession is obstinate, and will not give security 
 to dissolve an estrepement, the effect of the execution of 
 the writ may be that the entire territory will be pumped 
 dry by wells sunk on surrounding property, and thus the 
 value of it be destroyed as to both parties. But will that 
 consideration give a court of equity jurisdiction of a mere 
 ejectment bill, and the power to take possession of the 
 land in controversy ? We think not. . . . For the courts 
 to assume such a jurisdiction would, we think, be a clear 
 case of judicial legislation." 8 
 
 § 619. Receiver after judgment. — In the case of Frisbee v. 
 Timanus, 8 in Florida, it appeared that the plaintiff had 
 
 1 See § ii2. a Emerson and Wall's Appeal, 95 Pa. St. 258, 261. 
 
 3 12 Fla. 300. 
 
446 PROVISIONAL REMEDIES. [§ 620. 
 
 recovered a verdict and judgment in ejectment. The 
 United States Circuit Court, at the instance of defendant, 
 improvidently 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, alleg- 
 ing that the certiorari proceedings were not warranted by 
 law, and were an invention and contrivance to perpetuate 
 the litigation and deprive the plaintiff of the fruits of his 
 judgment, that the property 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 re- 
 ceiver pending the proceedings to establish the title. In 
 Georgia, 1 an action was brought for a balance of purchase 
 money, and under the Eelief Act of 1868, the jury rendered 
 a verdict returning the laud to the plaintiff upon his paying 
 the defendant a sum of money. The defendant carried the 
 case to the Supreme Court and obtained a supersedeas, 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 defend- 
 ant had received rents and profits of the land to a large 
 amount, an injunction was granted and a receiver appoint- 
 ed, the object being to offset the rents against the amount 
 which the verdict directed should be paid by the plaintiff 
 to the defendant. 
 
 § 620 Defendants right to move for receiver.— \t has been 
 held in a very recent and curious case in North Carolina, 8 
 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 
 premises and secure the rents and profits. 8 
 
 1 Collier v. Sapp, 49 Ga. 93. 
 
 2 Horton v. White, 84 N. C. 297. See More v. Massini, 32 Cal. 590. 
 
 3 Compare Mutual Life Ins. Co. v. Bigler, 79 N. Y. 571. 
 
§§ 621, 621a.] provisional remedies. 447 
 
 § 621. Receiver to prevent waste and harvest crops. — In 
 California, after verdict and judgment in plaintiff'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 from the sale of the waters, and was 
 wholly insolvent and threatened waste, appointed a re- 
 ceiver pending an appeal and motion for a new trial. 1 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. 2 It is not waste for the life tenant to cut 
 timber to a reasonable extent, in conformity with the rules 
 of good husbandry. 3 
 
 § 621a. Receivers for co-tenants. — The power of the courts 
 to appoint receivers of common property at the instance 
 of one co-tenant, has been characterized as an extraordi- 
 nary one, which the courts should not exercise except in 
 the clearest cases. 4 But a receiver was appointed in a 
 partition suit in an early English case 5 which has been fol- 
 lowed 6 in this country. Especially will a receiver be ap- 
 pointed where one of two tenants in common refuses to 
 rent the property, and unnecessary loss will result to the 
 
 1 Whitney v. Buckman, 26 Cal. 447. 
 
 2 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 reasonably expected litigation 
 arising from frequent conflicts over the possession pending the suit. See Finch v. 
 Houghton, 19 Wis. 150. See, also, § 363. A crop of grain growing on the land is con- 
 sidered to belong to the plaintiff if he is adjudged entitled to recover the land, and 
 in California, an order made by the court pendente lite in a suit to set aside a convey- 
 ance as fraudulent, restraining defendant from alienating or encumbering the land 
 during the pendency of the litigation, and appointing a receiver to harvest the grain, 
 was upheld. Corcoran v. Doll, 35 Cal. 479, 480. 
 
 3 Wilkinson v. Wilkinson, 59 Wis. 561, and cases cited. See Mooers v. Wait, 
 3 Wend. (N. Y.) 104 ; s. c. 20 Am. Dec. 667, and note, p. 670; Kidd v. Dennison, 
 6 Barb. (N. Y.) 12. 
 
 4 Low v. Holmes, 17 N. J. Eq. 148. See Norway 7/. Rowe, 19 Ves. 159. 
 
 5 Evelyn v. Evelyn, 2 Dick. 800. See Street v. Anderton, 4 Bro. C. C. 414, 
 and compare Holmes v. Bell, 2 Beav. 298. 
 
 6 Hargrave v. Hargrave, 9 Beav. 549; Sandford v. Ballard, 33 Beav. 401; Ruther- 
 ford v. Jones, 14 Ga. 521 ; Goodale v. Fifteenth Dist. Court, 56 Cal 26; Duncan v. 
 Campau, 15 Mich. 415. 
 
448 PROVISIONAL REMEDIES. [§§ 6216, 622. 
 
 other. 1 Partition, however, is an equity proceeding, and, 
 as we have seen, will not lie where the common owner- 
 ship is disputed, and the party in possession has ousted 
 his companion. 2 The proper remedy in such a case is 
 ejectment, and we may assume that the embarrassments 
 incident to securing provisional relief in ejectment apply 
 to such a case. 8 
 
 § 6216. Effect of lis pendens on application. — A motion 
 for a receiver was denied in New York in a case in which 
 the court considered the plaintiff would probably be de- 
 feated, and where it was apparent that the filing of a notice 
 of lis pendens, in conformity with the practice of that State 
 would effectually preclude any transfer of the land pendsnte 
 lite, and would protect the plaintiff's equitable interest 
 therein. 4 
 
 §622. Injunctions against trespass or waste pending eject- 
 ment. — Provisional or ancillary relief by injunction is re- 
 garded with greater favor by the courts than applications 
 for the appointment of a receiver, 5 for this remedy does not 
 change or disturb the possession. The propriety of grant- 
 ing injunctions to restrain trespass 6 waste, or kindred in- 
 juries pending the action to try the title, and recover pos- 
 session 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 receiver. Indeed, both forms of relief are frequently 
 
 1 Verplanck v. Verplanck, 22 Hun (N. Y.), 104; Pignolet v. Bushe, 28 How. Pr. 
 (N. Y.) 9. See Vincent v. Parker, 7 Paige (N. Y.), 65. 
 
 2 §ec §§ 166, 167. 
 
 3 See § 660. 
 
 4 Gregory v. Gregory, 1 J. & S. (N. Y.) I. See § 645. 
 
 5 See Deep River Gold M. Co. v. Fox, 4 Ired. Eq. (N. C.) 61 ; s. C. 1 Mor. 
 Min. Rep. 296. 
 
 8 In Mulry v. Norton. 29 Hun. (N. Y.) 666, Brown, J., said ; " An owner of land 
 is entitled to the equitable interference of the court in his behalf to restrain and 
 prevent an illegal entry thereon, whenever the damages which might be recovered in 
 an action at law would be inadequate to compensate for the injury which would be 
 sustained from the trespass." Citing Story's Eq. Jur., § 918 ; Livingston v. Liv- 
 ingston, 6Johns. Ch. (N. Y.) 497; Carpenter v. Gwynn, 35 Barb. (N. Y.) 395; West 
 Point Iron Co. v. Reymert, 45 N. Y. 705 ; Watson v. Sutherland, 5 Wall. 74. See 
 § 174 and note; Lacustrine Fertilizer Co. v. Lake Guano & F. Co., 82 N. Y. 486. 
 
§622.] PROVISIONAL REMEDIES. 449 
 
 sought on the same application. The principles and prac- 
 tice controlling applications for injunctions against waste, 
 or irreparable injuries to real property, are here discussed, 
 only in so far as that jurisdiction is exercised as ancillary 
 to and in aid of actions at law affecting the title or pos- 
 session. The plaintiff must allege title in himself. 1 In 
 Eiemer 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, who was 
 insolvent, from chopping down, removing or destroying 
 the timber growing upon the land. 2 Where, however, 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 preserve 
 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 adjudi- 
 cated. 3 An injunction will not be granted at the suit of a 
 mortgagee, to prevent the removal from the mortgaged 
 premises of timber trees cut down in waste of the security 
 before the service of the inj unction, unless proof of fraud 
 or insolvency is furnished and there is no redress at law or 
 in equity. 4 In Wisconsin an injunction to prevent waste 
 during the pendency of an action for the recovery of land, 
 may be granted in the action itself. 5 In New York an in- 
 junction will issue restraining an interference with the 
 plaintiff's possession pending an action to determine con- 
 flicting claims to real property. 6 
 
 1 Cox v. Douglass, 20 W. Va. 175. 
 
 s Riemer v. Johnke, 37 Wis. 258. See Neale v. Cripps, 4 Kay & J. 472 ; Snyder 
 f. Hopkins, 31 Kans. 557. 
 
 8 Haight v. Lucia, 36 Wis. 355. See Horton v. White, 84 N. C. 297. 
 
 4 Bank of Chenango v. Cox, 26 N. J. Eq. 452. As to injunction against waste, see 
 Watson v. Hunter, 5 Johns. Ch. (N. Y.)i6g; Nevitt v. Gillespie, 2 Miss. 108; 
 Smith v. Wilson, 10 Cal. 528 ; against interference with the possession, Long v, 
 Kasebeer, 28 Kans. 238. 
 
 s Gillett v. Treganza, 13 Wis. 472 ; Riemer v. Johnke, 37 Wis. 258. 
 
 6 Stamrn v. Bostwick, 30 Hun (N. Y.), 70. Under the New York Code of Civil 
 29 
 
450 PROVISIONAL REMEDIES. [§§ 623, 624. 
 
 § 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 
 pendency of the ejectment -, 1 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 
 successful in establishing his title, would lose the fruits of 
 his recovery. 2 The courts of that State have undoubted 
 jurisdiction 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 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 defendant is insolvent. 3 
 
 § 624. Injunction to restrain trespass in the nature of waste. 
 — The plaintiff, without any allegation of insolvency, may, 
 in California, seek, in addition to the recovery of the 
 premises, an injunction restraining the commission of 
 trespass in the nature of waste, such as cutting, destroy- 
 ing 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. 4 It has been held in 
 England that courts of equity have no jurisdiction to 
 interfere in case of permissive waste by a life tenant. 5 
 
 Procedure, if the defendant during the pendency of an action relating to real prop- 
 erty commits waste upon or does any other damage to the property in controversy 
 the court may, upon proof of the iacts by affidavit, grant, without notice or security, 
 an ord^r restraining the defendant from the commission of any further waste upon 
 or damage to the property. Disobedience to such an order may be punished as a 
 contempt of the court. This provision does not affect the right of the plaintiff to a 
 temporary or permanent injunction in ihe action, but is intended to afford a cumula- 
 tive remedy. New York Code of Civil Procedure, § 1681. See People v. Alberty, 
 II Wend. (N. Y.) 161 ; Bush v. Phillips, 3 Wend. (N. Y.) 428. 
 
 1 Jones v. Boyd, 80 N. C. 258-262. 
 
 2 Baldwin v. York, 71 N. C. 463. 
 
 8 McCormick v. Nixon, 83 N. C. 113 ; Kron v. Dennis, 90 N. C. 327. 
 4 Natoma Water & Mining Co. v. Clavkin, 14 Cal. 544 ; Snyder v. Hopkins, 31 
 Kans. 559; West Point Iron Co. v. Reymert, 45 N. Y. 703. 
 b Powys v. Blagrave, I Kay, 495. 
 
§§ G25, 626.] pko visional kemedies. 451 
 
 § 625. Failure to prosecute ejectment forfeits right to injunc- 
 tion. — An injunction to prevent waste will not be continued 
 pending an action of ejectment, if the complainant's title 
 is denied, especially if be bas been negligent in bringing 
 to trial the action at law. 1 An injunction to prevent 
 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. 2 
 Nor will the defendant be restrained from using the land 
 in the ordinary course of agriculture, or from clearing 
 timber and erecting buildings for that purpose. 3 
 
 § 626. Jurisdiction to grant injunction". — In Haigh v. Jag- 
 gar 4 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 
 between the parties, and the party in possession swears 
 that his title is valid or that the claim of his adversary 
 is unfounded, even that state of things did not prevent a 
 court of equity from interfering before judgment at law 
 to restrain the party in possession from committing waste. 
 The later and much quoted case of Talbot v. Scott 5 
 establishes the doctrine that the court will not interfere 
 by injunction except to restrain malicious and destructive 
 waste. Granting an injunction is, as we have said, in any 
 event largely a matter of discretion. 6 Where the complaint 
 alleged that plaintiff was the owner and entitled 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 
 enjoining defendants from removing the improvements or 
 
 1 Higgins v. Woodward, Hopk. Ch. (N. Y.) 342. 
 5 Bogey v. Shute, 4 Jones' Eq. (N. C.) 174. 
 
 3 Thompson v. Williams, 1 Jones' Eq. (N. C.) 176. See McCormick v. Nixon, 83 
 N. C. 113. 
 
 4 2 Collyer, 231. 
 
 s 4 Kay & J. 96, reviewing the English cases. 
 
 * Howe v. Rochester Iron Mfg. Co., 66 Barb. (N. Y.) 592. 
 
452 PKOVISIONAL KEMEDIES. [§627. 
 
 committing waste. 1 It lias 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, 2 though this 
 latter test was not considered a necessary prerequisite to 
 relief by injunction in New York. 3 The injury must be 
 something more than a mere fugitive and temporary tres- 
 pass, for which adequate compensation could be obtained 
 iuan action at law ; it must be an injury to the corpus of 
 the estate. 4 An injunction to restrain a threatened injury 
 to real property in the nature of waste may be granted in 
 California, although the plaintiff is in possession. 5 Tbe 
 injunction will usually be vacated if the sworn answer fully 
 meets and contradicts the allegations of the bill. 6 
 
 § 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- 
 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. 
 Gillespie. 8 The case of Pillsworth v. Hopton 9 is referred 
 to by Kent in Storm v. Mann as authority for the proposi- 
 tion 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 is 
 not countenanced in the modern cases. The jurisdiction to 
 
 1 Meadow Valley Mining Co. v. Dodds, 6 Nev. 261. 
 
 2 Zinc Co. v. Franklinite Co., 13 N. J. Eq. 322-350. But see Merced Mining Co. 
 ■1/. Fremont, 7 Cal. 321 ; Wade's American Mining Law, p. 234. 
 
 3 West Point Iron Co. o. Reymert, 45 N. Y. 705; Lacustrine Fer. Co. u. Lake 
 Guano & F. Co., 82 N. Y. 476. 
 
 4 West Point Iron Co. v. Reymert, 45 N. Y. 705. 
 
 5 More v. Massini, 32 Cal. 590. 
 
 6 Cox v. Douglass, 20 W. Va. 175. 
 
 ' 4 Johns. Ch. (N. Y.) 21. See Field v. Jackson, 2 Dick. 5gg ; Pillsworth ». 
 Hopton, 6 Ves. 51 ; Lansing v. North River S. B. Co., 7 Johns. Ch. (N. Y.) 163. 
 8 2 Miss. 108. s 6 Ves. Jr. 51. 
 
§§628-630.] PROVISIONAL REMEDIES. 453 
 
 restrain trespass; or such waste as will constitute an irre- 
 parable injury to the land, has been greatly enlarged, and 
 now extends to cases in which the title is sharply contested 
 and the right is in doubt. 1 
 
 §628. Practice in Pennsylvania. — In Clark's Appeal 2 the 
 owner of a hotel sought an injunction to restrain the 
 removal 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 re- 
 moval was not irreparable, while the redress at law was 
 adequate. Witmer's Appeal, 8 where an injunction was 
 granted, was cited, but the court said that it was a different 
 «ase, 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. No amount of money could replace the timber and 
 minerals removed. 
 
 § 629. Injunctionby mortgagee against mortgagor. — A mort- 
 gagee may proceed by bill in chancery against a mortgagor 
 who is impairing the security by committing waste, 4 and a 
 mortgagor in possession may be restrained from commit- 
 ting waste after decree of foreclosure, but before it has 
 been executed. 5 The court has authority to restrain the 
 mortgagor from committing waste after the sale of the 
 mortgaged premises and before confirmation, upon the 
 petition of the purchaser. 6 
 
 § 630. Executions against the person, and orders of arrest. 
 — It was established under the early code practice in New 
 
 1 Spear v. Cutter, 5 Barb. (N. Y.) 486, and cases cited. See United States v. 
 Gear, 3 How. 120 ; Poor v. Carleton, 3 Sumn. 77 ; United States v. Parrott, 1 Mc- 
 Al. 271. 
 
 a 62 Penn. St. 447. 
 
 3 45 Penn. St. 455. 
 
 4 Coker v. Whitlock, 54 Ala. 180 ; Burden v. Stein, 27 Ala. 104 ; Nelson v. Pin- 
 «gar, 30 III. 481 ; Capner v. Flemington M. Co., 3 N. J. Eq. 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, 113 Mass. 308 ; Salmon v. 
 Clagett, 3 Bland (Md.), 180. 
 
 s Malone v. Marriott, 64 Ala. 486 ; Harris v. Bannon, 78 Ky. 568. 
 6 Mutual Life Ins. Co. v. Bigler, 79 N. Y. 569. Compare Wright v. Atkyns, I 
 Ves. & B. 313 ; Goodman v. Kine, 8 Beav. 379 ; Walton v. Johnson, 15 Sim. 352. 
 
454 PROVISIONAL REMEDIES. [§ 630. 
 
 York that, in an action to recover the possession of real 
 property, and for the rents and profits, the defendant could 
 not be imprisoned, 1 and upon the failure of the plaintiff to 
 recover, in an action of this character, execution would not 
 issue against his body for the costs ; 2 and an order of ar- 
 rest would not be granted upon a complaint for the re- 
 covery of real property. 3 But in the later case of Welch v. 
 Winterburn, 4 an order of arrest was upheld in a statutory 
 action of trespass, brought to recover damages for a forci- 
 ble ejectment and detainer. These decisions rest largely 
 upon the construction and interpretation of statutes of 
 that State rather than upon the inherent principles govern- 
 ing the common law action of ejectment. Ejectment was 
 originally based upon the idea of a trespass, an ejectio firrna, 
 which was alleged in the pleading to 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 unlawfully withheld the 
 possession of the lands from him. Upon principle there 
 seems to be no controlling reason why the provisional re- 
 lief, and final process against the person, 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 Howlaud v. Needham, 5 never- 
 theless, 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 wrong- 
 ful withholding of the possession from the lawful owner, 
 had always been regarded as a tort, for which, by the com- 
 
 1 Fullerton v. Fitzgerald, 18 Barb. (N. Y.) 441. See Fassett v. Tallmadge, 23 
 How. Pr. (N. Y.) 244. 
 
 s Merritt v. Carpenter, 33 How. Pr. (N. Y.) 428 ; s. C. 3 Keyes (N. Y.), 142. 
 
 3 Brush v. Mullen, 12 Abb. Pr. (N. Y.) 242 ; Griswold v. Sweet, 49 How. Pr. 
 (N. Y.) 171. 
 
 4 14 Hun (N. Y.), 518. See 2 N. Y. R. S. p. 338 ; Bruce v. Kelly, 5 Hun (N. 
 Y.), 229. 
 
 6 10 Wis. 495. 
 
§§ 631, 632.] PROVISIONAL REMEDIES. 455 
 
 mon 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 j udgment 
 for damages was unconnected with any contract 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 damages for 
 withholding the possession of the land. 
 
 § 631. Tendency of the modem 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, inade- 
 quate, imperfect, and susceptible of grave abuse. The 
 right of possession of land is regarded as peculiarly sacred 
 in England, where many vast estates are held without pre- 
 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 adj udication 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 im- 
 provements or growing crops may have needed his atten- 
 tion ; 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 res- 
 toration to the possession furnishes no adequate compen- 
 sation or redress. Such is the argument in favor of the 
 present policy of the courts. 
 
 § 632. Hardships incident to withholding provisional relief. 
 — Still, provisional relief has been withheld in many cases, 
 entailing serious hardships and loss upon parties out of 
 
458 PROVISIONAL REMEDIES. [§ 632. 
 
 possession. Conceding that the possessor has important 
 advantages, 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 indirection, fraud, or force. Trespassers, intruders 
 and squatters, or parties who have acquired the possession 
 by violence or deceit, should not be permitted to avail 
 themselves of their own wrong, and to shield their posses- 
 sion by invoking a principle of law devised for the protec- 
 tion of bona fide oscupants. If the defendant has been 
 clothed with the possession by the plaintiff, that feature 
 should exert an important influence in granting provisional 
 relief. Proof of insolvency 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. In Mapes v. Scott, 1 the 
 parties in possession had been twice defeated in the eject- 
 ment, were wholly insolvent, and the premises in dispute, 
 to which they had no legal or equitable title, were rapidly 
 going to waste. The record showed that the defendants 
 were without title, and yet, in the teeth of this strong case, 
 the application for a receiver was overruled. 
 
 It is not easy to see why the rights of the possessor of 
 real property are so superior to the rights of the holders of 
 personal property as to call for this important difference 
 in remedies, or that any great dangers would result to real 
 property owners if the income of the land was accumulated 
 pending the litigation in cases where the right was appar- 
 ently with the plaintiff. In modern times litigants are not 
 so much dependent as formerly upon the possession itself 
 as evidence of their title. Indeed people are vastly better 
 informed concerning the titles to their lands than to their 
 personalty. The record acts and the statute of frauds 
 have wrought important changes that render it no longer 
 necessary to throw so many safeguards around the posses- 
 sor, which are too often used as obstructions to the true 
 owner. 
 
 J 4 Bradw. (Ill,) 268. 
 
§ 632.] PROVISIONAL REMEDIES. 457 
 
 Eeceivers are appointed with considerable freedom in 
 equity suits which draw in question the title to land, and 
 in which the ownership is often conclusively settled. As 
 already shown, a plaintiff who could have proceeded in 
 ejectment where a receiver is not allowed, but who elected 
 to proceed in equity to set aside the deed that was the 
 subject of dispute, may have a receiver. This proves that 
 the form of the remedy, and not the abstract merits or 
 probable results, governs in determining the right to this 
 relief. The cases decide that a receiver will not be ap- 
 pointed where no special equity is claimed, and the mov- 
 ing party has only a mere dry legal title. In other words, 
 the owner of land having a patent from the government or 
 a chain of the legal title, apparently complete in every 
 respect — the highest and most perfect evidence of title 
 known to the law — who has been deforced of the posses- 
 sion, can generally invoke no provisional relief in his 
 struggles to regain it. A claimant whose title is not 
 recognized by any rule of law, but is uncertain, or, as we 
 say, equitable, that is founded upon matters claimed to 
 justify "a mitigation and moderation of the common law," 
 or on particular exceptions to clearly defined rules, can 
 secure a receiver to protect real property and preserve the 
 rents pending the controversy. Is this a result to be com- 
 mended ? Litigations over land titles are necessarily pro- 
 tracted, and a system of procedure which will enable 
 unscrupulous and irresponsible possessors of land to enjoy 
 the possession and profits, and waste the subject-matter of 
 contention iu practical defiance of the courts and the 
 owners, should be corrected. 
 
CHAPTER XXIV. 
 
 TWO ACTIONS PENDING FOR THE SAME LAND.— CONSOLIDA- 
 TION OF EJECTMENTS.— JOINDER OF LEGAL AND EQUI- 
 TABLE ACTIONS.— MISJOINDER OF ACTIONS.— LIS PEN- 
 DENS. 
 
 § 633. Two actions for same cause. 
 
 634. Early practice. 
 
 635. Same title involved in 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. 
 
 ij 640. Misjoinder of actions. 
 
 641. Ejectment and trespass quare 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. — Before proceeding 
 with the consideration of the successful plain tiff's resultant 
 claim for mesne profits, 1 and before touching upon the 
 rights of a bona fide occupant to set off the value of useful 
 improvements or to retain a lien therefor, 3 and before dis- 
 cussing the titles that will support and defeat ejectment, 
 and the rules of evidence peculiar to the remedy, it will be 
 necessary to notice briefly some questions relating to the 
 joinder, consolidation and misjoinder of actions relating 
 to realty, and also to see how far the pendency of the action 
 constitutes notice of the rights involved. 
 
 It may be stated as a general rule, that a suitor will 
 not be permitted to maintain more than one action against 
 the same defendant for the same cause. 3 The pendency 
 of the former action may be pleaded in abatement of the 
 second action, and constitutes a complete answer to it, 4 
 but the plea must allege that the first action is still pend- 
 
 1 See Chap. XXV. 
 4 See Chap. XXVI. 
 
 3 Radford v. Folsom, 14 Fed. Rep. 97. 
 
 4 Harrington v. Libby, 6 Daly (N. Y.), 259 ; Wentworth v. Barnum, 10 Johns. 
 (N. YO238; Bendernagle v. Cocks, 19 Wend. (N. Y.) 207; Dawley v. Brown, 65 
 Barb. (N. Y.) 107. A suit will not lie to enjoin the simultaneous prosecution of 
 ejectment and summary proceedings, to dispossess the defendant. Success in either 
 proceeding could be pleaded to defeat the other. Grissler v. Stuyvesant, 67 Barb. 
 (N. Y.) 77. 
 
§§ 634, 635.] joinder of actions. 459 
 
 ing. 1 This rule is, of course, applicable to all actions in 
 the nature of ejectment, in the modern procedure, though 
 the practice as to the correct method of raising the objec- 
 tion is not uniform. 2 The rule on this subject as between 
 State and Federal tribunals, though in entire harmony 
 with the general principle, is somewhat peculiar, and the 
 courts have had some difficulty in applying it. It is, that, 
 where the Federal court is a court of concurrent jurisdic- 
 tion with the State court (i. e., where the territorial limits 
 of one embrace those of the other), and the case, includ- 
 ing the parties, rights asserted and relief prayed for, are 
 substantially the same, so that, if the pending case had 
 already been disposed of, it could be pleaded in bar as a 
 former adjudication, then the pendency of one suit is a 
 bar to the other ; but where the case is different, or the 
 proceedings are in different States or circuits, then one 
 action cannot be used to defeat the other. 3 
 
 § 634. Early practice. — In the case of Thrustout v. 
 Troublesome, 1 decided in 1738, 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 that the first ejectment could not be pleaded in bar 
 of the second action. 
 
 § 635. Same title involved in both actions. — In Dawley v. 
 Brown, 5 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." 6 The material 
 
 .' Moore v. Kessler, 59 Ind. 152. 
 
 ! See Findlay v. Keim, 62 Pa. St. 112. 
 
 3 Weaver v. Field, 16 Fed. Rep. 22 ; Stanton v. Embrey, 93 U. S. 548 ; Rad- 
 ford v. Folsom, 14 Fed. Rep. 98 ; Watson v. Jones, 13 Wall. 714. 
 
 4 Andrews, 298. See Doe d. Brayne v. Bather, 12 Q. B. 941. 
 
 6 79 N. Y. 390. See s. c. 65 Barb. (N. Y.) 107 ; s. c. 9 Hun (N. Y.), 461. 
 8 Citing Stowell v. Chamberlain, 60 N. Y. 272. 
 
460 JOINDEB OF ACTIONS. [§ 636. 
 
 point of inquiry in such cases is whether or not the same 
 title is involved in both actions. 1 As elsewhere shown, a 
 plaintiff may acquire a new and distinct 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 liti- 
 gation, it cannot be concluded or affected by it. 2 This 
 principle has been fully recognized in California in the case 
 of Vance v. dinger, 8 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. Sow the objection is raised. — In Bitter v. Worth, 4 
 in the New York Court of Appeals, it appeared that the 
 plaintiffs claimed as heirs at law of E., 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 E., 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 
 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, 5 it was held in 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, 6 in the 
 Supreme Court of Georgia, it was held that the pendency 
 
 1 See Doe d. Brayne v. Bather, T2 Q. B. 941; Haigh v. Paris, 16 M. & W. 145; 
 Doe d. Henry v. Gustard, 5 Scott N. R. 818. 
 
 2 Barrows v. Kindred, 4 Wall. 399 ; Dawley v. Brown, 79 N. Y. 390. 
 
 3 27 Cal. 358. 
 
 4 58 N. Y. 627. 
 
 18 Gratt. (Va.) 475. 6 44 Ga. 659. 
 
§§ 637, 638.] JOINDER OP ACTIONS. 461 
 
 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. Eawlins, 1 in the same State, the proper prac- 
 tice was held to be to interpose a plea of aliter Us 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, 2 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 
 defense, leaving that suit to be discontinued. And in 
 Michigan 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 imperfect, and open to disputes, and the 
 record of complainant would not be prima facie better than 
 the opposing title. 3 Belief in equity will not be denied 
 where the decision at law cannot cover the entire contro- 
 versy. It has been held by the Supreme Court of Penn- 
 sylvania, that a plaintiff in partition may, during the pen- 
 dency of that action, 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 . 4 
 
 § 638. Consolidation of ejectments. — The practice as to 
 consolidation of ejectments seems to have been unsettled 
 
 1 33 Ga. 117. 
 
 2 27 Wis. 168. See Wilson v. Jarvis, 19 Wis. 601. 
 
 3 Eaton v. Trowbridge, 38 Mich. 454. 
 
 ' Ross v. Pleasants, 19 Penn. St. 157. A bill to reform a deed may be brought 
 against all the parties through whom the title has passed with notice of complain- 
 ant's rights. Walkup v. Zehring, 13 Iowa, 306. 
 
462 J01NDEK OP ACTIONS. [§638. 
 
 during the early stages of the remedy. In Smith v. Crabb 1 
 it appeared that ten ejectments were instituted on the 
 same demise for as many houses in the occupation of ten 
 persons. Application was made to the court to consoli- 
 date the declarations, accompanied by a suggestion that 
 the title was the same in all the actions. The court 
 refused to grant the request for the reason that the lessor 
 might have sued the defendants 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, 2 however, a motion to consolidate sixteen eject- 
 ments was granted, and in Doe d. Pultney v. Freeman, 3 
 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 4 the New York Supreme Court, in a 
 jper curiam opinion, said that where a number of ejectments 
 were brought, and all depended upon the same title, and 
 the evidence and the questions to be litigated 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, 6 and 
 directing that in a clear case all the actions abide the 
 
 1 2 Strange, 1149. See Medlicot v. Bruester, 2 Keb. 524; Longfield on Eject. 
 p. 81. 
 
 2 Barnes' Notes of Cases, 176. See Roe d. Burlton v. Roe, 7 T. R. 477; Gilbert 
 on Eject. 74. 
 
 3 See 2 Sell. Pr. p. 144; Den v. Kimble. 9 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, t 
 Abb. N. C. (N. Y.) 69; Lockwood v. Fox, 8 Daly (N. Y.), 127; Kipp v. Delamater, 
 58 How. Pr. (N. Y.) 183. Compare Turner v. Duchman, 23 Wis. 500. In New 
 York two partition actions affecting lands in different counties, and not having com- 
 mon parties, cannot be consolidated. Mayor v. Coffin, go N. Y. 312. Motions to 
 consolidate tithe suits have been refused. Manchester College v. Isherwood, 2 Sim. 
 476. 
 
 s See s. p. Jackson v. Stiles, 5 Cowen (N. Y.), 447. 
 
§ 639.] JOINDER OF ACTIONS. 463 
 
 event of the cause to be tried. The practice of consolidat- 
 ing ejectments often results in hardships and inconvenien- 
 ces 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 also as 
 affecting matters of evidence, 1 and, unless a plain case of 
 the multiplication of vexatious litigations is presented, the 
 power should not be exercised. 
 
 § 639. Joinder of legal and equitable actions. — Under the 
 practice in New York an equitable cause of action to re- 
 move, as a cloud upon plaintiff's title, a deed given by mis- 
 take by a third party to the defendant, under which the 
 latter had fraudulently obtained the possession by conni- 
 vance with the plaintiff's tenant, and a claim to recover the 
 possession of the premises, may be united in the same 
 complaint, and asserted in the same action. 2 So in Phillips 
 v. Gorham, 3 it was held that the plaintiff, in an action to 
 recover specific real property, could attack a deed, under 
 which the defendants claimed title, upon grounds cogniz- 
 able in a court of chancery. In Laub v. Buckmiller, 4 the 
 New York Court of Appeals considered it to be settled law 
 that legal and equitable relief might be had in one action, 
 and held that a plaintiff claiming under a defective deed, 
 and showing sufficient 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 defendant's claim, and it was held to be unnec- 
 essary to resort to a court of equity to set aside the deed. 5 
 
 1 Den d. Stewart v. Johnson, x8 N. J. Law, 88. 
 
 8 Lattin v. McCarty, 41 N. Y. 107. See McTeague v. Coulter, 6 J. & S. (N. Y.) 
 208. Contra Peyton v. Rose, 41 Mo. 257 ; Curd v. Lackland, 43 Mo. 139. See §3 187, 
 189. 
 
 3 17 N. Y. 270. i 17 N. Y. 626. 
 
 6 Van Deusen v. Sweet, 51 N. Y. 378. See Mitchell v. Barnes, 22 Hun (N. Y.), 
 194. 
 
464 JOINDER OP ACTIONS. [§§ 640, 641. 
 
 In Broiestedt v. South Side Bailroad Company, 1 it was 
 expressly held that the legal rights of the owner of land 
 could be established and declared, and the equitable 
 remedy by injunction, restraining any interference there- 
 with could be obtained in the same action. To sustain 
 the action, however, in this form, facts must be alleged 
 which would have been necessary to entitle him to the 
 relief had he sought it in separate actions. 2 
 
 § 640. Misjoinder of actions. — In New York the general 
 rules regulating the joinder of causes of action have been 
 expressly declared to be applicable to the action of eject- 
 ment ; 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. 3 In a case which arose in Mis- 
 souri, it was decided that a declaration in ejectment and a 
 petition for partition could not properly be united in the 
 same count, and one or the other must be rejected as sur- 
 plusage. 4 So a suit to foreclose a mortgage, and an action 
 to recover possession of another tract of land, cannot be 
 joined. 5 
 
 § 641. Ejectment and trespass quare clausum f regit. — 
 Ejectment and trespass quare clausum fregit cannot, accord- 
 ing to some of the cases, be united in the same complaint, 
 even though the locus in quo in both cases is identical. 
 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, it 
 is necessary to show that the defendant had the possession 
 
 1 55 N. Y. 220. 
 
 2 Bockes v. Lansing, 74 N. Y. 437, 443. A husband and wife may join in a suit 
 for damages for fraud in inducing the husband to convey land, the wife uniting in 
 the conveyance to release her dower. Simar v. Canaday, 53 N. Y. 298. See 
 §§ 187-189, 220. 
 
 3 Hubbell v. Lerch, 58 N. Y. 237. See St. John v. Pierce, 22 Barb. (N. Y.) 362- 
 See, also, §§ 188, 450. 
 
 4 Moreau v, Detchemendy, 41 Mo. 434. 
 
 5 Edgerton v. Powell, 72 N. C. 64. Compare Butler University v. Conard, 94 
 Ind. 353. 
 
§§ 642, 643.] JOINDER OF ACTIONS. 465 
 
 when the action was instituted. 1 A disseizee of land can- 
 not, of course, maintain trespass qnare elausum f regit for 
 an injury done to the land until he has regained the pos- 
 session. 3 Damages for trespass cannot be joined with an 
 action for use and occupation. 8 
 
 § 642. Ejectment and claim for purchase money. — 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 result- 
 ing from such sale. 4 
 
 § 643. Ejectment 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 improperly 
 united with a claim for damages for the detention of 
 another piece of land, 5 or for trespasses committed upon 
 other lands; 6 and the Supreme Court of Florida have 
 held that it is improper to unite a cause of action for 
 specific performance against one party with a cause of 
 action in ejectment against another party in the same 
 action.' In Illinois a count in ejectment for dower cannot 
 be joined with counts of a different character. 8 It has 
 been held in New York, that an action against two de- 
 fendants to recover possession of real estate, with a 
 claim for damages, was improperly united with a demand 
 against one of the defendants, for rents and profits of the 
 premises for which it was claimed such defendant was in- 
 debted to the plaintiff", no connection being shown between 
 
 1 Budd v. Bingham, 18 Barb. (N. Y.) 494. See Hotchkiss v. Auburn & R. R. R. 
 Co., 36 Barb. (N. Y.) 600-613; Pomeroy on Remedies, § 503. 
 
 1 Frost v. Duncan, 19 Barb. (N. Y.) 560. See Freer v. Stotenbur. 36 Barb. (N. 
 Y.) 641. See, also, §§ 657, 668. 
 
 s McLendon v. West Point & A. R. R. Co., 54 Ga. 293. 
 
 4 Brown v. Coble, 76 N. C. 391. 
 
 6 Holmes v. Williams, 16 Minn. 164. 
 
 6 See Hulce v. Thompson, 9 How. Pr. (N. Y.) 113; Wager v. Troy Union R. R. 
 Co., 25 N. Y 535. 
 
 ' 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- 
 
 8 Ringhouse v. Keener, 49 111. 470. 
 30 
 
466 lis pendens. [§§ 644, 645. 
 
 the rents and profits claimed and the alleged withhold- 
 ing of the possession of the premises. 1 And a complaint 
 setting forth a breach of contract to sell and convey real 
 estate, and an assault and battery committed upon plaint- 
 iff in forcibly taking the written contract of sale from his 
 possession, was held bad on demurrer. 2 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 re- 
 conveyance and an accounting. 3 The right to recover 
 mesne profits in the action of ejectment will be presently 
 noticed. 4 
 
 § 644. Young v. Young. — It has been held in North 
 Carolina, 5 that a complaint containing several causes of 
 action, viz.: first, to declare one defendant a trustee of 
 land ; second, to recover judgment against other defend- 
 ants for the purchase money of the land ; and third, to 
 recover possession of the land, with damages for with- 
 holding it, was not demurrable under the provisions of the 
 code of that State, 6 which allows the plaintiff to unite in 
 the same complaint several causes of action where they 
 arise out of "the same transaction; or transactions con- 
 nected with the same subject of action." 
 
 § 645. Lis pendens. — The law of Us pendens and the pro- 
 priety of filing in the office of the clerk or custodian of the 
 public records of the county in which the land in contro- 
 versy is situated, a notice of the purpose and pendency of 
 an action of ejectment has never received the consideration 
 either at the hands of courts or legislatures, which the 
 importance of the subject deserves. This is possibly due 
 to the fact that the doctrine of lis pendens is commonly 
 considered an equitable doctrine.' It is only notice while 
 
 1 Tompkins v. White, 8 How. Pr. (N. Y.) 520. See People v. Mayor, &c, 28 
 Barb. (N. Y.) 240-249. 
 
 5 Ehle v. Haller, 6 Bosw. (N. Y.) 663 ; s. c. 10 Abb. Pr. (N. Y.) 287. 
 a Gardner v. Ogden, 22 N. Y. 327. 
 
 4 See § 650. 
 
 6 Young v. Young, 81 N. C. 91. 
 
 6 Code of North Carolina, § 126. 
 
 ' King v. Bill, 28 Conn. 593. In Tilton v. Cofield, 93 U. S. 168, Mr. Justice 
 Swayne said : " The law is, that he who intermeddles with property in litigation 
 
§ 645.1 LIS pendens. 467 
 
 there is a lis pendens, 1 and only of such matters as appear 
 in the pleadings. 2 In foreclosure cases it is the uniform 
 practice to file a Us pendens, and so generally of suits in 
 equity involving" rights to realty. The practice is con- 
 sidered necessary to render the decrees effective. In 
 Thompson v. Clark, 3 it appeared that the plaintiff had 
 instituted an ejectment, filed a Us pendens, and recovered 
 a judgment against one B., and had been put into posses- 
 sion of the lands. An action for mesne profits was subse- 
 quently brought against a party who had occupied the 
 premises pending the ejectment, under a lease from a 
 person no* 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. 4 In Jackson v. Tuttle, 6 Suther- 
 land, J., said : " The defendant in an ejectment suit cannot 
 defeat the action by transferring the possession to another, 
 either with or without consideration. Whoever succeeds 
 to his possession, succeeds also to the perils of the suit." 6 
 In Sheridan v. Andrews, 7 the JSTew York Court of Appeals 
 said : "The point, that the absence of a notice of lis pen- 
 dens deprives the judgment of its effect as against persons 
 claiming from or through the defendants, cannot be sus- 
 tained. The only office of a notice of Us 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 prop- 
 does it at his peril, and is as conclusively bound by the results of the litigation, 
 whatever they may be, as if he had been a party to it from the outset." See Coun- 
 ty of Warren v. Marcy, 97 U. S. 96 ; Hunt v. Haven, 52 N. H. 162; Inloes v. 
 Harvey, ii Md. 519; Farmers' Nat. Bank v. Fletcher, 44 Iowa, 252; Mcllwarth v. 
 Hollander, 73 Mo. 105 ; s. c. 39 Am. Rep. 484, and note by Irving Browne, Esq. 
 
 1 Leitch v. Wells, 48 N. Y. 585, and cases cited ; Page v. Waring, 76 N. Y. 
 474- 
 
 ! Shearon v. Henderson, 38 Tex. 245. 
 
 3 4 Hun (N. Y.), 164. 
 
 4 See Aslin v. Parkin, 2 Burr. 668 ; Chirac v. Reinicker, 11 Wheat. 296 ; Leland 
 ■v. Tousey, 6 Hill (N. Y.), 328 ; Ainslie v. Mayor, &c, of N. Y., I Barb. (N. Y.) 168. 
 
 5 9 Cow. (N. Y.) 240. 
 
 6 s. p, Smith v. Trabue, 1 McL. 87. 
 
 ' 49 N. Y. 478. See Long v. Neville, 29 Cal. 131 ; Gregory v. Haynes, 13 Cal. 
 591; Haynes^. Onderdonk, 5 T. & C. iN. Y.) 176; Wilmont v. Meserole, 41 N. 
 Y. Superior, 275. See, also, §§ 454c, 495- 
 
468 LIS PENDENS. [§ 645. 
 
 erty 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 commence- 
 ment 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 
 alienation. 1 . . It is difficult to see how, in an action 
 of ejectment, a notice of lis pendens can be necessary 
 to bind even purchasers pendente lite by the judgment. 
 . . Inasmuch 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 the 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 frequently involved. The 
 defendant in ejectment may have a perfect record title, 
 and may transfer it, pending 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, 8 which 
 shall be constructive notice from the time of filing it; and 
 a person whose conveyance or incumbrance is subse- 
 quently executed or recorded, is bound by all proceed- 
 ings taken in the action, after the filing of the notice, to 
 the same extent as if he was a party to the action. 3 
 
 1 See Murray v. Ballou, I Johns. Ch. (N. Y.) 577; Howard v. Kennedy, 4 Ala. 
 592; Hickman v. Dale, 7 Yerg. (Tenn.) 149 ; Jones v. Chiles, 2 Dana (Ky.), 25. 
 , ! N. Y. Code Civ. Pro., § 1670. 
 3 N. Y. Code Civ. Pro., § 1671. See §§ 621*, 649. 
 
§645.] LIS PENDENS. 469 
 
 In Iowa a party will be charged with notice from the 
 time the petition is filed. 1 In Missouri a conveyance by 
 an heir or devisee pending proceedings to contest the 
 validity of a will is subject to a subsequent judgment 
 rendered in such proceedings, though no notice was filed 
 as required in cases of equitable rights. 2 
 
 1 Haverly v. Alcott, 57 Iowa, 171. 
 
 8 Mcllwrath v. Hollander 73 Mo. 105 ; s. c. 39 Am. Rep. 484. 
 
CHAPTER XXV. 
 
 MESNE PROFITS AND DAMAGES. 
 
 j 646. Damages in real actions. 
 647. Mesne profits in ejectment. 
 
 «4°- (. Nature of the action. 
 
 649. J 
 
 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. 
 668a. Exemplary damages. 
 
 669. Damages after judgment. 
 
 670. Interest on mesne profits. 
 
 671. Judgment in ejectment conclusive 
 
 as to title. 
 
 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. Income from ferry. 
 
 677. Rules as to ore and mines. 
 
 678. Income from improvements. 
 
 679. Costs. 
 
 680. Defenses. 
 
 681. Bankruptcy of defendant. 
 
 682. Matters in mitigation.— Payment of 
 
 ground rent. — Inadequacy of pur- 
 chase price. 
 
 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. 
 
 689a. Restitution of mesne profits. 
 
 § 646. Damages in real actions. — Under the early prac- 
 tice ordinarily no damages could be recovered in a real 
 action. 1 The recovery was limited solely to interests in 
 realty, for "it is of the essence of a real action, that only 
 a real thing can be recovered therein ; for wherever dam- 
 ages, which are a pecuniary recompense, and consequently 
 a personal thing, are recoverable in the same action, the 
 action becomes mixed." 2 A discussion of the forms of pro- 
 cedure by which the demandant, while the ancient system 
 
 1 Stearns on Real Actions, pp. 94, 244, 389 ; Jackson on Real Actions, p. 99 i 
 Booth on Real Actions, 74, 75 ; Sedgwick on Damages (7th ed.), vol. I, p. 241 [117]. 
 ! Sayer on Damages, p. 5. 
 
§647.] MESNE PROFITS AND DAMAGES. 471 
 
 of real writs prevailed, recovered the rents and profits of 
 the land, 1 which 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 re- 
 covered in the modern procedure are largely regulated by 
 statute. In some of the real writs the demandant was per- 
 mitted to recover the damages that accrued pending the 
 writ. 2 A writ of estrepement, prohibiting the tenant from 
 committing waste upon the land pending the action, was 
 also granted as a species of provisional relief in aid of cer- 
 tain real writs. By the statutes of Merton, Marlbridge, 
 and Gloucester, damages were given in the principal real 
 actions. 8 
 
 § 647. Mesne profits in ejectment. — " The mesne or inter- 
 mediate profits of land are those received while the prop- 
 erty is withheld from its rightful occupant ; and when he 
 recovers possession, the right to the mesne profits follows 
 his recovery." 4 The writ of ejections firmce, 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 eviction and loss of the term and possession. The 
 recovery of compensation in damages at first constituted 
 the sole purpose 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 pre- 
 carious interest the basis of a real writ. Hence, his only 
 practical redress against a person who had disseized him 
 during the term was a writ of trespass for damages. The 
 defendant very frequentlj proved insolvent, and this 
 remedy was, therefore, palpably inadequate ; and for this 
 reason the practice of recovering the unexpired term and 
 
 1 See Booth on Real Actions, p. 74 ; Stearns on Real Actions, pp. 245, 389. 
 
 2 See Booth on Real Actions (Am. ed.), pp. 74-76 ; Stearns on Real Actions, 
 p. 245 ; also, Chapter VIII. 
 
 3 20 Hen. Ill, c. 3 ; 52 Hen. Ill, c. 16 ; and 6 Edw. I, anno 1278. 
 
 4 Sedgwick on Damages (7th ed.), vol. I, p. 250 L I2 3]- See Green v. Biddle, 8 
 Wheat. 1-80. 
 
472 MESNE PROFITS AND DAMAGES. [§ 647. 
 
 the possession 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 practice became a mere incident. When the 
 fictitious parties were introduced into the action, and the 
 practice was established of declaring on a fictitious lease, 
 and of extending the action to cases where no lease in 
 fact existed, the judgment for damages and mesne profits 
 necessarily became nominal. 1 Thus in Davis v. Delpit, 8 the 
 Court of Errors and Appeals of Mississippi declare, 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 common 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 improper ; for a money judgment could not be 
 collected 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 be clearly erroneous. A real tenant, 
 who had actually withheld the possession, occupied the 
 lands, and enjoyed the profits, was needed as a defendant. 8 
 The tenant in possession signed the consent rule, and de- 
 fended the action, solely for the purpose of trying the title, 
 not of contesting 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 rendered against him, though there is authority to 
 the effect that the plaintiff might recover his real damages 
 by giving notice of his intention to proceed therefor.* 
 
 1 See Reeves' Hist. Eng. Law (ed. 1880), 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, also, § 62. 
 
 * 25 Miss. 446. See Emrich v. Ireland, 55 Miss. 390. 
 
 3 See Runnington on Ejectment, p. 438 ; Dobbins v. Baker, 80 Ind. 55. 
 
 4 Battin v. Bigelow, 1 Pet. C. C. 452; Osbourn v. Osbourn, 11 S. & R. (Penn.) 
 55; Goodtitle v. Tombs, 3 Wils. 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. 
 
§648.] MESNE PROFITS AND DAMAGES. 473 
 
 After the damages in ejectment became nominal, the prac- 
 tice sprang up of bringing a new action of trespass for the 
 mesne profits. 
 
 According to Mr. Reeves, there is no mention of the 
 action for mesne profits until some time after the reign of 
 Queen Elizabeth. 1 
 
 § M8. Nature of the action. — A right to land essentially 
 implies a right to the profits accruing from it, since with- 
 out the latter the former can be of no value. " For what," 
 says Lord Coke, "is the land but the profit thereof?" 2 
 Manifestly the person entitled to the land is entitled to the 
 rents and profits ; hence the legislature has no power to 
 bestow upon another person, who has no title, a right to 
 recover from the owner these rents and profits. 3 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 the action 
 for mesne profits has undergone. 
 
 Originally, the action for mesne profits was in the na- 
 ture of trespass quare clausum fregit, and the cause of action 
 died with the party. 4 As already shown, one of the strong 
 objections against granting provisional relief in the form 
 of a receiver in this action was that it was prosecuted 
 against the defendan t as a trespasser, and that it would be 
 a preposterous proceeding to appoint a receiver to receive 
 damages to be recovered in an action of trespass. 6 In Ut- 
 terson v. Vernon, 6 however, Ashhnrst, J v said : " The 
 action for mesne profits, though in form it is an action of 
 
 1 Reeves' Hist. Eng. Law (ed. 1880), Vol. IV, p. 241. See Steams on Real 
 Actions, p. 402, § 3. 
 
 2 Co. Litt. 4 b. See Green v. Biddle, 8 Wheat. 1-76. 
 
 3 Rich v. Maples, 33 Cal. 102. 
 
 4 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 ; 
 Brewsler v. Buckholts, 3 Ala. 20. 
 
 5 See§ 614. ' 3 T. R. 539-547- 
 
474 MESNE PROFITS AND DAMAGES. [§ 649. 
 
 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, 1 every equitable defense may be set up, 2 
 this feature of the action being borrowed from the chancery 
 practice on bills to account. 3 Chancellor Kent said : " The 
 action for mesne profits is a liberal and equitable action, 
 and will allow of every kind of equitable defense." 4 
 
 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. 5 
 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, 6 or the damages 
 inflicted by being kept out of possession. The mesne 
 profits are " incident to the title and possession." ' 
 
 § 649. In Gill v. Patten, 8 this language is used : " The 
 court thinks that the action of trespass for the mesne 
 profits, after a recovery in the fictitious action of eject- 
 ment, is strictly analogous to the action of trespass with a 
 contirmendo after an entry, and to that part of the remedy 
 by assize which gave the defendant his damages, and is ac- 
 companied by the same equitable defense." In Oamp v. 
 Homesley, 9 the court said that the action for mesne profits 
 was substantially a continuation of the action of ejectment 
 for the purpose of recovering the actual damages, and 
 therefore whenever a person was allowed to maintain eject- 
 ment he could have trespass to complete his remedy. The 
 
 1 See Johnson v. Futch, 57 Miss. 73; Ege v. Kille, 84 Penn. St. 333 ; Morrison 
 v. Robinson, 31 Penn. St. 456 ; Kille v. Ege, 82 Penn. St. 102 ; White v. Rowland, 
 67 Ga. 546. 
 
 8 Murray v. Gouverneur, 2 Johns. Cas. (N. Y.) 438. See Ege v. Kille, 84 Penn. 
 St. 333 ; Zimmerman v. Eshbach, 15 Penn. St. 417. 
 
 3 Ewalt v. Gray, 6 Watts (Penn.), 427. 
 
 4 Murray v. Gouverneur, 2 Johns. Cas. (N. Y.) 442. See Jackson v. Loomis, 4 
 Cow. (N. Y.) 168. 
 
 5 Trubee v. Miller, 48 Conn. 347. See Dewey v. Osborn, 4 Cow. (N. Y.) 329. 
 
 6 Bockes v. Lansing, 74 N. Y. 437-442. See Murray v. Fitchburg R. R- Co., 
 130 Mass. 101. 
 
 7 Barnard v. Hart, 3 Fed. Rep. 555. 
 
 » 1 Cr. C. C. 465. See Jackson v. Loomis, 4 Cow. (N. Y.) 168 ; Murray v. 
 Gouverneur, 2 Johns. Cas. (N. Y.) 441. 
 
 8 11 Ired. (N. C.) Law, 211. 
 
§ 649.] MESNE PEOFITS AND DAMAGES. 475 
 
 remedy is regarded 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, 1 or as being 
 consequential to a recovery in ejectment. 2 Thus the Su- 
 preme Court of Alabama said : " The damages are an inci- 
 dent to the judgment, as in an action of detinue damages 
 for the detention are an incident to the recovery of the 
 chattel detained." 8 Hunt, J., observed in delivering the 
 opinion of the United States Supreme Court: 4 " 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 nse and profits of the 
 land is suspended until he regains possession either by en- 
 try or under a legal judgment. 5 The Supreme Court of 
 Pennsylvania has said that though the action was in form 
 for trespass, it was in reality for use and occupation, and 
 necessarily involved the statement of an account under the 
 evidence. 6 In Carman v. Beam, 7 however, the rule is laid 
 down in that State that a claim for mesne profits is gov- 
 erned by the same general rules that are applicable to an 
 ordinary action of trespass. In Illinois it is treated as an 
 action of assumpsit, 8 while in New York it is practically 
 converted into an action for use and occupation. 9 It is said 
 in that State that the mesne profits " are those which are 
 received intermediate the original entry and the restoration 
 of possession. They are such whereto the right is created 
 by an action of ejectment brought and actually carried 
 into judgment ; not damages which accrued anterior to or 
 at the instant of the ouster." 10 
 
 1 Bradley v. McDaniel, 3 Tones (N. C.) Law, 128 ; Miller v, Melchor, 13 Ired. 
 (N. C.) Law, 439. 
 
 ! Mitchell v. Mitchell, 1 Md. 55; Benson v. Matsdorf, 2 Johns. (N. Y.) 369; 
 Trubee v. Miller, 48 Conn. 347. 
 
 3 Morris v. Beebe, 54 Ala. 300. 
 
 4 New Orleans v. Gaines, 15 Wall. 624. 
 
 5 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. 
 
 s Blight v. Ewing, 26 Penn. St. 135. 1 88 Penn. St. 319. 
 
 8 Ringhouse v. Keener, 63 111. 230. 
 
 9 See Holmes v. Davis, 19 N. Y. 488 ; Vandevoort v. Gould, 36 N. Y. 639 ; 
 Woodhull v. Rosenthal, 61 N. Y. 382. 
 
 10 Leland v. Tousey, 6 Hill (N. Y.), 333. 
 
476 MESNE PROFITS AND DAMAGES. [§ 650. 
 
 It will be apparent from these cases that the task of 
 fixing the exact status of the modern action for mesne 
 profits is not an easy one. 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 rem- 
 edies. It is established by a preponderance of the author- 
 ities, 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 modern practice is largely regulated by 
 the principles governing actions upon contract as distin- 
 guished from actions of pure tort. 1 
 
 § 650. Joinder of ejectment and claim for mesne profits.— 
 The general rule under the modern practice 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 or mesne profits and damages to which he may 
 show himself to be entitled. 2 The legislative policy upon 
 this subject varies in the several States, but it is generally 
 optional with the plaintiff to join the claims for damages 
 
 1 In Peter v. Hargrave, 5 Gratt. (Va.) 12, it appeared that the plaintiffs, who were 
 slaves, 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 re- 
 strained of their liberty. The court held that the action for mesne profits after a re- 
 covery in ejectment furnished no principle to sustain a demand of this character, 
 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. 
 
 2 Garner u. 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 v. Gray, 12 Neb. 543; Carman v. Beam, 88 Penn. St. 
 319: Boltorff v. Wise, 53 Ind. 32; Patterson v. Ely, 19 Cal. 28; Walker v. Mitchell, 
 18 B. Mon. (Ky.) 541 ; Livingston v. Tanner, 12 Barb. (N. Y.) 481 ; Hotchkiss v. 
 Auburn & K. R. R. Co., 36 Barb. (N. Y.) 600 ; Beard v. Federy, 3 Wall. 478; 
 Hecht v. Colquhoun, 57 Md. 563; Vandevoort v. Gould, 3 Tr. App. (N. V.) 57. 
 See § 643. 
 
§651.] MESNE PKOFITS AND DAMAGES. 477 
 
 and mesne profits in the action of ejectment, or bring an 
 independent action for the mesne profits, after the recov- 
 ery in the principal action 1 In Boyd's Lessee v. Cowan, 3 
 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 db ineonvenienti, 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 an- 
 nual value, of a house or parcel of land, when complete 
 evidence is given of it. It appears to me that the incon- 
 venience 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 expense in 
 recovering a judgment for them, to give him the posses- 
 sion 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 does not entirely dispose of the objections to the 
 joinder of the causes of action, and the trial and submis- 
 sion of both the issues at once. We have already depre- 
 cated the existing practice of incumbering the trials of 
 title to land with questions of possession, 3 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 im- 
 
 ' 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 be united with a claim to recover possession of another piece 
 of land with damages for withholding it. Holmes v. "Williams, 16 Minn. 164. 
 
 2 4 Dallas, 138. 
 
 8 See §§236, 658. 
 
478 MESNE PROFITS AND DAMAGES. [§ 651. 
 
 provements, 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 not in 
 itself an easy task for a jury to cope with, while the 
 defendant's set-oif for improvements often presents diffi- 
 cult questions as to what shall be considered improve- 
 ments, and frequently calls for the exercise of much 
 delicate discrimination in separating the income of the 
 unimproved land from the income of the improvements. 1 
 Then the right to the possession of land is regarded in the 
 eye of the law as more sacred than rights involved in per- 
 sonal actions, and its consideration should not be embar- 
 rassed by collateral issues, and a mass of conflicting 
 estimates and statements. 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 consti- 
 tute by themselves all that the jury are competent to 
 retain in memory and intelligently consider. Indeed, the 
 jurisdiction at law to recover mesne profits is sometimes 
 superseded by equity in complicated cases. 3 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 ques- 
 tions of mesne profits and improvements in a single action 
 is convenient, yet the issues should be separately consid- 
 ered by the jury, for, aside from the embarrassment 
 incident to considering a multitude of issues, a verdict for 
 the defendant renders the testimony as to mesne profits 
 and improvements valueless, and the necessity for the 
 production of the testimony on that branch of the case is 
 
 1 See Chap. XXVI. 
 
 ' See Gaines v. City of New Orleans, 17 Fed. Rep. 16, and cases cited. 
 
§ 652.] MESNE PROFITS AND DAMAGES. 479 
 
 entirely uncertain until the main issue is decided. More- 
 over, if tbe wisdom of the laws granting statutory new 
 trials of the title is questionable, 1 there certainly can be no 
 reason for a re-trial as of right of the issue as to mesne 
 profits and improvements ; and this appears to be an addi- 
 tional consideration in favor of separating the issues. 3 
 
 § 652. Distinction between action for mesne profits and 
 action for use and occupation. — In Thompson v. Bower, 3 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, 4 
 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 fregit, 
 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." To show himself entitled 
 to recover for use and occupation the plaintiff must prove 
 that the relationship of landlord and tenant, or some ex- 
 press or implied agreement, existed between the parties. 5 
 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. 6 It 
 is clearly settled that assumpsit will not lie for use and 
 occupation, unless a contract relationship existed between 
 the parties ; 7 nor can it be maintained after a recovery in 
 ejectment. 8 Trespass for mesne profits is the proper ac- 
 
 1 See §§ 608, 609. 
 
 8 Morris v. Beebe, 54 Ala. 300. See § 658. 
 
 3 60 Barb. (N. Y.) 463-477. 4 See Goddard v. Hall, 55 Me. 579. 
 
 5 Sylvester v. Ralston, 31 Barb. (N. Y.) 286; Wood v. Wilcox, I Den. (N. Y.) 
 28; 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. Co., 1 Hun 
 (N. Y.), 151. 
 
 6 Bard v. Nevin, g 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. 
 
 1 Watson v. Brainard, 33 Vt. 88 ; Goddard v. Hall, 55 Me. 579 ; Poindexter v. 
 Cherry, 4 Yerg. (Tenn.) 305. 
 
 8 Butler v. Cowles, 4 Ohio, 205 ; Larrabee v. Lumbert, 34 Me. 79. 
 
480 MESNE PROFITS AND DAMAGES. [§ 653. 
 
 tion. 1 So account rendered will not lie for mesne profits. 8 
 As already shown, where the relationship of tenants in 
 common exists, and one tenant has evicted his companion, 
 the disseizee cannot maintain assumpsit against the dis- 
 seizor 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 ac- 
 tion of assumpsit. 3 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 
 taken, and damages sustained by the true owner, in this 
 form of action, and cannot be held accountable in forms of 
 procedure based upon contract, express or implied. 
 
 § 653. Distinction between claim for damages and for 
 mesne profits. — The distinction between the claim for 
 damages for withholding real estate, and the claim for 
 rents and profits of it, during the time the possession is 
 wrongfully withheld, was taken in New York. 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 admission of 
 evidence as to the value of the use and occupation of the 
 land, and an instruction to the jury that, in estimating the 
 damages, they might consider the evidence as to rental 
 value, was erroneous. 4 The court said that the complaint, 
 in the case cited, failed to set forth how long the defend- 
 ant had been in possession ; it did not allege that he had 
 
 1 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; Lanabee v. Lumbert, 36 Me. 440. See Espy v. 
 Fenton, 5 Ore. 423; Lankford v. Green, 52 Ala. 103; Edmonson v. Kite, 43 Mo. 
 176; Byrd v. Chase, 10 Ark. 602 ; Watson v. Brainard, 33 Vt. 88 ; Howe v. Rus- 
 sell, 41 Me. 446. 
 
 2 Harker v. Whitaker, 5 Watts (Penn.), 474. 
 
 3 Richardson v. Richardson, 72 Me. 403 ; Van Alstine v t McCarty, 51 Barb. 
 (N. Y. ) 326. See Bockes v. Lansing, 74 N. Y. 437; Sampson v. Shaeffer, 3 Cal. 
 196. See, also, § 17b. 
 
 4 Larned v. Hudson, 57 N. Y. 151 ; Livingston v. Tanner, 12 Barb. (N. Y.) 481. 
 See Archbold's Landlord and Tenant, p. 231. 
 
§654.] MESNE PKOPITS AND DAMAGES. 481 
 
 beeu in occupation of the premises at all before the day on 
 which the action was commenced, and it contained no 
 statement or allegation 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 withhold- 
 ing 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 independ- 
 ent 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 action. The disseizee may pro- 
 ceed for both by inserting allegations in his pleading of 
 the value of the use and occupation in addition to the- 
 claim for damages, so as to indicate to the defendant the- 
 nature and extent of the entire recovery sought. 2 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." 8 
 
 § 654. Pleading in real actions.— Under the statute in 
 Massachusetts, the demandant, in a writ of entry, is en- 
 titled to recover the rents and profits, although not spe- 
 cifically demanded in the writ. 4 In Maine, on the other 
 hand, the demandant cannot obtain a j udgment for dam- 
 
 1 See Candee v. Burke, io Hun (N. Y.), 350; Cagger v. Lansing, 64 N. Y. 417, 
 431 ; Holmes v. Davis, 19 N. Y. 488. 
 
 2 See Cagger v. Lansing, 64 N. Y. 419-431. 
 
 8 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 
 rendeied, 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." The Code has since been amended so as to obviate any 
 question as to the right of the plaintiff to recover rents and profits and damages in 
 the same action. See §§ 1496, 1497 N. Y. Code Civ. Pro. 
 
 4 Provident Institution v. Burnham, 128 Mass. 458 ; Gen. Stat, of Mass. Ch. 134, 
 §§ J 3, 14; Raymond v. Andrews, 6 Cush. (Mass.) 265. 
 
 31 
 
482 MESNE PBOETTS AND DAMAGES. [§ 655. 
 
 ages against the tenant, unless he has made claim therefor 
 in his writ. 1 The policy of the latter State certainly em- 
 bodies the better rule of procedure. 
 
 § G55. In ejectment. — Mr. Adams says 2 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 judgment 
 for the damages which he has thereby sustained." This 
 formula is, under the present practice, still generally ap- 
 plicable, though somewhat meagre in its recitals. Under 
 the modern procedure the premises should be described, 
 the time stated when the defendant entered thereon and 
 ejected the plaintiff, 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 damages which he has sustained. 3 The 
 jury, as a rule, cannot take into consideration the mesne 
 profits, unless claimed in the declaration, and notice is 
 given of the plaintiff's intention to proceed for them. 1 A 
 statement in a pleading that a plaintiff was entitled to the 
 possession of the land, and to the rents and profits, is de- 
 fective, being merely an allegation of a conclusion of law. 
 The complaint should state facts from which the conclu- 
 sion could be drawn. 5 In New York the claim for mesne 
 profits should be stated in a separate count ; 6 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 
 
 1 Pierce v. Strickland, 25 Me. 440 ; Larrabee v. Lumbert, 36 Me. 440. 
 
 2 Adams on Ejectment (4th Am. ed.), p, 446. 
 
 3 See Adams on Ejectment (4th Am. ed.), p. 450 [384] ; Higgins v. Highfield, 
 13 East, 407. 
 
 4 Bayard v. Inglis, 5 W. & S. (Penn.) 465 ; Livingston v. Tanner, 14 N. Y. 64 ; 
 Dawson v. McGill, 4 Whart. (Penn.) 230. See Carman v. Beam, 88 Penn. St. 319; 
 Larned v. Hudson, 57 N. Y. 151 ; Kinghouse v. Keener, 63 111. 230. 
 
 5 Sheridan v. Jackson, 72 N. Y. 173. See Scofield -v. Whitelegge, 49 N. Y. 259; 
 Armstrong v. Hinds, 8 Minn. 254. 
 
 6 Seaton v. Davis, 1 T. & C. (N. Y.) 91. 
 
 ' Candee v. Burke, 10 Hun (N. Y.), 350. 
 
§ 656.] MESNE PROFITS AND DAMAGES. 483 
 
 only, evidence of the value of the use and occupation can- 
 not be received, 1 as the claims for damages and for rents 
 and profits are regarded as separate causes of action which 
 must be pleaded. A judgment for damages is clearly 
 erroneous where no damages are alleged in the complaint. 2 
 The damages must, of course, be assessed by the jury, and 
 when a verdict is rendered omitting any assessment of 
 damages, the court has no power to render a judgment 
 for possession and damages. 3 The jury may be waived. 4 
 In an English case decided in 1783, 5 evidence of conse- 
 quential damages, such as shutting up an inn and de- 
 stroying the custom, was excluded because not specially 
 pleaded. 
 
 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 
 action, be pleaded, to entitle the disseizee to introduce 
 evidence in support of them, and to uphold a recovery. 
 
 § 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, iu the name of the nominal plaintiff; 6 and in 
 either case it was regarded as the lessor's action. 7 A dis- 
 seizee, who has recovered possession of lauds 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 dis- 
 seizee's claim of title, and, acting in good faith, had paid 
 the rent to the disseizor. 8 The only advantage which an 
 
 1 Lamed v. Hudson, 57 N. Y. 151; Livingston v. Tanner, 12 Barb. (N. Y.) 
 481. 
 
 2 McKinlay v. Tuttle, 42. Cal. 570. 
 
 3 Cannon v. Davies, 33 Ark. 56. 
 
 4 Candee v. Burke, 10 Hun (N. Y.), 350. 
 s Dunn v. Large, 3 Doug. 335 
 
 6 Goodtille v. Tombs, 3 Wils. 118-121 ; Shadwick v. McDonald, 15 Ga. 392; 
 Adams on Ejectment (41 h 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, 1 Johns. Cas. 
 (N. Y.) 281, in notis ; Den v. Lunsford, Busb. (N. C.) Law, 401. 
 
 7 Aslin v Parkin, 2 Burr. 665, 668. See Baron v. Abeel, 3 Johns. N. Y. 482 ; 
 Chamier v. Clingo, 5 M. &. S. 64. 
 
 8 Trubee v. Miller, 48 Conn. 347 ; s. c. 26 Alb. L. J. 39 ; Storch v. Carr, 28 Penn. St. 
 135. See Doe v. Whitcomb, 8 Bing 46 ; Johnson v. Futch, 57 Miss. 73; Green v. 
 
484 MESNE PROFITS AND DAMAGES. [§ 657. 
 
 occupant in good faith secures over a possessor in bad faith, 
 as will presently appear, is that the former may recover 
 for, or set oif against mesne profits, the value of improve- 
 ments left upon the land. Eent 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 assign- 
 able ; and a plaintiff may recover for mesne profits taken 
 by defendant prior to the plaintiff's acquiring title, pro- 
 vided the right of action therefor was transferred to the 
 claimant by his grantor. 1 A plaintiff is entitled to mesne 
 profits which accrued during his minority ; 3 so a cestui que 
 trust who has recovered lands may have judgment for the 
 rents ; s and a municipal corporation may maintain an ac- 
 tion for mesne profits for the use of a street. 4 An heir or 
 devisee cannot recover mesne profits that accrued during 
 the life of the ancestor. 5 
 
 § 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. 6 In Stancill v. Calvert, in the Supreme Court 
 of North Carolina, 7 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 
 
 Biddle, 8 Wheat, i ; Bradley v. McDaniel, 3 Tones (N. C.) Law, 128 ; Morgan v. 
 Varick, 8 Wend. (N. Y.) 587. 
 
 1 Lord v. Dearing, 24 Minn. no. 
 
 2 McCrubb v. Bray, 36 Wis. 333. 
 
 3 Pugh v. Bell, 1 J. J. Marsh. (Ky.) 399. 
 
 4 City of Apalachicola v. Apalachicola Land Co. 9 Fla. 340. 
 
 5 Hotchkiss v. Auburn & R. R. R. Co., 36 Barb. (N. Y.) 600. See § 661. 
 
 8 Stancill v. Calvert, 63 N. C. 616 ; Murphy v. Guion, 2 Murphy (N. C), 23 8 i 
 Poston v. Henry, n Ired. (N. C.) Law, 301 ; Carson v. Smith, I Jones(N. C.)Law, 
 106; Miller v. 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 ; Atkison v. Henry, 80 Mo. 674. 
 
 7 63 N. C. 616. 
 
§ 658.] MESNE PROFITS AND DAMAGES. 485 
 
 suit, to have actual instead of nominal damages, as in or- 
 dinary cases, 1 and a nonsuit was granted in the action for 
 mesne profits. So in Bockes v. Lansing, 2 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 appears 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 pos- 
 session by the defendant, 3 for, as we have seen, it is com- 
 mon learning that a plaintiff may take peaceable possession 
 without a writ. 4 These cases illustrate the principle here- 
 tofore stated, that trespass for mesne profits is grounded 
 upon the fiction of law, that the disseizee having been re- 
 stored to the possession, is presumed to have occupied 
 during the period of the disseizin. 5 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 ; 6 and the same rule apper- 
 tains in Vermont and New York 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 dis- 
 seizor or party who has wrongfully withheld the posses- 
 sion, and appropriated the profits of the land. And one 
 who comes into possession during the pendency of the 
 action of ejectment is bound by the proceedings, and is 
 liable for mesne profits during the period of his occupancy. 8 
 
 1 See Brown v. Galloway, Pet. C. C. 291; Carman v. Beam, 88 Penn. St. 319 ; 
 Dodge v. Page, 49 Vt. T37 ; Woodhull v. Rosenthal, 61 N. Y. 385 ; Van Rensselaer 
 v. Owen, 48 Barb. (N. Y.) 61 ; Wilkes v. Lion, 2 Cow. (N. Y.) 334 ; Jackson v. 
 Davenport, 18 Johns. (N. Y.) 295. 
 
 2 74 N. Y. 437-442. 
 
 3 Calvart v. Horsfall, 4 Esp. 167. See Stearns on Real Actions, p. 410. 
 
 4 See § 549. 
 
 5 See Truliee v. Miller, 48 Conn. 347. See, also, § 648. 
 
 6 Carman v. Beam, 88 Penn. St. 319. 
 
 ' Dodge v. Page, 49 Vt. 137. See Woodhull v. Rosenthal, 61 N. Y. 385 ; Van 
 Rensselaer v. Owen, 48 Barb. (N. Y.) 61 ; Wilkes v. Lion, 2 Cow. (N. Y.) 334; 
 Jackson v. Davenport, 18 Johns. (N. Y.) 295. 
 
 8 Bradley v. McDaniel, 3 Jones (N. C.) Law, 128. See §§ 495, 645. 
 
486 MESNE PROFITS AND DAMAGES. [§ 658. 
 
 So where a defendant, who took possession after suit 
 brought, was added in ejectment, 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. 1 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. 2 
 
 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 ; s 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 defend- 
 ants even though they had never been in possession 
 except by their guardian. 4 It is clear that the action may 
 be brought against a corporation. 5 
 
 In Eastwick v. Saylor, 6 it appeared that a party volun- 
 tarily, and with plaintiff's consent, was joined as defend- 
 ant in ejectment for the purpose of testing his own title, 
 and trying the right of possession of the land. The court 
 decided that the fact that he was thus united with the 
 defendants, 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 tres- 
 passes 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 
 
 1 Willingham v. Long, 47 Ga. 540. 
 
 2 Merritt v. O'Neil, 13 Johns. (N. Y.) 477; Jackson v. Hills, 8 Cow. (N. Y.) 294; 
 Jeffries v. Zane, 1 Miles (Penn.), 287. See Chirac v. Reinicker, 11 Wheat 296. 
 
 3 Cavender v. Smith, 8 Iowa, 360. 
 
 4 Molton v, Mumford, 3 Hawks (N. C), 483. 
 
 6 McCready v. Guardians, &c, 9 S. & R. (Penn.) 94. See § 250. 
 '85 Penn. St. 15. 
 
 7 54 Ala. 300. 
 
§§ 659, 660.] MESNE PROFITS AND DAMAGES. 487 
 
 defendant was not changed, and, at least in that State, it 
 was never intended to authorize the introduction 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, 1 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 defend- 
 ant 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, 2 
 it was claimed on appeal that a j udgment for the entire 
 mesne profits had been rendered against two of the de- 
 fendants, 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. 3 
 
 Proof of actual occupation is unnecessary ; it is sufficient 
 if the defendant was interested in and derived profits from 
 the premises during the period for which damages are 
 claimed. 4 
 
 § 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. 5 
 The successful co-tenant must, however, take possession 
 of the property within a reasonable time after the recovery 
 
 'See §§236, 651. 
 
 2 82 N. Y. 41. 
 
 8 See s. p. Hudgins v. Kemp, 20 How. 53. 
 
 4 Gaines v. City of New Orleans, 17 Fed. Rep. 29; Adams on Eject, p. *383. 
 
 'Goodtitle v. Tombs, 3 Wils. 121; Hare v. Fury, 3 Yeates (Penn.), 13; Bennet 
 ». Bullock, 35 Penn. St. 367; Lane v. Harrold, 72 Penn. St. 267; Carpeniier v, 
 Mitchell, 29 Cal. 333; Camp v. Homesley, 11 Ired. (N. C.) Law, 212: Crilchfield 
 ». Humbert, 39 Penn. St. 427; Langendyck v. Burhans, 11 Johns. (N. Y.) 461 ; 
 Early v. Friend, 16 Gratt. (Va.) 21. See Bryan v. Averett, 21 Ga. 401 ; Jones v. 
 
 " y, 14 S. C. 307. 
 
488 MESNE PROFITS AND DAMAGES. [§ 660. 
 
 in ejectment. In Hare v. Fury, 1 a month was considered 
 a reasonable time, and the co-teuant was allowed to 
 recover mesne profits from the date of the demise to one 
 mouth after judgment. And the tenant cannot recover 
 damages or mesne profits for the period during which the 
 possession or occupancy was not adverse, 2 and when the 
 proof of ouster is insufficient 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. 3 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. 4 The principles regulating the 
 recovery and allowance for improvements between tenants 
 in common, will be presently considered, 5 but it may be 
 here observed that the co-tenant in possession is not 
 chargeable with rent paid by a tenant in permanent im- 
 provements on the land, such as clearing, fencing, &c. B 
 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 products 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. 7 There are cases, 
 however, holding that a tenant in common who receives 
 more than his share of rent may be compelled to account. 8 
 The case of Roseboom v. Roseboom 9 points out the distinc- 
 
 1 3 Yeates (Penn.), 13. 
 
 2 Carpentier v. Mendenhall, 28 Cal. 484. 
 'Carpentier v. Mendenhall, 28 Cal. 484. See Chap. IX. 
 
 4 Miller v. Myers, 46 Cal. 535. 5 See § 711. 
 
 6 Walker v. Humbert, 55 Penn. St. 407. See Reed v. Jones, 8 Wis. 421, 464. 
 
 1 Kean v. Connelly, 25 Minn. 222; Ragan v. McCoy, 29 Mo. 356; Dressers. 
 Dresser, 40 Barb. (N. Y.) 300; Pico v. Columbet. 12 Cal. 414; Wilcox v. Wilcox, 
 48 Barb. (N. Y.) 327; Henderson v. Eason, 17 Q. B. 701 ; Israel v. Israel, 30 Md. 
 120 ; Edsall v. Merrill, 37 N. J. Eq. 115; Jones v. Massey, 14 S. C. 308 ; Woolever 
 v. Knapp, 18 Barb. (N. Y.) 265 ; Newbold v. Smart, 67 Ala. 326; Terrell v. Cun- 
 ningham, 70 Ala. 100. See contra Early v. Friend, 16 Gratt. (Va.) 47 ; Shiels v. 
 Stark, 14 Ga. 435; Hayden v. Merrill, 44 Vt. 348. 
 
 8 McCabe v. McCabe, 18 Hun (N. Y.), 154; Scott v. Guernsey, 48 N. Y. 108. 
 
 9 15 Hun (N. Y.), 309. 
 
§ 661.] MESNE PROFITS AND DAMAGES. 489 
 
 tion between the co-tenant who has received and one who 
 has only taken rents and profits ; that is, between one who 
 has collected rents from others and one who has himself 
 been an actual occupant. 1 This is a necessary distinction, 
 and accomplishes substantial justice. Were the rule 
 otherwise, a co-tenant could not occupy the common 
 property in the absence of his companion without render- 
 ing himself liable to the latter for rent, though he was 
 perfectly willing that his companion should enjoy the 
 property in common with him. 
 
 § 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. 3 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; s 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. 4 
 Under the early procedure, as we have seen, the claim 
 for mesne profits, being founded upon a tort, and enforced 
 
 'See McCabe v. McCabe, 18 Hun (N. Y.), 155; Joslyn v. Joslyn, 9 Hun (N. 
 Y.), 389 ; Ragan v. McCoy, 29 Mo. 367 ; Pico v. Columbet, 12 Cal. 419 ; Henderson 
 v. Eason, 17 Q. B. 718 ; Howard v. Throckmorton, 59 Cal. 79. See § 6210. 
 
 s Brown v. McCloud, 3 Head (Tenn.), 280. 
 
 * Hotchkiss v. Auburn & R. R. R. Co., 36 Barb. (NT. Y.) 600. See Stall v. Wil- 
 bur, 77 N. Y. 158; N. Y. Code Civ. Pro. § 1523. In Lent v. Howard, 89 N. Y. 
 I77> Andrews, Ch. J., said, ' ' The remedy of an executor to recover the intermediate 
 rents and profits of land descended to the heir subject to an immediate and impera- 
 tive power of sale and a gift of the proceeds to other persons, would seem to be in 
 equity only." Rents accruing prior to lessor's death belong to the personal represen- 
 tatives, those accruing after death to the heir or devisee. Bloodworth v. Stevens, 
 51 Miss. 475 ; Sparhawk v. Allen, 25 N. H. 261 : Stinson v. Stinson, 38 Me. 593 ; 
 Crane v. Guthrie, 47 Iowa, 542. 
 
 4 King v. Little, 77 N. C. 138. See Blight v. Ewing, 26 Penn. St. 135 ; Cobb v. 
 Biddle, 14 Penn. St. 444. 
 
490 MESNE PROFITS AND DAMAGES. [§§ 662-664. 
 
 by an action of trespass, died with the person. 1 This 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. 2 
 
 § C62. Recovery of nominal damages not a oar.— The re- 
 covery 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 estab- 
 lish title, and are uot given in satisfaction of the actual 
 damages and mesne profits which constitute an indepen- 
 dent cause of action. 3 
 
 § 663. For what periods mesne 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, 4 but can be charged only for the rents and profits 
 accruing during the time he was actually in possession of 
 the disputed lands, in the character of a disseizor. 5 And a 
 plaintiff in ejectment recovers mesne profits only from the 
 time his right to the possession accrued. Hence, an 
 execution purchaser can have judgment for mesne profits 
 from the date of the sheriff's deed. 6 In other words, 
 damages and mesne profits can only be computed from the 
 time when the title was cast on the plaintiff 1 
 
 § 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 
 
 1 See § 648. 
 
 2 See Hotchkiss v. Auburn & R. R. R. Co., 36 Barb. (N. Y.)6oo; Rhodes v. 
 Crutchfield, 7 Lea (Term.), 518. 
 
 3 See Van Alen v. Rogers, 1 Johns. Cas. (N. Y.) 281; Davis v. Delpit, 25 Miss. 
 445 ; Burr v. Woodrow, I Bush (Ky.), 602. 
 
 4 Gardner v. Granniss, 57 Ga. 539. 
 
 5 Jacks v. Dyer, 31 Ark. 334. 
 
 • Clark v. Byreau, 14 Cal. 634. 1 Brewster v. Buckholts, 3 Ala. 20. 
 
§665.] MESNE PROFITS AND DAMAGES. 491 
 
 case, and the interest in the other, are but the incidents of 
 the cause of action. 1 
 
 § 665. Measure of damages. — In Morrison v. Eobinson, 2 
 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 
 estimation of damages." The general rule is that the plaint- 
 iff recovers the annual value of the land from the time of 
 the accruing of his title. 3 The right to interest will be con- 
 sidered presently. The authorities show that the rule as to 
 damages, in an action of ejectment, was very uncertain at 
 common law. 4 Mr. Adams says : 5 " 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 therents 
 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, 6 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 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 Wil- 
 
 1 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.)23o; 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. 
 
 8 31 Penn. St. 456. 
 
 3 Sedgwick on Damages (7th ed.), vol. I, p. 251 [124]. See New Orleans v. 
 Gaines, 15 Wall. 624, 632 ; Vandevoort v. Gould, 36 N. Y. 639-647. 
 
 4 See Woodhull v. Rosenthal, 61 N. Y. 382-394. 
 
 8 Adams on Ejectment (4th Am. ed.), p. 459 [*39.i]- 
 ' 3 Wils. 118-121. 
 
492 MESNE PROFITS AND DAMAGES. [§ 665. 
 
 mot 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, 1 it was held that bank- 
 ruptcy was not a plea in bar to an action of trespass for 
 mesne profits, as the damages were unascertained. Bailer, 
 J., said: "The damages 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 uncertain, they cannot be 
 proved under a commission of bankruptcy." Ashhurst, 
 J., added : " The plaintiff goes for a compensation in dam- 
 ages, the amount of which is uncertain, and cannot be 
 sworn to before the commissioners, but must be ascer- 
 tained by a jury upon all the circumstances." In Dewey 
 v. Osborn, 2 the court said: "The damages in that action 
 [mesne profits] are not limited to the rent. Extra dam- 
 ages maybe 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." 3 In Hanna v. Phillips, 4 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 
 damages 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 Larwell v. Stevens 5 
 it is held that " these damages consist of the value of the 
 property by way of rents during the time the possession 
 has been withheld." In Bullock v. Wilson, 6 the court 
 charged that the damages were the profits which the de- 
 fendant had derived from the land. This was held to be 
 error, as the plaintiff was entitled to recover the damages 
 which he had sustained by reason of being kept out of the 
 possession, and these were never increased or diminished 
 by the profits acquired by the defendant from his occu- 
 
 1 2 Doug. 584. 1 4 Cow. (N. Y.) 329, 338. 
 
 3 Brown v. Galloway, Pet. C. C. 291. 4 I Grant (Penn.), 253. 
 
 s 12 Fed. Rep. 559; s. c. 2 McCra. 311. 6 3 Port. (Ala.) 382. 
 
§ 665.] MESNE PROFITS AND DAMAGES. 493 
 
 pancy. 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. 1 The 
 owner should be entitled to recover in the action for mesne 
 profits " whatever, by the act of the wrong-doer, he has 
 been compelled to pay in order to obtain a restoration of 
 his property." 2 Mr. Sedgwick says: 3 "It is plain that 
 the measure of compensation, which we are now consider- 
 ing, has been involved in confusion by the technical char- 
 acter of our forms of action. 'The dicta on the subject,' 
 says Gibson, 0. 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 aggra- 
 vation ; 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 received, in entire good faith. In this case the 
 allegations of force, etc., are purely fictitious ; and it cer- 
 tainly 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, with- 
 out 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 contention is such as to practically 
 render specific evidence of the actual loss possible. In 
 this respect, the remedy for mesne profits differs essen- 
 tially from actions of assault, libel or slander, or actions 
 of pure tort. Hence, in Alexander v. Herr, 5 cited by Mr. 
 
 1 Huston *. Wiclcersham, 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. 
 
 5 Doe v. Perkins, 8 B. Mon. (Ky.) 200. 
 3 Sedgwick on Damages (7th ed.), vol. I, p. 260. 
 '* Alexander v. Herr, n Penn. St. 537. " 11 Penn. St. 537. 
 
494 MESNE PROFITS AND DAMAGES. [§ 665. 
 
 Sedgwick, where the jury were allowed to assess such 
 other damages as they might think the plaintiff entitled 
 to recover, the verdict was set aside. The court said: 
 " There are dicta that a jury may give whatever they may 
 think reasonable ; surely no court would subject a party 
 to a blind and an unbridled discretion." * In Kille v. Ege, s 
 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. 3 In Morrison v. Eobinson, 4 the rule is laid 
 down that "compensation is the purpose of the action." In 
 Campbell v. Brown, 5 the damages were said to be not the 
 actual yield or income of the property, but the fair annual 
 value if prudently and judiciously managed. In Cutter v. 
 Waddingham, 6 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, 8 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 husbandry." 9 The 
 Massachusetts statute is designed to adjust the rights of 
 both parties as to damages and mesne profits "upon equi- 
 table principles." The measure is " the clear annual value 
 of the premises " and any damage for waste, and permits 
 the tenant to offset taxes, expenses of collecting the rents 
 and the value of improvements. 10 This rule excludes the 
 idea that the demandant " can recover consequential dam- 
 
 1 Alexander v. Herr, II Pa. St. 539. 
 
 5 82 Penn. St. 107, 112. 
 
 3 See Huston v. Wickersham, 2 W. & S. (Penn.) 308. 
 
 4 31 Penn. St. 456. 
 
 6 2 Woods, 349. 
 
 • 33 Mo. 269-286. 
 
 7 20 Ga. 523-527. See Phillips on Evidence, vol. IV, p. 315. 
 
 8 26 Gratt. (Va.) 36-58. See Harknessw. Mclntire, 76 Me. 202; Hawkins v. 
 Brown, 80 Ky. 186. 
 
 9 See Woodbury v. Swan, 59 N. H. 516. 
 
 10 Raymond v. Andrews, 6 Cush. (Mass.) 265. 
 
§ 666.] MESNE PROFITS AND DAMAGES. 495 
 
 ages for alleged injury to his other land adjoining the 
 premises." 1 
 
 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. 2 
 The action, as we have said, is now largely treated as if it 
 were one of contract or for use and occupation. The 
 nature of the injury to be redressed, the alterations in the 
 remedy, and the fact that the disseizor, in the majority of 
 cases, withholds the lands under a belief of title in him- 
 self, renders it inadvisable in most cases to attempt to 
 punish the possessor by awarding exemplary damages in 
 the action. 3 
 
 § 666. Rule in New York. — In Holmes v. Davis, 4 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 Ee- 
 vised Statutes of that State, the compensation is to be ad- 
 justed as upon contract, and not upon the footing of a tort. 
 In Low v. Purdy, 5 it was said that the compensation was to 
 be adjusted as upon a contract for rent. In the later case 
 of Vandevoort v. Gould, 6 the rule is recognized that the 
 measure of damages is that which would obtain in assump- 
 sit for use and occupation, and the court say further: 
 " The defendant'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 wrong- 
 ful 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 litiga- 
 
 1 McMahan v. Bowe, 114 Mass. 148. 
 
 5 See § 674. 3 See § 6683. 
 
 4 19 N. Y. 488. • 2 Lans. (N. Y.) 422. 
 
 6 36 N Y. 639-647. 
 
496 MESNE PROFITS AND DAMAGES. [§§ 667, 668. 
 
 tion 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 plain- 
 tiff was entitled to recover. Such damages are generally 
 designated mesne profits. That is to say, what the prem- 
 ises 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 Mag wire v. 
 Labeaume, in the St. Louis Court of Appeals, 2 it appeared 
 that a real estate expert, examined as a witness for the 
 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 testimony go to the jury for what it was worth." 
 
 Evidence of the value of the narrow strip of land in dis- 
 pute was excluded in Hunt v. Pond. 3 
 
 § 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 
 declaration, 4 and damages for actual injuries to the prem- 
 ises ; 5 so may damages for trespasses committed upon the 
 
 1 See Woodhull v. Rosenthal, 6i N. Y. 382 ; New Orleans v. Gaines, 15 Wall. 
 624. 
 
 2 7 Mo. App. 179-185. 3 67 Ga. 581. 
 'Emrich v. Ireland, 55 Miss. 390; Morrison v. Robinson, 31 Penn. St. 45^r 
 
 Field z-. Columbet, 4 Sawyer, 523 ; Akop v. Peck, 2 Root (Conn.), 224; Lee v. 
 Bowman, 55 Mo. 400. Where the defendant is a wilful trespasser, he is liable for 
 the full value of timber cut without deducting expenses, but where the trespass is 
 merely a mistake he may deduct the added value. Wooden Ware Co. i). United 
 States, 106 U. S. 432. 
 
 6 Huston v. Wickersham, 2 W. & S. (Penn.) 308 ; Cooch v. Geery, 3 Harr. (Del.) 
 423; Johnson v. Futch, 37 Miss. 73. 
 
§668.] MESNE PROFITS AND DAMAGES. 497 
 
 land, such as cutting or destroying timber, pulling down 
 fences, and destroying the growing crops. 1 Hence a recov- 
 ery for mesne profits is a bar to trespass quare clausum 
 fregit. 2 In Lippett v. Kelley, 8 in the Supreme Court of 
 Vermont, it was held that the plaintiff, in addition to 
 mesne profits, might recover damages resulting from build- 
 ing and grading a road across the premises, and depositing 
 stones and dirt thereon, whereby the land was injured and 
 depreciated in value, provided the claims for such damages 
 were properly alleged in the declaration. 4 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 not be joined with the 
 claim therefor in the action of ejectment. 5 And in Pac- 
 quette v. Pickness, 6 the court held that where mesne profits 
 were demanded in an ejectment, nothing more could be 
 recovered than the value of the use and occupation of the 
 premises, and that for injuries to the freehold 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 embodying a salu- 
 tary rule of procedure. It may be here observed that, in 
 equity, interest should be allowed on damages caused by 
 depreciation from waste, from the time when the plaintiff 
 was let into possession to the date of the assessment or 
 report. 7 The diminished value of the land is not the 
 exclusive measure of relief for an injury in the nature of 
 waste committed by a wrong-doer on the land of another, 
 
 Tillman v. Baumbach, 21 Tex. 203; Bonner v. Wiggins, 52 Tex. 125. See 
 Barton Coal Co. v. Cox, 39 Md. 1. 
 
 'Cunningham v. Moras, 19 Ga. 583. See Morgan v. Varick, 8 Wend. (N. Y.) 
 587 ; Kuhns v. Bowman, 91 Penn. St. 504. 
 
 3 46 Vt. 516-523. See Whitledge v. Wait, Sneed (Ky ), 335. 
 
 4 See Strongs/. Garfield, 10 Vt. 502; Walker v. Hitchcock, 19 Vt. 634. 
 
 5 Bottorff v. Wise, 53 Ind. 32; Woodruff v. Garner, 27 Ind. 4-8. 
 
 " 19 Wis. 219. 
 
 1 Worrall v. Munn, 38 N. Y. 137. Treble damages are allowed in New York for 
 waste. See Rutherford v. Aiken, 3 T. & C. (N. Y.) 60. Under the practice in Vir- 
 ginia, 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, also, § 670. 
 
 32 
 
498 MESNE PROFITS AND DAMAGES. [§ 668a. 
 
 but the value of the materials taken therefrom may be 
 recovered. 1 
 
 § 668a. Exemplary damages. — Mr. Sedgwick, 3 after ob- 
 serving that the action of trespass, being one of tort, 
 admits of any evidence in aggravation, and the damages 
 are under the control of the jury, says : " There is nothing 
 necessarily in the action of the nature of a trespass. The 
 property may have been withheld, and the rents received, 
 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. It may 
 then be said, as long as the technical form of action is 
 maintained, that where circumstances of malicious aggra- 
 vation are proved, such, for instance, as a willful holding 
 for the purpose of oppression, the jury may give vindictive 
 or exemplary damages ; but that where no such facts are 
 shown, they are limited to the actual annual value of the 
 property, with interest thereon, and the costs of the eject- 
 ment." 3 No authorities are cited, and the modern cases 
 seem to be singularly silent concerning exemplary damages 
 in these actions in our modern procedure. The difficulties 
 attendant upon recovering such damages will be at once 
 apparent. The recovery is based in some cases upon con- 
 tract and not upon the footing of a tort. 4 An eifort has 
 been made in many States to regulate the damages by 
 definite rules, and not to leave the computation solely to 
 the jury, as in cases of slander or assault. In some of the 
 modern cases the elements of damage are specified, and no 
 reference is made to exemplary damages. Can these be 
 recovered at the present time in cases of a willful withhold- 
 ing of the property for purposes of ojjpression ? The 
 recovery is often treated as one in contract as distinguished 
 from tort, while rules specifying with precision the dam- 
 ages to be allowed have been carefully formulated. This 
 might seem to imply that a recovery of " smart money' 
 
 'Worrall v. Munn, 53 N. Y. 185. 
 2 See Sedgwick on Damages, 7th ed. vol. 1, p. 260. 
 8 Compare Hamilton v. Third Ave. R. R. Co., 53 N. V. 28. 
 4 See Holmes v. Davis, 19 N. Y. 488; Woodhull v. Rosenthal, 61 N. Y. 394- 
 See, also, §§ 665, 666. 
 
§ 669.] MESNE PROFITS AND DAMAGES. 499 
 
 could no longer be obtained. Yet in Haggin v. Clark 1 the 
 court say that there are cases of evident malice in which 
 extra damages, more than the rental value, will not be 
 disturbed. In McGary v. City of Lafayette 2 the court, in 
 the assessment of damages, lay great weight upon the 
 vexatious and incidental wrongs which have been estab- 
 lished, and say "that the jury had a right to take into 
 consideration the violent and illegal proceedings of the 
 officers of the corporation." Exemplary damages are 
 allowable in an action of trespass on land 3 where it is 
 •willful. As a disseizin may be characterized as an enlarged 
 trespass, destroying absolutely instead of disturbing the 
 owners' possession, the conclusion would seem to result 
 that a malicious occupancy and withholding of land from 
 the true owner justified an award of exemplary damages 
 against the offender. That the question is at the present 
 time not free from doubt will be admitted. Advocates of 
 vindictive or punitory damages will accord a ready assent 
 to the retention of this element of recovery in land litiga- 
 tions as a means of protection to the public peace and an 
 admonition to others. The wrongful occupant, if exempted 
 from these damages, will eagerly avail himself of the bene- 
 fits of the rule, retain the possession, and protract the con- 
 troversy, knowing that ultimately he will be treated 
 merely as a hostile tenant, liable only for the fair annual 
 value of the property withheld and the costs. 
 
 § 669. Damages after judgment. — A lessor in an action 
 of ejectment may bring trespass quare clausum f regit 
 against the defendant, or his servants, for an injury done 
 to the freehold intermediate the verdict and habere facias 
 possessionem executed. 4 
 
 '5iCal. 115. 
 
 a 4 La. Ann. 440. See Gaines v. City of New Orleans, 17 Fed. Rep. 35. 
 
 8 Merest v. Harvey, 5 Taunt. 442; Williams v. Currie, 1 C. B. 841; Ames v. 
 Hilton, 70 Me. 36; Wild v. Holt, 9 M. & W. 672; Huftalin v. Misner, 70 111. 55; 
 Martin v. Porter. 5 M. & W. 352; Perkins v. Towle, 43 N. H. 220; Hamilton v. 
 Third Ave. R. R. Co., 53 N. Y. 25; Parker v. Shackelford, 61 Mo. 68; Ellsworth v. 
 Potter,4i Vt. 685; Bonsall v. McKay, I Houst. (Del.) 520; Best v. Allen, 30 111. 30; 
 Hedgepeth v. Robertson, 18 Tex. 858; Champion v. Vincent, 20 Tex. 811 ; Reeder 
 v. Purdy, 41 111. 279. 
 
 4 Dewey v. Osborn, 4 Cow. (N. Y.) 329. See Cummings o. M'Gehee, 9 Port. 
 (Ala.) 349. 
 
500 MESNE PROFITS AND DAMAGES. [§ 670. 
 
 § 670. Interest on mesne profits. — 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, 1 Eapallo, 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 
 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," 2 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 
 demands has ceased to have any practical bearing on the 
 question. 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 
 discretion of the jury whether to allow interest by way of 
 damages or not, 3 and it is not given by the court as matter 
 of law, but is allowed or withheld by the jury in their dis- 
 cretion. 4 In Eensselaer Glass Factory v. Eeid, 5 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 
 
 1 46 N. Y. 361. 
 
 2 See Whitehall Transp. 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 be- 
 tween liquidated and unliquidated demands. If interest 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. 
 
 3 Walrath v. Redfield, 18 N. Y. 457. Though the point was not directly pre- 
 sented for consideration, the Court of Appeals in a recent case intimate a determina- 
 tion not to vary this rule. Duryee v. Mayor. &c, of N. Y., 96 N. Y. 477, 499- 
 
 4 Richmond v. Bronson, 5 Demo (N. Y.), 55. See Rensselaer Glass Factory v. 
 Reid, 5 Cow. (N.Y.)6i6. 
 
 5 5 Cow. (N. Y.) 616. 
 
§ 670.] MESNE PROFITS AND DAMAGES. 501 
 
 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 de- 
 termine whether damages shall be given by an allowance of 
 interest." As damages for mesne profits are to be assessed 
 down to the day of trial, 1 or judgment, 2 so also the interest, 
 which is but a portion of the damages, should be allowed 
 down to the same time, in order to give the plaintiff full 
 indemnity for the injury to his rights. 3 In Jackson v. 
 Wood, 4 Nelson, J., said : " As rents in the city of New 
 York, where these premises are situate, are payable at the 
 usual quarter days (1 B>. S. 736), I think the referees, in as- 
 certaining the value of the mesne profits, were warranted 
 in adding to the annual rent the interest quarterly. So 
 much the plaintiff has lost, and the defendant enjoyed, by 
 means of the wrongful possession." 5 So interest is re- 
 coverable on the annual value of the premises from year 
 to year. 6 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 interest for so 
 much time as he had been compelled to pay mesne profits. 7 
 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 equivalents to 
 each other, and when one was released the other could not 
 be recovered. 8 The fact that the plaintiffs and defendants 
 
 1 McCrubb u. 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. 
 
 2 Harrington v. Conolly, 116 Mass. 69. 
 
 8 Vandevoort v. Gould, 36 N. V. 647 ; New Orleans v. Gaines, 15 Wall. 624 ; 
 Boilings. Lersner, 26 Gratt. (Va.) 36. 
 4 24 Wend. (N. Y.) 443. 
 s See Drexel v. Man, 2 Penn. St. 276 ; Sopp v. Winpenny, 68 Penn. St. 78. 
 
 6 Low v. Purdy, 2 Lans. (N. Y.) 422. See Worrall v. Munn, 38 N. Y. 137. 
 
 7 Fernander v. Dunn, 19 Ga. 497. See Staats v. Ten Eyck, 3 Cai. (N. Y.) in ; 
 Kerley v. Richardson, 17 Ga. 602 ; Caulkins v. Harris, 9 Johns. (N. Y.) 324 ; Bennet 
 ■»■ Jenkins, 13 Johns. (N. Y.) 50. See further, Clark v. Parr, 14 Ohio, 118 ; Pitcher 
 v. Livingston, 4 Johns. (N. Y,) 1 ; Guthrie v. Pugsley, 12 Johns. (N. Y.) 125 ; Wager 
 n. Schuyler, 1 Wend. (N. Y.) 533. 
 
 8 White v. Tucker, 52 Miss. 145. See Rawle on Covenant for Title, p. 93 et seq. ; 
 
502 MESNE PBOEITS AND DAMAGES. [§§ 671-673. 
 
 are tenants in common makes no exception to the general 
 rnle, as to the allowance of damages and interest, 1 and 
 where one tenant in common is in possession, he must pay 
 interest to his co-tenants upon the rents found to be due 
 for each year, from the end of such year until payment. 2 
 
 § 671. Judgment in ejectment conclusive as to title.— The 
 recovery in ejectment is conclusive evidence of the title of 
 the plaintiff from the date of the demise laid in the decla- 
 ration against the defendant and his servants, who will 
 not be allowed to show title in another in bar of an action 
 of trespass. 3 This rule is salutary ; the parties have had 
 their day in court upon the question of title. If the plaint- 
 iff claims mesne profits for a period prior to the demise in 
 the declaration, the title is open for investigation. A 
 judgment by default is as effectual as a judgment on a ver- 
 dict/ and damages may be awarded on default. 5 
 
 The judgment does not establish the value of the mesne 
 profits ; as to these the plaintiff must make proof. 
 
 § 672. Judgment not conclusive as to length of defendants 
 occupation. — In Miller v. Henry, 6 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. Wlien judgment not conclusive. — In Thompson v. 
 Clark, 7 it appeared that the plaintiff had recovered the 
 
 Patterson v. Stewart, 6 W. & S. (Penn.) 527 ; Flint v. Steadman, 36 Vt. 210; 
 Guthrie v. Pugsley, 12 Johns. (N. Y.) 125. 
 
 1 Cutter v. Waddingham, 33 Mo. 269. 
 
 *EailyK. Friend, 16 Gratt. (Va.) 21. As to when interest will not be allowed 
 on rents, see Aliens. Smith, 63 Mo. 103. 
 
 3 Dewpy v. Osborn,4 Cow. (N. Y.) 329; Chirac v. Reinicker, II 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 ; Postens v. Postens, 3 
 W. & S. (Pa.) 182 ; Myers v. Sanders, 8 Dana (Ky.) 65 ; Graves v. Joice, 5 Cow. 
 (N. Y.) 261 ; Brewer v. Beckwith, 35 Miss. 467; Leland v. Tousey, 6 Hill(N. Y.), 
 328 ; Den v. McShane, 13 N, J. Law, 35. 
 
 4 Aslin v. Parkin, 2 Burr. 665. 
 
 6 Dimick v. Campbell, 31 Cal. 238. 
 
 6 84 Penn. St. 33. See Bailey v. Fairplay, 6 Binn. (Penn.) 450; Sopp v. Win- 
 penny, 68 Penn. St. 78 ; Huston v. Wickersham, 2 W. & S. (Penn.) 308. 
 ' 4 Hun (N. Y.), 164. 
 
§§ 674, 675.] MESNE PROFITS AND DAMAGES. 503 
 
 lands in ejectment against B., and had been put in posses- 
 sion. Plaintiff then brought this action against 0. for rents 
 and profits. It appeared that 0. rented from one IS., 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 
 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 defend- 
 ant in this action did not rent from B., the defendant in 
 ejectment, or claim under him, the judgment was not bind- 
 ing upon or evidence against him. 1 
 
 § 674. Evidence as to mesne profits. — A verdict for mesne 
 profits cannot of course be upheld when there is no evi- 
 dence to sustain the finding. 2 There must be proof of the 
 amount of the mesne profits 3 or of the value. 4 And 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. 5 Evidence of the 
 rent of preceding years is competent. 6 These cases illus- 
 trate the principle already stated that the damages are 
 usually 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-mill and site. — -In ejectment to 
 recover a mill site having a steam saw-mill upon it, the 
 
 I See Chirac w. Reinicker, n Wheat. 280-296. 
 
 II Brown v. Colson, 41 Ga. 42. 
 
 3 Eaton v. Freeman, 58 Ga. 129. 
 
 4 Mooring v. Campbell, 47 Tex. 37 ; Ive v. Scott, 9 Dowl. 993. 
 
 5 Duncan v. Jackson, 16 Fla. 338. In Gill v. Gill, 37 Penn. St. 312-314, in the 
 Supreme Court uf 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 contract, 
 ■which was the foundation of no title, was dangerous and impracticable. 
 
 6 Fogg v. Hill, 21 Me. 529. Compare Williams v. Sherman, 7 Wend. (N. Y.) 
 109. Mr. Cole says : "It is generally necessary for the plaintiff to prove — 1. His 
 own title. 2. The defendant's possession for the period in respect whereof mesne 
 profits, &c, are claimed. 3. The annual value of the premises, or rather the value 
 of the possession during the defendant's wrongful occupation. 4. The special dam- 
 age (if any). 5. The costs of the ejectment." Cole on Ejectment, 640. 
 
504 MESNE PROFITS AND DAMAGES. [§§ 676, 677. 
 
 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 eject- 
 ment." 1 
 
 § 676. Income from ferry. — So in an action for the mesne 
 profits of a ferry landing in Georgia, the receipts of the ferry, 
 deducting the expenses of fitting it up and running it, were 
 held to be the amount properly recoverable. 2 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. 3 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. 4 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, 5 it ap- 
 peared that the defendants were bona fide occupants under 
 color of title, and had expended large sums of money in 
 developing the mines upon the property and making per- 
 manent improvements of great value. It was held that 
 they should be charged only with the value in place of the 
 ore removed. 6 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. 7 
 
 1 Morris v. Tinker, 6o Ga. 466." ! Averett v. Brady, 20 Ga. 523. 
 
 3 Dunlap v. Yoakum, 18 Tex. 582. 4 See § 102. 
 
 6 84 Penn, St. 333. 
 
 6 See Hardie v. Young, 53 Penn. St. 176; Forsyth v. Wells, 41 Penn. St. 291. 
 
 7 See dowser v. Joplin Mining Co. 4 Dillon, 469, note; Coleman's Appeal, 62 
 Penn. St. 278 ; Barton Coal Co. v. Cox, 39 Md. I. 
 
§678.] MESNE PROFITS AND DAMAGES. 505 
 
 § 678. Income from improvements. — An important ques- 
 tion presents itself in cases where the defendant has occu- 
 pied the land in good faith, under claim and color of title, 
 as to whether or not, in estimating the mesne profits, he 
 shall be 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, 1 it appeared 
 that the defendant in ejectment had made improvements 
 which had been destroyed by casualty, so that no perma- 
 nent value was imparted by them to the land, and he was 
 therefore entitled to no compensation 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 without 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. 3 In Jackson v. Loomis, 3 Sav- 
 age, J., said : " Most clearly the defendant should not be 
 compelled to pay an enhanced rent in consequence of his 
 own improvements." So in Wisconsin, in estimating the 
 value of the use of the premises in controversy, the value 
 of the use of the improvements made by the defendant is 
 to be excluded. 4 Especially should the defendant not be 
 charged with the income from improvements, in estimat- 
 ing mesne profits, where he is so situated as not to be 
 entitled to claim allowance for his expenditures in making 
 the improvements ; 5 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 expenditures, 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 costs for his im- 
 
 1 38 Miss. 401. 
 
 ! Adkins v. Hudson, 19 Ind. 392 ; Neale v. Hagthrop, 3 Bland (Md.), 551-591. 
 See Moore v. Cable, 1 Johns. Ch. (N. Y.) 385 ; Ewing v. Handley, 4 Litt. (Ky.) 
 347-371; Hawkins v. King, 1 T. B. Mon. (Ky.) 162. 
 
 3 4 Cow. (N. Y.)i68. 
 
 * Davis v. Louk, 30 Wis. 308. 
 
 5 Tatum v. McLellan, 56 Miss. 352. 
 
506 MESNE PROFITS AND DAMAGES. [§ 678. 
 
 provements, then he should pay the increase of income 
 from the time of making them. 1 In Miller v. Ingram, 2 in 
 the Supreme Court of Mississippi, the court decided that, 
 under the code of that State, 8 the plaintiff in ejectment 
 was entitled to the rent of the property as improved by 
 the defendant. The reason for this innovation is not appa- 
 rent. In Texas, it was 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 com- 
 menced, or during the litigation. The court said that it 
 would not be inequitable if the courts and juries, in esti- 
 mating rents and profits, and value of improvements, were 
 to take into consideration the fact that the occupant had 
 lost his interest on the money expended in making im- 
 provements, and they considered that it would be in 
 accordance with correct rules of equity for the legisla- 
 ture to require this to be done. 4 In Dungan v. Von Puhl 5 
 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 
 occupant is to pay what the use of the land is worth to 
 him. In such a rule we think there will nothing be found 
 inequitable. 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 such 
 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 occupant. 6 
 
 The principle of law which prohibits the true owner 
 from recovering, as mesne profits, the increase of income 
 
 1 Bell v. Barnet, 2 J. J. Marsh. (Ky.) 517. 
 
 "56 Miss. 510. s. p. Phillips v. Chamberlain, 61 Miss. 748. 
 
 3 Code of Miss. 1871, § 1557. 
 
 4 Evetts v. Tendick, 44 Tex. 570. 
 6 8 Iowa, 263. 
 
 6 See, also, Wolcott v. Townsend, 49 Iowa, 456. 
 
§ 679.] MESNE PROFITS AND DAMAGES. 507 
 
 resulting from improvements made by the occupant, is 
 manifestly just and equitable. It cannot be said that the 
 additional profits are taken from the owner's land ; on the 
 contrary, they spring from practically an independent 
 source. While it is true that the improvements pass to 
 the owner b}' a recovery in ejectment, yet they are the 
 property of the occupant until set off against mesne prof- 
 its, or in some States till after their value is ascertained, 
 and the occupant's lien upon the land therefor is satis- 
 fied. 1 The strongest consideration to be urged against 
 this policy of the law is the practical difficulty, often 
 experienced, of separating the income of the improve- 
 ments 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. 2 It was held, in an early case in 
 New Jersey, that all the plaintiffs necessary expenses in 
 the ejectment action, including counsel fees, might be in- 
 cluded in the damages. 3 This question came up in Tennes- 
 see, in the case of White v. Clack, 4 in which it appeared 
 that the court, at the trial, had instructed the jury that, in 
 addition to the mesne profits, the plaintiff was entitled to 
 recover such reasonable counsel fees as had been paid in 
 the prosecution of the action of ejectment. The court 
 said that notwithstanding the discrepancy in the decisions, 
 the established 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 ejectment, not including counsel fees, or other 
 expenses incurred by the plaintiff in the prosecution oi the 
 suit." 5 This is the general rule. The costs of the eject- 
 
 1 Quoted in Dean v. Feely, 69 Ga. 822. t : 
 
 2 Baron v. Abeel, 3 Johns. (N. Y.) 482 ; Doe v. Perkins, 8 B. Mon. (Ky.) 198 ; 
 White v. Clack, 2 Swan (Tenn.), 230 ; Doe v. Huddart, 2 Cr. M. & R. 316. 
 
 3 Denn d. Delatouche v. Chubb, 1 N. J. L. 466. 
 
 4 2 Swan (Tenn.), 230. 
 
 s See Aslin v. Parkin, 2 Burr, 665 ; Symonds v. Page, 1 Cr. & J. 29 ; Brooke v. 
 
508 MESNE PROFITS AND DAMAGES. [§§ 680-682. 
 
 inent suit, however, properly constitute no part of the 
 damage recoverable against those who were not parties to 
 
 that suit. 1 
 
 § 680. Defenses.— Iu trespass for mesne profits, in Penn- 
 sylvania, brought 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; 8 
 nor, as we have seen, is the defendant relieved by the fact 
 that he has paid rent to the disseizor as landlord. 3 If the 
 defendant abandons the possession during the pendency of 
 the suit, he is of course not liable for mesne profits which 
 subsequently accrued, 4 unless the abandonment is secret. 
 
 § 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. 6 In Goodtitle ». North, 6 it 
 was held iu 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. Matters in mitigation — Payment of ground rent— 
 Inadequacy of purchase price. — Where a party wrongfully 
 entered upon land on June 2d, and on June 24th paid 181. 
 ground rent for which his goods had become liable, he was 
 allowed to deduct the payment from the mesne profits. 
 Bayley, B., said : " What was the value of the occupation 
 of the premises to him ? Why the real value minus 
 
 Bridges, ^ Moore, 471 ; Doe v. Davis, 1 Esp. 358 ; Doe v. Hare, 2 Dowl. P. C. 
 245 ; Doe v. Filliter, 13 M. & W. 47 ; Hunt v. O'Neill, 44 N. J. Law, 566. 
 
 1 Leland v. Tousey, 6 Hill (N. Y.), 328. 
 
 2 Arundel v. Springer, 71 Penn. St. 398. 
 
 3 Keane v. Cannovan, 21 Cal. 291 ; Trubee v. Miller, 48 Conn. 347, and cases 
 cited. 
 
 4 Mitchell v. Freedley, 10 Penn. St. 198. 
 ' 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. 
 
§ 683.] MESNE PKOEITS AND DAMAGES. 509 
 
 the sum due for ground rent which he was obliged to 
 pay." 1 The damages cannot be mitigated or lessened by 
 evidence that plaintiif 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. 8 It is 
 rather the owner's good fortune. Had he paid double 
 value for the land he could not have enlarged the claim 
 for damages. 
 
 § 683. Growing crops.— The general rule, as we have 
 seen, 3 is that when a defendant delivers possession of land 
 under a writ of habere facias possessionem, he must also 
 deliver possession of the crops growing upon it, and must 
 surrender the land in its improved state. 4 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 commence- 
 ment of the action. 5 In Georgia, the plaintiff in ejectment, 
 if successful, is entitled to the crops growing upon the 
 plantation, unless he puts in issue and recovers, as mesne 
 profits, the rent for that year. If the rents for the year 
 are included in the recovery of mesne profits, then the 
 defendant must be allowed to gather and carry away the 
 crops. 6 In McLean v. Bovee, 1 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 posses- 
 
 1 Doe v. Hare, 2 Cromp. & M. 145. A tenant may, as against his landlord, set 
 off or claim a deduction of ground rent which he was compelled to pay. Sapsford v. 
 Fletcher, 4 T. R. 511 ; Taylor v. Zamira, 6 Taunt. 524; Carter v. Carter, 5 Bing. 
 406. 
 
 8 Love v. Powell, 5 Ala. 58. 3 See § 563. 
 
 4 McLean v. Bovee, 24 Wis. 295 ; s. c. I Am. R. 185 ; Adams on Ejectment 
 (4th Am. ed.), p. 416; Altes v. Hinckler, 36 111. 275; Doe d. Upton v. Witherwick, 
 3 Bing. 11; 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, also, § 563. 
 
 5 Samson v. Rose, 65 N. Y. 411. See Hodgson v. Gascoigne, 5 B. & Aid. 88. 
 
 6 Gardner v. Kersey, 39 Ga. 664. 
 1 24 Wis. 295. 
 
510 MESNE PROFITS AND DAMAGES. [§ 683. 
 
 sion of a crop of wheat, part of which had been cut, and 
 part of which was uncut, at the time he took the land. 
 The defendant in ejectment 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 insti- 
 tuted, the crop belonged to the defendant, who had been 
 the successful party in the ejectment. The plaintiff, how- 
 ever, 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. 1 In Eay v. Gard- 
 ner, 2 it appeared that the plaintiff was in possession of a 
 tract of land, under a claim of ownership, 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. 8 
 Stockwell v. Phelps, 4 was an action in the nature of 
 replevin in the cepit for a quantity of hay. It appeared 
 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 holding 
 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 an injury to land when the plaintiff 
 was in possession, 5 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 
 
 1 Brothers v. Hurdle, 10 Ired. (N. C.) Law, 490. 
 
 2 82 N. C. 454; s. p. Brown v. Caldwell, 10 S. & R. (Pa.) 114; Renick v. Boyd, 
 Q9 Pa. St. 555. 
 
 3 See Walton v. Jordan, 65 N. C. 170. 
 
 ' 34 N. Y. 363. But compare Atherton v. Fowler, 96 U. S. 515. 
 6 See Rich v. Baker, 3 Den. (N. Y.) 79; De Mott v. Hagerman, 8 Cow. (N. V.) 
 220. 
 
§§ 684-686.] MESNE PKOFITS AND DAMAGES. 511 
 
 judicial decision. 1 The court said: "The remedy of the 
 plaintiffs was a judgment against Wild for mesne profits in 
 an action of ejectment, or by action of trespass after 
 having got possession of the land." 
 
 § 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, wheth- 
 er fast or loose. 2 By a recovery in ejectment the plaint- 
 iff, as a general 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 
 estimates. 3 In Jenkins v. Means, 4 it appeared that the 
 plaintiffs wall formed one side of a store-room, and a nar- 
 row 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 Woodhull v. Eosenthal, 5 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 prof- 
 its, 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 success- 
 ful party to recover mesne profits and damages is usually 
 
 1 s. p. Martin v. Thompson, 62 Cal. 618, and cases cited. 
 
 2 Ege v. Kille, 84 Penn. St. 333 ; McMinn v. Mayes, 4 Cal. 209. See McRea v 
 Central Nat. Bank, 66 N. Y. 490, as to the general rule applicable to fixtures. 
 
 3 Johnson v. Futch, 57 Miss. 73. 
 
 4 59Ga. 55. 5 6i N. Y. 382. 
 
512 MESNE PBOFITS AKD DAMAGES. [§ 686. 
 
 limited in this country to six years. 1 Where no statute 
 exists the mesne profits may be recovered from the time 
 when the plaintiff's right accrued. There is no limit. 
 Thus in JSTew Orleans v. Gaines, 2 which was an accounting 
 supplementary to a decree in equity, the profits of the lands 
 for fifteen years, with interest, were awarded. It has been 
 held in New York to be unnecessary to plead the statute 
 of limitations, 8 for the right to mesne profits is limited by 
 statute in that State to six years, and for that period only 
 can a recovery be had. 4 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, 5 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 de- 
 termined, for no right to the mesne profits exists, or rather 
 the right is suspended, until judgment is rendered in the 
 original suit. 6 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. 7 In Kansas, such damages only can be 
 recovered as have accrued within three years prior to the 
 commencement of the action. 8 A plaintiff may show that 
 a deficiency of profits in particular years, included in the 
 period of recovery, has been compensated by an excess in 
 years excluded from it by the statute of limitations. But 
 the defendant cannot swell his claim by resorting to an in- 
 version 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. 9 
 
 J See Hill v. Meyers, 46 Penn. St. 15, and cases cited; Jackson v. Wood, 24 
 Wend. (N. Y.) 443 ; Ringhouse v. Keener, 63 111. 230. 
 8 15 Wall. 624. 
 
 3 Grout v. Cooper, 9 Hun (N. Y.), 326 ; Jackson v. Wood, 24 Wend. (N. Y.)443- 
 " Budd v. Walker, 9 Barb. (N. Y.) 493. 
 
 9 Barb. (N. Y.) 493. See Avent v. Hord, 3 Head (Tenn.), 459. 
 
 6 New Orleans v. Gaines, 15 Wall. 624-633 ; Caldwell v. Walters, 22 Penn. St. 
 378 ; Avent v. Hord, 3 Head (Tenn.), 459. See § 649. 
 
 1 Gardner v. Granniss, 57 Ga. 539. See Field v. Columbet, 4 Sawyer, 523. 
 
 8 Gatton v. Tolley, 22 Kans. 678. 
 
 9 Ewalt v. Gray, 6 Watts (Penn.), 427. 
 
§§ 687, 688.] MESNE PROFITS AND DAMAGES. 513 
 
 § 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. 1 Thus in Hill v. 
 Cooper, 2 in which case a decree was rendered finding that 
 the defendant was a trustee for the plaintiff, and decreeing 
 a conveyance to plaintiff by defendant, it was held that the 
 defendant could be called upon to account for the rents and 
 profits of the land in that same suit in equity. So in South 
 Carolina, a widow is entitled, in equity, when dower is as- 
 signed 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. 3 So on decreeing a 
 restoration of land, possession of which had been obtained 
 by fraud, the court ordered an account of the rents and 
 profits to be taken, and, after allowing for improvements, 
 to be paid to the owners. 4 So an accounting for rents and 
 profits was ordered in the famous case of New Orleans v. 
 Gaines, 5 in which judgment had been entered in an equity 
 suit, decreeing possession of the premises in controversy 
 to the defendant in error. 6 
 
 § 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- 
 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 nevertheless substantial ; the assessment was in re- 
 
 1 See Green v. Biddle, 8 Wheat. I; Dormer v. Fortescue, 3 Atk. 128; Maddock'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, 1 Lea (Tenn.), 
 37; Worrall v. Munn, 38 N. Y. 137 ; Drury v. Conner, 1 Harr. & G. (Md.) 220; 
 New Orleans v. Gaines, 15 Wall. 624; Taylor v. Taylor, 43 N. Y. 584. 
 
 8 8 Oregon, 254. 
 
 8 Clark v. Tompkins, 1 S. C. 119. 
 
 4 Searcy v. Reardon, 1 A. K. Marsh. (Ky.) 1. 
 
 • 15 Wall. 624. 
 
 6 Equity will sometimes regard the special circumstances of the case where there 
 are any peculiarities which render the rigid application of a general rule of law un- 
 sati>factory, 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. 
 
 ' I Sawyer, 15. Assessment does not include tax; Stephani v. Catholic Bishop 
 of Chicago, 2 Bradw. (111.) 249. 
 
 33 
 
514 MESlStE PROFITS AND DAMAGES. [§ 688- 
 
 ality a tax, and payment of taxes upon property is not 
 to be regarded as an improvement made upon it, however 
 much such payment may indirectly enhance its value. It 
 was a proper deduction to be made from the gross rents 
 of the property 1 in estimating the actual damages which 
 the plaintiff had sustained by the defendant's wrongful 
 withholding of the possession, and undoubtedly it is the 
 duty of the possessor to pay the taxes imposed by public 
 authority. 2 If the payment of the assessment by the occu- 
 pant was only allowed by way of set-off as a permanent 
 improvement, it would often happen that no allowance 
 would be made for it whatever, as in this case the pave- 
 ment put upon the street might be worn out, and have no 
 present value, at the time the possession is surrendered. 
 In Minnesota 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 constitutional, and in effect to amount to a transfer of 
 the lien or charge of the State to the person paying such 
 tax. 8 But it has been held in Missouri that a plaintiff, 
 after a recovery in ejectment, cannot be compelled to 
 refund 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 im- 
 plied, or a subsequent assent or sanction. 4 In Marvin v. 
 Lewis, 3 in the New York Supreme Court, it appeared that 
 the plaintiff had successfully prosecuted an action to can- 
 cel a conveyance made by his ancestor while of unsound 
 mind. The defendants were in possession, claiming under 
 divers mesne conveyances from the grantee in the void deed, 
 and had paid taxes and assessments. It was held that, in 
 
 1 Semple v. Bank of British Columbia, 5 Sawyer, 394, 403. 
 
 2 See Bright v. Boyd, 1 Story, 478 ; Ringhouse v. Keener, 63 111. 230 ; Duffy v. 
 Donovan, 52 N. Y. 634. 
 
 3 Madland v. Benland, 24 Minn. 372. See Flint v. Douglass, 28 Kans. 414. 
 
 4 Napton v. Leaton, 71 Mo. 358 ; s. P. Homestead Co. u. Valley R. R., 17 Wal1 - 
 153- 
 
 6 61 Barb. (N. Y.) 49. 
 
§ 688.] MESNE PROFITS AND DAMAGES. 515 
 
 declaring the deed void, the court should not impose as a 
 condition that it should be treated as good so far as to 
 require the plaintiff 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 de- 
 creed where a person had committed the mistake of pay- 
 ing taxes on property which did not belong to him. So 
 in Curtis v. Gay, 1 it was held that taxes paid by the ten- 
 ant did not constitute an improvement 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. 3 
 
 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 ; 8 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. 
 Upon this the authorities seem to agree. The cases hold- 
 ing 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, sometimes 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 occu- 
 pancy, he is afforded the public protection and benefit, to 
 maintain which the taxes are levied. The better policy, 
 where the land is unimproved and yields no income, 
 would seem to be to treat the tax as an annually accru- 
 
 1 15 Gray (Mass.), 36. 2 See § 704. 
 
 3 1 Sawyer, 15. 4 See § 700. 
 
516 MESNE PROFITS AND DAMAGES. [§§ 689, 689«. 
 
 ing lien, and the statute of Minnesota, which, in effect, 
 transfers the public lien to the person paying the tax, 
 certainly accomplishes substantial justice. 1 
 
 § 689, Abatement. — The claim for damages and mesne 
 profits does not abate in Pennsylvania by the death of the 
 defendant in ejectment, but survives against his personal 
 representatives; 2 and the rule is the same in Alabama 3 
 and is a subject of statutory regulation in most of our 
 States. 4 The rule that such causes of action died with 
 the person 5 is being rapidly superseded, and has been 
 corrected by statute in England. 6 Where the plaintiff 
 dies, the personal representatives may revive the action. 7 
 
 ,§ 689a. Restitution of mesne profits. — A restitution of 
 mesne profits paid by a defendant may be decreed in a 
 proper case. In Starr v. Stark 8 it appeared that a judg- 
 ment in ejectment had been obtained, and mesne profits 
 awarded and paid. Afterwards the defendant in ejectment 
 established his title in equity against the plaintiff, and it 
 was held that the defendant in ejectment might recover 
 back from the plaintiff therein the amount of the judgment 
 for mesne profits and costs, as the right to retain them fell 
 with the judgment in ejectment. 
 
 1 In Sherman v. Savery, 2 McCra. 108, lands which a vendee was entitled to have 
 •conveyed to him, were transferred by the vendor to another who was subsequently 
 declared trustee for the vendee, and decreed to convey to him. The trustee was held 
 •entitled to reimbursement for taxes paid by him to protect the title, s. P. Duffy v. 
 Donovan, 52 N. Y. 634. 
 
 2 Arundel v. Springer, 71 Penn. St. 398. 
 * Evans v. Welch, 63 Ala. 250. 
 
 4 See §§ 648, 661. 
 
 5 Withers v. Burkett, 16 Fed. Rep. 86. See Adam v. Inhabitants of Bristol, 2 
 Ad. & El. 389. 
 
 6 3 & 4 Wm. IV, 1;. 42, § 2. 
 
 ' Dean v. Feeley, 66 Ga. 273. See § 661 ; Rhodes v. Crutchfield, 7 Lea(Tenn.), 
 .518. 
 
 8 7 Oregon, 500. 
 
CHAPTER XXVI. 
 
 IMPROVEMENTS. 
 
 690. Claim for improvements at com- 
 
 mon law. 
 
 691. Influence of the civil law. 
 
 692. Griswold v. Bragg. — Purpose of 
 
 the statutes. 
 
 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,, 
 
 warrantor or ancestor. 
 
 707. Basis of valuation. — Apportion- 
 
 ment. 
 
 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 at common law. — The right- 
 ful owner of land is entitled to improvements or better- 
 ments placed upon it. They become a part of the freehold,, 
 and pass by the recovery in ejectment ; that is, the plain- 
 tiff is placed in possession of the land in its improved con- 
 dition. 1 The term improvement is a comprehensive one, 21 
 and includes any melioration whereby land is converted 
 from its natural state and condition, and rendered suitable 
 for the use and enjoyment of man. 3 The claim of a bona 
 
 1 Bonner v. Wiggins, 52 Tex. 125 ; Lunquest v. Ten Eyck, 40 Iowa, 213 ; Par- 
 sons v. Moses, 16 Iowa, 440 ; Doscher v. Blackiston, 7 Oregon, 143 ; Humphreys 
 v. Newman, 51 Me. 405 AlcMinn v. Mayes, 4 Cal. 209; Russell v. Blake, 2 Pick. 
 (Mass.) 507. See § 563. 
 
 8 In Jackson v. Ludeling, 99 U. S. 521, Bradley, J., said : " A railroad is not 
 land ; it is a peculiar species of property, of a compound character, consisting of 
 roadway, embankment, superstructure, and equipment. These constitute the corpus 
 of the property. There is no room to exercise the election which the law gives to 
 the owner, of keeping the ameliorations, or requiring the ejected possessor to de- 
 molish them. The demolition of the ameliorations would be the demolition of the 
 thing itself." 
 
 3 Johnson v. Gresham, 5 Dana (Ky.), 547. 
 
518 IMPKOVEMENTS. [§ 690. 
 
 fide occupant or possessor of land, who has made useful, 
 lasting or permanent improvements, or necessary outlays 
 upon it, believing himselfto.be the owner, to recover the 
 value of such improvements or expenditures, from the 
 holder of the paramount title, when compelled to surren- 
 der up the possession, presents many difficult and perplex- 
 ing questions. 1 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 actions at law and 
 suits in equity, in England and in 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. 2 This principle of the 
 common law is founded upon the theory that the rightful 
 owner of land is under no equitable or moral obligation to 
 pay for improvements which he never authorized, and 
 which originated in tort. In the case of a tortious confu- 
 sion of goods the law gives the entire property to the in- 
 nocent 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 improve- 
 ments 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 owner- 
 ship of property. 3 In Townsend v. Shipp's Heirs, 4 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 mak- 
 ing larger improvements, to acquire a property in the soil. 
 It would be manifestly repugnant to the first principle of 
 property, of society and of free government, that any per- 
 
 1 An important discussion of this subject will be found in the opinions in Jackson 
 v. Ludeling, go, U. S. 513. 
 
 8 Parsons v.. Moses, 16 Iowa, 444; Lunquest v. Ten Eyck, 40 Iowa, 213; Tur- 
 nipseed v. Fitzpatrick, 75 Ala. 304. 
 
 3 See Billings v. Hall, 7 Cal. 1, and the authorities discussed. 
 
 4 Cooke (Tenn.), 293. 
 
§ 691.] IMPROVEMENTS. 519 
 
 son should pay for work and labor done without his con- 
 sent." The practice of compensating the occupant for 
 improvements, or of making deductions therefor, is also 
 discountenanced as tending to encourage depredations 
 upon private property. 1 Mr. Sedgwick says : 2 "In regard 
 to improvements made on the land while out of the posses- 
 sion of the rightful owner, the general principle of the 
 English law, as well as our own, is, that the owner recovers 
 his land in ejectment without being subjected to the condi- 
 tion of paying for improvements which may have been made 
 upon it by any intruder, or occupant without title. The 
 improvements are considered as annexed 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 expenditures." 
 
 Mr. Mayne, 3 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 damages, 
 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 volens." 
 
 § 691. Influence of the civil law. — The civil law, however, 
 drew a clear distinction between the possessor lonafide and 
 mala fide : the latter was not allowed to recover for im- 
 provements or meliorations, but the former was permitted 
 to mitigate the damages in an action brought by the right- 
 ful owner, by offsetting the value of permanent and useful 
 improvements made upon the land in good faith, to the 
 extent of the rents and profits claimed. 4 This distinction 
 
 1 See Frear v. Hardenbergh, 5 Johns. (N. Y.) 271-277. 
 
 2 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. 
 
 3 Wood's Mayne on Damages, § 586. See Oberich v. Gilman, 31 Wis. 495 ; 
 Ford v. Holton, 5 Cal. 319. The statute allowing for improvements does not apply 
 to unlawful detainer proceedings in Missouri. Sims v. Kelsay, 75 Mo. 71. 
 
 4 Sedgwick on Damages (7th ed.), vol. I, pp. 247-257. See Pilling v. Armitage, 
 
520 IMPROVEMENTS. [§ 692. 
 
 in the civil law has obtained in our courts, and, as we shall 
 presently see, it is an established principle, in the various 
 States, to allow a bona fide occupant, tinder color of title, 
 to mitigate the claim for damages and mesne profits by in- 
 troducing proof of the value of permanent and useful im- 
 provements. 1 The principle was engrafted upon the com- 
 mon law through the medium of equity. A bona fide 
 occupant may, by statute in some States, and in equity 
 suits in most States, 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, payment of which may be 
 exacted as a condition precedent to a recovery of the pos- 
 session by the owner. 2 
 
 § 692. Griswold v. Bragg. — Purpose of the statutes. — In 
 Griswold v. Bragg, 3 one of the most recent and well con- 
 sidered cases upon the subject of improvements, Shipman, 
 J., said : " The statute practically 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 improvements which have been placed 
 on the land, before the commencement 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 occupancy by the plaintiff 
 until the lien is paid. There is a natural equity which 
 rebels at the idea that a bona fide occupant and reputed 
 
 12 Ves. 84 ; Bright v. Boyd, 1 Story, 479, and authorities cited ; Just. Inst. lib. 2, 
 tit. 1, §§ 30-32 ; 1 Story's Eq. Jurisprudence. §§ 388-7gga, note ; Putnam v. Rit- 
 chie, 6 Paige (N. Y.), 390 and cases cited; Green v. Kiddle, 8 Wheat. 1; Bell's 
 Comm. on Law of Scotland, p. 139, § 538. ' • The disseizor shall recoup all in dam- 
 ages which he hath expended in amending of the houses." Coulter's Case, 5 Rep. 
 30 (3 Coke, 60). " It is a maxim suggested by nature, that reparations and melior- 
 ations 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 possessor," Kame's 
 Equity, p. 421. See Judge Jackson's article, " Improvements on Land held by 
 Defective Title,'' 2 Am. Jur. 294. 
 
 1 Woodhull v. Rosenthal, 61 N. Y. 382; Davis v. Louk, 30 Wis. 308 ; Yount 
 v. Howell, 14 Cal. 465 ; Marlow v. Adams, 24 Ark. log; Wood v. Wood, 83 N. Y. 
 575 ; Walker v. Humbert, 55 Penn. St. 407 ; Eu-alt v. Gray, 6 Watts (Penn.), 427 ; 
 Morrison v. Robinson, 31 Penn. St. 456 ; McKinly v. Holliday, 10 Yerg. (Tenn.) 
 477; Hawkins v. Brown, 80 Ky. 186. 
 
 2 See Abbey v. Merrick, 27 Miss. 320 ; Hatcher v. Briggs, 6 Oregon, 31 ; Gris- 
 wold v. Bragg, 18 Bla. C. C. 202. See, also, § 712. 
 
 5 18 Bla. C. C. 202. See another phase of this case, 19 Bla. C. C. 94. 
 
§ 693.1 IMPROVEMENTS. 521 
 
 owner of land in a newly settled country, where unim- 
 proved land is of small value, or where skill in conveyan- 
 cing 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 erro- 
 neous belief that his title was absolute and perfect. 
 While it is true that improvements and permanent build- 
 ings upon land belong to the owner, yet, in a comparative- 
 ly newly organized State, where titles are necessarily more 
 uncertain than they are in England, there is an instinctive 
 conviction that justice requires that the possessor under a 
 defective title should have recompense for the improve- 
 ments which have been made in good faith upon the land 
 of another. The maxim, often repeated in the decisions 
 upon this subject, ' Nemo debet locupletari ex alterius incom- 
 modo,' tersely expresses the antagonism against the enrich- 
 ment 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 owner 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 occu- 
 pant, 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 jus- 
 tice, be compelled to account for them. 
 
 § 693. Improvements allowed in equity. — The principle of 
 allowing bona fide occupants the value of improvements 
 made upon lands, under a mistaken belief as to ownership, 
 has a prominent place in equity jurisprudence. 1 Indeed 
 the principles of the civil law from which, as we have said, 
 the doctrine of allowing bona fide occupants for improve- 
 ments is derived, has been introduced into the modern 
 procedure, regulating mesne profits and improvements, 
 largely through the instrumentality of and by analogy 
 
 'Canal Bank v. Hudson, in U. S. 66, 83. See Williams v. Gibbes, 20 How. 
 535; Cole v Johnson, 53 Miss. 94; Foley v. Kirk, 33 N. J. Eq. 171. 
 
522 IMPROVEMENTS. [§ 694. 
 
 with equity procedure, and is based upon equitable 
 grounds. 1 The improvement acts, under which the occu- 
 pant is allowed for improvements in the legal forum, have 
 been construed merely to change the form of relief without 
 altering its extent. 2 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 person, to the extent of 
 the benefits which will be received from the improvements. 8 
 Questions of this character now arise in equity where the 
 plaintiff's claims are purely of an equitable character, and 
 the occupant seeking compensation for improvement was 
 vested with the legal title. 4 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, 3 or by a pro- 
 ceeding commonly denominated an ejectment bill, 6 but 
 must resort to an action at law, in the nature of ejectment, 
 and determine the questions relating to damages and 
 improvements either in that action, or in the consequential 
 action for mesne profits. 
 
 § 694. Bona fide occupant under claim of title. — It is uni- 
 formly established, in the modern procedure, as we have 
 said, that only a bona fide occupant of land will be permitted 
 to mitigate the plaintiff's claim for damages and mesne 
 profits, by offsetting the value of his improvements ; and 
 the same principle prevails in States which give the occu- 
 
 1 See Woodhull v. Rosenthal, 6l N. Y. 382-397; Green v. Biddle, 8 Wheat. 1; 
 Scott v. BattJe, 85 N. C. 184; s. c. 39 Am. Rep. 694; Wharton v. Moore, 84 N. C. 
 479; s. c, 37 Am. Rep. 627; Weaver v. Norwood, 59 Miss. 678. 
 
 2 Townsend v. Shipp's Heirs, Cooke (Term.), 293. 
 
 3 See Bomberger v. Turner, 13 O. S. 263; Sale v. Crutchfield, 8 Bush(Ky.), 636; 
 McLaughlin v. Barnum, 31 Md. 425; Bright v, Boyd, 1 Story, 494 ; Troost v. Davis, 
 31 Ind. 34; Mickles v. Dillaye, 17 N. Y. 80; Benedict v. Gilman, 4 Paige (N. 
 Y.), 58 ; Green v. Biddle, 8 Wheat. 1 ; 2 Story's Eq. Jur. §§ 7990-1237 ; Putnam v. 
 Ritchie, 6 Pau?e (N. Y.), 390-405; Robinson v. Ridley, 6 Madd. 2; Attorney- 
 General v. Baliol College, 9 Mod. 411 ; New Orleans 11. Gaines, 15 Wall. 624. 
 
 4 See Putnam v. Ritchie, 6 Paige (N. Y.), 390-403; Barton v. Land Co. 27 Kans. 
 636; 
 
 5 Lewis v. Cocks, 23 Wall. 466. See § 170. 
 
 6 Young v. Porter, 3 Woods, 342 ; Loker v. Rolle, 3 Ves. Jr. 4, and note ; 
 Cavedo v. Billings, 16 Fla. 261. See §§ 168, 169. 
 
§ 694.] IMPROVEMENTS. 523 
 
 pant a lien upon the land, for the surplus of the meliora- 
 tions above the damages and mesne profits. The claim 
 for betterments is founded upon equitable grounds, and it 
 would be manifestly inequitable to the owner, and, indeed, 
 a highly dangerous policy, to make allowances for improve- 
 ments to one who made the expenditures with full knowl- 
 edge of the adverse claim. 1 Thus it is said in Maryland : 
 "A claim for permanent improvements or betterments can 
 be successfully asserted only by one who is a bona fide 
 occupant or possessor. It can never be maintained by a 
 mere tort feasor or mala fide intruder, who holds with full 
 knowledge of his own position and of the adverse claim." 2 
 The question of the occupant's good faith is for the jury. 3 
 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. 4 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 rightto it. 5 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 wrong-doer. 6 "Pos- 
 session," says Kent,' "is always presumption of right 
 
 1 Woodhull v. Rosenthal, 6i N. Y. 382; Wood v. Wood, 83 N. Y. 575; Thomp- 
 son 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 -o. Coffin, 100 
 Mass. 177; Bristoe v. Evans, 2 Overton (Tenn.), 341 ; Kille v. Ege, 82 Penn. St. 
 102 ; Bedell v. Shaw, 59 N. Y. 46 ; Townsend v. Shipp's Heirs, Cooke (Tenn.), 293; 
 Simpson v. Robinson, 37 Ark. 137. The right to set off the value of the improve- 
 ments is not affected by the fact that the plaintiff is an infant or a feme covert. Potts 
 v. Cullum, 68 111. 217. See Wilie v. Brooks, 45 Miss. 542. 
 
 'Linthicum v. Thomas, 59 Md. 583. See Steel v. Smelting Co., 106 U. S. 456. 
 
 3 See Merrill v. Hilliard, 59 N. H. 481. 
 
 4 Powell v. Davis, 19 Tex. 380. 
 
 5 Green v. Biddle, 8 Wheat. I; Cole v. Johnson, 53 Miss. 94; Morrison v. Rob- 
 inson, 31 Penn. St- 456; Whitney v. Richardson, 31 Vt. 300; Bright v. Boyd, 1 
 Story, 478; Putnam v. Ritchie, 6 Paige (N. Y.), 390 ; Henderson v. McPike, 35 
 Mo. 255; Dorn v. Dunham, 24 Tex. 366 ; Elam v. Parkhill, 60 Tex. 582 ; Canal 
 Bank v. Hudson, in U. S. 80. 
 
 "Stark v. Starr, 1 Sawyer, 15. 
 
 'Smith v. Lorillard, 10 Johns. (N. Y.) 356. 
 
524 IMPROVEMENTS. [§ 695. 
 
 and it stands good until other and stronger evidence 
 destroys that presumption." Knowledge of the adverse 
 title, as we have said, is ordinarily fatal to the occupant's 
 claim for expenditures. 1 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 improvements in progress and did not 
 object. 2 So, where the defendant 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 which a ftona fide occupant 
 is entitled. 3 So, where a party wrongfully retains a title 
 which he knows he ought to convey to another, he is not 
 in a condition to claim payment for improvements. 4 This 
 principle is further illustrated in the case of Tatum v. 
 McLellan, 5 in the Supreme Court of Mississippi, where it 
 was held that a trustee of land wrongfully retaining pos- 
 session of it, in opposition to the provisions 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 improve- 
 ments, cannot be allowed for them. 6 Nor can a party, 
 whose acts were inconsistent with a belief in his title, 
 make this claim; 7 nor can a tenant claim improvements 
 against his landlord ; 8 and improvements made by a guard- 
 ian upon lands of his ward, fraudulently purchased by the 
 guardian, will not be reimbursed. 9 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 
 
 1 Woodhull v. Rosenthal, 6i N. Y. 382. See Witt v. Trustees of Grand Grove, 
 55 Wis. 380. 
 
 2 Walker v. Quigg, 6 Watts (Penn.), 87. 
 
 3 Mosely v. Miller, 13 Bush (ICy.), 408. 
 
 4 Thompson v. Thompson, 16 Wis. 91. s 56 Miss. 352. 
 6 Morrison v. Robinson, 31 Penn. St. 456. 
 
 ' Daggett v. Tracy, 128 Mass. 167. 8 Dunn v. Bagby, 88 N. C. 91. 
 
 "Eberts v. Ebeits, 55 Penn. St. no. See Barrett v. Cocke, 12 Heisk. (Tenn.) 
 566. 
 
1 695.1 IMPROVEMENTS. 525 
 
 laid down in Green v. Biddle, 1 that a bona fide possessor 
 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 foundation, 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, necessarily, destroy the good faith of the possessor, if 
 his confidence in his title was unshaken. 2 In Hill v. Spear s 
 it was held that the fact that the defendant purchased 
 land, knowing that his vendor held it under a deed from a 
 married woman defectively acknowledged, was not incon- 
 sistent with his good faith in making such purchase, and 
 the court decided that it was error, in such a case, to ex- 
 clude from the jury evidence of the value of improve- 
 ments. 4 Iu Griswold v. Bragg 5 the hostile claim of which 
 the occupant had notice was considered, at that time, to 
 be of no consequence, and had been declared worthless by 
 competent lawyers. Improvements made after such notice 
 were allowed. 6 It will be apparent, at a glance, that the 
 principle embodied in these cases is highly important iu 
 its bearing upon the rights of occupants to recover for im- 
 provements. If actual notice of the adverse title is not a 
 conclusive test, in determining the question of good faith, 
 then the occupant might be allowed for improvements 
 down to the day of trial, merely upon proof that his coun- 
 sel had advised him, and he honestly believed, that the 
 adverse title was absolutely without merit, or upon showing 
 that he fully expected, and had reasonable grounds to 
 believe, that he would be able to defeat the hostile claim. 
 
 1 8 Wheat. I. 
 
 2 See Sartain v. Hamilton, 12 Tex, 222; Dorn v. Dunham, 24 Tex. 366; 
 Hutchins v. Bacon, 46 Tex. 408. 
 
 8 48 Tex. 583. 
 
 4 See Berry v. Donley, 26 Tex. 737. 
 
 8 19 Bla. C. C. 98. 
 
 6 See Harrison v. Castner, 11 O. S. 347 ; Wells v. Riley, 2 Dillon, 569. 
 
526 IMPROVEMENTS. [§ 696. 
 
 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 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 improve- 
 ments, in any case, is, that the character of the improve- 
 ments 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 the cases noticed, the 
 occupant, learning of the adverse claim, might "improve 
 the owner out of his property." 1 The principle embodied 
 m these cases constitutes a dangerous innovation upon a 
 settled rule of law, and if adopted would render the deter- 
 mination of the character of the possession one of great 
 difficulty and uncertainty, and, in many cases, a recovery, 
 or allowance for improvements, by an occupant 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 supposi- 
 tion that he was obtaining a perfect title in fee. 3 The 
 mere fact that a fatal defect in the occupant's title is dis- 
 coverable by an examination of the records of the county, 
 is not enough to deprive him of the right to the value of 
 his improvements 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, 8 
 
 1 See Kenney v. Browne, 3 Ridg. P. C. 518 ; Stepney v. Biddulph, 5 N. R. 505; 
 Howard v. Massengale, 13 Lea (Tenn.), 590. 
 
 2 Whitney v. Richardson, 31 Vt. 300; Green v. Dixon, 9 Wis. 532; Hatcher v. 
 Briggs, 6 Oregon, 31. 
 
 3 53 Miss. 94. 
 
§ 697.] IMPROVEMENTS. 527 
 
 it appeared that certain defects in probate court proceed- 
 ings vitiated the title under which the occupant purchased, 
 and these were patent upon the record, and could have 
 been ascertained by inspection. Under these circum- 
 stances 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 tech- 
 nical 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 a oona fide pur- 
 chaser." x Notice in this connection does not mean direct 
 and positive information, but anything calculated to put a 
 man of ordinary 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 mean- 
 ing which attached to them as inseparable incidents in the 
 system of jurisprudence, from whence they were derived. 2 
 
 § 697. Claim and color of title. — To successfully assert a 
 claim for improvements, an occupant 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 in- 
 strument or paper writing presenting the appearance or 
 semblance of title. 3 By statute in some States the pos- 
 sessor 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 occu- 
 
 1 See Learned v. Corley, 43 Miss. 687 ; Lee v. Bowman, 55 Mo. 400; Dothage 
 u. Stuart, 35 Mo. 251 ; Morrison v. Robinson, 31 Perm. St. 456. 
 
 2 Lee v. Bowman, 55 Mo. 400. See Cole v. Johnson, 53 Miss. 94. 
 
 3 See Field v. Columbet, 4 Sawyer, 523; Lunquest v. Ten Eyck, 40 Iowa, 213; 
 Hatcher v. Briggs, 6 Oregon, 31 ; Krause v. Means, 12 Kans. 335 ; Thomas v. 
 Thomas, 16 B. Mon. (Ky.) 420; Barlow v. Bell, I A. K. Marsh. (Ky.) 246 ; Bell v. 
 Barnet, 2 J.J. Marsh. (Ky.) 516 ; Valte v. Fleming, 29 Mo. 152; Bright v. Boyd, 
 I Story, 478 ; Cole v. Johnson, 53 Miss. 94 ; Love v. Shartzer, 31 Cal. 487. 
 
528 IMPROVEMENTS. [§ 698. 
 
 pancy and good faith. It does not necessarily follow that 
 the claim and color of title which will sustain a recovery for 
 improvements must be such as will ripen into an adverse 
 possession. Thus in Bedell v. Shaw, 1 it was held that pos- 
 session, to be adverse, must be under a claim of title in 
 fee. An occupant under an assessment lease was decreed 
 not to hold in hostility to the true title, but it was, never- 
 theless, 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. 2 So the fact that the tenant had a 
 good estate for life will not defeat the claim for better- 
 ments, if he had reason to believe that he had a title in 
 fee. 3 The equity doctrine that a party holding merely 
 under a quitclaim deed cannot be a oona fide purchaser 
 without notice 4 is not applicable to a claimant under a 
 betterment statute. 3 
 
 The general subject of color of title will be presently 
 discussed. 6 
 
 § 698. Improvements in excess of mesne profits. — The gen- 
 eral policy of the law, where no express statute intervenes, 
 is to allow the value of improvements 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 plaintiff's damages and 
 mesne profits. 7 This rule is followed in a recent ejectment 
 case in New York, 8 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 dam- 
 ages by offsetting the improvements to the extent of the 
 
 1 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. 
 
 4 Oliver v. Piatt, 3 How. 333; May v. Le Claire, 11 Wall. 217 ; Dickerson ». 
 Colgrove, 100 U. S. 578. 
 
 6 Griswold v. Bragg, 19 Bla. C. C. 97. See Mansfield v. Dyer, 131 Mass. 201. 
 
 6 See Chap. XXX. 
 
 ' Yount v. Howell, 14 Cal. 465; McKinly v. Holiday, 10 Yerg. (Tenn.) 477 ! 
 Woodhull v. Rosenthal, 61 N. Y. 382 ; Davis v. Louk, 30 Wis. 308 ; Pulaski Co. v. 
 State, 42 Ark. 120 ; Jones v. Johnson, 28 Ark. 211. 
 
 8 Wood v. Wood, 83 N. Y. 575. 
 
§ 699.] IMPROVEMENTS. 529 
 
 rents and profits claimed. 1 So, in some States, evidence 
 of improvements cannot be given where no claim is made 
 for mesne profits, 2 wbile in others, as already stated, the 
 excess of the value of the improvements is impressed as 
 a lien upon the land. 3 Texas furnishes an example of the 
 latter policy. In that State the right to recover for im- 
 provements 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 inde- 
 pendent of such claim on the part of the plaintiff. 4 
 
 § 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 impos- 
 sible to separate it from the land, or, in contemplation of 
 law, it has been annexed to the soil, and is therefore to be 
 considered as a fixture or part of the freehold. The char- 
 acter of the improvement must be such as to make the land 
 more valuable 5 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, 
 floes the melioration make the land more valuable to the 
 owner. 6 It is clear that if the plaintiff will receive no 
 benefit from the expenditures or improvements, the de- 
 fendant cannot be allowed for them. Thus, in Woodhull 
 v. Eosenthal, 7 in the New York Commission of Appeals, it 
 appeared that the plaintiff claimed a leasehold interest, 
 
 1 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 
 f. Mather, 14 Tex. 235. 
 
 '■ Ford v. Holton, 5 Cal. 319 ; Learned v. Corley. 43 Miss. 6S7. 
 
 3 Abbey v. Merrick, 27 Miss. 320 ; Griswold v. Bragg, 18 Bla. C. C. 202; Hatcher 
 a. Briggs, 6 Oregon, 31. See § 691. 
 
 4 Lorn v. Dunham, 24 Tex. 366. See Scott v. Mather, 14 Tex. 235 ; Saunders 
 v. Wilson, 19 Tex. 194. 
 
 5 See Breit v. Yeaton, 101 111. 273. 
 
 6 See Stark v. Starr, 1 Sawyer, 15; Bright v. Boyd, 1 Story, 494 : Johnson v. 
 Gresham, 5 Dana (Ky.), 547. 
 
 ' 61 N. Y. 382, per Dwight, C. 
 34 
 
530 IMPROVEMENTS. [§ G99. 
 
 and that his term expired pending the action. He recov- 
 ered 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, because it did not 
 increase the value of the plaintiff's interest, and was of no 
 benefit to him as lessee, the term having expired. The 
 defendant is entitled to give evidence of such improve- 
 ments only as are of a lasting and permanent character, 
 and which give a permanently increased value to the land. 1 
 By the term value, as applied to improvements, is meant 
 the value to the real owner. 2 
 
 In Pennsylvania a purchaser from a lunatic whose deed 
 has been avoided cannot recover for improvements. 3 Ee- 
 pairs are not necessarily considered as improvements in 
 Massachusetts. 4 Ameliorations placed upon the land be- 
 fore plaintiff acquired title cannot be set off against mesne 
 profits which accrued subsequent to the plaintiff's deed. 5 
 As a general rule a life tenant cannot make improvements 
 at the expense of the inheritance, 6 though he may claim 
 contribution for putting a building in tenantable shape; 7 
 or for finishing an improvement left incomplete by the 
 donor. 8 Eingba'rking is an improvement ; 9 so it is an im- 
 provement to construct an ell, containing a diningroom 
 and kitchen annexed to a house. 10 A fence constructed 
 as^an obstruction will not be allowed as an improvement. 11 
 
 1 Ege v. Kille, 84 Penn. St. 334. 
 
 5 Bristoe v. Evans, 2 Overton (Term.), 341. If the only interest which a pos- 
 sessor 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 Tex. 296. Nor of an independent ejectment. Paull v, Eldred, 29 Pa. St. 
 415- 
 
 z Rogers v. Walker, 6 Pa. St. 371. 
 
 4 Walsh v. Wilson, 131 Mass. 535. But see Jackson v. Ludeling, 99 U. S. 521. 
 
 6 Haggin v. Clark, 51 Cal. 112. 
 
 6 Sohier v. Eldredge, 103 Mass. 345 ; Austin v. Stevens, 24 Me. 520 ; Merritt v. 
 Scott, 81 N. C. 385. But see Folsom v. Clark, 72 Me. 44. 
 
 ' See Sohier v. Eldredge, 103 Mass. 345 ; Corbett v. Laurens, 5 Rich. Eq. (S. C.) 
 301. 
 
 8 See Parsons v. Winslow, 16 Mass. 361. 
 
 8 Ex-farte Thomas, 2 New South Wales L. R. 39. 
 
 10 Dockray v. Milliken, 76 Me. 517. 
 
 11 Hunt v. Pond, 67 Ga. 582. 
 
§§ 700, 701.] IMPROVEMENTS. 531 
 
 § 700. Improvements must be made upon tlie 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 re 
 covered, was excluded. 1 So in Coburn v. Ames, 2 in the Su- 
 preme 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 extending 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, 3 and this policy of the law is of 
 general application. 4 Expenditures made as a matter of 
 taste or for personal enjoyment will not be allowed. 5 In 
 Whitledge v. Wait, 6 the Court of Appeals of Kentucky, 
 after laying down the general rule that a oonafide possessor 
 is entitled to an allowance for lasting and valuable improve- 
 ments, macjp on the premises, remark : " Cases may arise 
 which may be exceptions to this general rule without im- 
 peaching it, as where unnecessary, expensive, useless, fan- 
 ciful, or ornamental improvements 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 instanced in Whitledge v. Wait, it is 
 
 1 Curtis v. Gay, 15 Gray (Mass.), 36. 
 " 52 Cal. 385. 
 
 3 See Gaines v. Kennedy, 53 Miss. 103. Compare French v. Grenet, 57 Tex. 
 2,80. 
 
 4 See Reed v. Reed, 10 Pick. (Mass.) 398; Woodward v. Phillips, 14 Grav (Mass.), 
 132. 
 
 6 York Buildings Co. v. Mackenzie, 3 Pat. App. Cas. 579; Atty. Genl. v. Kerr, 
 2 Beav. 429; Mill v. Hill, 3 H. L. Cas. 828. 
 
 • Sneed (Ky.), 335. See Dick v. Hamilton, 1 Deady, 332. 
 
532 IMPROVEMENTS. [§§ 702, 703. 
 
 not always an easy task to determine the question of what 
 constitute useful and permanent as distinguished from or- 
 namental 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 improve- 
 ments is the test, and this question must, of course, be de- 
 termined with reference to the peculiar facts of each par- 
 ticular case. 
 
 §702. Perishable improvements. — Improvements which 
 are temporary and perishable in their nature cannot be 
 allowed to the occupant. In Morris v. Tinker, 1 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 
 improvements 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 to which it is to 
 be devoted. 2 
 
 § 703. Expenditures in experimenting for profits.— In Noble 
 v. Biddle, 3 it was held that an occupant, who received pro- 
 fits 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 wrong-doer 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 
 
 1 6o Ga. 466. 
 
 8 See Stark v. Starr, 1 Sawyer, 15. See, also, § 699. 
 
 3 81* Penn. St. 430. 
 
§§ 704, 705.] IMPROVEMENTS. 533 
 
 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. 1 The question of the right of a oonafide 
 possessor of real estate, who has paid out money in dis- 
 charging 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 re- 
 garded as a settled rule in equity, that he is entitled to be 
 repaid the amount of such payments by the true owner 
 seeking to recover the estate from him. 2 This rule was 
 probably derived from the Roman law, and was applied by 
 Mr. Justice Story to a case where the money was appro- 
 priated, not to the discharge of a judgment or mortgage 
 lien, but to the payment of the debts of a testator, which 
 were a general charge upon the estate. 8 
 
 § 705. Improvements made after suit or ought. — It has 
 been shown that constructive notice, such as the record of 
 a deed, is not such notice of an adverse title as will de- 
 prive 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 fre- 
 quently 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. 4 It is impossible to instance any form of notice 
 of an adverse claim which could be more explicit and ac- 
 tual than the issuance and service of process in an action 
 
 1 See § 688 ; Nowler v. Coit, I Ohio, 519 ; s. c. 13 Am. Dec. 640 ; Homestead 
 Co. v. Valley R. R. 17 Wall. 166; Duffy v. Donovan, 52 N. Y..634 ; Potter v. 
 Grade, 58 Ala. 303. 
 
 2 Wilie v. Brooks, 45 Miss. 542. 
 
 3 See Bright v. Boyd, 1 Story, 498 ; Cook v. Toumbs, 36 Miss. 685 ; Smith v. 
 Robertson, 89 N. Y. 555 ; Sturgis v. Holliday, 1 MacAr. & M. (D. C.) 385. 
 
 4 Haslett v. Crain, 85 111. 129 ; Morrison v. Robinson, 31 Penn. St. 456 ; Gaines 
 »• Kennedy, 53 Miss. 103. See Woodhull v. Rosenthal, 61 N. Y. 382 ; Taylor v. 
 Whiting, 9 Dana (Ky.), 399 ; Johnson v. Harrelson, 18 S. C. 604; Hendersons. 
 Ownby, 56 Tex. 651 ; Estell z/.,Cole, 62 Tex. 695. 
 
534 IMPROVEMENTS. [§ 705. 
 
 based upon the hostile title. It is notice to the occupant 
 of the insecurity of the title and. of the imprudence of 
 making further outlays. 1 Jackson v. Loomis, 2 if the re- 
 porter's statement 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 distinction 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 acquir- 
 ing possession of his property in an improved condition, 
 after he has neglected, to assert his title for a number of 
 years, it is certainly equitable 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 applicable to improvements made 
 after suit brought. The learned court overlooks the fact 
 that the owner, who is invoking 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 occupant. In Pennsylvania, evi- 
 dence as to valuable improvements, made between the 
 first and second actions of ejectment, was excluded, the 
 court declaring that there was no 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. 4 
 So, in Indiana, a defendant in ejectment was not allowed 
 to prove that he had made permanent and lasting improve- 
 ments, subsequent to a sheriff's sale of the land to the 
 plaintiff, and before action brought. 6 It was even held in 
 
 1 Shand v. Hanley, 71 N. Y. 323, 324 ; Patterson v. Brown, 32 N. Y. 81; Hen- 
 derson v. Ownby, 56 Tex. 651. 
 
 2 4 Cowen (N. Y.), 168. 
 
 3 Wilkinson v. Pearson, 23 Penn. St. 117. 
 
 4 Aurand v. Wilt, 9 Penn. St. 54. 
 6 Osborn v. Storms, 65 Ind. 321. 
 
§ 706.J IMPROVEMENTS. 535 
 
 Haslett v. Orain, 1 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 notice 
 merely from the fact of having been completed in pursu- 
 ance of a contract with reference thereto entered into 
 prior to the notice. 
 
 Owners have a right to improve their property, notwith- 
 standing a line of public improvements have been marked 
 out over it, and the condemning party must pay for such 
 improvements unless made in gross bad faith. 2 
 
 § 706. Improvements made by grantor, warrantor or ances- 
 tor.— In Winslow v. Newell s it was held that a party who 
 purchased 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. 4 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-off, which his grantor did not 
 possess. If, however, the defendant is bona fide in posses- 
 sion, under a claim of right, with a warranty from a pre- 
 vious possessor in good faith, who has made improvements, 
 it is only just that he should have the benefit of such im- 
 provements, so far as they are in excess of the rents due 
 from the first possessor. The plaintiff gets the improve- 
 ments by his judgment, and as the defendant succeeds 
 under his deed to all the rights of his warrantor, there is 
 great equity in allowing him to set up whatever defense 
 his warrantor might have interposed. 5 The defendant is, 
 of course, not liable for mesne profits taken prior to his 
 own entry, if he makes no claim for improvements. If he 
 takes credit for prior improvements, all profits chargeable 
 to former occupants must first be deducted. 
 
 1 85 111. 129. 
 
 s Sherwood v. St. Paul & C. Ky. Co., 21 Minn. 122. See Winona & St. P. R. R. 
 Co. v. Denman, 10 Minn. 267; Hursh v. St. Paul & P. R. R. Co., 17 Minn. 439. 
 8 19 Vt. 164. 
 
 4 See Griswold v. Bragg, 18 Bla. C. C. 202. 
 s Willingham v. Long, 47 Ga. 540. See Morrison v. Robinson, 31 Penn. St. 456. 
 
536 ' IMPROVEMENTS. [§§ 707, 708. 
 
 An heir may enforce a claim for improvements put 
 upon the land by his ancestor. 1 
 
 § 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 
 contribute to produce, so as to allow the defendant for all 
 improvements made by him of which the plaintiff receives 
 the benefit. 2 It has been held in Georgia that the defend- 
 ant in ejectment is entitled to the value which the im- 
 provements give to the land, and that he is not limited to 
 their actual cost. 8 The value of the betterments at the 
 time of trial is the correct basis of the award, 4 as they may 
 have deteriorated from use and lapse of time. 5 The jury in 
 assessing mesne profits, and the value of improvements, 
 may deal with the entire tract together, although the de- 
 fendant claims the improved part under a separate convey- 
 ance. 6 
 
 § 708. Titles ivliich will not support claim for improvements. 
 — Improvements of any kind, put upon land by a life- 
 tenant during his occupancy, constitute no charge upon 
 the laud when it passes to the remainderman. 7 So a ven- 
 dee of land under a parol agreement, who has failed to 
 comply with his contract, and abandoned the possession 
 without fault of the vendor, cannot recover for improve- 
 ments put by him upon the laud. 8 So, in Massachusetts, 
 a town which proceeds illegally to take lands for a school- 
 house, is not entitled to an allowance for improvements. 9 
 And in Texas, a tax-title does not sustain a suggestion of 
 
 1 Stump v. Hornbeck, 15 Mo. App. 367. 
 
 3 Johnson v. Futch, 57 Miss. 73 ; Atty. Genl. v. Earl of Craven, 21 Beav. 411. 
 
 3 Willinghamz*. 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. 
 
 4 Wendell v. Moulton, 26 N. H. 41 ; Griswold v. Bragg, 18 Bla. C. C. 202. 
 
 5 Ewing v. Handley, 4 Lilt. (Ky.)346; s. c. 14 Am. Dec. 157. 
 
 6 Johnson v. Futch, 57 Miss. 73. See § 685. The rule has been stated to be 
 that an occupant of land is regarded as the employee of the real owner, and not as 
 Lis tenant, in clearing and fencing and rendering it fit for cultivation, but after it is 
 fit for cultivation the accounts between the owner and occupant are adjusted upoa 
 the principles governing landlord and tenant. Ewing v. Handley, 4 Litt. (Ky.)34°> 
 372- 
 
 ' Merritt v. Scott, 81 N. C. 385 ; Elam v. Parkhill, 60 Tex. 581, citing the text. 
 
 8 Rainerz/. Huddleston, 4 Heisk. (Tenn.) 223. 
 
 9 Spalding v. Chelmsford, 117 Mass. 393; Crosby v. Dracut, 109 Mass. 206. 
 
§ 708.] IMPROVEMENTS. 537 
 
 possession and improvements in good faith, 1 and something 
 more is required to support the suggestion of good faith 
 and claim for improvements, than a deed from one having 
 neither title nor possession. 2 So improvements and ex- 
 penditures 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. 8 
 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 defense to the 
 ejectment ; the remedy of the parties, in such a case, is by 
 a direct action upon the agreement. 4 In Hatchett v. 
 Conner 6 the Supreme Court of Texas say : " The jury were 
 instructed in substance that, if the appellant honestly 
 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 derived from the government. It is difficult to per- 
 ceive 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 improve- 
 ments made in good faith, a void title (if such an expres- 
 sion may be used) cannot be." 6 This is practically equiva- 
 lent 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 
 
 1 Robson v. Osborn, 13 Tex. 298. See Oberich v. Gilman, 31 Wis. 495. 
 
 2 Miller v. Brownson, 50 Tex. 583. But a deed of a married woman, though in- 
 valid, may serve as a basis of a claim for improvements. Johnson v. Bryan, 62 
 Tex. 623. 
 
 8 Harden v. Hays, 9 Penn. St. 151. 
 
 4 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; Godeffroy v. Caldwell, 2 Cal. 489; Lower v. Win- 
 ters, 7 Cow. (N. Y.) 263; 4 Kent's Com. p. 450. 
 
 6 30 Tex. 104. 
 
 6 See Rogers v. Bracken, 15 Tex. 568; Robson v. Osborn, 13 Tex. 298; Pitts v. 
 Booth, 15 Tex. 454. 
 
538 IMPROVEMENTS. [§§ 709, 710. 
 
 adverse possession. The requirement that the occupant, 
 to establish good faith, should trace an apparent title from 
 the government, is too exacting, and would, in many in- 
 stances, practically defeat the operation of the improve- 
 ment statutes. 1 
 
 § 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. 2 In a case 
 which arose in Massachusetts, an owner of land died, 
 leaving a widow and children. The widow married again, 
 and the husband improved and lived on the property, and 
 enjoyed 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 
 improvements. 3 So, as we have seen, it has been held in 
 New York that a married woman can maintain ejectment 
 for her lauds against her husband, and the fact that he had 
 made improvements, while they resided together thereon, 
 constituted no defense, and, at best, the improvements 
 could only be allowed to the extent of the mesne profits 
 claimed. 4 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. 
 
 § 710. Mortgagee in possession. — An occupant having 
 really only the rights of a mortgagee in possession, but 
 believing himself to have an absolute title, and who, in 
 good faith, makes valuable improvements, is entitled to be 
 paid for them. 5 Thus, in Mickles v. Dillaye 6 it appeared 
 
 1 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. 
 
 2 Marable v, Jordan, 5 Humph. (Tenn.) 417. 
 
 3 O'Brien v. Joyce, 117 Mass. 360. 
 
 * Wood v. Wood, 83 N. Y. 575. See Minier v. Minier, 4 Lans. (N. Y.) 424. Im- 
 provements placed by a debtor upon the lands of anotiier in fraud of creditors may 
 be reached. Lynde v. McGregor, 13 Allen (Mass.), 182 ; Isham v. Schater, 60 Barb. 
 (N. Y.) 330; Rose v. Brown, 11 W. Va. 137; Heck v. Fisher, 78 Ky. 644 ; Wait on 
 Fraud. Conv. ij 26. 
 
 '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. 
 
§ 711.] IMPROVEMENTS. 539 
 
 that valuable and permanent improvements 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 tbe 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 improve- 
 ments had enhanced the value of the property, and were 
 really the inspiring 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 acqui- 
 esced in the adverse possession of the premises by the 
 defendant, and thereby contributed to the mistake under 
 which the latter acted, the plaintiff, if permitted to redeem, 
 must pay for the improvements to the extent of the benefit. 1 
 These cases must be distinguished from the cases which 
 hold that the mortgagee is not to be allowed for general 
 improvements, made without the acquiescence or consent 
 of the mortgagor, especially if the improvements tend to 
 cripple the power of redemption. 2 
 
 § 711. Co-tenants. — The subject of mesne profits between 
 co-tenants has already been considered. 3 A co-tenant can- 
 not recover for improvements made without the express 
 or implied assent of his companion. 4 In partition proceed- 
 ings, however, the court will endeavor to award the im- 
 proved part of the land to the tenant making the improve- 
 ments. 5 Even the law as to the liability of a co-tenant for 
 
 'See Dows v. Congdon, 28 N. Y. 132; Benedict v. Gilman, 4 Paige (N. Y.), 62; 
 Hubbell v. Moulson, 53 N. Y. 225; Alkinson v. Morrissy, 3 Oregon, 332. 
 
 2 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. 
 
 a See § 660. 
 
 4 Scott v. Guernsey, 60 Barb. (N.Y.) 163, aff'd 48 N. Y. 106 ; Taylor v. Baldwin, 
 10 Barb. (N. Y.) 582 : Ford v. Knapp, 31 Hun (N. Y.), 524; Becnel v. Becnel, 23 
 La. Ann. 150 \, Stevens v. Thompson, 17 N. H. 103; Sears v. Munson, 23 Iowa, 
 380; Bazemore v. Davis, 55 Ga. 504 ; Walter v. Greenwood, 29 Minn. 87 ; Hus- 
 band v. Aldrich, 135 Mass. 317. 
 
 s Beam v. Scroggin, 12 Bradw. (111.) 321 ; Robinson v. McDonald, II Tex. 385; 
 
540 IMPROVEMENTS. [§ 711. 
 
 repairs made without his assent is in confusion. Some of 
 the cases are in favor of upholding such liability, 1 though 
 tbe doctrine does not seem to be firmly established. 2 Where 
 a tenant in common had recovered in ejectment against his 
 companion, who was in adverse possession, it was said, in 
 tbe Supreme Court of Georgia, that the equities based upon 
 improvements made in good faith by the defeated co-ten- 
 aut, under an honest belief of ownership of the whole title, 
 would be adjusted. 3 The Supreme Court of Pennsylvania 
 decided, in Walker v. Humbert/ that, on a claim for mesne 
 profits made by a co-tenant against his companion, the 
 latter was not chargeable with rent paid in the form of per- 
 manent improvements on the land, and on a writ of entry 
 by two tenants in common against a third, in Massachusetts, 
 it was held 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. 5 The Wisconsin Betterment Stat- 
 ute allows the bona fide possessor to recover the value of 
 his improvements. This was applied to actions brought to 
 recover an undivided interest in laud, so as to give a tenant 
 in common, who has been defeated in an action to recover 
 possession of such 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 respec- 
 tive interests, was one arising by implication rather than 
 conferred by express grant, yet, they say, it would be man- 
 ifestly unjust in such cases to impose upon one party the 
 entire burden of the improvements. 6 
 
 Nelson v. Clay, 7 J. J. Marsh. (Ky.) 138 ; S. c. 23 Am. Dec. 387 ; contra, Husband 
 v. Aldrich, 135 Mass. 317. 
 
 ' Denman v. Prince, 40 Barb. (N. Y.) 213; McDearman v. McClure, 31 Ark. 
 559 ; Fowler v. Fowler, 50 Conn. 256; Alexander v. Ellison, 79 Ky. 14S. 
 
 2 See Kidder v. Rixford, 16 Vt. 169 ; Calvert v. Aldrich, 99 Mass. 74; Stevens 
 v. Thompson, 17 N. H. 103. 
 
 3 Logan v. Goodall, 42 Ga. 95. See Strong v. Hunt, 20 Vt. 614. 
 
 4 55 Penn. St. 407. 
 
 5 Backus v. Chapman, in Mass. 386. See Silloway v. Brown, 12 Allen (Mass.), 
 30 
 
 6 Phcenix Lead Mining, &c, Co. v. Sydnor, 39 Wis. 600. See Davis v. Louk, 30 
 
§ 712.] IMPROVEMENTS. 541 
 
 § 712. Constitutionality of the improvement statutes. — The 
 Improvement Statutes of Wisconsin is said, in Pacquette v. 
 Pickness, 1 to be founded upon "the broad principles of 
 equity." The making of lastiog and valuable improvements 
 requires time, and, when made by an adverse possessor, 
 constitute 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 limita- 
 tions, it certainly possesses the power to declare the lapse 
 of time necessary for making such improvements a condi- 
 tional bar. 3 It cannot be claimed that the statutes are 
 unconstitutional because they deprive the owner of the 
 land without his consent. Their effect is to punish him for 
 his laches in remaining quiet and failing to assert his title, 
 or give notice of it to the occupant while the improvements 
 are in progress. 3 The improvements, as we have seen, be- 
 come a part of the freehold, and belong to the owner, who 
 recovers the land in its improved condition ; having neg- 
 lected to assert his title during the years in which the in- 
 nocent 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 may not 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 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, the presumption being that every body is acquainted 
 
 Wis. 308; Walker v. Humbert, 55 Perm. St. 407. See, also, § 660. In Michigan a 
 somewhat similar statute has been interpreted so as not to apply where the defendant 
 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 im- 
 provements. See Martin v. O'Conner, 37 Mich. 440. See, also, Comp. Laws Mich. 
 §§ 6252-3, Act 180 of 1875; Sands v. Davis, 40 Mich. 14; Morris v. McKay, 40 Mich. 
 326. 
 
 1 19 Wis. 2ig. 
 
 2 See Armstrong v. Jackson, I Blackf. (Ind.) 374. 
 
 3 Ross v. Irving, 14 111. 171. See Davis v. Powell, 13 Ohio, 308 ; Longworth v. 
 Wolfington, 6 Ohio, 10; Shaler v. Magin, 2 Ohio, 236; Bodleyz/. Gaither, 3 Mon. 
 (Ky.)58; Pope v. Macon, 23 Ark. 644 ; Scott v. Mather, 14 Tex. 235; Green v. 
 Biddle, 8 Wheat. 1 ; Bright v. Boyd, 2 Story, 605. 
 
542 IMPROVEMENTS. [§ 713. 
 
 with his own rights, and his opportunities for gaining 
 knowledge of his title are manifestly superior to those of 
 the adverse occupant. 1 It follows that a properly framed 
 improvement or betterment statute is both equitable and 
 constitutional. An examination of the cases holding par- 
 ticular statutes unconstitutional, will show that special 
 facts were involved. Thus, in Green v. Biddle, 2 the leading 
 case on the subject, the statute was adjudged unconstitu- 
 tional because it impaired the provisions of a compact be- 
 tween Virginia and Kentucky. 
 
 § 713. In wliat tribunals ^improvements are recoverable. — 
 The claim for improvements is usually asserted as an off- 
 set in the action for mesne profits, whether the latter 
 action be joined with the ejectment or prosecuted sepa- 
 rately. In Missouri it has been held that a claimant who 
 had been evicted from land could not maintain an action 
 for improvements. The action must be brought in the 
 same court in which the recovery in ejectment was had, 
 and prior to eviction from the premises. 3 In Virginia, the 
 claims for mesne profits and improvements must all be 
 passed upon by the same jury. 4 In Sherry v. The State 
 Bank, 5 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 proceed- 
 ings 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 improvements. It has already 
 been shown that the claim for compensation for improve- 
 
 1 See Green v. Biddle, 8 Wheat. I ; Billings v. Hall, 7 Cal. I ; Griswold v. 
 Bragg, 1 8 Bla. C. C. 202. 
 
 2 8 Wheat. 1. See Billings v. Hall, 7 Cal. 1. Judge Cooley said : " The parties 
 cannot be placed in statu quo, and the statute accomplishes justice as nearly as the 
 circumstances of the case will admit, when it compels the owner of the land, who, 
 if he declines to sell, must necessarily appropriate the betterments made by another, 
 to pay the value to the person at whose expense they have been made. 1 he case is 
 peculiar; but a statute cannot be void as an unconstiiutional inteiference with pri- 
 vate property which adjusts the equities of the parties as nearly as possible according 
 to natural justice." Cooley on Const. Lims. (51I1 ed.) p. 480 [*38g]. 
 
 3 M alone v. Stretch, 69 Mo. 25. See Webster v. Stewart, 6 Iowa, 401 ; Claussen 
 v. Rayburn, 14 Iowa, 136. 
 
 4 Goodwyn v. Myers, 16 Gratt. (Va.) 336. 
 6 6 Ind. 397. 
 
§§ 714, 715.] IMPROVEMENTS. 543 
 
 ments made by the occupant is au equitable lien which 
 cannot be made the subject of an independent ejectment. 1 
 
 § 714. Pleading. — In order to be allowed for his improve- 
 ments the defendant must plead them 2 by way of set-oft' in 
 his answer, 3 and must state that he entered upon the dis- 
 puted land under claim of title. 4 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 improvements 
 cannot be given. 5 And it is not sufficient to set up that 
 the occupant has made permanent improvements in good 
 faith and allege their costs. 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. 6 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. 7 The de- 
 fendant cannot ordinarily have the value of his lasting 
 improvements ascertained until the determination of the 
 question of title. 8 And in California, where no evidence 
 is introduced to show damages, it is error to admit evidence 
 of improvements. 9 
 
 § 715. Verdict. — In Hutchins v. Bacon, 10 the jury re- 
 turned a verdict for plaintiff, incorporating in it, how- 
 ever, 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 verdict clearly intended to protect the 
 
 1 Paull v. Eldred, 29 Penn. St. 415. See § 159. 
 
 2 Walsh v. Wilson, 131 Mass. 535. 
 
 3 Moss v. Shear, 25 Cal. 38. See Bonner v. Wiggins, 52 Tex. 125 ; Clewis v. 
 Hartman, 71 Ga. 810. 
 
 4 Ragsdale v. Gohlke, 36 Tex. 286 ; Powell v. Davis, 19 Tex. 380. 
 6 Carpentier v. Small, 35 Cal. 346 ; Powell v. Davis, 19 Tex. 380. 
 
 6 Wythe v. Myers, 3 Sawyer, 595 ; Wendell v. Moulton, 26 N. H. 41 ; Griswold 
 ■v. Bragg, 18 Bla. C. C. 202. 
 
 1 Learned v. Corley, 43 Miss. 687 ; Daniels v. Bates, 2 G. Gr. (Iowa), 151. 
 
 8 Wernke v. Hazen, 32 Ind. 431. 
 
 9 Ford v. Holton, 5 Cal. 319. 
 " 46 Tex. 408. 
 
544 IMPROVEMENTS. [§ 716. 
 
 defendants to the extent of the value of their improve- 
 ments, and that it could not be disregarded as surplus- 
 age. 1 
 
 § 716. Judgment for improvements. — It was held in the 
 Supreme Court of Wisconsin, in Scott v. Reese, 2 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 de- 
 fendant'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 entered. The court decided that on appeal from 
 the judgment in defendant's favor, for the value of the 
 improvements, the judgment for possession was not up for 
 
 1 Roberti v. Atwater, 42 Conn. 266; Martin v. Martin, 17 S. & R. (Penn.) 431. 
 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 
 test. 
 
 722. When possession not sufficient to 
 
 support ejectment. 
 
 § 723. Distinction between prior posses- 
 sion and adverse possession. 
 
 723a. Possession as notice of possessor's 
 rights. 
 
 723^. Possession to determine conflict- 
 ing claims. 
 
 723^. Possession in statutory suit to 
 quiet title. 
 
 723a?. Possession and paper title. 
 
 " The law defends possession against everything except a better title." — Holmes' Common 
 Law, p. 382. 
 
 u Any possession is a legal possession against a wrong-doer." — Lord Kenyon in Graham v. 
 Peat, 1 East, 246. 
 
 Possessio contra omnes valet praeter eum cuijus sit possessionis. 
 
 § 717. Possession as evidence of title. — Having thus traced 
 the remedies for the trial of land titles historically and in 
 the modern procedure through their various stages, and 
 considered the resulting rights of the parties to mesne 
 profits and betterments, it becomes important to notice the 
 titles and defenses common to these actions, and especially 
 to consider questions of evidence peculiar to real property 
 trials, and upon what proofs these actions may be support- 
 ed or defeated. The rights which result from the posses- 
 sion of land first demand attention. 
 
 Allen, J., in delivering the opinion of the New York 
 Court of Appeals, in Eawley v. Brown, 1 said : " Possession 
 of property alone, and without explanation, is evidence of 
 ownership ; but is the lowest species of evidence. It is 
 merely presumptive, 2 and liable to be overcome by any 
 evidence showing the character of the possession, and that 
 
 1 71 N. Y. 85. See Thompson v. Burhans, 79 N. Y. 93 ; McNeely v. Langan, 
 22 Ohio St. 37 ; Golden Fleece Co. v. Cable Con. Co., 12 Nev. 312; s. c. 1 Mor. 
 Min. Rep. 129. 
 
 8 See Keith v. Keith, 104 111. 402 ; Barger v. Hobbs, 67 111. 592. 
 
 35 
 
546 possession. [§ 717. 
 
 it is not necessarily as owner." The possession raises a 
 presumption of fact which may be rebutted. 1 A possession 
 for less than the statutory period that confers title by 
 adverse possession is sufficient. 2 The question of the 
 effect of mere possession becomes importaut only when 
 there is no other evidence of title on either side, and the 
 subsequent possession of the defendant was acquired by 
 mere entry. 3 
 
 It was held in Kansas that possession was a low degree 
 of title, and descended to heirs, 1 and such is the general 
 rule. 5 A debtor, as we have seen, may have homestead in 
 a possessory interest, 6 and a naked possession can be sold 
 at sheriff's sale, and the purchaser acquires the right to 
 recover it in ejectment, 7 and it can be taxed. 8 Possession 
 of land is prima facie evidence of the highest estate in the 
 property, viz., a seizin in fee, 9 and, as we shall see, is alone 
 sufficient to support ejectment against trespassers or 
 intruders. 10 This is the general rule. Thus, a person in 
 
 1 Yates v. Yates, 76 N. C. 142. 
 
 2 Dominy v. Miller, 33 Barb. (N. Y.) 390; Smith v. Lorillard, 10 Johns. (N. Y.) 
 338. 
 
 3 Smith v. Lorillard, 10 Johns. (N. Y.) 338; Dunn v. Miller, 75 Mo. 273 ; Bled- 
 soe v. Simms, 53 Mo. 305 ; Jackson v. Rightmyre, 16 Johns. (N. Y.) 325. 
 
 4 Mooney v. Olsen, 21 Kansas, 691-697. But see Farris v. Hayes, 9 Oregon, 83; 
 Hall v. Russell, 3 Sawyer, 514. 
 
 6 See Ludlow v. McBride, 3 Ohio, 241 ; Phelan v. Kelly, 25 Wend. (N. Y.) 389; 
 Gillett v. Gaflney, 3 Col. 351 ; Teabout v. Daniels, 38 Iowa, 158. See, also, § 296. 
 
 B McGrath v. Sinclair, 55 Miss. 89. 
 
 7 Knox v. Herod, 2 Penn St. 26 ; Hughes v. Devlin, 23 Cal. 501. 
 
 8 Blackwell on Tax Titles, 5-6. 
 
 " Ricaid v, Williams, 7 Wheat. 59 ; Preston v. Bowmar, 6 Wheat. 580; Blunt 0. 
 Aikin, 15 Wend. (N. Y.) 522 ; Adams on Eject. (4th Am. ed.) p. 137 ; Jackson d. 
 Spark'man v. Porter, I Paine, 457 ; Yates v. Yates, 76 N. C. 142 ; Dingey v. Pax- 
 ton, 60 Miss. 1048; Johnson v. Futch, 57 Miss. 73; Woods v. Lane, 2 S. & R. (Pa.) 
 53 ;' Mitchell v. Caider, 21 VV. Va. 277 ; Sears v. Taylor, 4 Col. 38 ; Cole on Eject. 
 211 ; Eakin v. Brewer, 60 Ala. 579 ; Wilson v. Glenn, 68 Ala. 3S3; Day v. Alver- 
 son,'g Wend. (N. Y.) 223; Murphy v. Loomis, 26 Hun (N. Y.), 659; Wilson v. 
 Palmer, 18 Tex. 592; North Noonday Mining Co. v. Orient Mining Co., II Fed. 
 Rep. 125 ; Mickey v. Stratton, 5 Sawyer, 475 ; Bradshaw v. Emory, 65 Ala. 208 ; 
 Doe d. Mills v. Clayton, 73 Ala. 359 ; Wheeler v. Ladd, 40 Ark. 112; Feirbaugh v. 
 Masterson, 1 Idaho, 135 ; Keith v. Keith, 104 111. 397 ; Brookings z'.Woodin, 74 Me. 
 222. 
 
 10 Jones v. Easley, 53 Ga. 454 ; Bates o. Campbell, 25 Wis. 613. The weight of 
 the inference in favor of any claim of right, whether legal or equitable, against the 
 United States, growing out of mere possession, is very slight. Simmons 11. Ogle, 
 105 U. S. 273. See Frisbie u, Whitney, 9 Wall. 187. Mere possession of public 
 lands, though open, exclusive and uninterrupted, creates no impediment to a recov- 
 ery by the government or by one who receives its conveyance. The statute only be- 
 gins to run after the title has passed from the government to its grantee. Oaksmitn 
 
§ 717.] possession. 547 
 
 possession of land is presumed to have acquired the title 
 which the people, in their capacity of sovereign, once held; 1 
 and it is not always a prerequisite to a recovery in eject- 
 ment 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. 3 A widow as demandant 
 in dower establishes prima facie a seizin in fee in her 
 husband, by showing his actual possession of the prem- 
 ises, claiming as- owner. 3 As between two possessions the 
 first is preferred ; i and where the equities are equal 
 possession prevails. 5 A party who only shows possession 
 under an unfounded claim of title will be defeated by 
 evidence of actual possession and occupation prior to the 
 entry under such pretended claim. 6 A party having actual 
 possession of a mining claim has sufficient title to main- 
 tain an action against trespassers, although he may not 
 have conformed to all the particulars required by law in 
 taking up the claim. 7 Possession of land for a long period 
 of time will raise a presumption of a grant which will be 
 enforced against the government. 8 
 
 -v. Johnston, 92 U. S. 343. See Burgess v. Gray, 16 How. 48. But contracts con- 
 cerning possessory rights of actual seltlers are valid between the parlies. Lamb v. 
 Davenport, 18 Wall. 307. It is doubtful whether a mere possessory interest will sup- 
 port a partition suit. Strettell v. Ballou, 3 McCra. 46. See Horncastle v. Charles- 
 worth, 11 Sim. 315 ; Williams v. Wiggand, 53 111. 233 ; Ross v. Cobb, 48 111. 
 in. 
 
 1 People v. Trinity Church, 22 N. Y. 44. See § 192. 
 
 2 Doe v. West, 1 Blackf. (Ind.) 135 ; Boyreau v. Campbell, McAU. 119; affd 
 Campbell v. Boyreau, 21 How. 223. 
 
 8 Sparrow v. Kingman, 1 N. Y. 242 ; Ward v. Mcintosh, 12 Ohio St. 231 ; Jack- 
 son v. Waltermire, 5 Cow. (N. Y.) 301 ; Bancroft v. White, 1 Cai. (N. Y.) 190. 
 4 Potter v. Knowles, 5 Cal. 87. 
 4 St. Johnsbury v. Morrill, 55 Vt. 165. 
 
 6 Ford v. Belmont, 69 N. Y. 567. 
 
 7 North Noonday Mining Co. v. Orient Mining Co., 11 Fed. Rep. 125. 
 
 8 United States v. Beebee, 17 Fed. Rep. 39, and cases cited. Mr. Irving Browne 
 deduces the following rules from the authorities as to the possession necessary 'to 
 maintain ejectment. See 7 Alb. L. J. 401. (1.) The possession need not be of such 
 a character as would work a disseizin of the true owner. Citing Slater v. Rawson, 6 
 Mete. (Mass.) 439 ; Hubbard v. Little. 9 Cush. (Mass.) 476. (2.) The possession 
 must be actual and not .constructive merely. Citing Campbell v. Arnold, 1 Johns. (N. 
 Y.)5i2; Wickham v. Freeman, 12 Johns. (N. Y.) 183; Stuyvesant v. Tompkins, 9 
 Johns. (N. Y.) 61 ; Leland v. Tou-ey, 6 Hill (N. Y.), 331 ; Phillips v. De Groat, 2 
 Lans. (N. Y.) 196; Sparhawk v. Bullard, 1 Mete. (Mass.) 95. (3.) The possessory 
 acts must be such as in themselves evidence an assertion of right to the soil, but they may 
 differ according to the different natui e and condition of the property itself . See Bar- 
 
548 possession. [§ 718. 
 
 § 718. Prior possession sufficient against a trespasser or 
 intruder. — In Christy v. Scott, 1 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 
 outstanding title in another. The maxim that the plaintiff 
 must recover on the strength of his own title, and not on 
 the weakness 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, 8 or by an eject- 
 ment, 8 or he may maintain trespass." 4 The same rule, of 
 course, appertains in trespass to try title, 5 and, as against 
 an intruder, it is immaterial whether the legal title is 
 vested in the holder of it absolutely, or whether he holds 
 it in trust for another. Hence, where an attorney pur- 
 chased 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. 6 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 authorities hold. 7 
 
 tholomew v. Edwards, 1 Houst. (Del.) 17 ; Morris v. Hayes, 2 Jones' (N. C.) Law, 
 93 ; Allen v. Suseng, 1 Coldw. (Tenn.) 204 ; Oatman v. Fowler, 43 Vt. 462 ; Nichols 
 v. Todd, 2 Gray (Mass.). 568 ; Cook v. Rider, 16 Pick. (Mass.) 186. (4.) The posses- 
 sion must be exclusive in the claimant, and not mixed or concurrent with the defendant. 
 Citing Inhabitants of Barnstable v. Thacher, 3 Mete. (Mass.) 239 ; Church v. Meeker, 
 34 Conn. 423. In Aslier 1: Whitlock, L. R. 1 Q. B. 5, Cockburn, C. J., said: " I take 
 it as clearly established, that possession is good against all the world except the per- 
 son who can show a good title ; and it would be mischievous to change this estab- 
 lished doctrine. In Doe d. Hughes v. Dyeball, Moody & M. 346, one year's posses- 
 sion by the plaintiff was held good against a person who came and turned him out." 
 In the same case Mellor, J., said: " The fact of possession xsprima facie evidence 
 of seizin in fee." 
 
 ' 14 How. 282. See Burt v. Panjaud, 99 U. S. 180; Wilson v. Glenn, 68 Ala. 
 386; Seymour v. Creswell, 18 Fla. 38. 
 
 2 Citing Jackson v. Boston & W. R. R. Co., 1 Cush. (Mass.) 575. 
 
 3 Citing Allen v. Rivington, 2 Saund. 111; Doe v. Reade, 8 East, 356; Doe d. 
 Hughes v. Dyeball, Moody & M. 346; Jackson v. Hazen, 2 Johns. (N. Y.)438; 
 Whitney v. Wright, 15 Wend. (N. Y.) 171. 
 
 4 Citing Catteris v. Cowper, 4 Taunt. 548; Graham v. Peat, I East, 246. 
 ' Caplen v. Drew, 54 Tex. 493. 
 
 6 Lair v. Hunsicker, 28 Penn. St. 115. 
 
 ' Fowke v. Darnall, 5 Litt. (Ky.) 317; Whitney v. Wright, 15 Wend.(N. Y.)l7l| 
 
§ 719.] possession. 549 
 
 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. 1 
 
 § 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 established, 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 questioned. Acts which consti- 
 tute mere trespasses or depredations upon land, often 
 cannot 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 dis- 
 tinction is still narrower, will be very difficult of appli- 
 cation, if not practically impossible, in ordinary cases. 2 
 In Woods v. Banks 8 it appeared that the plaintiff's agent 
 entered upon the land with a view of taking possession 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 
 
 Doe d. Harding v. Cooke, 7 Bing. 346; Hunter v. Starin, 26 Hun (N. Y.), 529; 
 Schultz i. Arnot, 33 Mo. 172; Wilson v. Palmer, 18 Tex. 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 Cas. R. 
 K. Co. v. Oregon Steam Nav. Co., 3 Oregon, 178: Kelly v. Mack, 49 Cal. 524; 2 
 Greenl. Ev. § 618 ; Clarke v. Clarke, 51 Ala. 498; Lum v. Reed, 53 Miss. 73. 
 
 1 See Ricard v. Williams, 7 Wheat. 59. Possession is usually a question of fact 
 to be found by the jury under proper instructions. Maxwell v. Paine, 53 Mich. 30. 
 
 'Compare Perry v. Weeks, 137 Mass. 584. 
 
 3 14 N. H. 101. 
 
550 possession. [§ 719. 
 
 land to uphold a recovery against a trespasser who subse- 
 quently 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 followed, by the 
 Supreme Court of New York, in Thompson v. Burhans, 1 
 but this latter case was reversed in the New York Court of 
 Appeals. 3 Earl, J., in delivering the opinion of the court, 
 said : " In Woods v. Banks 3 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 
 action 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 posses- 
 sion 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 Thompson v. Burhans it 
 appeared that the locus in quo, which consisted of a very 
 extensive tract of woodland, was not inclosed ; no part of 
 it had ever been cultivated or improved ; 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 laud, from time to time, and cutting logs 
 thereon, does not give possession. Such acts are merely 
 trespasses upon the land against the true owner, whoever 
 he may be. Any other intruder may commit similar tres- 
 
 1 15 Hun (N. Y.), 580, 584. * 79 N. Y. 93, 101. 
 
 8 14 N. H. 101. 
 
§ 720.] POSSESSION. 55L 
 
 passes without liability to any other trespasser. Such acts 
 do not constitute a disseizin of the true owner." The 
 court, in the coarse 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 ownership 
 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 Miller v. Long Island Eailroad Company 1 the 
 question of the possession of woodland was considered in 
 the New York Court of Appeals. Earl, J., said: "The 
 possession, unaccompanied with paper title, requisite to 
 furnish the presumption of ownership sufficient to main- 
 tain 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 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 fire- 
 wood, saw logs, and fencing and building timber." a 
 
 § 720. The cases considered. — In Sankey v. Noyes, 3 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 ol the land, the locality, and the 
 object for which it is taken up. While arable or meadow 
 
 1 7i N. Y. 380. 
 
 2 See Machin v. Geortner, 14 Wend. (N. Y.) 239. This subject is discussed in 
 treating of adverse possession. See Chaps. XXVIII, XXIX, XXX. 
 
 3 I Nevada, 71. See Courtney v. Turner, 12 Nev. 345. 
 
552 possession. [§ 720. 
 
 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, 1 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, 2 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, 
 such as recording deeds, paying taxes, etc." The mere 
 staking off of laud, 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. 3 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 in- 
 closure by raising and gathering crops thereon, though no 
 direct proof of the character of the fence is given. 4 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 with- 
 out right. 5 
 
 1 io Tex. 137. 
 5 4 Cal. 95. 
 
 3 Sankey v. Noyes, 1 Nev. 68-72. 
 
 4 Hestres v. Brannan, 21 Cal. 423. 
 
 5 Kline v. Johnston, 24 Penn. St. 72. 
 
 Possession to sustain trespass. — Proof that the whole premises were used as a 
 wood lot for the purpose of fuel and fencing, is sufficient evidence of actual posses- 
 
§§ 721, 722.] possession. 553 
 
 § 721. Possession which will warrant ejectment against a 
 defendant not the test. — In Quicksilver Mining Company v. 
 Hicks, 1 it was said that any subjection of land to the do- 
 minion of an individual, as owner, would constitute posses- 
 sion 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- 
 sidered acts of possession, 3 and squatters, 3 and even serv- 
 ants, 4 who manifestly could not support the action, may be 
 made defendants. 
 
 § 722. When possession not sufficient to support ejectment. — 
 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. 5 The mere taking from the land of a portion of 
 the herbage growing thereon, is not sufficient to give the 
 right of possession. 6 The principle of law, which permits a 
 
 recovery against a trespasser, intruder or wrong-doer, upon 
 i 
 
 sion to maintain trespass. Machin v. Gcortner, 14 Wend. (N. Y.) 239; Argotsinger 
 v. Vines, 82 N. Y. 313. Compare Miller v. Long Island R. R. Co., 71 N. Y. 380. 
 Possession is sufficient to maintain trespass. Hay ward v. Sedgley, 14 Me. 439; 
 Heath v. Williams, 25 Me. 209 ; Truss v. Old, 6 Rand. (Va.) 556; s. c. 18 Am. 
 Dec. 748, note, 751. See McClain v. Todd, 5 J. J. Marsh. (Ky.) 335 ; s. c. 22 Am. 
 Dec. 37; Matson v. Cook, 4 Bing. N. C. 392; Catteris v. Cowper, 4 Taunt. 547 ; Gra- 
 ham v. Peat, 1 East, 246. 
 
 1 4 Sawyer, 688. See Ward v. Parks, 72 N. C. 452 ; Burke v. Hammond, 76 
 Penn. St. 172 ; Courtney v. Turner, 12 Nev. 345. 
 
 2 See § 234. s See § 241. 
 4 See § 242, ,1. 
 
 Baldwin v. Simpson, 12 Cal. 560. See Hughes v. Hazard, 42 Cal. 149 ; 
 Southmayd v. Henley, 45 Cal. 101. 
 
 6 Steinback v. Fitzpatrick, 12 Cal. 295. 
 
554 possession. [§ 723. 
 
 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 pro- 
 tect the possession 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. 1 
 
 § 723. Distinction between prior possession and advene 
 possession. — This distinction has already been noticed. In 
 Hunter v. Starin, 2 Oullen, 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 con- 
 stitute an adverse possession in the plaintiff, and numerous 
 cases are cited to establish this contention. I think de- 
 fendant is correct, and the finding of the court below of an 
 adverse possession erroneous. But I think there is a plain 
 difference 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, 3 the plaintiff claimed title by adverse 
 possession. Kent, Oh. 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, 4 the distinction even in physical ele- 
 ments between possession and adverse possession is rec- 
 ognized. To constitute the latter the possession must be 
 
 1 See Fowler v. Whiteman, 2 Ohio St. 270 ; Drew v. Swift, 46 NT. Y. 204. In 
 People v. Batchelder. 27 Cal. 73, the court said : " We are not disposed to extend 
 the doctrine which recognizes the actual possessor of land for the uses to which land 
 is ordinarily employed, as its owner, to the casual and temporary occupant, whose 
 use of it is subordinate to the pursuits of hunting and fishing, or the gathering of 
 the eggs of birds whose resting places are upon the islands of the sea. It would be 
 equally reasonable to recognize in the hunter who had first penetrated the mountain 
 wild in quest of game, the exclusive right to it as his hunting ground, as it would to 
 accord to the Farallone Egg Company the right to the exclusive possession of the 
 Farallone Islands, or any one of them, for the business of gathering eggs left there 
 by wild birds." 
 
 2 26 Hun (N. Y.), 529. 
 
 3 6 Johns. (N. Y.) 197. 
 
 4 54 N. Y. 377. 
 
§ 723a.] possession. 555 
 
 exclusive, while the exercise of ordinary control and do- 
 minion of the land, I think, constitutes a sufficient pos- 
 session 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 con- 
 nected with a farm, may be treated as mere trespasses, 
 and do not necessarily constitute occupancy, 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 consisted of spot- 
 ting the trees around the locus in quo, which latter case, as 
 we have seen, the New York Court of Appeals refused to 
 follow. 1 Indeed, Hunter v. Starin can hardly be recon- 
 ciled 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 numer- 
 ous and denned than in the former case, and, in addition to 
 cutting timber, included payment of taxes, surveying, and 
 other indicia of claim and assertion of ownership. 
 
 The distinction, which some of the cases seek to estab- 
 lish, between prior possession and adverse possessiou, may 
 be likened to the distinction applicable to a disseizin be- 
 tween strangers, and between tenants in common, or par- 
 ties occupying a relation of trust ; the difference is in de- 
 gree, or in the amount of proof which must be furnished 
 in each case, though otherwise the analogy does not hold 
 good. This distinction is denied in Missouri. 3 The 
 Supreme Court of California say: "Wherein, it may be 
 asked, does the actual possession, required in case of prior 
 possession, differ, if at all, from the actual possession 
 demanded in adverse possession ? We see no ground for 
 drawing any distinction, and think none exists." s 
 
 § 723a. Possession as notice of possessor's rights. — The 
 
 1 See Woods v. Banks, 14 N. H. 101 ; Thompson v. Burhans, 15 Hun (N. Y.), 
 584; reversed, 79 N. Y. 93. 
 
 ! Spurlock v. Dougherty, 81 Mo. 184. See Dalton v. Bank of St. Louis, 54 Mo. 
 105 ; Doan u. Sloan, 42 Mo. 106 
 
 3 Polack v. McGrath, 32 Cal. 21. 
 
556 possession. [§§ 7236, 723c. 
 
 possession of property is notice to all persons dealing with 
 the property of the rights of the occupant in it. 1 It is 
 said in Brown v. Volkening, 2 that "the character of the 
 possession which is sufficient to put a person upon inquiry, 
 and which will be equivalent to actual notice of rights or 
 equities in persons other than those who have a title upon 
 record, is very well established by an unbroken current of 
 authority. The possession and occupation must be actual, 
 open and visible ; it must not be equivocal, occasional, or 
 for a special or temporary purpose ; neither must it he 
 consistent with the title of the apparent owner by the 
 record." 3 Constructive notice will not suffice. 4 
 
 § 723&. Possession to determine conflicting claims. — The 
 words "actual possession," used in the statutes of New 
 York, 5 permitting a party after three years' occupancy to 
 bring a statutory proceeding to determine any conflicting 
 claims to real property, has been construed to mean an 
 actual possession, in fact a pedis possessio, and not a posses- 
 sion following the wake of the title called constructive 
 possession. 6 
 
 § 723c. Possession in statutory suit to quiet title. — In many 
 States and territories the statutory action to quiet title 
 
 1 Bartling v. Brasuhn, 102 111. 443 ; Bost v. Setzer, 87 N. C. 187 ; Johnson v. 
 Hauser, 88 N. C. 390; Alwood v. Bearss, 47 Mich. 72; Conner v. Goodman, 104 
 111. 365. " Possession of Real Estate as Notice of Adverse Title." 4 Cent. L. J. 122, 
 and cases cited. See Townsend v. Little, log U. S. 511. 
 
 2 64 N. Y. 82. 
 
 3 s. p. Pope v. Allen, go N. Y. 298, 303. See Moyer w. Hinman, 13 N. Y. 180; 
 De Ruyter v. Trustees of St. Peter's Church, 2 Barb. Ch. (N. Y.) 555; Atwood ■e. 
 Bearss, 47 Mich. 72 ; Gouverneur v. Lynch, 2 Paige (N. Y.), 300 ; Norcross y. 
 Widgeiy, 2 Mass. 508; Campbell v. Fetterman, 20 W. Va. 398; Colby v. Kennis- 
 ton, 4 N. H. 262 ; Kendall v. Lawrence, 22 Pick. (Mass.) 540; Patten v. Moore, 32 
 N. H. 382. 
 
 4 Constructive notice. — Mr. Justice Woods said in Townsend v. Little, log U. S. 
 511, "Constructive notice is defined to be in its nature no more than evidence of 
 notice, the presumption of which is so violent that the court will not even allow of 
 its being controverted (Plumb v. Fluitt, 2 Anst. 432; Kennedy v. Green, 3 M. & 
 K. 6gg). Where possession is relied on as giving constructive notice it must be 
 open and unambiguous, and not liable to be misunderstood or misconstiued (Ely 
 v. Wilcox, 20 Wis. 523 ; Patten v. Moore, 32 N. H. 382 ; Billington v. Welsh, 5 
 Bin. [Pa.] 129). It must be sufficiently distinct and unequivocal, so as to put the 
 purchaser on his guard (Butler v. Stevens, 26 Me. 484; Wright v. Wood, 23 Pa. 
 St. 120; Bogue v. Williams, 48 111. 371). As said by Strong, J., in Meehan v. 
 Williams (48 Pa. St. 238), what makes inquiry a duly is such a visible state of things 
 as is inconsistent with a perfect right in him who proposes to sell (see, also, Holiness. 
 Stout, 4 N. J. Eq. 492; McMechan v. Griffing, 3 Pick. [Mass.] 149; Hanrick v. 
 Thompson, 9 Ala. 409 "). 
 
 5 1 R. S. 312, § I. 
 
 6 Churchill v. Onderdonk, 5g N. Y. 134. See Ford v. Belmont, 69 N. Y. 567. 
 
§ 723d.] possession. 557 
 
 must be brought by a plaintiff in possession. In this case 
 it is held that the allegation of possession is material, and 
 must be sustained by proof on the trial, and without this 
 averment the complaint is demurrable. 1 As to the char- 
 acter of the possession, some courts hold that it must be 
 accompanied by a claim of right, legal or equitable ; 2 
 others that it is immaterial how possession was obtained. 3 
 It must, of course, be an actual possession, such as would 
 enable the plaintiff, without the aid of a paper title, to 
 maintain an action against a mere intruder. 4 
 
 § 123d. Possession and paper title. — When a party is 
 under the necessity of proving title, it is not sufficient to 
 simply produce a deed; he must show possession in his 
 grantor, or possession accompanying the deed ; without 
 this he proves no title. 5 But when it is found or conceded 
 that a party has title that is sufficient, for his possession 
 is presumed, and the occupation of any other person is 
 considered to be in subordination to the legal title, unless 
 adverse possession is shown. 6 And where reliance is 
 placed solely upon paper title, the land not having been 
 actually occupied, improved or inclosed, the proof must 
 be of a chain of title from the original patentee or donee. 7 
 But plaintiff having shown the legal title in himself is pre- 
 sumed to have been in possession within the time required 
 by law, no adverse possession being shown. 8 The execu- 
 tion and recording of a warranty deed of wild land, with- 
 out other evidence of the grantor's title, will not enable 
 the grantee to maintain a writ of entry against a person 
 who had been in possession of land for more than twenty 
 years, although the acts of possession are not such as will 
 constitute a disseizin of the true owner. 9 
 
 1 Ferris v. Irving, 28 Cal. 645 ; Pralus v. Jefferson G. & S. Min. Co., 34 Cal. 
 558; Shaffers. Whelpley, 37 Wis. 334. 
 
 ' ' Stark v. Starrs, 6 Wall. 402 ; King v. French, 2 Sawy.441 ; Tichenor v. Knapp, 
 6 Oregon, 205. 
 
 3 Scorpion S. M. Co. v. Marsano, 10 Nev. 370 ; Calderwood v. Brooks, 45 Cal. 519. 
 
 4 Sepulveda v. Sepulveda, 39 Cal. 13. 
 
 5 Miller v. Long Island R. R. Co., 71 N. Y. 383 ; Gardner v. Heart, I N. Y. 528 ; 
 Miller v. Downing, 54 N. Y. 631. 
 
 6 Stevens v. Hauser, 39 N. Y. 304. 
 
 ' Miller v. Long Island R. R. Co., 71 N. Y. 383. 
 
 8 Porter v. McGrath, 9 J. & S. (N. Y.) 84. 
 
 9 Perry v. Weeks, 137 Mass. 584. 
 
CHAPTER XXVIII. 
 
 ADVERSE POSSESSION UNDER STATUTES OF LIMITATIONS. 
 
 § 724. Limitations and prescription his- 
 torically considered. 
 
 725. Statutes of limitation governing 
 
 real aclions in the different 
 States. 
 
 726. Theory of prescription and limita- 
 
 tions. 
 
 727. Purpose and policy of statutes of 
 
 limitations. 
 
 728. General principles of possession, 
 
 seizin and ouster. 
 
 729. What constitutes adverse posses- 
 
 sion in general. 
 
 730. Effect and requisites of entry and 
 
 ouster. 
 
 731. Requisites of adverse possession in 
 
 general. 
 
 732. Possession must be " actual;" what 
 
 constitutes. 
 
 733. Requisites of possession as affected 
 
 by nature of the land. 
 
 734. What is a sufficient actual posses- 
 
 sion. 
 
 735. Possession must be "open" and 
 
 " notorious." 
 
 736. Notice to the owner, actual or con- 
 
 structive. 
 737. \ Possession must be "continu- 
 738.) ous." 
 
 739. Requisites of continuity in posses- 
 
 sion. 
 
 740. Interruption of the possession. 
 
 741. Byre-entry of the owner. 
 
 j 742. Statutory regulations as to an ef- 
 fectual re-entry. 
 
 743. Effect of bringing an action or re- 
 
 covering a judgment in eject- 
 ment. 
 
 744. Possession lost or interrupted by 
 
 abandonment. 
 
 745. Interruption by other adverse 
 
 claimants. 
 
 746. Tacking. 
 
 747. ) 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 ten- 
 ants-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 
 
 principles regulating. 
 
 7530. Exceptions. — No adverse posses- 
 sion against the State or govern- 
 ment. — Municipal corporations. 
 
 753^. Disabilities. — Infancy. 
 
 753^. Co-existing disabilities. 
 
 753^. Subsequent disabilities. — Tack- 
 ing. 
 
 753?. Suspension by agreement. 
 
 753y. Disabilities of co-tenants. 
 
 § 724. Limitations and prescription historically considered. 
 — The belief is quite prevalent that no stated or fixed times 
 of limitation for the recovery of lands existed at common 
 law, 1 and that limitation governing real actions is wholly 
 a matter of statutory regulation. This view of the mat- 
 ter is, however, we believe, inaccurate. The statute of 
 
 People v. Gilbert, 18 Johns. (N. Y.) 227, per Woodworth, J. In United States 
 ■v. Thompson, 98 U. S. 489, Swayne, J., said : "The common law fixed no time as 
 to the bringing of actions. Limitations derive their authority from statutes." 
 
§ 724.1 ADVERSE POSSESSION. 559 
 
 Merton, 1 usually referred to as the source of all modern leg- 
 islation 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 required. The limitation 
 was, in early times, fixed by the writ itself. Thus among 
 the pleas in the time of John, we find the limitation de tem- 
 pore quo rex Hewricus avus nosterfuit vivus et mortwus ; in a 
 writ of aiel die quo rex Henricus dbiit 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. 8 From this early evidence the original periods of 
 limitation seem to have been arbitrarily fixed by royal au- 
 thority, and not until the middle of the thirteenth century 
 can it be said that the periods were at all defined by law, in 
 the modern sense of the word. This is in accordance with 
 what might be inferred from what we know in other re- 
 spects of the early history of procedure in England. The 
 writ introduced into England by the Normans was not, at 
 first, anything more than a device for bringing the contro- 
 versy 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 statute of Merton, the King's 
 prerogative to issue and sell writs was unquestioned. As 
 is pointed out by Mr. Bigelow, in his recent learned work 
 on the History of Procedure in England: 8 "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 generally 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 special 
 
 1 20 Hen. Ill, c. 8 [a. d. 1235]. 
 8 See Glanvill, lib. 13, c- 3. 
 
 3 History of Procedure in England, from the Norman Conquest. The Norman 
 period. By Melville M. Bigelow, Ph.D., 1880. 
 
560 ADVERSE POSSESSION. [§ 724. 
 
 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 
 command of the king and of his council present with him. 
 "This, with the growing independence of the judiciary ou 
 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 
 periods of limitation, originally fixed at the pleasure of the 
 king, now gradually became matters of statutory regula- 
 tion. 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 Eichard 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 abridgment, as in early times, by the use 
 of royal prerogative, gave rise to much trouble and incon- 
 venience, which finally led to the passage of the first gen- 
 eral statute of limitations (32 Hen. YI1I, c. 2, a. d. 1540). 
 This was followed, nearly a hundred years later, by the 
 more comprehensive 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 limitation of actions for the recovery of 
 land in this country. It was generally adopted here during 
 the colonial period, aud though now superseded by more 
 modern legislation, the rules of construction laid down by 
 the courts with regard to it, are held to govern the statutes 
 which have been modeled upon it and taken its place. 1 
 The period fixed by the statute of Westminster, as a limi- 
 tation in cases of writs of right, has led to some confusion 
 with regard to the analogy between titles by prescription 
 and titles by limitation. Statutes of limitation, as will be 
 shown, bar the assertion by the owner of his title to the 
 land. Technically and strictly, as we shall see, prescrip- 
 tion only applies to incorporeal hereditaments, such as a 
 way, a water-course, or the like, i. e., interests relating to 
 land which lie in grant. 2 The original theory of prescrip- 
 
 1 Walden v. Gratz, I Wheat. 292. 
 
 2 See especially Lehigh Valley R. R. Co. v. McFarlan, 43 N. J. Law, 605. 
 
§724.] ADVERSE POSSESSION. 561 
 
 tion, in the case of easements, was that an incorporeal 
 right in the lands of another, the origin of which could not 
 be traced, must have been enjoyed from a time exceeding 
 the limit of human memory. 1 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 upon the question of prescriptive titles to ease- 
 ments or other incorporeal hereditaments ; nevertheless the 
 courts, proceeding by analogy at an early date, applied the 
 period appropriate in oue class of cases to the other. It 
 was held that an undisturbed enjoyment of an easement 
 for a period of time sufficient to bar the title of the true 
 owner of land in favor of a party holding by adverse pos- 
 session, was sufficient also to give a title to an easement. 2 
 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 pre- 
 sumed grant made it a matter of little importance. The 
 theory of this latter doctrine was that 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, might be 
 permitted to presume a grant. 3 Whether the period of 
 legal memory still goes back to the date of the coronation 
 of Eichard I, is now a matter of curious learning, and does 
 not even affect title to incorporeal hereditaments acquired 
 
 ' Hall v. McLeod, 2 Mete. (Ky.) 98. 
 
 8 2 Rolle's Abr. p. 269; 2 Inst. p. 238; Rex v. Hudson, 2 Stra. 909; 3 Starkie 
 on Ev. 1205 ; Coolidge v. Learned, 8 Pick. (Mass.) 503 ; 3 Washb. R. P. p. *44g. 
 
 3 Hill v. Crosby, 2 Pick. (Mass.) 466 ; Carlisle v. Cooper, 19 N. J. Eq. 256 ; 
 Kingston v. Lesley, 10 S. & R. (Pa.) 383. In Ross' Early History of Land-Holding 
 among the Germans, p. 75 etseq., the learned author observes that "a prescriptive 
 title to land was admitted among the Franks at the time of Lex Salica. If a stranger 
 settled on a piece of land in the clan village and no objection was made, either by the 
 owner of the land or any of his neighbors, during the period of twelve months, the 
 stranger acquired a right of property and inheritance in the land he had appropriated, 
 and became a regular inhabitant of the village. . . . Among the early Latins, the 
 ownership of land was acquired by possession during two years instead of one. . . 
 
 A prescriptive title was admitted among the Lombards in the time of King Rothar. We 
 read, in his edict, that after five years the holder of a piece of land is not obliged to 
 fight for it ; provided he brings witnesses to say that he has had possession of the 
 land during that time.'' See § 2, note. 
 
 36 
 
562 ADVERSE POSSESSION. [§ 725. 
 
 by prescription, while neither the doctrine of legal memory, 
 nor the theory of a presumed grant, has any practical ap- 
 plication to the matter we are now about to consider — the 
 length of time under the statutes of limitation by which an 
 action to recover land by the true owner is barred or taken 
 away. 
 
 § 725. Statutes of limitation governing real actions in the 
 different States. — Without attempting to discuss in detail 
 the 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 
 common considerations of public policy, and having the 
 same main object in view, namely, the quieting and settle- 
 ment of titles to land by barring any assertion of title by 
 the true owner, provided he has been out of possession of 
 the lend for a fixed time, the statutes differ from one 
 another only in respect to the extent in time of the limita- 
 tion imposed, and in respect to minor provisions, such as 
 those suspending the operation of the statute in favor of 
 persons under disabilities. 1 All these statutes are, in sub- 
 stance and effect, as follows : No person shall commence 
 an action for the recovery of lands except within 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 provi- 
 sions in the statutes of the different States declaring 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 prin- 
 ciples of the common law. In New York, however, and in 
 the several States which have adopted almost verbatim its 
 Code of Procedure, certain requirements, which must exist 
 
 See §§ 7530-753/- 
 
§ 726.] ADVERSE POSSESSION. 563 
 
 to constitute adverse possession, are expressly laid down in 
 tbe statute, and a distinction is made in the statute itself 
 between possession under color of title and a naked posses- 
 sion under a claim of title founded upon no written instru- 
 ment. There are also certain provisions as to presumptions 
 of possession in certain cases, etc. 1 But these provisions 
 are for the most part declaratory of the common law, and 
 the general rules as to adverse 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 confine ourselves, therefore, to the con- 
 sideration of these general principles, 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 has 
 been stated, the theory of prescription, and of the title 
 thereby acquired, rests upon the presumption of a past 
 grant inferred from and evidenced by an adverse enjoy- 
 ment 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 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 presumption of a right or title in one other than the 
 true owner of the land ; on the contrary, it assumes the 
 
 1 See New York Code of Civil Procedure. §§ 362-375, and the statutes of follow- 
 ing States : South Carolina, Wisconsin, Florida, California, Nevada, and also Maine 
 R. S. c. 147, § u. 
 
 ! Advene possession superseded in England. — In Hanson v. Johnson, 62 Md. 25, 
 27, Robinson, J., said : " A great deal has been said as to what constitutes adverse 
 possession, and it would be a wearisome task to examine at length the many cases in 
 which this question has been considered. Prior to the statute of 3 & 4 Will. IV, 
 ch. 27, it was an ever-recurring and troublesome question in England, but by 
 that statute, passed in 1833, the doctrine of adverse possession was virtually abol- 
 ished, and by it possession of any kind for twenty years was made a bar, unless there 
 was either a payment of rent or an acknowledgment of some kind by the party in 
 possession. The effect of the statute, says Lord Denman in Culley v. Doe d. Tay- 
 lerson, 3 Per. & Dav. 539, is to put an end to all questions and discussions whether 
 the possession of lands be adverse or not ; and if one party has been in possession 
 for twenty years, whether adversely or not, the claimant whose original right of 
 entry occurred above twenty years before bringing the ejectment is barred." Citing 
 Nepean v. Doe d. Knight, 2 M. & W. 911; Doe d. Piitchard v. Jauncey, 8 C. & P. 
 99. It is doubtful, however, whether the titles in this country are in such condition as 
 to warrant this radical change in the law. 
 
564 ADVERSE POSSESSION. [§ 727. 
 
 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 adverse enjoyment of some one else. Pre- 
 scription is positive and creates ; limitation is negative and 
 destroys. The latter 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 : x "It is of the nature 
 of the statute of limitations . . to mature a wrong into 
 a right by cutting off the remedy." Adverse possession 
 makes a title in that it deprives the real owner of the 
 power of asserting the true title against the adverse occu- 
 pant. 2 
 
 § 727. Purpose and policy of statutes of limitations — 
 Statutes of limitations applicable to actions for the re- 
 covery of land, like all statutes of limitations, are founded 
 upon considerations of public policy; 3 "to promote the 
 peace and good order of society, by quieting possessions 
 and estates, and avoiding litigation." 4 Such statutes are 
 for this reason characterized as statutes of "repose," 5 and, 
 with respect to laud, are founded upon the additional con- 
 sideration, 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. 6 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 delay- 
 ing the contest beyond the period assigned for it, when 
 papers may be lost, facts forgotten, or witnesses dead.'" 
 
 1 24 Wend. (S. Y.) 587. See Lehigh Valley R. R. Co. v . McFarlan, 43 N. J. 
 Law, 606. 
 
 8 See § 727. 
 
 3 Elder v. Bradley, 2 Sneed (Tenn.), 253 ; McElmoyle v. Cohen, 13 Pet. 312. 
 
 4 Humbert v. Trinity Church, 24 Wend. (N. Y.) 614. The statute of limitations 
 is said, by Story, to be one " of repose to quiet titles, to suppress frauds, and to sup- 
 ply the deficiency of proofs arising from the ambiguity and obscurity, or the antiquity 
 of transactions." Story's Conflict of Laws, § 576. 
 
 " bledsoe v. Little, 5 Miss. 24. " It operates as a statute of absolute repose." 
 Barrett v. Allegheny Nat. Bank, 6 Mo. App. 319. 
 6 Angell on Limitations (6th ed.), p. 6. 
 ' Gibson, C. J., in Sailor v. Hertzogg, 2 Penn. St. 182. 
 
§727.] ADVERSE POSSESSION. 565 
 
 The policy upon which the statute of limitations, for the 
 recovery of land in Texas, is also stated 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 improve the country." * But what- 
 ever 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, 3 or as founded upon a presumed grant, 8 or 
 as conveyed to the adverse possessor by the possession 
 itself for the required time, 4 and though the prime object 
 of these statutes may be the destruction of the right of 
 re-entry, the necessary result and legal effect 5 is the estab- 
 lishment of the exclusive adverse rights of him through 
 whose possession the right to assert a paramount title has 
 beeu extinguished, and the vesting in him of the only title 
 to the laud. 6 
 
 The title thus perfected cannot be taken away by legis- 
 lation ; ' it is a title to land which a purchaser at a j udicial 
 sale may not refuse, 8 but it must be positively and not con- 
 jectnrally shown. 9 The occupant may actually assert it 
 with as much effect as if it had been acquired by deed 10 
 
 1 Kinney v. Vinson, 32 Tex. 128. 
 
 8 Jones v. Jones, 18 Ala. 253. 
 
 3 Davis v. McArthur, 78 N. C. 357 ; Melvin v. Waddell, 75 N. C. 361. 
 1 Winthrop v. Auburn, 31 Me. 465. 
 
 5 Crispen v. Hannavan, 50 Mo. 550. 
 
 6 Langford v. Poppe, 56 Cal. 75. The use of such terms as " prescriptive title," 
 or " title by prescription," which the Code and Courts of Georgia seem to have ex- 
 clusively adopted, to designate a title acquired by adverse possession, is objection- 
 able in connection with land itself, as distinguished from easements or incorporeal 
 interests, as a confusing and improper use of terms. For illustrations of the use of 
 the terras "prescriptive title" and "titles by prescription," see Jones v. Bivins, 56 
 G* 538 ; Castleberry v. Black, 58 Ga. 386; Ford v. Holmes, 61 Ga. 419; Farrow 
 *. Bullock, 63 Ga. 360. Defeating the true owner in ejectment by setting up adverse 
 possession, is sometimes characterized as " stealing title." 
 
 7 Sharp v. Blankenship, 59 Cal. 288. See Leffingwell v. Warren, 2 Black, 605 ; 
 Langford v. Poppe, 56 Cal 73 ; Cannon v. Stockmon, 36 Cal. 540 ; School District 
 of Winthrop v. Benson, 31 Me. 384 ; Arrington v. Liscom, 34 Cal. 381. 
 
 8 Shriver v. Shriver, 86 N. Y. 575 ; Seymour v. De Lancey, Hopk. Ch. (N. Y.) 
 436. See Methodist Epis. Church Home v. Thompson, 52 N. Y. Superior, 321. 
 
 9 Grosholz v. Newman, 21 Wall. 481. 
 
 10 Jacks v. Chaffin, 34 Ark. 538. Adverse possession arms the holder " with all 
 the powers of offense and defense, which an unbroken chain of title confers." 
 Barclay v. Smith, 66 Ala. 232. 
 
566 ADVERSE POSSESSION. [§§ 728, 729. 
 
 § 728. General principles of possession, seizin and ouster. — 
 It is a familiar rule of law that there can be but one actual 
 seizin of an estate; that possession follows the title 1 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 2 until he is ousted 
 from it s or disseized, 4 and also, in the absence of limita- 
 tions, that he is restored to possession when the hostile 
 possession or disseizin ceases. Want of possession, there- 
 fore, 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 pos- 
 session, upon which the statutes of limitation rest, is the 
 existence of an adverse possession of another denying the 
 true owner's right. What constitutes, then, such an ad- 
 verse possession of land as, under the statutes of limita- 
 tion, 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 two 
 things must concur : first, an ouster of the real owner 
 followed by an actual possession by the adverse claimant ; 
 and, second, an intention on the part of the latter to so 
 oust the owner and possess for himself; 5 or, as it is some- 
 times called, there must be a " claim of right" or "title" 
 in himself adverse to the true owner. 6 The assertion has 
 been made that the possession, to be adverse, must be 
 
 1 Bradley v. West, 6o Mo. 40. 
 
 ! Murphy v. Welder, 58 Tex. 241. 
 
 3 Toomey v. Kay, 62 Wis. 104. 
 
 4 Miller, J., said, in Harvey v. Tyler, 2 Wall. 349. " There must be title some- 
 where to all land in this country, either in the Government or in some one deriving 
 title from the Government, State or National. Any one in possession, with no claim 
 to the land whatever, must in presumption of law be in possession in amity with and 
 in subservience to that title." 
 
 6 Davis v. Bowmar, 55 Miss. 765. 
 
 6 What constitutes adverse possession is for the courts to determine, but the facts 
 which indicate its existence are to be found by the jury. Macklot v. Dubreuil, 9 Mo. 
 473 ; Baker v. Swan, 32 Md. 355 ; Boogher v. Neece, 75 Mo. 384, and the question 
 of the character of the possession is generally submitted to them. Gross v. Welwood, 
 go N. Y. 638. Whether or not parties have acquired an easement by prescription 
 is a mixed question of law and fact. Taylor v. Gerrish, 59 N. H. 571. 
 
g 729.1 ADVERSE POSSESSION. 567 
 
 under "claim or color of title," and even that the pos- 
 session must have commenced under "color and claim of 
 title." 1 The latter statement is certainly inaccurate ; for 
 the books are replete with cases where a tortious entry 
 upon and possession of lands, without any pretense of 
 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, inac- 
 curate ; for it would imply that there might be an effec- 
 tual adverse possession under color of title without any 
 claim of title. We shall see hereafter that "color of title" 
 is, in its very essence, a claim of title, and is chiefly impor- 
 tant in the subject under discussion as an assertion of title, 
 and as defining its extent. 2 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 intention. Thus it 
 is said that "the whole inquiry is reduced to the fact of 
 entering and the intention to usurp possession." s Mere 
 possession alone would be neither the foundation of a 
 legal right, nor a bar to the assertion of the owner's 
 title. 4 In the absence of evidence to the contrary, if 
 there be possession of land by another than the true 
 owner, the presumption of law is, that such possession 
 is in accord with, or in subservience to, the true title and 
 the legal possession of the owner. 5 Permissive posses- 
 sion is never a basis for the statute of limitations. 6 On 
 the other hand, a mere claim or assertion of title to land, 
 unaccompanied by possession, would neither benefit the 
 claimant or affect the rights of the owner. 7 
 
 1 Tyler on Ejectment and Adverse Possession, p. 859. 
 
 2 See infra. Chap. XXX. 
 
 2 Bradstreet v. Huntington, 5 Pet. 439 ; s. P. Pickett v. Doe d. Pope, 74 Ala. 
 131. 
 
 4 Jones v. Hockman, 12 Iowa, 107. 
 
 5 Jackson v. Thomas, 16 Johns. (N. Y.) 293. 
 
 6 Pulaski Co. v. State, 42 Ark. 120 ; Cholmondeley v. Clinton, 2 Jac. & W. 1 ; 
 Ellsworth v. Hale, 33 Ark. 633; Chance v. Branch, 58 Tex. 493; Burbank v. 
 Fay, 65 N. Y. 65 ; Colvin v. Burnet, 17 Wend. (N. Y.) 564. 
 
 1 Magee v. Magee, 37 Miss. 138. 
 
5(58 ADVERSE POSSESSION. [§ 730. 
 
 § 730. Effect and requisites of entry and ouster. — 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 Supreme 
 Court of Missouri say: "The requisites in order to con- 
 stitute an actual possession are that there should be made 
 an entry, so that there may be an ouster effected and an 
 adverse possession begun." 1 The true owner being "in 
 possession, by force of his title, he so remains until dis- 
 seized or ousted by some one who enters with a claim 
 of adverse possession. When this ouster takes place, the 
 limitation of the statute begins to run.' 1 2 Bearing in 
 mind at the outset that the object of the statute is to cut 
 off and defeat 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 tlie 
 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 claimant, as the first act of adverse posses- 
 sion, must be characterized, as we shall see, by most of the 
 same elements as are essentials in such possession. What 
 will constitute an entry sufficient to oust the one entitled 
 to possession will, like the adverse possession which fol- 
 lows 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 relation 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 
 
 1 Bradley v. West, 6o Mo. 41. See Thomas v. Marshfield, 13 Pick. (Mass.) 250. 
 
 2 Robinson v. Lake, 14 Iowa, 421, 424. See Bliss v. Johnson, 94 N. Y. 242. 
 
§ 730.J ADVERSE POSSESSION. 569 
 
 naked claim. "Entry and ouster, as well as possession, 
 may 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 con- 
 structively accomplished by a hostile act on the part of 
 the tenant equivalent in its legal effect to an actual in- 
 vasion and ejectment. 1 It becomes important here to call 
 attention to the two leading requisites in an eutry suffi- 
 cient to set in motion the statute of limitations, which are, 
 first, that the entry must be sufficiently notorious and 
 open to give the true owner notice of the hostile claim and 
 possession begun ; and, second, that it must be hostile. 
 The facts should be such that the owner must have known, 
 or with diligence could have gained knowledge of the ad- 
 verse entry. Hence, the statement: "Such knowledge, 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 exists 
 in his favor for the iutrusion, 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 pos- 
 session will not set the statute in motion, because the 
 owner of the land cannot be said to have acquiesced in the 
 wrongful entry or possession. The owner will not be con- 
 demned to lose his land because he has failed to sue for 
 its recovery, when he had no notice that it was held or 
 claimed adversely ; but the statute cuts off his remedy 
 only when he has neglected to commence his action 
 beyond the period assigned for it." 2 So an entry, to work 
 
 1 It is not an easy task for a tenant to inaugurate an adverse possession unless 
 there has been a surrender of the possession which the landlord conferred. Whiting 
 v. Edmunds, 94 N. Y. 314. See § 751 ; also Chap. XII. 
 
 2 Thompson v. Pioche, 44 Cal. 508. " The claim of title which must enter into 
 and is the characteristic of an adverse possession, has in it no element of stealthi- 
 ness." Potts v. Coleman, 67 Ala. 228. " The statute was not made to serve the 
 purposes of artifice and trick." Sailor v. Hertzogg 2 Pa. St. 185. See Bracken v. 
 Jones, 63 Tex. 186. 
 
570 ADVERSE POSSESSION. (J 7 30. 
 
 an interruption of the possession, "must fee 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 making the entry." 1 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 tbe 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." 3 
 
 In the second place the entry, or the first act of pos- 
 session on the part of the claimant, must be hostile. The 
 presumption of law, according to a familiar rule, is in 
 favor of regularity as against irregularity ; of what is law- 
 ful 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. 4 Thus we find the rule stated : " Every 
 presuuiption is in favor of possession in subordination to 
 the title of the true owner. An entry adverse to the law- 
 ful owner is not to be presumed, but must be proved." 5 
 Hence the mere entering upon and taking possession of 
 land, however notorious, is not sufficient, unaccompanied 
 by acts or declarations, or both, which rebut the presump- 
 tion 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 motion 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 land, we shall further discuss 
 
 1 See Wingz/. Hall, 47 Vt. 182 ; Soule v. Barlow, 49 Vt. 329. 
 8 Pray v. Pierce, 7 Mass. 383. See Holley v. Hawley, 39 Vt. 534; Carrol v. 
 Gillion, 33 Ga. 539, 548. 
 
 3 Beatty v. Mason, 30 Md. 414. 
 
 4 See Harvey v. Tyler, 2 Wall. 340. 
 
 5 Hart v. Bostwick, 14 Fla. 178, and cases cited. 
 
§ 731.] ADVERSE POSSESSION. 571 
 
 in considering the various requisites of adverse posses- 
 sion. 1 
 
 § 731. Requisites of adverse possession in general. — 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 
 considered 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 
 possession, where the rights of the adverse occupant de- 
 pend 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 so occupy under some deed, writing or paper 
 title to the same. Under the latter head, to which alone 
 it belongs, we shall consider the subject of " constructive" 
 adverse possession. 3 In general, it may be stated that, 
 whether the adverse claimant bases his rights under the 
 statute upon mere naked possession, or, in addition to the 
 latter, upon some color of title, some actual adverse pos- 
 session is necessary, and though the rule as to the suffi- 
 ciency of the actual possession may in some cases be some- 
 what relaxed when the possession is accompanied 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 authorities 
 on this subject defining adverse possession, its requisites 
 may be reduced to the following : the possession under 
 consideration must be actual, open, continuous, hostile, and 
 exclusive. 3 That such possession shall ultimately establish 
 the adverse rights of the possessor, it must be accompanied 
 by the intention, on his part, to claim adversely, or a 
 "claim of right," as it is called, in himself. 
 
 1 Seeflost, § 751. 
 
 ' See infra, Chap. XXX. 
 
 ' See Unger v. Mooney, 63 Cal. 586 ; Sparrow v. Hovey, 44 Mich. 63. 
 
572 ADVERSE POSSESSION. [§ 732. 
 
 § 732. Possession must he " actual ; " what constitutes. — It 
 is impossible to lay down a general rule as to what consti- 
 tutes an effectual actual adverse possession of lands and 
 what falls short of it. 1 It is necessarily a question gov- 
 erned more or less by the facts of ea^h case, 2 and particu- 
 larly by the character and situation of the land in question, 
 and the uses to which it would naturally be put. 3 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," etc. Then, in a recent case in the Supreme 
 Court of Illinois, it is held that actual residence is not in- 
 dispensable, but that "if there is continuous dominion 
 manifested by continuous acts of ownership, it is suffi- 
 cient." 4 On the other hand the limitation act of Texas, 
 which conferred upon a "naked possessor" the title to 
 the land after a certain period, is construed as requiring 
 actual residence thereon, though the act requires in terms 
 only "peaceable possession and cultivation, use or enjoy- 
 ment." 5 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." 6 In 
 Illinois, on the other hand, it is considered 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 possession, it is not necessary that there should be 
 any fence or inclosure of the land," for the reason that the 
 
 1 Ford v. Wilson, 35 Miss. 505. 
 
 2 Leeper w. Baker, 68 Mo. 405 ; Turner v. Hall, 60 Mo. 275. 
 
 3 See infra, § 733. 
 
 4 Coleman v. Billings, 89 111. 180. Contra, under act of 1835, Martina. Tudd, 81 
 111. 488. 
 
 6 Sloan v. Martin, 33 Tex. 418. 
 
 6 Humphries v. Huffman, 33 Ohio St. 403 ; Bristol v. Carroll Co. 95 111. 93. See 
 Do'.hard v. Denson, 75 Ala. 482. 
 ' Kerr v. Hitt, 75 111. 51. 
 
§732.] ADVERSE POSSESSION. 573 
 
 erection of a fence is only an act presumptive of an inten- 
 tion to assert an ownership, and that there are many other 
 acts equally evincive of such an intention. 1 In a late case 
 in the Supreme Court of Missouri, it is said that " a fence, 
 building or other improvement, is not essential to consti- 
 tute an adverse possession. Acts of ownership, under a 
 claim of right, visible, are sufficient to authorize the court 
 to find such possession." 2 So in a case iu 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," etc. 3 The 
 court in North Carolina 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," etc., were sufficient acts of owner- 
 ship, because they were "of a nature calculated to attract 
 more than ordinary notice." 4 On the other hand, in a case 
 in Few 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 possession for any purpose." 5 To the same effect 
 as in the cases above quoted is the language of the Su- 
 preme Court of Arkansas : '* It is not the particular use 
 made of the land, or whether built upon and used as a res- 
 idence, or cleared and cultivated as a farm, but the exclu- 
 sive use and adverse possession may be proven as well by 
 other acts and declarations, which show a visible, open and 
 exclusive possession and use of the land." 6 So held where 
 a plot of ground was used as a family burial ground ; the 
 adverse possession being established by such a use, but 
 being confined to the parts of the land actually covered with 
 graves.'' 
 
 1 Ellicott v. Pearl, io Pet. 441, 442. See Ewing v. Burnet, 11 Pet. 41. Com- 
 pare Davis v. Bowmar, 55 Miss. 671, 
 
 2 Leeper v. Baker, 68 Mo. 400, 407. See Turner v. Hall, 60 Mo. 275, 277. 
 
 3 Bell v. Denson, 56 Ala. 448. 
 
 4 Moore v. Thompson, 69 N. C. 120. Compare Davis v. Bowmar, 55 Miss. 671, 
 in which the fundamental principles of adverse possession are exhaustively and ably 
 discussed. 
 
 ' Thompson v. Burhans. 61 N. Y. 70; s. P. Pike v. Robertson, 79 Mo. 615. 
 6 Mooney z>. Cooledge, 30 Ark. 655. See McCreery v. Everding, 44 Cal. 246 ; 
 Brown v. Rose, 48 Iowa, 233. 
 
 That naked possession cannot be extended by construction beyond the limits 
 
574 ADVERSE POSSESSION. [§ 733. 
 
 § 733. Requisites of possession as affected by nature of the 
 land. — In determining the sufficiency of an adverse posses- 
 sion, as already stated, 1 much depends upon the character 
 and situation of the land in question. Thus, in a recent 
 case in the Supreme Court of Massachusetts, tbe court 
 said : " What is an adverse and exclusive possession, 
 . . . depends very much upon the character of the laud, 
 and the purposes to which it is adapted, and for which it is 
 used." 2 Again we find it stated: "So much depends on 
 the nature and situation 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;" 3 and also "the jury 
 may take into consideration the nature and situation of 
 the land ;" 4 and, " the possession must be by acts suitable 
 to the character of the land." 5 So in the case of Draper v. 
 Shoot, 6 cited in Leeper v. Baker, it is said : " It is no easy 
 matter to say what is an adverse possession. It is a ques- 
 tion compounded of law and fact, and every case in which 
 it is involved must be determiued 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 
 different 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 consti- 
 tute an actual possession, vary according to the condition, 
 size and locality of the tract." 7 Again, " the rule of law 
 is very well settled that, where a person claiming land 
 exercises acts of ownership of it, by the use of it for the 
 
 of the actual occupation, see Ferguson v. Peden, 33 Ark. 150 ; Peterson v. McCuI- 
 lough, 50 Ind. 35 ; Wilson v. McEwan, 7 Oreg. 87 ; Wells v. Iron Co., 48 N. H. 
 491 ; Ege v. Medlar, 82 Pa. St. 86; Hawkins v. Hudson, 45 Ala. 482 ; Clarke v. 
 Wagner, 74 N. C. 791 ; Humphries v. Huffman, 33 Ohio St. 395. 
 
 1 See § 730. 
 
 5 Bowen -v. Guild, 130 Mass. 123. See Dorr v. School District, 40 Ark. 243 
 Mooney v. Cooledge, 30 Ark. 655. 
 
 3 Ewing v. Burnet, it Pet. 53. 
 
 4 Turner v. Hall, 60 Mo. 271. 
 
 5 Bell v. Denson, 56 Ala. 449. 
 
 6 25 Mo. 203. See Leeper v. Baker, 68 Mo. 407. 
 
 7 Brumagim v. Bradshaw, 39 Cal. 24. See also Creech v. Jones, 5 Sneed (Tenn.), 
 631, D35- 
 
1 733.] ADVERSE POSSESSION. 575 
 
 purposes to which it is adapted, he is in such actual occu- 
 pancy of it as will even bar an action alter the lapse of the 
 statutory time. Such possession is as actual as that by 
 inclosure." * So held in respect to uninclosed timber land 
 on which the adverse claimant had cut wood and timber. 
 It may be doubted 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 state- 
 ment of the facts in the case, that the land in dispute 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 E. R. Co., 2 in 
 the New York Court of Appeals, where it is made the 
 ground of distinguishing the case of Machin v. Geortner, 3 
 in the same State. The same distinction is made in the 
 case of Beaupland v. McKeen, 4 in the Supreme Court of 
 Pennsylvania, 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 ordi- 
 narily make of their adjacent 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 maraud- 
 ers' ground — if anybody who wanted to get lumber manu- 
 factured 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 possession were occasional entries 
 for lumbering purposes, they would not constitute the 
 possession essential to title." 5 In a case in the Supreme 
 Court of Illinois, the court say : " When a party has title, 
 or color of title, to woodland, and uses the land for the 
 
 1 Clement v. Perry, 34 Iowa, 567. 
 
 "7IN.Y. 383. 
 
 a 14 Wend. (N. Y.) 239. 
 
 4 28Penn. St. 134. 
 
 i See also Williams v. Wallace, 78 N. C. 354; Austin v. Holt, 32 Wis. 478. 
 
576 ADVERSE POSSESSION. [§ 733. 
 
 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." x But non constat, that if 
 there had been no color of title in the claimant, such occu- 
 pation 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 required. 2 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 sufficient evidence. Some 
 exceptions were recognized to this rule, as, for example, 
 where the property consisted of an ore bank, a sand pit, 
 stone quarry, or the like. 8 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 culti- 
 vation, or inclosure of the land or some part of it, when it 
 is adapted to and capable of such improvement, will not 
 constitute adverse possession sufficient to maintain an 
 action of replevin for logs cut and carried away. 4 In 
 Alabama, however, it is said that "cutting timber on land 
 fit for no other purpose might be adverse possession, but 
 if the land were suitable for other purposes such mere acts 
 of occupation would not be sufficient." 5 In the case of 
 
 1 Scott v. Delany, 87 111. 148 ; citing Davis v. Easley, 13 111. 199; Austin v. Rust, 
 73 HI- 491- 
 
 9 See infra, Chap. XXX. 
 
 s Pullen v. Hopkins, I Lea (Tenn.), 741. 
 
 4 Washburn v. Cutter, 17 Minn. 361. See Carrol v. Gillion, 33 Ga. 539. 
 
 5 Rivers v. Thompson, 46 Ala. 338. See Ewing v. Burnet, 11 Pet. 53. 
 Adverse possession of mines. — The principle that the possession which will ripen 
 
§ 734.] ADVERSE POSSESSION. 577 
 
 Leeper v. Baker, 1 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 of such nature that it would not have paid the 
 plaintiff to have improved the few acres susceptible of 
 cultivation, had been used as incident to other land of the 
 plaintiff, and adjoining it, to obtain wood, etc., from, that 
 circumstance, in connection with payment of taxes, and a 
 survey on record, etc., was held sufficient evidence of 
 adverse possession. 
 
 § 734. What is a sufficient actual possession. — It. is some- 
 times said or implied 2 that one criterion to determine 
 whether the acts of possession of the claimant are suf- 
 ficient to constitute adverse possession, is the inquiry — 
 what would be the character of the real owner's posses- 
 sion, 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 possession of the land which his title would 
 give him, and with, it may be, the payment of taxes. Im- 
 provements, fencing and the like would, for years perhaps, 
 be out of the question. 3 Should, however, an adverse 
 claimant, by asserting color of title by a deed on record 
 and by paying taxes, thus show a treatment, in such a 
 case, in all respects such as the real owner would give 
 
 into a title must be indica;ed by such acts as are sufficient to notify mankind that 
 the party in possession is claiming the land as his own applies to mining interests. 
 The discovery and working of a lime quarry constitutes adverse possession. Moore 
 v- Thompson, 69 N. C. 120. The acts claimed to constitute adverse possession must 
 be performed with reference to the mines as such. Caldwell v. Copeland, 37 Pa. St. 
 427. Leasing a quarry, and taking stone and timber from the land for the statutory 
 period, accompanied by payment of taxes, amounts to adverse possession. Colvin v. 
 McCune, 39 Iowa, 502. The rules applicable to real property apply to public min- 
 eral lands. Harris v. Equator Mining & Smelting Co., 8 Fed. Rep. 863. Mere 
 digging of coal in winter upon property which is abandoned during the rest of the 
 year is not sufficient adverse possession. Jackson v. Stoetzel, 87 Pa. St, 302 ; s. c. 
 I Mor. Min. Rep. 228. 
 
 1 68 Mo. 407. 
 
 8 See Ewing v. Burnet, 11 Pet. 53 : Beaupland v. McKeen, 28 Penn. St. 134. 
 Possibly title by adverse possession may be gained by flowing the land with 
 water and other incidental use of it. See Eastern Railroad v. Allen, 135 Mass. 13 ; 
 Tufts v, Charlestown, 117 Mass. 401. But compare § 149. 
 
 37 
 
578 ADVEESB POSSESSION. [§735. 
 
 the land, that would alone be clearly insufficient to estab- 
 lish any adverse title. 1 However, in view of the main 
 object of the requirements of the statutes of limitation 
 as to the character of the adverse possession which will 
 bar the owner's right being notice to the owner of the 
 adverse claim, and such acts of ownership therefore being 
 required as are presumed of themselves to give such no- 
 tice — 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 there- 
 under, 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. Accord- 
 ingly 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. 2 In view of what 
 has been already said we can lay down only the very gen- 
 eral rule that, to constitute the actual possession required 
 by the statute, there must be some tangible positive acts 
 of ownership upon, and some actual use or appropriation 
 of the locus in quo ; and that the nature of such acts, use 
 or appropriation is determined in large measure by the 
 character and location of the land, and the uses to which 
 it would naturally be put. 3 
 
 § 735. Possession must be "open" and " notorious."— The 
 next requisite of adverse possession which we shall con- 
 sider is that it must be "open," or, as it is sometimes 
 called, "visible "and "notorious." A person who would 
 claim title by reason of his adverse possession must, in the 
 language of the cases, "keep his flag flying." 4 The main 
 
 1 Brown v. Rose, 48 Iowa, 233 ; Turner v. Hall, 60 Mo. 271. 
 
 2 Turners. Hall, 60 Mo. 271. Compare Clark w. Gilbert, 39 Conn. 97. Also§73&- 
 8 See cases cited above, especially § 733. As to the statutory regulations in re- 
 spect to what constitutes adverse possession in several of the States, see sapra, 
 §§ 729-731. 
 
 4 Wood v. Drouthett, 44 Tex. 370. " An adverse possession ought to be such as 
 to challenge the right of all the world ; but when an occupant evacuates the place 
 
§ 735.] ADVERSE POSSESSION. 579 
 
 reason for the requirements of the law respecting the char- 
 acter 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 as in itself will notify the owner of the land 
 of the adverse claim, 1 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 sup- 
 posed laches of the owner. The latter sees his boundaries 
 invaded by an adverse claimant asserting title, and, if he 
 remains passive under such circumstances a sufficient 
 length of time, he is held to acquiesce in the adverse 
 claim." So the adverse possession, like the original entry, 3 
 "must be such as to notify the real owner, at least as 
 against him, of the possession and claim." 3 " Notoriety 
 is only important when the adverse character of the pos- 
 session is to be brought home to the owner by presump- 
 tion ; " 4 " because it gives the owner notice that his seizin 
 is interrupted, and that his title may be endangered," 5 
 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 
 possession." It is said, ',' The law designs that the owner 
 shall have ample knowledge of the subject, and a full op- 
 portunity 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 claim of another." 6 So we have seen 
 that a "clandestine entry" is insufficient to set the stat- 
 ute in motion,' because the owner must have " knowledge 
 or means of knowledge." So " a silent possession, accom- 
 panied by no act which can amount to an ouster or give 
 notice to his co-tenant of his intention to exclude him, 
 
 and suffers it to go to wreck, he hauls down his colors, and his challenge is with- 
 drawn." Stephens v. Leach, 19 Penn. St. 265. 
 
 1 Turpin v. Saunders, 32 Gratt. (Va.J 27. 
 
 8 Soule v. Barlow, 49 Vt. 329 ; Wing v. Hall, 47 Vt. 182. 
 
 1 Fugate v. Pierce, 49 Mo. 447. 
 
 4 Clark v. Gilbert, 39 Conn. 97. 
 
 * Cook v. Babcock, 11 Cush. (Mass.) 210. 
 
 6 School District v. Lynch, 33 Conn. 334. 
 
 ' Thompson v. Pioche, 44 Cal. 508. 
 
580 ADVERSE POSSESSION. [§ 736. 
 
 will not make a possession adverse." 1 "Secret posses- 
 sion will not do, as publicity and notoriety are necessary 
 as evidence of notice and to put those claiming an adverse 
 interest upon inquiry." 2 
 
 § 736. Notice to tlie owner, actual or constructive. — The 
 test therefore as to whether acts of ownership or posses- 
 sion are sufficiently open and notorious, is whether they 
 are sufficient in themselves to notify the owner of the 
 possession and its hostile character. 3 Hence it is not 
 necessary to prove actual knowledge on the part of the 
 owner. The court say : " All that is necessary to consti- 
 tute disseizin is actual, adverse and exclusive possession, 
 so open and notorious that it may oe presumed to have been 
 known to the rightful owner." 4 And whether the noto- 
 riety is such as to raise such presumption of knowledge is 
 for the jury to determine. Thus, "where an inclosure, 
 consisting partly of natural and partly of artificial obstruc- 
 tions, is relied upon as, in itself, establishing a possessio 
 pedis, it is the province of the jury, upon all the proofs, 
 and considering the quantity, locality and character of the 
 land, 5 to decide whether or not the artificial barriers were 
 sufficient to notify the public that the land was appro- 
 priated, and to impart to the claim of appropriation the 
 notoriety and indicia of ownership which constitutes so 
 important an element in a possessio pedis." 6 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 considered "altogether too loose." 7 In view of 
 the reason for the rule requiring notoriety of possession, 
 namely, that notice may be given to the owner, and ac- 
 cording to the case of Clark v. Gilbert above quoted from, 
 
 1 Abercrombie v. Baldwin, 15 Ala. 370. See McClung v. Ross, 5 Wheat. 116; 
 Willison v. Watkins, 3 Pet. 51; Turpin v. Saunders, 32 Gratt. (Va.) 34. 
 
 2 Armstrong v. Morrill, 14 Wall. 145. 
 
 3 Moore v. Thompson, 69 N. C. 121. See a recent case in the Court of Errors 
 and Appeals of the State of New Jersey, in which the subject of the requisites of 
 adverse possession is admirably treated by Depue, J. Foulke v. Bond, 41 N. J. L. 
 527. 
 
 4 Samuels v. Borrowscale, 104 Mass. 210. See Alexander v. Polk, 39 Miss. 755- 
 11 See supra, § 733. 
 
 6 Brumagim v. Bradshaw, 39 Cal. 50. 
 ' Lynde v. Williams, 68 Mo. 370. 
 
§ 737.] ADVERSE POSSESSION. 581 
 
 it would seem that if the owner had already actual knowl- 
 edge of the adverse possession and claim, then, as it is ex- 
 pressed in the case just cited, " openness and notoriety 
 are unimportant." x 
 
 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 a 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 
 accordance with principles already stated ; the effect of 
 the recorded deed would, no doubt, as regards notice to 
 the owner, be confined to that part of the land outside the 
 actual possession of the claimant, 3 and claimed only by a 
 constructive 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 ad- 
 verse possession must continue uninterruptedly for the 
 period of time limited 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 possession 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 ex- 
 amination 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 pre- 
 scribed 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. 
 
 1 Clark v. Gilbert, 39 Conn. 97. Compare 'Turner v. Hall, 60 Mo. 271. See 
 § 734- 
 
 s Forest v. Jackson, 56 N. H. 357. 
 
 ' As to this and kindred subjects, see post, Chapter XXX. 
 
582 ADVERSE POSSESSION. [§ 737. 
 
 In the latter case too, it is the policy of the State that the 
 lands should be quickly settled, 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 
 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 already shown, 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 re- 
 covery of the possession accrues. As the possession by 
 presumption of law follows the title, except in the case of 
 an adverse possession, 2 it follows that the adverse posses- 
 sion 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 re- 
 stored to the possession. 3 The adverse possession must, 
 therefore, continue as it has begun, in order to work ulti- 
 mately a forfeiture of the right of the owner. To deter- 
 mine then, in this respect, the sufficiency of the adverse 
 possession, we inquire whether the adverse claimant 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 pos- 
 session, either by his re-entry and ouster of the occupant, 
 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 posses- 
 sion. 4 
 
 1 See supra, § 727. 
 
 s Ruggles v. Sands, 40 Mich. 559 ; Williams v. Wallace, 78 N. C. 354. See 
 §730- 
 
 3 Armstrong v. Morrill, 14 Wall. 120 ; Potts v. Gilbert, 3 Wash. C. C. 479 ; 
 Holdfast v. Shepard, 6 Ired. (N. C.) Law, 364. See 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, especially § 746. 
 
§ 738.] ADVERSE POSSESSION. 583 
 
 § 738. It is hardly necessary to eite authorities, in addi- 
 tion to those already given, on the requisites of adverse 
 possession, to support the general proposition that the 
 adverse possession must be continuous. 1 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, 2 "If there be one 
 element more distinctly material than another in confer- 
 ring title, where all requisites are so, it is the existence of 
 a continuous adverse possession," etc. In the Supreme 
 Court of the United States, Mr. Justice Clifford says : 
 "Continuity 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 con- 
 stitutes a new disseizin, and it is equally well settled that 
 if the continuity of possession is broken before the expira- 
 tion 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 possession for the time limited must 
 be taken for that purpose." 3 In other words, the underly- 
 ing reason for requiring continuity of possession is 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 con- 
 structively 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.Mn the Supreme Court of Penn- 
 sylvania, "If the continuity of the possession be broken 
 for a single day before the twenty-one years have elapsed, 
 the previous possession goes for nothing, and the wrong- 
 doer must commence de novo." As to the general neces- 
 
 1 See Satterwhite v. Rosser, 6i Tex. 171. 
 
 2 34 Penn. St. 308. See Bell a. Denson, 56 Ala. 449; Riggs v. Fuller, 54 Ala. 
 141 ; Malloy v. Bruden, 86 N. C. 251; Ringo v. Woodruff, 43 Ark. 487. 
 
 'Armstrongs. Morrill, 14 Wall. 146. 
 
 4 23 Penn.' St. 284. See Brolaskey v. McClain, 61 Penn. St. 166. 
 
584 ADVERSE POSSESSION. [§ 739. 
 
 sity of continuity in adverse possession, we shall, in 
 addition, quote from only a few authorities on the subject, 
 as it is one that hardly demands or admits of further dis- 
 cussion. 
 
 §739. Bequisites of continuity in possession. — The Supreme 
 Court of California say: "The statute protects only such 
 adverse possession as has been continuous in fact, both as 
 to time and interest, during the prescribed period." 1 The 
 jury "must find that such possession 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." 2 " Such a 
 temporary occupancy for such an important purpose, 
 really nothing but trespasses repeated from year to year, 
 can confer no title by adverse possession." 3 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. 4 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 observed, or 
 if observed, may not be considered as the assertion of 
 rights." 5 But it is said: "To constitute a continuous 
 possession it is not necessary that the occupant should be 
 actually upon the premises continually. The mere fact 
 that time intervenes between successive acts of occupancy 
 does not necessarily destroy the continuity of the posses- 
 sion." 6 Moreover, "his possession must not only have 
 been adverse . . . but he must also have claimed the 
 
 1 San Francisco v. Fulde, 37 Cal. 353. 
 
 2 Lynde v. Williams, 68 Mo. 365. 
 
 3 Wheeler v. Spinola, 54 N. Y. 387. 
 
 4 White v. Reid, 2 N. & McC. (S. C.) 535. See Ward ■v. Herrin, 4 Jones' (N. 
 C.) Law, 25 ; Austin v. Holt, 32 Wis. 478; Gudger v. Hensley, 82 N. C. 481, 483. 
 
 5 Williams v. Wallace. 78 N. C. 356, 357, and cases cited. See McCullough v. 
 Wall, 4 Rich. (S. C.) Law, 81; Washabaugh v. Entriken, 34 Penn. St. 74. 
 
 6 Webb v. Richardson, 42 Vt. 473. 
 
§ 739.] ADVERSE POSSESSION. 585 
 
 title . . . during the entire statutory period." 1 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." 2 "To make the bar of twenty years' 
 possession operative and effectual to destroy a right of 
 entuy, it is necessary that the possession claimed as ad- 
 verse should be shown to be continued and uninterrupt- 
 ed," s 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 continued asser- 
 tion of right, and liability at all times to the possessory 
 action of the owner." 4 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." 5 Or, as it is expressed in cases above 
 cited, the tenant must " keep his flag flying." 6 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 be, so to speak, stationary. As it is said in Potts v. 
 Gilbert, 7 above cited: "The adverse possession before 
 mentioned, must not only continue, but it must continue 
 the same, in point of locality. ... A roving possession 
 
 1 Lovell v. Frost, 44 Cal. 475. 
 
 2 Carlisle v. Cooper, 19 N. J. Eq. 259. 
 
 3 Trotter v. Cassady, 3 A. K. Marsh. (Ky.) 366. 
 
 4 Holdfast v. Shepard, 6 Ired. (N. C.) Law, 365. See Moss v. Scott, 2 Dana (Ky.), 
 274. 
 
 s Denham v. Hollman, 26 Ga. 191. 
 
 6 See supra, §§ 737, 738, 739; Cook v. Dennis, 61 Tex. 248; Medlin v. Wilkins, 
 60 Tex. 409. 
 
 ' 3 Wash. C. C. 478. 
 
586 ADVERSE POSSESSION. [§§ 740, 741. 
 
 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 
 interference of another adverse occupant, or by the aban- 
 donment of the adverse claimant himself. In either case, 
 as we have seen, the constructive if not the actual posses- 
 sion of the owner revives, 1 a new entry on the part of the 
 adverse claimant becomes necessary, and a new adverse 
 possession must be inaugurated, which his previous pos- 
 session can in no respect assist. 8 The important question, 
 therefore, in this subject, is, what amounts to an interrup- 
 tion 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 v. Fulde, 8 
 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 limita- 
 tions 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 
 possession will be defeated, and the running of the statute 
 stopped. 4 And such an entry "has the same effect in ar- 
 resting the progress of the limitation as a suit." 5 In other 
 words, the re-entrv of the owner ousts the former disseizor. 
 
 ' Mally v. Bruden, 86 N. C. 259. See §§ 730, 737. 
 
 2 Jackson v. Leonard, 9 Cow. (N. Y.) 653 ; Melvin v. Proprietors of Locks, etc. 
 5 Mete. (Mass.) 32 ; Allen v. Holton, 20 Pick. (Mass.) 465. 
 
 3 37 Cal. 353. 
 
 ' Pedeiick v. Searle, 5 S. & R. (Penn.) 239. 
 6 Henderson v. Griffin, 5 Pet. 158. 
 
§ 741.J ADVERSE POSSESSION. 587 
 
 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 made with the 
 intent to claim the exclusive possession. As it is said by 
 Gibson, 0. J., in a leading case on this subject in Pennsyl- 
 vania, "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 de- 
 fined than by saying that the entry must bear, on the face 
 of it, an unequivocal intent to resume the actual posses- 
 sion." 1 As to what acts by the owner will, in themselves, 
 constitute an interruption of the adverse possession, it is 
 impossible to lay down any rule. It has been considered a 
 question for the j ury, under proper instruction, to deter- 
 mine 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 j udge to characterize the entries of 
 the owner from time to time as trespasses, and say they 
 were ineffectual to prevent the operation of the statute, 
 unless accompanied by such an assertion of title as would 
 be necessary to toll the statute in the case of an actual 
 
 1 Altemas v. Campbell, 9 Watts (Penn.), 31. See, also, Holtzapple v. Philli- 
 baum, 4 Wash. C. C. 356. Park, J., said : " When a party is once dispossessed it 
 is not every entry upon the premises without permission that would disturb the ad- 
 verse possession. He may tread upon his own soil and still be as much out of pos- 
 session of it there as elsewhere. He must assert his claim to the land, perform 
 some act that would reinstate him in possession, before he can regain what he has 
 lost. It is evident therefore that an entry by stealth, under circumstances that go 
 to show that the party claimed no right to enter, or an entry for other purposes than 
 those connected with a right to enter, would not be sufficient to break the continuity 
 of exclusive possession in another." Burrows v. Gallup, 32 Conn. 493, 498. See 
 S. P. Wing 11. Hall, 47 Vt. 182. 
 
588 ADVERSE POSSESSION. [§ 742. 
 
 disseizin. 1 In the case of Holtzapple v. Phillibaum, 2 above 
 cited, however, it is said, admitting that the animus 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 ascer- 
 tained." 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 ascer- 
 taining its condition, to see whether any use had been 
 made of it, or whether any buildings or structures had been 
 erected upon it, etc., and "the presiding judge having 
 ruled that this single fact . . . was in itself a matter 
 of law, an interruption of the possession," it was held 
 error, 3 the court deciding, 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 ad- 
 verse possession has been continuous or has been inter- 
 rupted." 
 
 § 742. Statutory regulations as to an effectual re-entry. — 
 The rules of law just stated as to the effect of re-entry by 
 the owner in interrupting the adverse possession and restor- 
 ing his own, are those which obtain at common law. Many 
 of the States, however, have enacted statutory regulations 
 as to what is necessary to constitute an effectual entry 
 upon land so as to defeat the operation of the statute. 
 Generally in these States it is necessary, in addition to 
 making an entry, 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. 4 On this question the laws of each State must be 
 
 ' O'Hara v. Richardson, 46 Perm. St. 385. 
 8 4 Wash. C. C. 370. 
 
 3 Eowen v. 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. 
 
 4 See, for example, the laws of Massachusetts, New York, Michigan, Wisconsin, 
 Missouri and other States. 
 
§ 743.] ADVERSE POSSESSION. 589 
 
 consulted. On the subject, too, of forcible entry and de- 
 tainer, 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. 1 
 In the absence of statutory regulations, however, it may 
 be stated generally, that an unequivocal entry and asser- 
 tion 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 effect- 
 ually interrupt the adverse possession and defeat the stat- 
 ute 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 true owner for the 
 recovery of the land, it follows, of course, that if an action 
 is instituted by the owner before the statutory period has 
 elapsed, the running of the statute, and the adverse pos- 
 session upon which it depends, are at least suspended, and 
 the rights of the parties, according to the general rule, 
 are to be determined as they existed at the time the 
 action was brought. 2 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 progress of the actions. 
 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 taking posses- 
 sion, or whether the recovery of the judgment is 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. McOlain, 3 in the Supreme Court of Pennsylvania, 
 
 1 For example, see Ferguson v. Bartholomew, 67 Mo. 219; Cary v. Edmonds, 
 71 Mo. 525. 
 
 8 See Dunn v. Miller, 75 Mo. 260. 
 
 8 61 Penn. St. 166. 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 
 
590 ADVERSE POSSESSION. [§ 743. 
 
 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, Eichard 
 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 pos- 
 session 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 in the same court it 
 is certainly implied, if not directly held, that something 
 more than a mere recovery of judgment is needed to 
 interrupt the course of the statute. 1 But in a recent 
 case in Michigan, where a decree had been rendered re- 
 quiring a prior occupant of the land to convey it to one 
 standing in privity with the plaintiff in ejectment, this 
 language is used: "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 volun- 
 tarily made conveyance. . . . Her previous posses- 
 sion was of no avail any longer as a holding to help make 
 out a continuous adverse possession. Her entire right 
 was determined by a decree, and her possession there- 
 after, even when joined to that of her successors in the 
 same right, appears to have been too short to give rise 
 to a title under the mortgage, founded on adverse posses- 
 sion." 3 As opposed to this it is said in Alabama, 3 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. 1 In the latter 
 
 the statute, so that a subsequent possession cannot be joined with a prior occupa- 
 tion to make out the requisite period. 
 
 1 See Grof t v. Weakland, 34 Penn. St. 307, 308 ; Pederick v. Searle, 5 S. & R. 
 (Penn.) 235, 239. 
 
 2 Gower v. Quinlan, 40 Mich. 572, 575. 
 
 3 Doe d. Kennedy v. Reynolds, 27 Ala. 364, 377. 
 
 4 Jackson v. Haviland, 13 Johns. (N. Y.) 229, 235 : s. P. Carpenter v. Natoma 
 W. & M. Co., 63 Cal. 616. 
 
§ 744. J ADVERSE POSSESSION. 591 
 
 case when the plaintiff had failed to enter after recover- 
 ing judgment in ejectment, the court say that "he 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 Supreme 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. 1 
 
 § 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 2 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 construc- 
 tive 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 resi- 
 dence, or cultivation being required, should the residence 
 be given up, or the cultivation be abandoned, the posses- 
 sion of the owner would revive, and the statute cease 
 running. Again, hostility to the true owner being the 
 most 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 continuing 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 
 
 1 Smith v. Trabue, I McL. 87. See Doe d. Bright v. Stevens, 1 Houst. (Del.) 
 240; Carpenter v. Natoma W. & M. Co., 63 Cal. 616. The statute is not suspended 
 by an unsuccessful ejectment (Doe d. Kennedy v. Reynolds, 27 Ala. 364 ; Work- 
 man v. Guthrie, 29 Pa. St. 495), nor by a forcible entry, if the owner is evicted by 
 forcible entry proceedings. Cary v. Edmonds, 71 Mo. 523 ; Ferguson v. Barthol- 
 omew, 67 Mo. 212. 
 
 2 The question whether the occupant left the premises animo revertendi is one for 
 the consideration of the jury. Wilson v. Glenn, 68 Ala. 386. 
 
592 ADVERSE POSSESSION. [§ 745. 
 
 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. 1 Again, 
 in reference to the effect of attornment, it was held, that 
 "the surrender was equally involuntary, when the attorn- 
 ment is the alternative of actual ouster." 2 An agree- 
 ment 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. 3 As already shown, the pos- 
 session required in particular cases depends upon the 
 character of the land, so that what would amount to 
 abandonment in one case would be insufficient in an- 
 other. 4 So, also, it is said, "while an abandonment of 
 the premises will so break the possession of him who 
 has occupied, that the constructive 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." 5 
 
 § 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 claim- 
 ant, ousting the former tenant and establishing a new 
 possession adverse to the true owner. We have seen 
 that the constructive possession is restored the moment 
 the adverse possession ceases ; consequently, before a 
 second adverse possession is inaugurated the true owner 
 must be again disseized or ousted The possessions of two 
 successive adverse claimants not in privity are, therefore, . 
 distinct, and, as we shall presently see, the latter posses- 
 
 1 Lovell v. Frost, 44 Cal. 471. Compare Bowen v. Guild, 130 Mass. 121. See 
 § 753*?- 
 
 2 Groft v. Weakland, 34 Perm. St. 308. 
 
 3 Hunt v. Guilford, 4 Ohio, 310. Compare Trustees of East Hampton v. Kirk, 
 84 N. Y. 215. 
 
 4 Nixon v. Porter, 38 Miss. 415. See cases cited in § 733. 
 
 5 Crispen v. Hannavan, 50 Mo. 550. On the principle that an abandonment 
 restores the possession of the true owner, see Sawyer v. Kendall, 10 Cush. (Mass.) 
 241. 
 
§ 746.] ADVERSE POSSESSION. 593 
 
 sion must be judged by its own merits alone, in determin- 
 ing 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 
 bostile act of ownership, coupled with the intention to 
 hold the possession exclusively. Thus ii is said in a re- 
 cent case in Alabama 1 : " The unknown intrusions of mere 
 trespassers will not interrupt the continuity unless con- 
 tinued 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 possession 
 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." 8 Mere 
 loose verbal claims made by a third party will not effect an 
 interruption. 3 
 
 § 746. Taclcing. — 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 
 successive occupants have had possession of the premises, 
 with a view to form one continuous and complete adverse 
 possessiou. Although the expression, " tacking of pos- 
 sessions," 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. 
 
 1 Bell v. Denson, 56 Ala. 449. See Doe d. Farmer v. Eslava, 11 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. A mere survey of land for the purpose 
 of ascertaining its locality is not such an entry as will interrupt the running of the 
 statute. Hollinshead v. Nauman, 45 Pa. St. 141. 
 
 3 Robinson v. Phillips, 56 N. Y. 634. 
 38 
 
594 ADVERSE POSSESSION. [§ 746. 
 
 There is but one possession. This, 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 succes- 
 sion, . . . provided the possession be continued and 
 uninterrupted." 1 The very test of whether "tacking" 
 may be permitted to make out the necessary statutory pe- 
 riod for adverse possession is, whether the successive oc- 
 cupancy may be considered, so to speak, as forming a sin- 
 gle uninterrupted possession, a " unity of possessions " 
 as it is called, 2 or, in other words, one begun and continued 
 in the same right. 3 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. 4 The Su- 
 preme Court of Alabama use this language : 5 " Continuity 
 is an indispensable element 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 pos- 
 sessions 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 possessions can and should be referred to the orig- 
 inal 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 interruption in the possession, each posses- 
 sor is connected with his predecessor, and the whole is a 
 continuous possession." But, on the other hand, we may 
 add, unconnected possessions, though successive, cannot 
 be tacked, for the reason that the moment that one posses- 
 
 1 Benson v. Stewart, 30 Miss. 57 ; s. p. Olive v. Bevil, 55 Tex. 423. 
 
 5 Schrack v. Zubler, 34 Pa. St. 41. See Kilbum v. Adams, 7 Met. (Mass.) 33. 
 
 8 Doswell v. De La Lanza, 20 How. 32 ; Wheeler v. Moody, q Tex. 37 2 - 
 Compare Leonard v. Leonard, 7 Allen (Mass.), 277; Kent v. Waite, 10 Pick. (Mass.) 
 138 ; Hill v. Crosby, 2 Pick. (Mass.) 466 ; Williams v. Nelson, 23 Pick. (Mass.) 
 142; DeMill v. Moffat, 49 Mich. 130, and cases cited. 
 
 4 See Haynes v. Boardman, ng Mass. 415 ; Chandler v. Rushing, 38 Tex. 595 1 
 Shuffleton v. Nelson, 2 Sawyer, 540. 
 
 5 Riggs v. Fuller, 54 Ala. 146. Compare Clark v. Chase, 5 Sneed (Tenn.), 636. 
 See Baker v. Hale, 6 Baxt. (Tenn.) 46 ; Jackson v. Leonard, 9 Cow. (N. Y.) 653. 
 
§ 746.] ADVERSE POSSESSION. 595 
 
 sion ceases, there is a break in the continuity, and, as we 
 have already shown, in that moment the possession of the 
 true 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 predeces- 
 sor. In such a case, as it is expressed by the Supreme 
 Court of California : 1 " The possession of each is distinct, 
 and cannot constitute one adverse possession, for they are 
 referable to different entries ; and because, as the defend- 
 ant merely succeeds the former possessor, without privity, 
 there may be an immediate succession of possessions, but 
 not a continuity of possession." In Melvin v. Proprietors 
 of Locks, etc./ the Supreme Court of Massachusetts said : 
 "It is a principle well established, that where several per- 
 sons 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." 3 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 construc- 
 tively intervene between them." 4 For the same reasons, 
 two or more distinct possessions of the same occupant can- 
 not be tacked to make out a sufficiently long adverse pos- 
 session, for, as we have seen, in such a case the continuity 
 has been interrupted. 5 It was held in a case in the United 
 States Supreme Court, that, though the actual possession of 
 the claimants 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 
 
 1 San Francisco v. Fulde, 37 Cal. 353, and cases cited. See Sargent v. Ballard, 
 9 Kck. (Mass.) 251 ; Okeson v. Patterson, 29 Pa. St. 22 ; Tracy v. Atherton, 36 
 Vt. 503. 
 
 2 5 Mete. (Mass.) 32. 
 
 3 See also Morrison v. Hays, 19 Ga. 294; Sawyer v. Kendall, 10 Cush. (Mass.) 
 2 44 ; Crispen v. Hannavan, 50 Mo. 536. 
 
 * Smith v. Chapin, 31 Conn. 531. 
 
 5 See Austin v. Bailey, 37 Vt. 219, 224. 
 
596 ADVERSE POSSESSION. [§ 747. 
 
 same occupant prior and subsequent to the forfeiture could 
 not be tacked. 1 The Supreme Court of Georgia, iu which 
 State the statutes of limitation were suspended from the 
 14th of December, 1861, to the 1st of January, 1863, de- 
 cided that a possession enjoyed prior to December 14th, 
 1861, could be tacked to a possession subsequent to Janu- 
 ary 1st, 1863. 2 
 
 § 747. Privity, what constitutes for purposes of tacking.— 
 The cases already referred to are sufficient to support the 
 general principle that privity of some sort between succes- 
 sive occupants is essential to tacking their periods of 
 possession so as to preserve the continuity; 8 the main 
 question remaining then is, what counection or relation 
 between successive tenants will be held to constitute such 
 privity? It is held by the Supreme Court of Missouri 4 
 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 
 necessary, if it appear that the holding is continuous and 
 under the first entry." The ordinary relations of landlord 
 and tenaut, ancestor and heir, and vendor and vendee, 
 specified in cases already cited, 5 clearly constitute such a 
 privity as that the "latter shall apparently hold by right 
 of the former," and that the possessions of both shall he 
 "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, whether the occupation of the subsequent ten- 
 ant is referable to the same entry, and under the same 
 " claim of right," as it is called, as that of the prior occu- 
 pant : in other words, whether the occupation of the one 
 
 1 Armstrong v. Morrill, 14 Wall. 121, 145, 146. 
 
 ! Pollard v. Tait, 38 Ga. 443. 
 
 3 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. 
 
 4 Crispen v. Hannavan, 50 Mo. 549. 
 
 6 See Riggs v. Fuller, 54 Ala. 141; Sawyer v. Kendall, 10 Cush. (Mass.) 244. 
 
§ 748.J ADVERSE POSSESSION. 597 
 
 constitutes but a continuation 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, 1 that there was not the requi- 
 site 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 it seems to us the 
 better doctrine, is held in a later case in Massachusetts, 2 
 wherein the opinion of the court is thus expressed : "It is 
 claimed that there is no such privity between the life ten- 
 ant 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 
 establishes her title by lapse of time. It is plainly distin- 
 guished from a case of successive entries and new dissei- 
 zins by different 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- 
 tions, it has been held that the relation between the 
 successive 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 ; 3 a husband, possessing land in the right of his wife 
 during his life, and the widow continuing the possession 
 in her own right ; 4 officers and members of an unincorpo- 
 
 1 Austin v. Rutland R. R. Co., 45 Vt. 215. 
 
 2 Haynes v. Boardman, ng Mass. 415. 
 "Cochrane v. Faris, 18 Tex. 850. 
 
 4 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 
 possession adverse to the real owner, that her continued possession after his decease 
 can be tacked to his occupancy. Sawyer v. Kendall, 10 Cush. (Mass.) 241. 
 
598 ADVERSE POSSESSION. [§ 748. 
 
 rated society occupying land, and the society after its in- 
 corporation continuing the possession; 1 the vendor and 
 vendee of land, where no deed has been given of the prem- 
 ises in question, and the transfer of possession is shown 
 only by parol. 2 This question of whether a deed or writing 
 effectual to pass title is necessary, 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 re- 
 marked : s " The mode adopted for the transfer of the pos- 
 session may give rise to questions between the parties to 
 the transfer ; but, as respects the right of third persons 
 against whom the possession is held adversely, it seems to 
 us to be immaterial, if successive transfers of possession 
 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 difference if one of 
 the occupants had color of title and the other had not. 
 The actual possession of the prior will avail the subsequent 
 occupant. 4 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, 3 as, for example, a deed. As we shall presently 
 see, a deed void upon its face cannot constitute "color 
 of title ;" and so it has been held in the Supreme Court of 
 
 1 Reformed Church v. Schoolcraft, 65 N. Y. 134. 
 
 2 Weber v. Anderson, 73 111. 439. 
 
 3 McNeely v. Langan, 22 Ohio St. 32. See Weber v. Anderson, 73 111. 444J 
 citing Smith v. Chapin, 31 Conn. 531; Menkens v. Blumenthal, 27 Mo. 203; Cris- 
 pen v. Hannavan, 50 Mo. 544. 
 
 4 Day v. Wilder, 47 Vt. 583. See Howland v. Newark Association, 66 Barb. 
 (N. Y.) 366. 
 
 5 Crispen v. Hannavan, 50 Mo. 549. See Cooper v. Ord, 60 Mo. 431. 
 
§ 749.] ADVERSE POSSESSION. 599 
 
 New York, that such a deed from one possessor to another 
 will not preserve the continuity of a constructive posses- 
 sion. 1 
 
 §749. Possession must oe "hostile." — It is, of course, 
 tautology to say that adverse possession must be "hos- 
 tile," and, on the general principle that possession, to be 
 an effectual defense under the plea of the statute of lim- 
 itations, must be "in derogation of," and not "in con- 
 formity with," the rights of the true owner, 2 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 possessor, and the invasion of the 
 rights of the true owner. As will appear hereafter, there 
 must exist in the occupant an hostile, intent or a claim in- 
 consistent 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 occupant, in pursuance of which the latter 
 is in possession of the 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 in fact exclusive 3 — there can be 
 no question of adverse possession. It may be here re- 
 marked that there are two presumptions of law always en- 
 tertained ; first, that every possessor is presumed to hold in 
 accordance with right, 4 i. e., with the title of the owner, or 
 
 1 Simpson v. Downing, 23 Wend, (N. Y.) 316, 320. 
 
 2 Compare Farish v. Coon, 40 Cal. 33 ; Williams v. Higgins, 69 Ala. 523 ; 
 Pulaski Co. v. State, 42 Ark. 118, 121. 
 
 3 Russell v. Davis, 38 Conn. 562. 
 
 4 Alexander v. Polk, 39 Miss. 738 ; Alexander v. Stewart, 50 Vt. 87; Parkers. 
 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 collateral 
 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 held by the indulgence of the 
 purchaser at such sale. Cook v. Travis, 20 N. Y. 403. 
 
600 ADVERSE POSSESSION. [§ 750. 
 
 the converse that bo entry or possession is presumed to be 
 adverse to the lawful owner ; 1 and, secondly, that a condi- 
 tion or relation, shown once to exist, is presumed to con- 
 tinue till facts are proved to overcome such a presumption. 
 Hence, to establish that a possession has been adverse, 
 acts must be shown by the possessor which negative the 
 presumption that it has been in subserviency to the rights 
 of the owner ; 2 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 occupant, the adverse 
 character of the latter's possession can be established only 
 by proof of acts on his part sufficient to rebut the pre- 
 sumption that such relation has continued. 3 
 
 § 750. Where the possession is begun in subserviency to 
 the owner's title. — Tlie question as betiveen tenants in common. 
 — It may be generally stated, that when a relationship 
 which is not only consistent with, but is, in itself, a rec- 
 ognition 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 equal rights of another, as in the case of co- 
 tenants in common, 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 when no such relation has existed. Thus 
 it is held in a late leading case in New Jersey, as follows : 
 "In the acquisition of title by adverse possession the dis- 
 tinction between strangers and tenants in common relates 
 to the character of the evidence necessary to prove that 
 the possession was adverse. . . If the parties are stran- 
 gers in title, possession and the exercise of rights of 
 ownership are in themselves, in the absence of explana- 
 tory evidence, proof of an ouster of the true owner; 
 whereas, in cases of privity of title, such as subsist be- 
 tween 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 
 
 1 Hart v. Bostwick,l4 Fla. 162; Brandt v. Ogden, 1 Johns. (N.Y.) 156; Jackson 
 z/.Vredenburg. 1 Johns(N.Y.) 159-163; Jackson v. Parker, 3 Johns. Cas. (N. Y.) 124. 
 
 2 Davis v. Bowmar, 55 Miss. 671. 
 
 * Buchanan v. King, 22 Gratt. (Va.) 414. 
 
§ 750.] ADVERSE POSSESSION. 601 
 
 must be clearer and more decisive evidence of an ouster 
 by one tenant in common of bis associate tban is neces- 
 sary 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 possession by one tenant in common 
 against his co-tenants, as follows: "When one tenant in 
 common is in possession of land, it requires clear and 
 satisfactory proof of a subsequent disseizin 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 im- 
 provements on the land and pays the taxes. To constitute 
 a disseizin there must be outward acts of exclusive owner- 
 ship 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- 
 serted against him." 2 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 
 denial of title to constitute ouster. So again, ouster will 
 not be presumed from a sole possession, unless accom- 
 panied with some notorious act or claim sufficient to give 
 character to the possession ; as if the tenant purchase his 
 co-tenant's interest at a sheriff's sale. 3 Where, however, 
 one of the tenants had been guilty of fraud, though he had 
 procured a tax deed of the property which had been on re- 
 cord for five years, it was held that the statutes mean- 
 while had not been set in motion against his co-tenants in 
 common. 4 So it was decided in a case in Vermont that 
 nothing short of an ouster of his co-tenants in common 
 
 ' Foulke v. Bond, 41 N. J. L. 538. Compare Sherman v. Kane, 86 N. Y. 68, 69 ; 
 Zeller v. Eckert, 4 How. 296 ; Union Savings Bank v. Taber, 13 R. I. 690 ; 
 Harral v. Leverty, 59 Conn. 46. See §§ 278, 280. 
 
 ! Busch v. Huston, 75 111. 343. See Lapeyre w. Paul, 47 Mo. 586. 
 
 3 Kathan v. Rockwell, 16 Hun (N. Y.), 90. See Millard v. McMullin, 68 N. Y. 
 35 2 ; Culvers. Rhodes, 13 N. Y. Weekly Dig. 563 ; S. P. McQuiddy v. Ware, 67 
 Mo. 74, 
 
 4 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 
 
602 ADVERSE POSSESSION. [§ 750. 
 
 can establish an adverse possession in favor of one co-ten- 
 ant. 1 Although the general rule is as stated, that, as 
 between co-tenants, some unequivocal act of ouster, suffi- 
 cient to indicate the adverse claim, must be shown, 2 yet, in 
 a recent case in New York, it was held that the jury might 
 presume an ouster from the fact of an exclusive occupation 
 by one co-tenant for forty years, he having, during that 
 time, conveyed in his own name portions of the land by 
 deeds on record, and otherwise ignored the rights of his 
 co-tenant. 3 In a case in the same court already quoted, 1 
 where an undivided portion of land had been sold by one 
 tenant without objection by his co-tenant, and the pur- 
 chaser — a school district — had erected a school-house upon 
 the land, which had been standing for forty years, it was 
 held that this was insufficient 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 one of the co-tenants at- 
 tempted to convey the whole land, and the district had 
 occupied under such a conveyance, the court considered 
 that an adverse possession would have been inaugurated. 5 
 It would also seem, for the same reasons, that had a por- 
 tion 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 mid 
 it generally stated, that a conveyance by one tenant in 
 common to a third person works, in favor of the latter, a 
 disseizin of the co-tenant ; 6 though it may well be doubted 
 whether such a conveyance would alone be sufficient no- 
 tice to effect an ouster of a co-tenant. 7 It is a familiar 
 
 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. 
 
 1 Holley v. Hawley, 39 Vt. 534. 
 
 2 See Chap. IX, especially §§ 276-287. 
 
 3 Woolsey v. Moiss, 19 Hun (N. Y.), 273. See § 289. 
 
 4 Kathan v. Rockwell, r6 Hun (N. Y.), 90. 
 
 5 Citing Florence v. Hopkins, 46 N. Y. 182. 
 
 6 Riggs v. Fuller, 54 Ala. 141 ; Home v. Howell, 46 Ga. 9; Kinney v. Slattery, 
 51 Iowa, 354; Foulke v. Bond, 41 N.J. L. 527. 
 
 ' Holley v. Hawley, 39 Vt. 531 ; Culver <j. Rhodes, 13 N. Y. Weekly Dig. 563 ; 
 Buchanan v. King, 22 Gratt.(Va.) 414. See §§ 283, 287, 288. 
 
§ 751.] ADVERSE POSSESSION. 603 
 
 principle, as we have seen, that the possession of one ten- 
 ant in common is the possession of his co-tenants. 1 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 required of one tenant in common, 
 sufficient to oust his co-tenant, must, for that reason, be 
 such as amount to a renouncing of the co-tenancy, and 
 put an end to the relation previously existing. 
 
 § 751. The rule applied generally where there is a privity 
 of possession or title. — As in the case of co-tenancy 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 
 landlord, 2 and, it may be added, as it is expressed by the 
 New York Court of Appeals, "a tenant for years is pos- 
 sessed, not properly of the land, but of the term for 
 years." 3 Moreover, while such tenancy continues, and 
 until the expiration 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. 4 
 Such relation, privity, or trust must be explicitly re- 
 nounced or disclaimed by declarations or acts unmistak- 
 ably hostile to it, 5 and an exclusive adverse claim asserted, 
 before the possession of the occupant can be considered 
 
 1 Kinney v. Slattery, 51 Iowa, 354 ; Foulke v. Bond, 41 N, J. L. 527. See also 
 Lapeyre v. Paul, 47 Mo. 586 ; Neely v. Neely, 79 N. C. 478. See § 276. 
 
 2 See Chap. XII. 
 
 3 See Bedell v. Shaw, 59 N. Y. 49. 
 
 4 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. See § 753^. 
 
 5 The presumption that the possession of a tenant continues in subordination to 
 the title of his landlord, may be rebutted, but to do so effectively and initiate an 
 adverse holding, the tenant must surrender the possession to the landlord, or do 
 some equivalent act and bring home to the landlord, knowledge of the adverse claim. 
 Whiting v. Edmunds, 94 N. Y. 314. 
 
604 ADVEKSE POSSESSION. [§ 751. 
 
 adverse. 1 In other words, there must be a concurrence 
 of two things : a repudiation of the previously existing 
 relation, and an assertion of an appropriation 2 by the 
 occupant foe himself, accompanied by an actual exclusive 
 occupation. 3 As a rule, both these essentials are mani- 
 fested by the same acts, which at once amount both to 
 a repudiation of any pre-existing relation of privity or 
 trust, and to an assertion of an exclusive adverse claim. 
 Thus, where land had been conveyed by a plaintiff, a 
 religious society, to a town, in trust for the use and sup- 
 port of ministers of the gospel, it was held that the ap- 
 plication 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 
 <slaim as, after a long period of time, vested an absolute 
 title in the town. 4 So an agency may be renounced by 
 the "hostile attitude" of the agent, manifesting an in- 
 tent to hold for himself and not for his principal; 5 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. 6 Authori- 
 ties 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 possession of the 
 tenant cannot be adverse ; but, unless it can be rnain- 
 
 1 Estes v. Long, 71 Mo. 605 ; Long v. Mast, n Penn. St. 189; Hall v. Stevens, 
 g Mete. (Mass.) 418 ; Day v. Cochran, 24 Miss. 261; Clarke v. McClure, 10 Gratt. 
 (Va.) 305 ; Criswell v. Altemus, 7 Watts (Penn.), 581; Harrisons. Pool, 16 Ala. 
 167; Zeller v. Eckert, 4 How. 289; Williams v. Cash, 27 Ga. 507; Hamilton v. 
 Boggess, 63 Mo. 233 ; Burnans v. Van Zandt, 7 N. Y. 527; Bazemore v. Davis, 48 
 Ga. 341 ; Catlin v. Decker, 38 Conn. 262. 
 
 2 As to the necessity for an intent to appropriate for himself on the part of the 
 claimant, see post, Chap. XXIX. 
 
 3 Ousted in Whittington v. Flint, 43 Ark. 518. 
 
 4 Congregational Society v. Newington, 53 N. H. 595. Compare Catlin v. 
 Decker, 38 Conn. 262. 
 
 5 Whiting v. Taylor, 7 Dana (Ky.), 403. The agent must openly disclaim the 
 title under which he entered, and assert a hostile right. Baucum v. George, 65 Ala. 
 260. 
 
 6 Sharpe v. Kelly, 5 Denio (N. Y.), 431; Holley v. Hawley, 39 Vt. 534. See 
 Sherman v. Kane, 86 N. Y. 68, citing Jackson v. Burton, 1 Wend. (N. Y.) 341. See, 
 also, Chap. XII. 
 
§ 751.] ADVERSE POSSESSION. 605 
 
 tained 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 toward, the owner of the land, might originate an 
 adverse possession. 1 In New York, it is held that pos- 
 session under a deed from a tenant is subordinate to the 
 tenancy, and hence cannot be adverse, 2 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. 3 Following the rule, that so long as 
 such a relation or privity exists as that discussed in the 
 text, the possession (of a tenant, for example) cannot be 
 adverse, it is held in North Carolina, that the possession 
 of a tenant of the widow of the deceased owner of the 
 premises under a lease, which the widow had no author- 
 ity to make, could not be adverse to the heirs of the 
 deceased owner. 4 A trustee's possession of laud pur- 
 chased with trust funds, though in his individual name, 
 is the possession of the beneficiaries, until he does some 
 "unequivocal act denying their right," 5 when the statute 
 would begin to run. In a recent case in the New York 
 Court of Appeals, 6 the doctrine is reiterated, that a grant- 
 or, even with warranty, may originate a possession adverse 
 
 1 See Sherman v. Champlain Trans. Co. 31 Vt. 162. 
 
 8 See Christie v. Gage, 71 N. Y. 189-193; Jackson v. Davis, 5 Cow. (N. Y.) 123. 
 
 3 See Sands v. Hughes, 53 N. Y. 287. 
 
 4 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 the 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 ; Sutton v. Casseleggi, 77 Mo. 397; Keith 
 v. Keith, 80 Mo. 125; Dewey v. McLain, 7 Kans. 126; Doe d. Parker v. Gregory, 
 2 Ad. & El. 14; Poor v. Larrabee, 58 Me. 543; Pickett v. Doe d. Pope, 74 Ala. 
 130; Gernet v. Lynn, 31 Pa. St. 94 ; Jones v. Freed, 42 Ark. 358. Nor against 
 a judgment creditor until after he becomes a purchaser and has a right of entry. Pratt 
 v. Pratt, 96 U. S. 704. And a secret trust to defraud creditors will not clothe the 
 trustee who has failed to take possession with such ownership as will establish ad- 
 verse possession against a creditor. Jones v. Wilson, 69 Ala. 400. 
 
 1 Butler v. Lawson, 72 Mo. 227, citing Norris' Appeal, 71 Penn. St. 106. See 
 Paschall v. Hinderer, 28 Ohio St. 568 ; Ebbinghaus v. Killian, 1 Mackey (D. C), 
 247. But see Bargamin v. Clarke, 20 Gratt. (Va.) 544. 
 
 6 Sherman v. Kane, 86 N. Y. 68, 69, and cases cited. 
 
606 ADVERSE POSSESSION. [§ 751. 
 
 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 pos- 
 session 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 pos- 
 session," which will ultimately lead to title. 1 In Iowa, 
 the possession of a grantee in possession, who has recov- 
 ered judgment against his grantor on his covenant of title, 
 is adverse only from the time of recovery of judgment. 2 
 So a possession commenced by a permissive entry may 
 become adverse by a distinct disclaimer of the possession 
 and title of the owner. 8 In Iowa it is held that, in the case 
 of a tenant at will, notice to quit to the latter is necessary 
 before his possession can be adverse to the owner. 4 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. 5 On the 
 other hand it is held, in Iowa, that in the case of a mort- 
 gagee in possession, the statute does not begin to run till 
 the debt has been paid. After such an event the posses- 
 sion of the mortgagee would, if sufficiently open and ac- 
 companied by acts of ownership, be deemed adverse to 
 the rights of the mortgagor. 6 So, also', it is held in Mis- 
 
 1 Dorland v. Magilton, 47 Cal. 485. 
 
 2 Davenport v. Sebring, 52 Iowa, 364. 
 
 3 Hudson v. Putney, 14 W. Va. 561 ; Ford v. Holmes, 61 Ga. 419; s. P. Collins 
 n. Johnson, 57 Ala. 304. 
 
 4 Austin v. Wilson, 46 Iowa, 362. 
 
 5 Boyd v. Beck, 29 Ala. 703. See Parker v. Banks, 79 N. C. 480. 
 
 s 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 Barker zi. Bell, 37 Ala. 358 ; Hall v. Savill, 3 Greene (Iowa), 
 37; Babcock v. Hoey, 11 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 differently where a mort- 
 gage conveys an absolute estate. On this subject see, e. g., Poignand v. Smith, 8 
 Pick. (Mass. ) 272 ; Sheafe v. Gerry, 18 N. H. 247 ; Foster v. Perkins, 42 Me. 168 ; 
 Northy v. Northy, 45 N. H. 144 ; Johnson v. Phillips, 13 Gray (Mass.), 198 ; Kort- 
 right v. Cady, 21 N. Y. 343 ; Grattan v. Wiggins, 23 Cal. 26 ; Philips u. Bank of 
 Lewistown, 18 Penn. St. 402. See §§ 327, 345. 
 
§ 751.] ADVERSE POSSESSION. 607 
 
 sissippi, that from the time of the forfeiture of the mort- 
 gagor's estate by a breach of condition, his possession is, 
 as to the mortgagee, adverse, 1 though, in general, the 
 statute will not run in favor of a mortgagor against an 
 equitable mortgagee. 2 
 
 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 wheu the possession of the 
 latter can become adverse. In general, it maybe said that 
 such possession is deemed subordinate to the rights of the 
 owner, 3 till the conditions entitling the possessor to a con- 
 veyance have been fully performed, when the possession 
 will become adverse. 4 Thus in Hart v. Bostwick, 5 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 iu 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, 6 and the same may be said of 
 an entry and possession under an executory contract to 
 convey.' 
 
 ' Wilkinson v. Flowers, 37 Miss. 579, 585. But see Seeley v. Manning, 37 Wis. 
 574- 
 
 2 Green v. Mizelle, 54 Miss. 220. 
 
 3 See Hart v. Bostwick, 14 Fla. 162, where it is held that if an entry merely be 
 made under a contrac' to purchase, the statute will not run till the contract is repu- 
 diated. See Fulkerson v. Brownlee, 69 Mo. 372; also Chap. X, § 305. 
 
 4 Matter of Department of Parks, 73 N. Y. 560; Fulkerson v. Brownlee, 6g 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 con- 
 tract of purchase, the purchase money not being paid, the statute of limitations 
 would be a defense to the payment of the purchase money, but not a defense to up- 
 hold 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. 
 
 6 14 Fla. 162. See cases cited. 
 
 6 Ormond v. Martin, 37 Ala. 604. But see Outcalt v. Ludlow, 32 N. J. Law, 239. 
 'Brown v. Supervisors, 54 Miss. 230; Nowlin v. Reynolds, 25 Gratt. (Va.) 137; 
 Benson v. Stewart, 30 Miss. 49. 
 
608 ADVERSE POSSESSION. [§§ 752, 753. 
 
 §752. Possession must be "exclusive." — That possession 
 to be adverse must be in exclusion of the rightful owner 1 
 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 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 claim- 
 ant's possession, wheuever once established, must be ex- 
 clusive of all others, 8 as well as of the owner, to be effectu- 
 ally adverse against the latter. The reason for this rule is 
 obvious when we consider the general principle that the 
 moment the possession of an adverse occupant ceases the 
 seizin or possession of the owner is constructively, at least, 
 restored. In the case, therefore, of several adverse occu- 
 pants who, at the same time, or successively, occupy the 
 locus in quo, and between whom there is no privity, as the 
 adverse possession of each ceases, so often is the owner 
 restored to his rightful possession; 3 therefore, in such a 
 case, there can be no effectual continuous adverse posses- 
 sion. 
 
 § 753. Conflicting possessions, general principles regulating. 
 — But there may be an apparent conflict of possession 
 between two or more occupants of the same land, each of 
 whom claims adversely to the true owner, when the ques- 
 tion 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 
 
 1 A husband cannot hold adversely to his wife premises which they jointly occupy. 
 Hendricks v. Rasson, 53 Mich. 575. 
 
 s Boulo v. New Orleans M. & T. R. R. Co., 55 Ala. 480; Thomas v. Marshfield, 
 13 Pick. (Mats.) 250. 
 
 3 Compare supra, §§ 738, 739, 740, 741, 744, and Smith v. Chapin, 31 Conn. 
 531. 
 
§ 753.] ADVERSE POSSESSION. 609 
 
 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. 1 For the solution of 
 such questions, the following rules, which we consider con- 
 sistent both with the principle and authority governing this 
 subject, are deemed adequate : First, there cannot be two 
 actual possessions 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 posses- 
 sions of the whole. In the former case, each adverse 
 possession depends 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 constructive possession of the remain- 
 der, such circumstance is as ineffectual against an actual 
 possession of a part of the same by another adverse claim- 
 ant as would be the constructive possession 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, 2 as to the part claimed by 
 both through constructive possession under color of title, 
 on the same principle that the possession of an adverse 
 claimant must be confined to what he actually occupies, 
 though he have color of title to the whole tract, if the 
 rightful owner be still in the actual possession of any part 
 of the same, 3 or recovers possession of some part of it. 4 
 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 
 
 1 Norris v. Russell, 5 Cal. 249. 
 
 2 Where, however, the junior claimant has an actual possession, there can be no 
 question of conflict. See McAllister v. Devane, 76 N. C. 57. 
 
 3 Armstrong v. Risteau, 5 Md. 256. 
 
 4 Semple v. Cook, 50 Cal. 26. 
 
 39 
 
610 ADVERSE POSSESSION. [§ 753a. 
 
 a constructive possession is called in question, such posses- 
 sion follows the title, 1 or the better right, 2 or the older 
 color of title, 8 as the case may be. 4 
 
 § 753a. Exceptions. — No adverse possession against the State 
 or Government. — Municipal corporations. — There are various 
 exceptions to the rule as to acquiring title by adverse pos- 
 session. Upon universally recognized considerations of 
 public policy, there can be no adverse possession against 
 the commonwealth. 5 A State statute cannot bar the 
 United States, 6 and laches cannot, be imputed to the gov- 
 ernment. 7 The rule of nullum tempus occwrit regi has ex- 
 isted as an element of the English law from a very early 
 period, 8 and has come down to the present time. It is said 
 in California that possession of government lands, though 
 admitted to be subordinate to the title of the government, 
 may, nevertheless, be adverse to every one not holding 
 >under the government. 9 The existence of war suspends 
 the statute of limitations as between citizens of the adverse 
 belligerent powers, but not as between citizens of the same 
 power. 10 
 
 1 Kitchen v. Wilson, 8o N. C. 191 ; Barr v. Gratz, 4 Wheat. 213; Smith v. Burtis, 
 6 Johns. (N. Y.) 218; Codman v. Winslow, 10 Mass. 146, 151; Whittington v. 
 Wright, 9 Ga. 23; Brimmer v. Proprietors of Long Wharf, 5 Pick. (Mass ) 131 ; 
 Stevens v. Hollister, 18 Vt. 294; Crispen v. Hannavan, 50 Mo. 536; Semple v. Cook, 
 50 Cal. 26. 
 
 2 Hunt v. Wickliffe, 2 Pet. 201. s. P. Bradley v. West, 60 Mo. 33. Compare Mar- 
 tin v. Bonsack, 61 Mo. 556; McAllister v. Devane, 76 N. C. 57. 
 
 3 Borrets v. Turner, 2 Hayw. (N. C.) 113. Compare Hodges v. Eddy, 38 Vt. 
 344; Ballance v. Flood, 52 111. 49. 
 
 4 See especially Hunnicutt v. Peyton, 102 U. S. 368; Bellis v. Bellis, 122 Mass. 
 417; Cline's Heirs v. Catron, 22 Gratt. (Va.) 378; Frisby v. Withers, 61 Tex. 143; 
 Renneker v. Warren, 17 S. C. 139; Gadsby v. Dyer, 91 N. C. 312; Alstons. Collins, 
 2 Spears' (S. C.) Law, 459 ; Evius v. Roth, 61 Tex. 84; Sims v. Meacham, 2 Bailey's 
 (S. C ) Law, 101. 
 
 6 Cary v. Whitney, 48 Me. 516; Koiner v. Rankin, 11 Gratt. (Va.)42o; City of 
 Alton u . Illinois Transp. Co., 12 111. 38; Walls v. McGee, 4 Harr. (Del.) 108; 
 Serrano v. United States, 5 Wall. 451 ; Rhode Inland v. Massachusetts, 15 Pet. 
 233 ; Burbank v. Fay, 65 N. Y. 57 ; United States v. Thompson, 98 U. S. 488 ; 
 Armstrong*!'. Morrill, 14 Wall. 145 ; St. Vincent Orphan Asylum v. City of Troy, 
 76 N. Y. 108 ; Swann v. Lindsey, 70 Ala. 507 ; United States v. Spiel, 3 McCra. 
 107; Hoeyz/. Furman, I Pa. St. 295. 
 
 6 United States v. Hoar, 2 Mason, 311 ; United States v. Williams, 5 McL. 133; 
 United States v. Thompson, 98 U.S. 489. 
 
 1 Stoughton v. Baker, 4 Mass. 521 ; United States v. Kirkpatrick, 9 Wheat. 720; 
 United States v. City of Alexandria, 4 Hughes, 545. 
 
 8 United States v. Thompson, 98 U. S. 489. 
 
 9 Lord v. Sawyer, 57 Cal. 65. See McManus v. O'Sullivan, 48 Cal. 7. 
 
 10 Cross v. Sabin, 13 Fed. Rep. 308. See Ryan v. Kilpatrick, 66 Ala. 332; Mor- 
 gan v. Casey, 73 Ala. 223. 
 
§ 753ffl.] ADVERSE POSSESSION. 611 
 
 While municipal corporations may acquire title by ad- 
 verse possession, 1 it does not necessarily follow that there 
 can be adverse possession against municipal corporations, 
 or public authorities, as regards streets, squares, or places 
 held for the public beuefit or dedicated to public use. 2 It 
 would seem to be clear, that title by prescription affecting 
 such interests cannot be gained against the public, for, as 
 we have seen, this species of title, in the case of incor- 
 poreal hereditaments, is founded upon the presumption of 
 a grant. The theory of the law is, that no grant can be 
 presumed against the public. 3 Conferring title by pre- 
 scription, under sucb circumstances, would, in effect, legal- 
 ize a public nuisance. But the authorities, even upon 
 these points, are not uniform, and cases may be found 
 where titles were gained against municipal and public au- 
 thorities, both by prescription and adverse possession.* 
 Where the land is taken and held solely for public purposes, 
 we do not think the negligence of public officers or agents 
 to evict occupants or intruders should affect or bar the 
 public right. Where, however, the title is held by a mu- 
 nicipal body, practically in the capacity oi private owner, 
 no good reason is known why the title might not be lost 
 by adverse possession, or affected by prescription. 
 
 The fee in a highway, even while the public easement 
 exists, is as much the subject of prescription, or of the 
 operation of the statute of limitations, as it would be if 
 
 1 Sherman v. Kane, 86 N. Y. 57. 
 
 2 Grogan v. Town of Hayward, 4 Fed. Rep. 165 ; Hoadley v. San Francisco, 50 
 Cal. 265 ; People v. Pope, 53 Cal. 437; McFarlane v. Kerr, 10 Bovw. (N. Y.) 249 ; 
 Vickbburg v. Marshall, 59 Miss. 571. 1 
 
 8 Burbank v. Fay, 65 N. Y. 57, and cases reviewed in the able opinion of Dwight, 
 C. ; Thomas v. Marshfield, 13 Hick. (Mass.) 240; Gloucester Parish v. Beach, 2 
 Pick. (Mass.) 60, note; Staffordshire & W. Canal Nav. v. Birmingham Canal Nav., 
 L. R. 1 E. & I. App. 254; Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287 ; Elwell 
 v. Birmingham Canal Nav., 3 H. L. Cas. 812 ; Grand Surrey Canal Co. v. Hall, I 
 M. &G. 392 ; Gerring v. Barfield, 16 C. B. (>J. S.) 597 ; Morton v. Moore, 15 Gray 
 (Mass.), 573 ; Commonwealth v. Alburger, 1 Whart. (Pa.) 486; Penny Pot Land- 
 ing Case, 16 Penn.St 94; Commonwealth v. McDonald. 16 S. & R. (Ha.) 395; Rung 
 v. Shoneberger, 2 Watts (Pa.), 23 ; Gray v. Bartlett, 20 Pick. (Mass.) 186. 
 
 4 See Dillon's Mun. Corp. § 663 ; Lane v. Kennedy, 13 O S. 42; City of Bur- 
 lington v. B. & M. Railroad Co. 41 Iowa, 134; City of St. Louis v. Newman, 45 
 Mo. 138; Simplot v. City of Dubuque, 49 Iowa, 630; Beardslee v. French, 7 
 Conn. 125 ; School Directors of St. Charles v. Goerges, 50 Mo. 194 ; Kennebunk- 
 port v. Smith, 22 Me. 445; Gibson v. Chouteau, 13 Wall. 92; Knight v. Heaton, 
 22 Vt. 480; Evans v. Erie Co., 66 Pa. St. 222. 
 
<612 adverse possession. [§§ 7536-753e. 
 
 there were no highway. The only difference consists in 
 the difficulty of establishing and maintaining adverse user 
 against the adjoining proprietors, while the public are 
 .using the highway. 1 
 
 § 753ft. Disabilities. — Infancy. — The statute of limita- 
 tions will not operate to bar a minor of his action for the 
 recovery of realty. 2 This is the most common illustration 
 of a disability, and will be found embodied in the statutes 
 of the various States. The infant's rights in other respects 
 .affecting realty have already been noticed. 3 
 
 § 753c. Co-existing disabilities. — It is an acknowledged 
 Tide that when there are two or more co-existing disabili- 
 ties in the same person, when his right of action accrues, 
 lie is not obliged to act until the last is removed. 4 
 
 § 753d. Subsequent disabilities. — Taclcing. — The disabili- 
 ties must exist, however, at the time the cause of action 
 accrues ; no subsequent disabilities possessing the power 
 to arrest the running of the statute. 5 In other words the 
 -statute overrides all subsequent disabilities. 6 
 
 § 753e. Suspension by agreement. — The running of the 
 statute of limitations may be suspended by the mutual 
 agreement of the parties. 7 So an agreement not to plead 
 the statute of limitations is binding. 8 Thus, adverse pos- 
 session, as we have seen, loses its character when the oc- 
 cupant agrees with the true owner that suit for possession 
 shall not be brought during their respective lives, 9 or until 
 afche encroaching building the subject of dispute is removed 
 
 1 Cady v. Fitzsimmons, 50 Conn. 214. 
 
 2 I.loyd v. Bunce, 41 Iowa, 660; Clayton v. Rose, 87 N. C. 107; Crosby v. 
 Dowd, 61 Cal. 557. 
 
 3 See §§ 196, 198, 254. 
 
 4 Sims v. Everhardt, 102 U. S. 310 ; Mercer v. Selden, 1 How. 37. 
 6 Mercer v. Seiden, 1 How. 52; Thorp v. Raymond, 16 How. 247. 
 
 6 Hogan v. Kurtz, 94 U. S. 773 ; Currier v. Gale, 3 Allen (Mass.), 328 ; Dobson 
 v. Dickson, 8 Ala. 252 ; Mitchell v. Berry, 1 Mete. (Ky.) 602 ; Tyson v. Britton, 6 
 Tex. 222; Smilie v. Biffle, 2 Pa. St. 52. 
 
 1 Dietrick v. Noel, 42 O. S. 21. See Webber v. Williams College, 23 Pick. 
 (Mass.) 302; Rowe v. Thompson, 15 Abb. Pr. (N. Y.)377; Holladay v. Little- 
 page, 2 Munf. (Va.) 316 ; Ball v. Wyeth, 8 Allen (Mass.), 275. 
 
 8 Utica Ins. Co. v. Bloodgood, 4 Wend. (N. Y.) 652 ; Gaylord v. Van Loan, 15 
 Wend. (N. Y.) 308. 
 
 9 Dietrick v. Noel, 42 O. S. 18. 
 
§753/.] ADVERSE POSSESSION. 613 
 
 or destroyed. 1 In Lovell v. Frost, 2 the party in possession 
 inquired of the true owner " whether he would not rent or 
 sell the land if it should be allotted to him" (the true 
 owner) in a partition proceeding then pending, and the 
 California Supreme Court held that if a party in posses- 
 sion 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.* 
 It is said on the other hand, in a recent case in Maine, that 
 a disseizin begun as a trespass is an incipient and not a 
 completed title, and hence, until the end of the twenty 
 years, there must remain an interest in the proprietor, an 
 acknowledgment of which can, in no way, affect the fact 
 of disseizin. 4 
 
 § 753/ Disabilities of co-tenants. — The disability of one 
 co-tenant, as we have seen, does not save the others, for 
 each may sue. 5 
 
 1 Devyr v. Schaefer, 55 N. Y. 451. 
 * 44 Cal. 471. 
 
 3 s. P. Central Pacific R. R. Co. v. Mead, 63 Cal. 112. 
 
 4 Bean v. Bachelder, 74 Me. 206; Blanchard v. Cliapman, 7 Me. 122. 
 
 5 Moore v. Armstrong, 10 Ohio, II; Carpenter v. Schermerhorn, 2 Barb. Ch. 
 (N. Y.) 314 ; Peters v. Jones, 35 Iowa, 512 „ Jackson v. Bradt, 2 Cai. (N. Y.) 169 ; 
 Wheeler v. Ladd, 40 Ark. 108 ; Bronson v. Adams, 10 Ohio, 135. See § 276. 
 
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 indicaiing intent. 
 
 759. Possession under a mistake. 
 
 760. Boundary lines erroneously located 
 
 between adjoining proprietors. 
 
 § 754. Possession must he accompanied oy an adverse intent. 
 — We come now to consider the second essential of an 
 effectual adverse possession under the statute of limita- 
 tions. The possession of the adverse claimant must not 
 only be actual, open, hostile and continuous, but it must 
 be accompanied by an intention on his part to hold the land 
 so possessed for himself, and as the owner of it ; or, in 
 other words, such possession must be under a claim of 
 title 1 or ownership. There must concur at the same time 
 the factum, — possession, and the intentio, — a claim of own- 
 ership ; as it is said : " The fact of possession, and the 
 intention with which it was commenced and held, are the 
 only tests " of whether a possession be adverse. 2 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." 8 Adverse possession must be, 
 therefore, so to speak, subjectively as well as objectively 
 
 1 Wilder v. Wheeldon, 56 Vt. 344. 
 
 2 Davenport v. Sebring, 52 Iowa, 366. See 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; Lar- 
 well v. Stevens, 2 McCra. 311. 
 
 8 Stamper v. Griffin, 20 Ga. 321. 
 
§§ 755, 756.] intention. 6L5 
 
 hostile, though, of course, iu the absence of express decla- 
 rations of the claimant, his iutent is to be proved, often- 
 times, merely by the character of bis acts of possession. 
 
 § 755. Intent the essence of adverse possession. — The claim 
 by the tenant, "in opposition to the title to which his pos- 
 session 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." 2 
 It is the intention which "fixes the character of the orig- 
 inal entry," and determines whether it be an ouster or a 
 mere trespass, 3 or whether the possession established be 
 in subordination or in hostility to the real owner. 4 Thus 
 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 of the qualities necessary to constitute a disseizin and 
 to hold under an adverse possession ; " 5 and also that 
 "the intention of the possessor to claim adversely, is an 
 essential ingredient;" 6 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," " claim of title," " claim of ownership," and "claim 
 of appropriation." 8 Of these expressions the last is per- 
 haps the most accurate, for, except in the case of a oonafide 
 
 1 Farish v. Coon, 40 Cal. 57. 
 
 2 Humbert v. Trinity Church, 24 Wend. (N. Y.) 597. 
 
 3 Ewing v. Burnet, II Peters, 41 ; Wiggins v. Holley, 11 Ind. 2 ; Austin v. Holt, 
 32 Wis. 490. 
 
 4 Society, &c. v. Town of Pawlet, 4 Pet. 506, 507 ; Clarke v. McClure, 10 Gratt. 
 (Va.) 305 ; Bedell v. Shaw, 59 N. Y. 46. 
 
 5 Bradley v. West, 60 Mo. 41. 
 
 6 See Washburn v. Cutter, 17 Minn. 368; Pepper v. O'Dowd, 39 Wis. 538; 
 French v. Pearce, 8 Conn. 445. See Grube v. Wells, 34 Iowa, 149, 150 ; McNamee 
 v. Moreland, 26 Iowa, 109. 
 
 ' McCracken v. City of San Francisco, 16 Cal. 635. 
 * See e. g. Brumagim v. Bradshaw, 39 Cal. 24. 
 
616 INTENTION. [§ 756. 
 
 claimant, who actually believes that he is the rightful 
 owner, there cannot be strictly, at the inception of an 
 adverse possession, and at least until it has continued for 
 the statutory period, any claim of title, or right or owner- 
 ship in the premises, but only an intention to appropriate 
 and hold the same as owner, and to the exclusion, right- 
 fully or wrongfully, of every one else. 1 
 
 The intention of the tenant must be not only to hold 
 the land exclusively and adversely, but to hold it for him- 
 self, and as the owner. Thus, it is held in New York, 2 
 that possession to be adverse, so as to ripen into a title, 
 must be accompanied 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 accord- 
 ingly held that possession under a claim for an unexpired 
 term could not be adverse and ripen into title, because it 
 was not a. "claim to the entire title." It has- been de- 
 cided that entry under a deed which admits title in an- 
 other than the grantor, could not, in the absence of any 
 disclaimer on the part of the grantee, be under the requi- 
 site " claim of title exclusive of any other right." 8 Again 
 it is said that a " claim of ownership " is necessary. 4 
 Therefore, a claim having been made to the "owuership 
 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. 5 So it was 
 decided that acts of ownership upon the land, should be 
 such as to indicate a notorious " claim of property in it." s 
 In a case in the Supreme Court of Indiana, where it was 
 contended that, by a "constant and exclusive" occupancy 
 and use of a part of a street by a railroad company, "as 
 and for the 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 
 
 1 See infra, § 758, and note. 
 
 2 Bedell v. Shaw, 59 N. Y. 49, 50. 
 
 3 Furlong v. Garrett, 44 Wis. HI. 
 
 4 Hollister v. Young, 42 Vt. 407. 
 
 B Davenport v. Sebring, 52 Iowa, 367, 368. 
 
 6 Ford v. Wilson, 35 Miss. 505. See the leading case of Davis v. Bowmar, 55 
 Miss. 671. 
 
§ 757.] INTENTION. 617 
 
 street." This language is employed: "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 the 
 street." 1 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 hjs own, and denying the 
 right of everybody else," was held to be erroneous ; and 
 in an earlier case in the same court, 3 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 per- 
 fectly consistent with the principle laid down on this sub- 
 ject 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 ap- 
 propriate the land as his own ; the cases differ only in 
 respect to the language used to express such an inten- 
 tion. As we have remarked above, the expressions " claim 
 of title," or "right," or " ownership " are, in connection with 
 a naked adverse possession, inaccurate, for they imply a 
 belief in the validity of the claim, or good faith on the 
 part of the claimant. This leads us to the subject of 
 good faith in connection with an adverse possession. 
 
 § 757. Good faith in assertion of adverse claim, — As we 
 shall see hereafter, the question of good faith is important 
 only in connection with a constructive possession 4 through 
 the instrumentality of a deed or other instrument, giving 
 the claimant under h " color of title " to land, of a part of 
 which he is in actual possession. In connection with the 
 subject of naked actual adverse possession good faith has 
 now no place. The whole theory as to the necessity for 
 an "intention to appropriate," as we prefer to call it, and 
 
 1 Indianapolis, P. & C. R. R, Co. v. Ross, 47 Ind. 30. 
 
 2 Johnson v. Gorham, 38 Conn. 520, 521, and cases cited and discussed. 
 
 3 Bryan v. Atwater, 5 Day (Conn.), 181. 
 
 4 See §775. 
 
618 INTENTION. [§ 757. 
 
 as to the further necessity for good faith in such an appro- 
 priation, when a constructive possession is claimed under 
 color of title, maybe summed up as follows: "It is the 
 possession that bars the owner of a recovery," as the court 
 say in a case in Illinois, 1 that is, the possession of an ad- 
 verse claimant. No such possession is acquired without a 
 disseizin of the true owner; for otherwise the owner's pos- 
 session, constructively 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 dis- 
 seize, or to possess for himself, which is equivalent to it. 
 Hence, in all cases of adverse possession, there must be 
 present the intention to appropriate. But the appropria- 
 tion 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 ap- 
 plies only to the constructive possession which such an 
 instrument gives the claimant under it. Should such an 
 instrument (assumed to be defective because it is only 
 color of title) be entirely annulled or invalidated by the 
 fraud of the claimant, it can no longer create any construc- 
 tive possession or perform any other office for such claim- 
 ant. Hence, as soon as bad faith in the claimant, or a 
 want of belief in the genuineness of his title 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 between actual and con- 
 structive possession through some written instrument, has 
 been often overlooked in considering thejiecessity for good 
 faith. Thus, in the case of Livingston v. Peru Iron Co., 2 
 
 1 Weber v. Anderson, 73 111. 442. 
 
 '' 9 Wend. (N. Y.) 511. The ruling in this case, in spite of what seems unequiv- 
 ocal and general language, on the essentials of adverse possession, has been treated 
 
§ 7580 INTENTION. 619 
 
 in the Court of Errors of New York, it was held, that a 
 deed fraudulently obtained was not available as the foun- 
 dation of an adverse possession, and in general, that, to 
 constitute a possession adverse, the adverse claimant must 
 act bona fide, and must believe the land to be his. It is 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 acquiring or in continuing the possession, is of no im- 
 portance. "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, 1 or "if the possession 
 of the intruder has in fact been adverse, and has been as- 
 serted by such open and notorious acts of ownership as are 
 essential in the acquisition of title by adverse possession," 
 as is held by the Court of Errors of New Jersey. 3 So, in 
 the Connecticut case above cited, it is said : " If the prop- 
 erty be so taken and so used by any one, though he claims 
 no title, but avows himself to be a wrong-doer, yet, by such 
 act, the legal proprietor is disseized." 8 
 
 § 758. Acts and declarations of tlie occupant indicating in- 
 tent. — 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 
 
 in subsequent cases in the same State, to have applied 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 dis- 
 cussion of this subject, see infra, Chap. XXX. 
 
 1 Kinney v. Vinson, 32 Tex. 125. 
 
 8 Foulke v. Bond, 41 N. J. L.,541. 
 
 3 Bryan v. Atwater, 5 Day (Conn.), 189. In a later case in the same State, it is 
 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 ad- 
 verse character, and not the remote views or belief of the possessor." French v. 
 Pearce, 8 Conn. 443. See Smith v. Roberts, 62 Ala. 83 ; Munro v. Merchant, 26 
 Barb. (N. Y.) 383, 402. 
 
620 INTENTION. [§ 758. 
 
 are sufficiently definite, open and exclusive, it will be pre- 
 sumed that they are done with the intent to appropriate 
 the laud. By such acts, it is said, the party proclaims to 
 the public that he asserts an exclusive ownership over the 
 land. 1 Thus, it is said that an assertion of such intention, 
 other than by acts, is unnecessary, and that the mere fact 
 of possession would, in general, indicate that the posses- 
 sion was adverse. 2 So it has been held competent in prov- 
 ing the occupant's "claim of ownership," to show that 
 " while he occupied he asserted ownership by bringing his 
 suit of trespass against others who attempted to enjoy the 
 premises." 3 A mere hostile assertion of ownership is of 
 no consequence, unaccompanied by acts of appropriation 
 or ownership : 4 to establish, therefore, the requisite ad- 
 verse intent of the claimant, his " actions speak louder 
 than words." To disprove such intent, on the other hand, 
 the declarations or admissions of the tenant, 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, are compe- 
 tent evidence to show the character of the possession, and 
 that it lacks the essential element of being hostile. 5 Thus 
 it is held that it is clearly competent to show by the decla- 
 rations of the occupant that he did not hold adversely, 6 for 
 "it is enough," as is elsewhere held, to show the absence 
 of an hostile iutent, "that he does not himself consider it 
 to be adverse." 7 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 statute had run, 
 was proper " to show the nature of the occupancy." 8 
 Admissions of this kind by the claimant are competent 
 
 1 Brumagim v. Bradshaw, 39 Cal. 46. See Davis v. Bowmar, 55 Miss. 671. 
 8 Johnson v. Gorham, 38 Conn. 522. 
 
 3 HolHster v. Ydung, 42 Vt. 407. 
 
 4 Pitts v. Wilder, 1 N. Y. 527, 528. 
 
 5 Pitts v. Wilder, 1 N. Y. 525, 526. 
 
 6 McNamee v. Moreland, 26 Iowa, 109. 
 
 1 Sailor v. Hertzogg, 2 Penn. St. 184, 185. See Day v. Wilder, 47 Vt. 593, 594! 
 Brolaskey v. McClain, 61 Penn. St. 167. 
 
 8 Church v. Burghardt, 8 Pick. (Mass.) 327, 328. 
 
§ 759.] INTENTION. 621 
 
 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. 1 
 
 § 759. Possession under a mistake. — Assuming that pos- 
 session must be accompanied by an intent to appropriate, 
 in order to be adverse, the questidn arises, whether a pos- 
 session acquired and held under a mistake of fact — a mis- 
 apprehension, for example, as to the true boundary of a 
 piece of land — can be strictly adverse as to the part erro- 
 neously 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 occu- 
 pied, 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 accidental than strictly ad- 
 verse. To corroborate this view, it is said that " a dis- 
 seizin cannot be committed by mistake, because the inten- 
 tion . . . is an essential ingredient in a disseizin." 2 
 Opposed to this it may be contended that the intention in 
 such a case is two-fold : first, to take possession in accord- 
 ance with some extrinsic plan or ulterior facts, such as the 
 description in a deed ; and second, the intention as mani- 
 fested 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 laud, and that con- 
 sequently the possession is in fact adverse, whatever the 
 original purpose of the possessor may have been. Hence 
 it may be said that such a possession can be called unin- 
 tentional only in the same sense in which the possession 
 
 1 See, on this subject, Abeel v. Van Gelder, 36 N. Y. 513; Swettenham v. Leary, 
 18 Hun (N. Y.), 285, 286 ; Harnage v. Berry, 43 Tex. 567, 570; Hannibal & St. J. 
 R. R. Co. v. Clark, 68 Mo. 374. 
 
 ! Ross v. Gould, 5 Me. 212. 
 
622 INTENTION. L§ 759 - 
 
 of any honest man can be called unintentional, who, in 
 good faith, perhaps under color of title, occupies land, sup- 
 posing 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 con- 
 tinued a possession which infringed on the rights of the 
 true owner. Would the possession of a man who entered 
 upon and held land under a mistake, supposing that it was 
 his own, be the less a possession with intent to appropriate 
 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 Iris purpose to have been to take the land of 
 another." 1 Whether, in general, the mistake or ignorance 
 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 decis- 
 ions are in conflict. Thus, in a case in the Supreme Court 
 of Iowa, 3 where the defendant's grantor had, by mistake, 
 inclosed more land than he was entitled to, and possession 
 had been continued for twenty -five years, it was held that 
 something more was necessary than the mere belief on the 
 part of the defendant and her grantor, that they were en- 
 titled 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 defendant of her right to the land 
 . . is not equivalent to . . . the claim required by 
 
 1 Cole v. Parker, 70 Mo. 580. 
 
 s Grube v. Wells, 34 Iowa, 150, 151, and cases cited. Compare s. P. Skinner v. 
 Crawfoid, 54 Iowa, 119; Thomas v. Babb, 45 Mo. 384, and cases ciled ; Gates v. 
 Butler, 3 Humph. (Tenn.) 447. But see Cole v. Paiker, 70 Mo. 380; Howard v. 
 Reedy, 29 Ga. 152 ; Worcester v. Lord, 56 Me. 265 : Brown v. Cockerell, 33 Ala. 
 45- 
 
§ 759.] INTENTION. 623 
 
 the law, and . . possession will not establish the quo 
 ammo." It would seem, from the reasoning of this case, 
 that if the "belief" of the defendant had been wanting, 
 and she had tortiously continued the possession of what 
 she knew did not belong to her, there would then have ex- 
 isted the necessary adverse claim and "active assertion" 
 of right. In other words, bad faith in the occupant is more 
 profitable in such a case than an honest mistake. Directly 
 opposed to the case last cited is that of French v. Pearce, 
 in the Court of Errors of Connecticut, 1 where it is held that 
 though "the intention of the possessor to claim adversely 
 is an essential ingredient," yet that " the person who en- 
 ters 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 denial of the title of all others." The court say 
 further that " it is as certain that a disseizin may be com- 
 mitted by mistake, as that 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 under 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 ex- 
 plained ; and the inquiry is to be had whether the possessor 
 of land acted in conformity s 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 tortiously taken and continued 
 for the requisite period with full knowledge, on the part of 
 the occupant, of the rights of the true owner. 
 
 1 8 Conn. 439, 445. See Metcalfe v. McCutchen, 60 Miss. 154. 
 
 2 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. 
 
624 INTENTION. [§ 760. 
 
 § 760. Boundary lines erroneously located "between adjoining 
 proprietors. — The question which we have been consider- 
 ing usually arises in connection with the possession of ad- 
 joining proprietors, according to a boundary line between 
 them which has been erroneously supposed to be the true 
 line. It oftens happens that the actual and visible bound- 
 ary 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 agree- 
 ments 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 ascer- 
 tained. In such cases, where the possession has con- 
 tinued for the 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 circum- 
 stances, the question whether there has been an effectual 
 adverse possession depends upon well settled principles 
 which we have already discussed. Hence, in disputes aris- 
 ing from the wrong location of the actual dividing line, 
 whether the possession of the encroaching proprietor, as- 
 suming that it has been notorious, continuous, etc., has 
 been adverse in its character is, as in other cases, to be 
 determined by his intent. Therefore such possession 
 must not be permissive ; hence, if the evidence show that 
 there was a mutual understanding or agreement that the 
 visible boundary was not the real -one, the necessary hos- 
 tile 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 1 that, under such an agree- 
 ment, a temporary boundary line being fixed till the true 
 line should be ascertained, the possession of neither pro- 
 prietor 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 subordination 
 to the title of the party upon whom he encroached, . . . 
 and he held the possession by the license or permission of 
 the owner of the adjoining land." 2 So, in a case where 
 
 1 Irvine v. Adler, 44Cal. 559. See Cole v. Parker, 70 Mo. 372, 380. 
 ' Irvine v. Adler, 44 Cal. 559. 
 
§ 760.] INTENTION. 625 
 
 there was doubt as to whether adjoining buildings were lo- 
 cated correctly, and their respective owners agreed in writ- 
 ing that neither would disturb the other in the occupation 
 of his building, it was held that such agreement was a re- 
 cognition, by each, of the other's title to the true line, aud 
 inconsistent with an adverse claim to any land beyond it 
 so long as the agreement was in force. 1 In such cases the 
 principle laid down can admit of no doubt ; the chief diffi- 
 culties and the conflict of the authorities 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 conven- 
 ience 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 posses- 
 sor's rights, cannot be under the necessary adverse claim. 
 As we have seen, the views of the courts are directly op- 
 posed on this general subject, and we find the same con- 
 flict where coterminous possessions are held under a mis- 
 take 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 
 supposed was substantially upon the true line, and had oc- 
 cupied according to the fence only because they supposed 
 it was on the true divisional line, that there was no ad- 
 verse possession of the portion beyond" the lines described 
 in the deed under which the land was occupied. 3 On the 
 other hand, the Supreme Court of Alabama 3 decided that, 
 where two adjoining owners unconditionally established a 
 dividing line by consent and occupied up to it, the posses- 
 sion of each was adverse. The court say: "In such a 
 case, there would be a clear assertion 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 
 
 1 Devyrz/. Schaefer, 55 N. Y. 446, 451. Compare Corning v. Troy Iron, &c. Fac- 
 tory, 44 N. Y. 577 ; Reed v. McCourt, 41 N. Y. 435 ; Dieirick v. Noel, 42 O. S. 20. 
 
 2 Dow v. McKenney, 64 Me. 138. 
 
 3 Brown 11. Cockerel', 33 Ala. 38 ; s. P. Smith v. McKay, 30 Ohio St. 409, 418 ; 
 Foulke v. Slockdale, 40 Iowa, 99 ; Hiatt v. Kirkpatrick, 48 Iowa, 78. 
 
 40 
 
626 intention. L§ 760. 
 
 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, 1 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 
 that line is his, his possession is adverse." And again in 
 an earlier case 3 in the same court, it was held of cotermin- 
 ous proprietors that, if they fix upon a division line, and 
 each holds possession to such line, claiming it to be the 
 true one, the possession is adverse. The court use this 
 language : "The mere fact that he claims that line to be 
 the true one cannot negative 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 Iowa, 3 
 that, in the absence of a presumption 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 pre- 
 sumption of an intent to claim, 4 which must be rebutted 
 by the true owner, by showing, for example, that the 
 bouudary 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. 5 With 
 regard to these presumptions, it should be observed that 
 the first is only the ordinary inference of a particular in- 
 
 1 Cole v. Parker, 70 Mo. 380. 
 
 2 Tamm v. Kellogg, 49 Mo. 123. But see Knowlton v. Smith, 36 Mo. 507. 
 Contra, 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. 
 
 3 Hiatt v. Kirkpatrick, 48 Iowa, 78. See Main v. Killinger, 90 Ind. 165 ; Brown 
 v. Anderson, 90 Ind. 93. 
 
 4 See French v. Pearce, 8 Conn. 439. 
 
 6 See e.g., Brown v. Cockereli, 33 Ala. 45, 46. 
 
§ 760.] INTENTION. 627 
 
 tention 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 unneces- 
 sary introduction of a vague maxim, which certainly ought 
 not to affect the burden of proof. Jn a leading case in 
 New York, 1 the general doctrine as to actual posses- 
 sion taken under a deed by mistake is thus summed up : 
 " Where a grantee, in taking possession under his deed, 
 goes unintentionally and by mistake 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." 
 
 1 Crary v. Goodman, 22 N. Y. 175, and cases cited. See Pope v. Hanmer, 74 
 N. Y. 245. In Seymour v. Creswell, 18 Fla. 35, the court said : "The rule as to 
 such possession, when considered with reference to the right of the true owner, is 
 that where a grantee in taking possession under his deed goes unintentionally and 
 by mistake 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 limita- 
 tions, . . . and if continued the requisite length of time will bar the right 
 of the true owner." See Crary v. Goodman, 22 N. Y. 170. But compare Hale v. 
 Glidden, 10 N. H. 397 ; M'Kinny v. Kenny, I A. K. Mar. (Ky.) 460 ; Smith v. 
 Morrow, 5 Litt. (Ky.) 210. In Seymour v. Carli, 31 Minn. 81, 84, alter conceding 
 that the parties, when possession was taken, made a mistake as to their boundaries, 
 the court said : " The object of the statute is to quiet titles and end disputes. If 
 the plaintiffs have a cause of action in ejectment, there would seem to be no good 
 reason why the statute should not run against it, as in other cases where the posses- 
 sion of land is withheld. It is the policy of the law that parties should assert their 
 claims to the possession of land, and rectify their boundaries, within the statu- 
 tory term." See s. P. Swettenham v. Leary, 18 Hun (N. Y.), 284. See Corning v. 
 Troy Iron & Nail Factory, 44 N. Y. 577 ; Jones v. Smith, 64 N. Y. 184; Smith v. 
 McAllister, 14 Barb. (N. Y.) 434; McCormick v. Barnum, 10 Wend. (N. Y.) 104; 
 Knowles v. Toothaker, 58 Me. 172; Yetzer v. Thoman, 17 O. S. 130; McAfferty 
 v. Conover, 7 O. S. gg ; Trussel v. Lewis, 13 Neb 415; Burdick v. Heivly, 23 
 Iowa, 5(5 ; Joyce v. Williams, 26 Mich. 332; Laverty if. Moore, 32 Barb. (N. Y.) 
 347; Hitchings v. Morrison, 72 Me. 331 ; Brown v. Leete, 6 Sawyer, 332 ; John- 
 son v. Brown, 63 Cal. 392; Wingler v. Simpson, g3 Ind. 203; Tracy v. Newton, 
 57 Iowa, 210. A fence erected merely for convenience in working a farm, and not 
 for the purpose of marking the boundaries according to the title or of indicating a 
 purpose of inclosing the land in dispute, has been considered as of no weight in 
 determining acts of possession. Soule v. Barlow, 48 Vt. 132 ; s. c. again, 49 Vt. 
 329. Compare Allen v. Holton, 20 Pick. (Mass.) 458. 
 
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. 
 
 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 
 
 define 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. 
 
 773. Certain exceptions noticed. 
 
 774. Qualifications of the general rule 
 
 of constructive possession. — Ex- 
 tent of a constructive possession 
 limited. 
 
 775. Good faith as an ingredient in con- 
 
 structive possession. 
 
 776. The New York doctrine on the 
 
 subject. 
 
 777. Statement of the prevailing rule.— 
 
 Doctrine of the New Jersey 
 Court of Errors. 
 
 778. Good faith expressly required by 
 
 statute in some States. 
 778a. T he requirement of good faith. 
 
 779. Difficulty of laying down a general 
 
 definition of color of title. 
 
 780. Instances of what held to be color 
 
 of title. 
 
 781. "What held insufficient to constitute 
 
 color of title. 
 
 § 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 subject 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 accurate 
 and clear if it were that possession, either with or without 
 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 asser- 
 tion 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 & claim. 1 The possession of a deed or 
 
 1 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 
 
§ 762.] COLOR OF TITLE. 629 
 
 other written muniment of title does not dispense with an 
 occupation of at least some part of the premises ; whether 
 the adverse claimant has color of title or not, he must, ex- 
 cept perhaps in exceptional cases provided by statute, have 
 some actual possession of the locus in quo. It is " the pos- 
 session that bars the owner of a recovery," as the court 
 observe in Weber v. Anderson, 1 and not any "deed or in- 
 strument of title." Thus it is said : "The muniment is but 
 one circumstance by which to make out an adverse posses- 
 sion." 2 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. s 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 posses- 
 sion must also have been hostile, open, exclusive and con- 
 tinuous, in order to bar the true 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 ad- 
 verse possession, is to define the extent of the possession 
 claimed/ and by creating a constructive possession, beyond 
 the actual possession, 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 of color 
 of title, therefore, becomes one of very great importance. 
 
 § 762. Color of title.— Definition.— The Supreme Court of 
 
 otherwise, constitute a valid adverse possession,'' etc. See Clapp v. Bromagham, 9 
 Cow. (N. Y.) 557. 
 
 1 73 HI. 442- 
 
 8 Humbert v. Trinity Church, 24 Wend. (N. Y.) 604. See Mead v. Leffingwell, 
 83 Penn. St. 191. 
 
 3 But see § 771. 
 
 4 Creekmur v. Creekmur, 75 Va. 438 ; Baucum v. George, 65 Ala. 259. 
 
630 COLOR OP TITLE. [§ 762. 
 
 the United States said, in Wright v. Mattison : " The 
 courts have concurred, it is believed without an exception, 
 in denning 'color of title ' to be that which in appearance 
 is title, but which in reality is no title." 1 In a later case 
 the same court use this language : "Whenever an instru- 
 ment, by apt words of transfer from grantor to grantee, — 
 whether such grantor act under the authority of judicial 
 proceedings or otherwise, — in form passes what purports 
 to be the title, it gives color of title." 2 The Supreme 
 Court of California add: "It is that which the law will 
 consider prima facie a good title, but which, by reason of 
 some defect, not appearing on its face, does not in fact 
 amount to title." s Hence, in New York, color of title has 
 been defined to be that which ' ' the law will, prima facie, 
 consider a good title ;" 4 and in the case of a deed relied 
 upon as color of title, " it must Jbe such an one as might be 
 valid." 5 On the other hand, the Supreme Court of Indiana 
 said that the New York doctrine, that " color of title is that 
 which appears prima facie to be a 'good title,' is without 
 reason and is being abandoned." 6 It is certain that the 
 benefits of the doctrine of color of title have been extended 
 to instruments which would not be considered prima facie 
 valid. 7 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, etc." 8 And 
 in Illinois the instrument relied upon "must profess to 
 convey a title to the grantee," 9 or " must purport, on its 
 face, to convey title." 10 In an earlier case, however, in the 
 same court, it is said, in a very loose way : " Color of title 
 may be made through conveyances, or bonds and contracts, 
 
 1 Wright v. Mattison, 18 How. 56, and cases cited. See also Edgerton v. Bird, 
 6 Wis. 527 ; Baker v. Swan, 32 Md. 355 ; especially Jackson v. Frost, 5 Cow. (N. Y.) 
 346 ; La Frombois v. Jackson, 8 Cow. (N. Y.) 589. 
 
 8 Hall v. Law, 102 U. S. 466. 
 
 3 Bernal v. Gleim, 33 Cal. 676. See Veal v. Robinson, 70 Ga. 816. 
 
 4 Jackson v. Frost, 5 Cow. (N. Y.) 351. 
 
 B Livingston v. Peru Iron Co., 9 Wend. (N. Y.) 522. 
 
 6 Bell v. Longworlh, 6 Ind. 277. 
 
 ' See § 780. 
 
 s Baker v. Swan, 32 Md. 355. 
 
 9 Coleman v. Billings, 89 111. 190. 
 
 10 Krusew. Wilson, 79 111. 240; Keener v. Goodson, 89 N. C. 273. 
 
§ 762.] COLOR OF TITLE. 631 
 
 or bare possession, under parol agreements." * So, in 
 Massachusetts, an entry under a parol gift was designated 
 as an entry under color of title. 2 In South Carolina, how- 
 ever, color of title was very loosely defined to be " any 
 semblance of title by which the extent of a man's posses- 
 sion can be ascertained." 3 By the Supreme Court of 
 Georgia color of title 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 im- 
 perfect, but not so obviously so that it would be apparent 
 to one not skilled in the law." 4 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 ; 5 but in a later case the same 
 court say that '' color of title cannot rest in parol ; there 
 must be a document of some sort." 6 And in Vermont 
 color of title is defined to be a "deed or survey of the land, 
 placed upon the public records of land titles, whereby no- 
 tice is given to the true owner and all the world that the 
 occupant claims the title." As opposed to this, it is held 
 in Missouri that " it does not always require a written in- 
 strument 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." 7 Color of title has 
 been defined in Tennessee to be "where the possessor has 
 a conveyance of some sort, by deed or will or inheritance, 
 which he may believe to be a title." 8 So in Iowa, it is 
 held that if an adverse possessor die the possession de- 
 
 1 Woodward v. Blanchard, 16 111. 430. Quoted from at length in Wright v. 
 Mattison, 18 How. 58. ^1 
 
 2 Sumner v. Stevens, 6 Mete. (Mass.) 338. 
 
 3 Turpin v. Brannon, 3 McC. (S. C.) 261. 
 
 4 Gittens v. Lowry, 15 Ga. 338. See Beverly v. Burke, 9 Ga. 443. 
 6 Walls v. Smith, 19 Ga. 8. 
 
 6 Roe v. Kerssey, 32 Ga. 155. As to necessity for a writing, see also Tate v. 
 Southard, 3 Hawks (N. C.), 121. 
 
 1 Cooper v. Ord, 60 Mo. 431. See Hughes v. Israel, 73 Mo. 547 ; Rannels v. 
 Rannels, 52 Mo. 108. 
 
 * Wilson v. Kilcannon, 4 Hayw. (Tenn.) 185. See also Darby v. McCarrol, 5 
 Hayw. (Tenn) 286. 
 
632 COLOR OF TITLE. [§ 762. 
 
 volves upon his heirs, and the possession of the latter is 
 under color of title. 1 In a case in Pennsylvania, Gibson, 
 0. J-, said: "The words (color of title) do not necessarily 
 import the accompaniment of the usual documentary evi- 
 dences ; for though one entering upon a title depending on 
 a void deed, would certainly 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 an- 
 other." 2 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. 3 In Alabama it 
 is held that "he who holds under a paper title, which ap- 
 parently gives him a right to the land, which would lead 
 an honest mind to the conclusion that the right to the land 
 passed by the deed . . . must be considered as holding 
 under color of title." 4 And in North Carolina it is said 
 that to constitute color of title there must be " some writ- 
 ten document of title, professing to pass the land, and one 
 not so obviously defective that it could not have misled a 
 man of ordinary capacity." 5 
 
 1 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. 
 
 " McCall v. Neely, 3 Watts (Penn.), 72. See Abercrombie v. Baldwin, 15 Ala. 
 372, wheie 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 some document. See also Hamilton v. Wright, 
 30 Iowa, 486. 
 
 3 Stark v. Starr, I Sawyer, 20. 
 
 4 Salimarsh v. Crommelin, 24 Ala. 352. 
 
 5 Dobson v. Murphy, 1 Dev. & Bat. (N. C.) Law, 586. See McConnell v. 
 McConnell, 64 N. C. 342. It has been said that " color of title differs from title 
 only in externals. The substance of both is the same." Thompson v. Crag?, 24 
 Tex. 597. In Brooks v. Bruyn. 35 111. 394, the court said : " Any instrument hav- 
 ing a grantor and a grantee, and containing a description of the lands intended to be 
 conveyed, and apt words for their conveyance, gives color of title to the lands de- 
 
§763.] COLOR OF TITLE. 633 
 
 §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 is impossible to lay down any definition of color of title 
 which will not conflict with many to be found in the books. 
 Much of the confusion on this subject arises undoubtedly 
 from confounding color of title with claim of title, which, 
 as we have already seen, are by no means identical expres- 
 sions. 1 This confusion is evident from the argument in 
 the Pennsylvania case quoted in the preceding section, 
 where, as in other cases already cited, the courts have 
 lost sight of the technical sense of the term color of title. 
 
 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 
 denning the amount of his possession and extending it by 
 means of a constructive possession. 2 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 :" 3 and in 
 the Supreme Court of Minnesota ; " The effect of color of 
 title ... is to define the extent of the possession 
 claimed." * Eegarded as showing the animus of the pos- 
 sessor, or his claim of exclusive ownership, color of title is 
 
 scribed. Such an instrument purports to be a conveyance of the title, and because 
 it does not. for some reason, have that effect, it passes only color or the semblance 
 of a title. It makes no difference whether the instrument fails to pass an absolute 
 title, because the grantor had none to convey, or had no authority in law or in fact 
 to convey one, or whether such want of authority appears on the face of the instru- 
 ment or aliunde." "Color of title to an office is analogous to color of title to land. 
 The latter does not mean a good title or even a defective conveyance from one hav- 
 ing title, but only the appearance of title ; that is, a deed to the premises in due form 
 of law." In re Ah Lee, 5 Fed. Rep. 913. Citing Stark v. Starr, 1 Sawy. 20. 
 
 '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. 
 
 3 Ege v. Medlar, 82 Penn. St. 99. 
 
 4 Washburn v. Cutter, 17 Minn. 369. See Brady v. Huff, 75 Ala. 83. 
 
634 COLOR OP TITLE. [§ 764. 
 
 merely a piece of evidence, like any hostile act or asser- 
 tion of ownership by the claimant, which establishes the 
 necessary adverse character of the possession, or as has 
 been already quoted : " The muniment is but one circum- 
 stance by which to make out an adverse possession." i 
 
 § 764. Misapplication of the term color of title. — Color and 
 claim of title confounded. — It is when so regarded, i e., as 
 showing the inteut of the claimant, that the term " color 
 of title" has been so often misapplied and wrongly defined. 
 For example, the Supreme Court of Wisconsin, in the case 
 of Bdgerton v. Bird, 2 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 de- 
 fendant went into possession was "void upon its face," 
 yet that such a deed was admissible in evidence to show 
 "colorable title" in the defendant, and the "character of 
 the possession," and that the possession was " adverse." 
 In this case there seemed to be no question of construc- 
 tive possession through color of title involved, 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 "undoubt- 
 edly supposed that the tax deed was good." The question 
 was therefore 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 authority on this subject. 8 As another example 
 of the same misuse 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. 4 
 
 1 Humbert v. Trinity Church, 24 Wend. (N. Y.) 604. 
 
 ! 6 Wis. 527. 
 
 3 See post, § 775 et seq. * 8 Cow. (N. Y.) 589. 
 
§ 765.] COLOR OF TITLE. 635 
 
 The Chancellor says : " His (the grantor) assuming to be 
 entitled, and contracting to convey, gave to the purchaser 
 under him a color of title, which would characterize the 
 possession of such purchaser under such contract as ad- 
 verse against all other claimants." Though literally this 
 is holding that an executory contract to convey may be 
 color of title, it is apparent from the rest of the Chancel- 
 lor's opinion, and from the other opinions in the case, that 
 the only question of importance 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 character of adverse pos- 
 session to the occupancy " of the defendant in ejectment, 
 and "to rescue him from the reputation of being a mere 
 trespasser." That is whether the possession of the de- 
 fendant 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 
 evidencing the intention or adverse claim of the defend- 
 ant, 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 
 without the paper." There was evidently no question of 
 constructive possession under color of title. 
 
 § 765. Instrument insufficient as color of title may be evi- 
 dence of a claim of title. — It may be stated generally 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 posses- 
 sion. As it is held in a case in the Supreme Court of the 
 United States : i " Color of title, even under a void and 
 worthless deed, has always been received as evidence that 
 the person in possession claims for himself, and, of .course, 
 adversely to the world." Then in the great case of Hum- 
 bert v. Trinity Church, in the ISTew York .Court of Errors, 2 
 the court say : " It was very properly conceded, 
 
 1 Pillow v. Roberts, 13 How. 477. s 24 Wend. (N. Y.) 604. 
 
63G COLOR OF TITLE. [§ 766. 
 
 that a claim of title, even under a paper altogether void 
 and inoperative as a deed, will yet characterize a pos- 
 session 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 of limita- 
 tions 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." 1 
 Under the ruling of the Supreme Court of Vermont, 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." 2 Hence an entry under 
 a recorded deed maybe shown, as is said, not fco "prove 
 notice, as such, but to show the claim of title under which 
 he held possession." 3 
 
 § 7G6. 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," 4 by ex- 
 tending, as the court say in Chapman v. Templeton, the 
 possession of a part of a tract of land so as to include the 
 whole tract. 5 Just as the true owner of land is deemed by 
 presumption of law to be 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" 5 (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 
 
 ' Root v. McFerrin, 37 Miss. 51. See Welborn v. Anderson, 37 Miss. 161. 
 
 2 Atkinson v. Patterson, 46 Vt. 765. See, also, Wing v. Hall, 44 Vt. 122. 
 
 3 Stevens v. Brooks, 24 Wis. 330. See Foulke v. Bond, 41 N. J. L. 543, 544 
 
 4 Hodges v. Eddy, 38 Vt. 344. See Buck v. Squiers, 23 Vt. 504. 
 
 5 Chapman v. Tempjeton, 53 Mo. 465. See Washburn v. Cutter, 17 Minn. 361. 
 
 6 Wilson v. Williams, 52 Miss. 493. See Cunninghams. Frandtzen, 26 Tex. 38; 
 Pepper v. O'Dowd, 39 Wis. 544. 
 
 1 Chandler v. Rushing, 38 Tex. 596. 
 
§ 7G7.] COLOE OP TITLE. 637 
 
 claim and color of title, he will in law be held to be in 
 possession of the remainder;" 1 and "such possession 
 would be a disseizin of the true owner of the whole 
 tract described in the deed;" 3 and "he is presumed to 
 enter according to his title;" 8 and "where one enters 
 upon land under a recorded deed, his entry and claim 
 are referred to that deed, and measured by it." 4 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 possession is necessary. In Fugate v. Pierce the 
 Missouri Supreme Court said : "The doctrine of construc- 
 tive possession, 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." 5 
 
 §767. Color of title must describe and define the land. — It 
 is held in a recent case in Ohio : " That one in possession, 
 claiming to metes and bonds under a paper title, and 
 openly and notoriously exercising control and dominion on 
 the land, is presumed to be doing so to the extent of his 
 claim. Where, however, his paper claim is void for want 
 of any description of the land, or anything to define its ex- 
 tent, his acts and dominion can create no such presump- 
 tion. The occupancy must be such as to give notice to 
 the real owner of the extent of the adverse claim. Hence 
 
 1 Powell v. Davis, 54 Mo. 318. 
 
 L ' Putnam Free School v. Fibher, 34 Me. 177. 
 
 3 Bailey v. Carleton, 12 N. H. 15. See Brackett v. Persons Unknown, 53 Me. 228; 
 Wells v. Iron Co., 48 N. H. 530; Phillippi v. Thompson, 8 Ore. 436; Coleman v. 
 Billings, 89 111. 188 ; Barger v. Hobbs, 67 111. 592. 
 
 4 Stevens v. Brooks, 24 Wis. 329. In Watts v. Owens, 62 Wis. 522, the court 
 after saying that the character of the occupants possession will be referred to the 
 conveyance under which he entered, and will be deiermined by it, add : " He can- 
 not now be heard to say that he entered under anothei or paramount title, unless he 
 has been legally evicted and taken possession under such oilier or paramount title. 
 If he would hold under title other lhan that under which he entered, he must do 
 something tantamount to a re-eniry under such other title." See Sydnor v. Palmer, 
 29 Wis. 226; Quinn v. Quinn, 27 Wis. 168. 
 
 5 49 Mo. 447. 
 
(J38 COLOK OF TITLE. [§ 768. 
 
 it is that occupancy, without a deed defining the land, is 
 only notice to the boundaries actually inclosed or im- 
 proved." x And it is said, a deed " which describes with 
 precision the boundaries of the land" shall be "a substi- 
 tute for a substantial and permanent fence around the 
 whole." 2 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." 3 The 
 first requisite of such color of title as will give construc- 
 tive 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. 4 In the case of Livingston v. Peru Iron 
 Company, 6 in the Court of Errors in New York, it is said : 
 " Without the paper title the possession is limited by the 
 pedis possessio," and, "it is immaterial whether the deed 
 conveys a good title ; " . . . . " if no lands are de- 
 scribed in it nothing can pass, the deed is a nullity and 
 lays no foundation for a claim beyond the actual policy. 
 It would be easy to multiply cases to the same effect, 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 described. 
 So, also, the extent of the adverse constructive possession 
 will be limited to the amount described or defined by 
 whatever constitutes the claimant's color of title. There 
 
 1 Humphries v. Huffman, 33 Ohio St. 404. 
 
 2 Chandler v. Spear, 22 Vt. 405. So it is held that possession under a deed 
 on record is itself a constructive notice of the adverse claim. Forest v. Jackson, 
 56 N. H. 357. See Thompson v. Burhans, 79 N. Y. 99, 100; Ellicott v. Pearl, 
 10 Pet. 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." 
 
 3 Ege v. Medlar, 82 Penn. St. 87. 
 
 4 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 uncertainty, 
 as the land cannot be located by the description, and hence such a deed cannot be 
 good color of title. Shackleford v. Bailey, 55 111. 387. See § 461. 
 
 » 9 Wend. (N. Y.) 517. See, also, Kent v. Harcourt, 33 Barb. (N. Y.) 498. 
 
§ 769.] COLOK OF TITLE. 639 
 
 can be no adverse possession, whether actual or construc- 
 tive, 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 x>rinciple that a deed cannot operate 
 as color of title so as to have effect beyond the estate 
 which it professes to pass." 1 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 constructive possession created, but the claim- 
 ant will be limited to his actual possession. 3 As is said by 
 Chief Justice Church in a case in the New York Court of 
 Appeals, 3 when construing 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 
 constituting in form a paper title 4 In a recent case in the 
 New York Court of Appeals, the court say : " Constructive 
 possession is based upon a written title, which may be 
 valid or invalid." 5 In Jackson v. Woodruff, 6 cited above, 
 it is said : "But when a party claims to hold, adversely, a 
 
 1 McEvoy v. Loyd, 31 Wis. 147, and cases cited. 
 
 2 Craryz/, Goodman 22 N. V. 173, and cases cited. See Swettenham v. Leary, 
 18 Hun(N. Y.), 286. 
 
 8 Pope v. Hanmer, 74 N. Y. 244. 
 
 4 Brady v. Huff, 75 Ala. 83; Hamilton v. Wright, 30 Iowa, 480; McClellan v. 
 Kellogg, 17 111. 501. 
 
 5 Thompson v. Burhans, 79 N. Y. 99. 
 "1 Cow. (N. Y.) 285. 
 
640 COLOR OF TITLE. [§ 770. 
 
 lot of laud 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, 1 that 
 " there can be no constructive possession of land without 
 color of title." And in Missouri, 2 it was 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 instrument giving color and defining bound- 
 aries, 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, 3 it is said that to warrant the application 
 of the statute of limitations in ejectment, " the books re- 
 quire color of title, by deed or other documental semblance 
 of right iu the defendant, only when the defense is founded 
 on a constructive adverse possession." 4 
 
 § 770. Some actual possession necessary upon which to oase 
 constructive possession. — It is hardly necessary to repeat 
 what has already been instanced as a further essential 
 to the existence of a constructive adverse possession, 
 that it should be based, not only upon some written in- 
 strument, but upon an actual though only partial, pos- 
 session of the locus in quo. The necessity for some such 
 corporeal possession 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 construc- 
 tive possession of his laud, and, in the case of an apparent 
 conflict of constructive possessions, that the possession 
 is deemed to follow the true title. 5 An actual entry and 
 disseizin of the true owner by the adverse claimant under 
 a paper title is, therefore, necessary for the latter to ac- 
 quire any constructive possession under it. 6 Hence it is 
 
 1 Wells v. Iron Company, 48 N. H. 530. 
 
 5 Long v. Higginbotham, 56 Mo. 251. But see Hughes v. Israel, 73 Mo. 547; 
 Fugate v. Pierce, 49 Mo. 44r; Crispen u. Hannavan, 50 Mo. 544; s. P. Scales 
 v. Cocknll, 3 Head (Term.), 436. 
 
 3 24 Wend. (N. Y.) 604. See Brady v. Huff, 75 Ala. 83. 
 
 4 " Color of title is anything in writing which serves to define the extent and 
 character of the claim to the land." Burdell v. Blain, 66 Ga. 169. 
 
 5 Clarke v. Courtney, 5 Pet. 353, 354. 
 
 "Moingona Coal Co. v. Blair, 51 Iowa, 448. See also Thayer v. McLellan, 23 
 
§ 771. J COLOR OF TITLE. 641 
 
 said: "The constructive is dependent upon the actual 
 possession, and must continue or fall with it." 1 Conse- 
 quently, when an adverse possessor sells or parts with 
 "that over which he had actual possession," he "loses 
 his constructive possession of the remainder." 2 
 
 §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 
 sufficiency of hostile acts to constitute "actual" posses- 
 sion, 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. 3 Though 
 as a rule, if there be a sufficient actual possession of a 
 part, no acts of ownership need be shown upon the re- 
 mainder of the land (when claimed under color of title), 
 yet, in Missouri, the statute expressly requires the exer- 
 cise of the "usual acts of ownership over the whole tract 
 so claimed." 4 And in a recent case in the Court of Errors 
 and Appeals of New Jersey, 5 where the general subject of 
 adverse possession is most ably and elaborately discussed, 
 it is distinctly held, that " the rule of law, that possession 
 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, conse- 
 
 Me. 419, where it is held that the owner of the 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 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 is held in the case of Walls v. Smith, 19 Ga. 8, color of title can 
 be of service only in aid of possession. 
 
 1 Cunningham v. Frandtzen, 26 Tex. 38. 
 
 s Chandler v. Rushing, 38 Tex. 597. 
 
 3 Hodges v. Eddy, 38 Vt. 327. See Parker v. Prop'rs of Locks, &c, 3 Mete. 
 (Mass.) 99, 102. 
 
 4 See Norfleet v. Hutchins, 68 Mo. 599. 
 
 5 Foulke v. Bond, 41 N. T. L. 547. To same effect, see Den d. Saxton v. Hunt, 
 20 N. J. L. 492. J 
 
 41 
 
642 COLOR OF TITLE. [§§ 772, 773. 
 
 quently, though "color of title, and actual occupation 
 by residence, cultivation or inclosure of part of the tract 
 may serve to give character to bis (the dis- 
 seizor's) acts of possession 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 proposed to be acquired under 
 it." And elsewhere in the same opinion, it is implied that 
 "a substantial holding, co-extensive 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 habit- 
 ually — not merely occasionally — in connection with the 
 land actually cultivated. 1 
 
 § 772. The underlying principles of color of title and con- 
 structive possession summed up. — The cases cited in the pre- 
 ceding sections, which embody the generally accepted and 
 best views on the subject of color of title and constructive 
 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 con- 
 structive possession beyond the limits of the actual posses- 
 sion ; Second, that such constructive possession is confined 
 to cases where the adverse claimant is in possession under 
 some documentary evidence of title; Third, and this is a 
 necessary deduction from the first two, that color of title 
 must necessarily consist in some written instrument de- 
 scribing 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 ett'ect of. color of title, and the 
 irreconcilable definitions of the term to be met with to 
 
 Miller v. Long Island R. R. Co., 71 N. Y 384. 
 
§ 773.] COLOR OF TITLE. 643 
 
 which, we have already referred. For example, the rule 
 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 Eannels 
 v. Eannels, 1 it is distinctly held that it is not necessary 
 that color of title " should be created by deed or other in- 
 strument of writing," but that "it may be created by an 
 net in pais without writing." The cases cited and quoted 
 by the court only partially support this proposition. 
 The opinion of Judge Gibson in the case of McOall v. 
 Neely, 2 quoted from, the same court had already refused to 
 follow in a case, 3 also cited in Eannels v. Eannels, which 
 does not by any means go so far as to hold that no writing 
 is necessary to constitute color of title. Then also the two 
 Massachusetts cases cited, 1 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 
 Eannels v. Eannels, is but another instance of the disposi- 
 tion above commented upon, 5 to confound "color" with 
 "claim" of title. Notwithstanding the general language 
 in Eannels v. Eannels, the court, in view of the circum- 
 stances 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 (made by plaintiff) and the description in his (plain- 
 tiffs) 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 coustituting for the pur- 
 poses of constructive possession the defendant's color of 
 title, since it performed its prime office — that of defining 
 
 1 52 Mo. 112. 
 
 * 3 Walts (Penn.), 69. See above, § 762. 
 
 8 City of St. Louis v. Gorman, 29 Mo. 593. See Crispen v. Hannavan, 50 Mo. 
 547- 
 
 'Ashley v. Ashley, 4 Gray (Mass.), 197 ; Sumner u. Stevens, 6 Mete. (Mass.) 
 337- 
 
 5 See supra, § 764. 
 
644 COLOR OF TITLE. [§ 773. 
 
 the extent of the occupant's claim. 1 Furthermore the case 
 of Eannels v. Eannels, though cited with approval in a 
 later case 2 in the same court, is certainly inconsistent in 
 its language with the two Missouri cases above cited, 8 
 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, 4 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." Then iD 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 woodland, 
 which the party now only uses for mating 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." 5 In Hodges v. Eddy, however, 
 the language last quoted was construed to mean "no more 
 than this, that such claim of ownership and dominion as 
 the fence indicated, in connection with his acts done upon 
 it, gave him a sufficient actual possession." 6 But, query, 
 whether the same construction cannot be put upon the 
 language used in Hodges v. Eddy, above 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 
 
 1 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. 
 
 3 Long v. Higginbotham, 56 Mo. 245 ; Fugate v. Pierce, 49 Mo. 441. See supMi 
 § 7°9- 
 
 4 38 Vt. 327. 
 
 R Buck v. Squiers, 23 Vt. 503. 
 6 Hodges v. Eddy, 38 Vt. 348. 
 
§ 773.J COLOR OP TITLE. 645 
 
 boundary marked upon the land," and an actual occupa- 
 tion 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 the constructive possession 
 being confined to cases of possession under a written in- 
 strument, as they are authorities on the subject of what 
 constitutes a sufficient actual possession. 1 Certainly, in 
 the absence of such circumstances or acts as indicate 
 with sufficient clearness 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." 2 Similarly in Indiana it is 
 held that, though an adverse possessor " must be limited 
 to that portion over which he exercises palpable and con- 
 tinuous acts of ownership, . . . there being no other 
 evidence, in such a 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," such 
 facts "perform sufficiently the office of color of title," by 
 evidencing the character of the entry and extent of the 
 claim," 3 and hence give constructive possession. As in 
 the Vermont cases, however, it maybe questioned whether 
 this is not rather an authority on what may constitute 
 actual possession, than an exception to the rule that a 
 purely constructive possession is limited to cases where 
 partial possession is accompanied with color of title. In 
 California the ordinary rule limiting constructive posses- 
 sion 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 defined by physical marks, that posses- 
 sion taken for mining purposes embraces the whole claim 
 
 1 See Beach v. Sutton, 5 Vt. 209. 
 
 ! Wing v. Hall, 47 Vt. 216. 
 
 8 Bell v. Longworth, 6 Lid. 277. In a recent case in North Carolina 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 possessio pedis." Scott v. El- 
 kins, 83 N. C. 427. 
 
646 COLOR OF TITLE. [§ 774. 
 
 tbns 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 interpretation of a possessio 
 pedis, does not apply to such a case." 1 
 
 § 774. Qualifications of the general rule of constructive pos- 
 session. — 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 pos- 
 session 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, 2 
 above cited, the court, after affirming the general rule of 
 constructive 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 possessed, and have some necessary connection 
 therewith." And again, "such constructive possession 
 will extend only 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 country." Accordingly, the plaintiff 
 claiming title under a void tax deed, to some 6,000 acres 
 of wild land, but having sufficient actual possession of less 
 than a quarter of an acre, it was held that he had no con- 
 structive possession of the land not actually possessed. It 
 may also be 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 possession required by the 
 
 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 Baib. (N. Y.) 9 ; Scott v. Delany, 87 111. 146; Lynde 
 v. Williams, 68 Mo. 360; Welborn v. Anderson, 37 Miss. 155; Chandler v. Rushing, 
 38 Tex. 591; Texas Land Co. v. Williams, 51 Tex. 51; Den d. Saxton v. Hunt, 20 
 N. J. L. 487; Hannibal & St. J. R. R. Co. v. Clark, 68 Mo. 371, 378 ; Wells v. 
 Iron Co., 47 N. H. 253, and cases cited; Turney v. Chamberlain, 15 111. 271. 
 
 " 79 N. Y. 100. 
 
§774.] COLOR OF TITLE. 647 
 
 statute. On the other hand, the earlier case of Munro v. 
 Merchant, 1 in the same court, which case, as is said by one 
 of the Commissioners of Appeals, in Thompson v. Bur- 
 hans, 2 "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 exten- 
 sively for cutting timber trees, to be drawn and manufac- 
 tured 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. Bnrhans, not only in respect 
 to the proportion which the land claimed bore to that actu- 
 ally occupied, 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 Commis- 
 sioner Earl, 3 "is well stated by Judge Wood worth in Jackson 
 v. Woodruff, 4 as follows: "Possessions thus taken under 
 a claim of title, are generally for the purpose of cul- 
 tivation and permanent improvement. It is generally 
 necessary to reserve a part for woodland. Good hus- 
 bandry forbids the actual improvement of the whole. The 
 possessions 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 
 possession. Under such circumstances there is but little 
 danger 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 
 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 conveyed, would be mischievous indeed.' " The case 
 last quoted from is cited with approval in a case in the 
 Supreme Court of Vermont, 5 where the court also say : 
 
 1 28 N. Y. g. 
 
 9 6i N. Y. 69. 
 
 *6r N. Y. 69. See also Miller v. Long Island R. R. Co., 71 N. Y. 380, 384. 
 
 ■ 1 Cow. (N. Y.) 276. 
 
 * Chandler v. Spear, 22 Vt. 406. 
 
648 COLOR OP TITLE. [§ 774. 
 
 ''It is, doubtless, impracticable to specify any precise quan- 
 tity of land, that ought -to be considered so far appendant 
 to au actual improvement, as to be the proper subject of a 
 constructive possession ; " and, " it is not intended to say 
 that any quantity of land, which may reasonably be sup- 
 posed to have been purchased and entered upon for pur- 
 poses of cultivation, and for use as a wood or timber lot, 
 might not be protected by such a possession." And, in a 
 case in the Supreme Court of Wisconsin, 1 the court, in 
 construing the statute governing the subject of construc- 
 tive adverse possession, held, first, where the premises 
 were divided into known lots, that "actual use on one lot 
 cannot carry with it constructive use on another lot of the 
 same piece of timber ; " s 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 reasonable 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 
 constructive 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, there- 
 fore, of having color of title to laud would be, as to the 
 part beyond the actual occupation or improvement, not to 
 dispense with any acts of possession, but to relieve the 
 
 1 Pepper v. O'Dowd, 39 Wis. 538, 550. 
 
 2 On the other hand, it was decided in a case in Georgia, that possession of part of 
 one lot embraced in the same deed with other lots will not be extended by con- 
 struction 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 equivalent to the 
 visible possession of the lot by an actual occupancy. Tritt v. Roberts, 64 Ga. 156. 
 See, also, Janes v. Patterson, 62 Ga. 527. In a case already referred to in Missouri 
 (Fugate v. Pierce, 49 Mo. 447), the adverse possessor under color of title "is held to 
 be possessed of the contiguous land covered by the instrument." This ruling, how- 
 ever, seems inconsistent with the language in a subsequent case in the same court, 
 where it is said that actual possession, accompanied 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. 
 
§ 775.] COLOR OF TITLE. 640 
 
 claimant from such distinct and continuous acts of appro- 
 priation 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 relate 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. 1 Then 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 will thereafter 
 be confined to his possessio pedis.* This is on the well- 
 recognized principle that, in the case of a conflict of pos- 
 session, the constructive possession always follows the 
 true or better title. 
 
 § 775. Good faith as an ingredient in constructive posses- 
 sion. — 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. 3 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 ad- 
 verse claimant — his possessio pedis— the question of good 
 or bad faith on the part of the claimant does not arise. 4 
 Under the plea of the statute of limitations in such a case, 
 the only inquiry is, has the actual possession been suffi- 
 ciently open, hostile, etc., and continued for the time 
 required by the statute. Or, in such a case, as the court 
 say in Smith v. Eoberts : " It is the actual claim of owner- 
 ship, not the oona fides which is the test." 5 When, how- 
 
 1 WatsoD v. Tindal, 24 Ga. 494. See Cooper 11. Ord, 60 Mo. 420. 
 'Bradley «. West, 60 Mo. 33. See Wing v. Hall, 47 Vt. 207; Brimmers. 
 Proprs. of Long Wharf, 5 Pick. (Mass.) 131. 
 8 See Brady v. Huff, 75 Ala. 83. 
 4 S e e§ 757- 
 5 Smith v. Roberts, 62 Ala. 86. 
 
650 COLOK OF TITLE. [§ 775. 
 
 ever, the adverse claim is made under color of title, and, 
 consequently, extends beyond the possessio pedis of the 
 claimant to the limits of the instrument constituting 
 the color of title, by means of the constructive posses- 
 sion created by it, — in such a case, the bona fides of the 
 claimant may become an important element. The neces- 
 sity of good faith in the claimant under color of title is 
 often taken for granted by the courts, though the sub- 
 ject, it must be admitted, is far from having been satis- 
 factorily adjudicated upon. Thus, in a case in the Su- 
 preme Court of the United States, 1 Mr. Justice McLean, 
 delivering the opinion of the court, says: "Upon their 
 face, the deeds purport to convey a title in fee ; and hav- 
 ing been accepted in good faith, . . . they show the 
 nature and extent of the claim to the premises ;" the clear 
 implication of the opinion is, therefore, that the absence 
 of good faith would have been fatal to the adverse pos- 
 session 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." 2 In a 
 recent case in the Supreme Court of Pennsylvania, 8 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 it is said by Gibson, C. J., in McCall v. 
 Neely, 4 'An entry is by color of title when it is made 
 under a bona fide, and not pretended, claim of title ex- 
 isting 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 possession of the entire claim described by the 
 paper." 5 
 
 ' Gregg v. Sayre, 8 Pet. 253. 2 Welborn v. Anderson, 37 Miss. 163. 
 
 3 Ege v. Medlar, 82 Penn. St. 98, 99. 
 
 4 3 Watts (Penn.), 72. See supra, § 762. 
 
 5 Attwood v. Fricot, 17 Cal. 43. See, also, Buckley v. Taggart, 62 Ind. 238 ; 
 Mis 1 ;. & Tenn. R. R. Co. v. Devaney, 42 Miss. 555. 
 
§ 775.J COLOR OF TITLE. 651 
 
 In some cases, however, 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 
 said that, "In addition to the actual occupancy of a part 
 . . . there must be a claim on the whole . . . and 
 such claim must be bona fide and evidenced by some 
 paper," etc. 1 And in another case in the same court, 
 it is observed, "Good faith may become an important ele- 
 ment ... in reference to defining the limits of the 
 possession." 2 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 the claim in good 
 faith, and not in wantonness." 3 In a recent case in Texas, 
 it is held that, "It is unquestionably a well established 
 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." 4 That here the nec- 
 essity for good faith is confined to a claim to constructive 
 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." 6 In a case in California, it is said by 
 Meld, 0. J., in his opinion, that the claim, " when founded 
 upon a written instrument, . . . must be asserted by 
 the occupant in good faith, in the belief that he has good 
 
 1 Crispen v. Hannavan, 50 Mo. 544. See, also, Fugate v. Pierce, 49 Mo. 447. 
 
 2 Bradley v. West, 60 Mo. 41. See, also. Chapman v. Templeton, 53 Mo. 465 ; 
 Hannibal & St. J. R. R. Co. v. Clark, 68 Mo. 371. Bona fides will be presumed 
 until the contrary appears. Brooks v. Bruyn, 35 111. 394 ; Hardin v. Gouveneur, 69 
 111. 140; McMullin v. Erwin, 58 Ga. 427. 
 
 3 Close v. Samm, 27 Iowa, 510. In McMullin v. Erwin, 58 Ga. 429, Bleckley, 
 J., said: "If a man takes a color of title, whether bond or deed, from one whom 
 he knows has no right to make it, he cannot use it as the basis of prescription, for 
 to do so would be a fraud on the true owner. To deprive the owner of his property 
 by such means would be to steal it. The law has better morality than to sanction 
 that sort of a transaction." 
 
 1 Texas Land Co. v. Williams, 51 Tex. 62. 
 5 Kinney v. Vinson, 32 Tex. 128. 
 
652 COLOR OF TITLE. [§ 775. 
 
 right to the premises." x And in a leading case in the 
 Supreme Court of New Jersey, 2 the court say : " A party 
 who sets up an adverse possession under color of title 
 must act bona fide, or, iu 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. 3 
 
 The cases above cited, it is believed, reflect the pre- 
 vailing opinion on this question of bona fides in claiming 
 title to land by a constructive adverse possession through 
 color of title, 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 de- 
 cisions apparently directly opposed to the opinions above 
 quoted. In a case in the Supreme Court of Tennessee, 4 
 where the defendant in ejectment claimed under a void tax 
 deed and pleaded the statute of limitations, and where, the 
 " defendant, having bean particeps to the pretended purchase 
 for taxes," it was contended that his possession was not 
 adverse, the court held that such an objection was untena- 
 ble, 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 
 action of ejectment, although the defendant, when he re- 
 ceived his deed, knew that the person conveying to him 
 had no title." But here there was no question of a con- 
 structive possession under the deed beyond the limits of 
 the actual possession of the adverse claimant. The ques- 
 
 1 McCracken v. City of San Francisco, 16 Cal. 636. 
 
 8 Den d. Saxton v. Hunt, 20 N. J. L. 493. So also the "paper title " must war- 
 rant, by its appearance, good faith on the part of the person entering under it. See 
 Baker v. Swan, 32 Md. 355. 
 
 3 See supra, § 771, and infra, § 777. In Watts v. Owens, 62 Wis. 520, the 
 court say : " The defendant could not have entered under that deed, believing that 
 he had even color of til le, for he knew, or was bound to know, that the pretended 
 conveyance from his brother and sister was absolutely void at common law. In 
 my opinion, the animus or intetit with which the entry is made must be bona fide. 
 
 4 Love v. Shields, 3 Yerg (Tenn ) 405. See contra, Definition of Color of Title, 
 above quoted ; Wilson v. Kilcannon, 4 Hayw. (Tenn.) 182 ; Waterhouse v. Mar- 
 tin, Peck (Tenn.), 407. 
 
§ 776.] COLOR OF TITLE. 653 
 
 tion simply was, " could an actual hostile possession, ac- 
 companied by a deed known to the claimant to be void, be 
 strictly adverse ? " and the ruling of the court to the effect 
 that such possession can be adverse, no matter how tor- 
 tiously obtained or how groundless the occupant may know 
 his claim to be, will not be questioned by any one. 
 
 § 776. The New Yorlc doctrine on the subject. — The most 
 serious dissent from what we deem the prevailing and the 
 better rule, as to the necessity for oona fides in one claim- 
 ing constructive adverse possession through color of title, 
 is to be found in New York, though the earlier cases in 
 that State would seem to require good faith, not only in 
 connection with a claim founded upon a written instru- 
 ment constituting color of title, but also when the adverse 
 possession is based upon a mere claim of title. Thus, in 
 the case of Clapp v. Bromagham, in the Court of Errors, 1 
 the Chancellor 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 im- 
 puted to the purchaser, through his negligence in not in- 
 quiring as to the validity of the title acquired, implying 
 therefore, that actual fraud or knowledge of the defects of 
 his title must be proved. 3 It may be remarked that this 
 case has frequently been cited by the New York Courts, to 
 the effect that constructive notice of defects in a title, 
 arising out of neglect in the purchaser to investigate, is 
 not applicable on the question of adverse possession, 3 but 
 the decision, in respect to the language of the Chancellor 
 above quoted, has never, so far as we are aware, been dis- 
 tinctly overruled. So in a late case in that 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. The Chief Justice says : 
 "The anvmo, then, or intent with which an entry is made 
 
 ' 9 Cow. (N. Y.) 557. 
 
 * See also Foulke v. Bond, 41 N. J. L. 543- 
 
 3 See for example Sands v. Hughes, 53 N. Y. 297. 
 
654 COLOK OF TITLE. [§ 776. 
 
 must be bona fide, an entry believing in good faith that 
 the land is his, and that be has title." 1 The doctrine of 
 the earlier cases in New York has been discarded in the 
 leading case, already frequently cited, of Humbert v. 
 Trinity Church, in the Court of Errors, 2 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 bring- 
 ing his action within the prescribed period." In refer- 
 ence to the language in Livingston v. Peru Iron Co., 
 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 honestly, 
 but the intent to claim at all, right or wrong, with or with- 
 out knowledge that another has title." The general lan- 
 guage 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 
 limitatious, but under that against champerty and mainte- 
 nance. 3 The language used in the several opinions deliv- 
 ered in the case of Humbert v. Trinity Church, on the sub- 
 ject of bona fides, is certainly general enough to warrant its 
 application to all cases of adverse possession under the 
 statute of limitations, whether such possession be founded 
 upon a mere claim or upon color of title, and whether the 
 possession claimed be simply a possessio pedis, or, in addi- 
 tion, a constructive possession to the extent called for by 
 a written instrument. We find, therefore, that the doc- 
 trine 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 pos- 
 sessed, but claimed by constructive possession under a 
 deed or the like. 4 In a later case in the New York 
 
 1 Livingston v. Peru Iron Co., g Wend. (N. Y.) 518. See Howard v. Howard, 
 17 Baib. (N. Y.)667, 668. 
 ■' 24 Wend. (N. Y.) 587. 
 
 3 See Crary v. Goodman, 22 N. Y. 177. 
 
 4 See Munro v. Merchant, 26 Barb. (N. Y.) 401, 402 ; Howland v. Newark Asso- 
 ciation, 66 Baib. (N. Y.) 367. Under the title "adveise possession," and the sub- 
 
§ 777.] COLOR OF TITLE. 655 
 
 Court of Appeals, 1 however, we find the court basing 
 the distinction between the cases of Livingston v. Peru 
 Iron Co. and Humbert v. Trinity Church, upon the dif- 
 ference between the champerty act and the statute of 
 limitations in that State. After drawing this distinction, 
 the court say : " A deed fraudulently obtained is a nullity, 
 and gives to the fraudulent grantee not even a color- 
 able title. Hence, in the former of these cases (the Liv- 
 ingston case), which depended upon the champerty act T 
 it was held that the possession of the grantee, under such 
 a deed, was not such an adverse possession as would avoid 
 a subsequent deed from the true owner. The other case 
 (the Humbert case) turned upon the statute of limitations, 
 and under that statute, as we have seen, the thing con- 
 templated 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 negligence of the owner in not 
 bringing his action within the prescribed period." The 
 clear implication, at least, of this language is, that if 
 "the thing contemplated" were a constructive posses- 
 sion 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 posses- 
 sion under it. This would, therefore, restrict the ruling 
 in the Humbert case, that fraud is immaterial as an objec- 
 tion to the defense of the statute of limitations, to cases 
 involving naked possession only, and would harmonize 
 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, 2 it seems to be doubted whether this 
 restriction of the language of the Humbert case, or the 
 distinction attempted to be drawn, is warranted, though 
 the reason for the doubt is not stated by the court. 
 
 § 777. Statement of the prevailing rule. — Doctrine of the 
 
 leading " 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 gond title, or not, is no longer material." 
 
 'Crary v. Goodman, 22 N. Y. 177. 
 
 2 Sands v. Hughes, 53 N. Y. 296. 
 
656 COLOE OF TITLE. [§777. 
 
 New Jersey Court of Errors. — Notwithstanding the New 
 York cases above cited, we think the better and the pre- 
 vailing opinion to be in effect, that fraud in acquiring an 
 actual naked possession — whether accompanied by a deed 
 or not — will not, on that account, render the possession 
 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- 
 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 instru- 
 ment cannot perform the office of color of title. This rule 
 and the reasons underlying it are well stated in a recent 
 important case in New Jersey, 1 as follows: "The general 
 doctrine of the law is that fraud in obtaining or continuing 
 possession, or knowledge that the party's claim of owner- 
 ship 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 essential in the acquisition of title by ad- 
 verse possession (citing Humbert v. Trinity Church, 24 
 Wend. 58T). . . . The statute of limitations establishes 
 a peremptory and inflexible rule of law, which terminates 
 the rights of the legal owner, and protects the disseizor iu 
 his possession, not out of regard to the merits of the lat- 
 ter's title, but for the reason that the real owner has ac- 
 quiesced in a possession which was adverse for such a length 
 of time that the statute has deprived him of all remedy for 
 the enforcement of his legal title. Possession clandestinely 
 taken and held for the purpose of fraudulently concealing 
 from the real owner knowledge 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 ad- 
 
 Foulke v. Bond, 41 N. J. L. 541. 
 
§§ 778, 778a.] color of title. 657" 
 
 verse claim which is necessary to perfect title by adverse 
 possession. . . . This is the doctrine of the law in all 
 cases where the adverse possession commences 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 thereby, and where 
 a party claims a disseizin by virtue of an entry under such 
 a muniment of title, he is claiming the advantage of color 
 of title. In such a case the rule above mentioned is not 
 applied in all its strictness. A party cannot have the ad- 
 vantage of an entry under color of title unless his deed, 
 which gives the colorable title, was obtained oona 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, unless it be for actual 
 fraud on his part." 
 
 § 778. Good faith expressly required oy 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 true common 
 law rule on the subject, so far, at least, as it is applied to 
 constructive possession. 1 
 
 § 778a. The requirement of good faith. — The rule once 
 obtained quite generally that only occupants in good faith 
 could acquire title by actual adverse possession. This re- 
 sulted in a judicial inquiry into the secret motives and 
 hidden intentions of the possessor,, and rendered title by 
 adverse possession very insecure and unsatisfactory, there 
 being no guide or test by which to approximate the verdict, 
 and it being possible that though the evidence of exclusive 
 possession for the statutory period might be complete, the 
 caprice of the jury would overturn the possessor's title. 
 The law was gradually changed, and actual hostile occupa- 
 tion, whatever the character of the intent, and even though 
 
 1 See, for example, Georgia Code, 1873, § 2683 ; Revised Statutes of Illinois, 
 1874, c. 83, §§ 6, 7. See also Castleberry v. Black, 58 Ga. 386 ; McCamy v. Hig- 
 don, 50 Ga. 629; Brown v. Wells, 44 Ga. 573 ; Garrett v. Adrain, 44 Ga. 274 ; 
 Stubblefield v. Borders, 92 111. 279 ; Russell v. Mandell, 73 111. 136. 
 42' 
 
658 COLOR OF TITLE. [§ 779. 
 
 held in bad faith, will now, as we have seen, bar the entry 
 of the true owner. The present rule, as applied to actual 
 possession, is to be commended, the theory being that the 
 laches, neglect and indifference of the true owner lose 
 him the land to an actual occupant whose possession and 
 assertion of right is notorious, and sufficient to attract 
 the attention of, and to constitute notice to, the true owner 
 and all the world. It has been mistakenly argued that the 
 same test should, in the nature of things, be applied in de- 
 termining whether the occupant has acquired adverse pos- 
 session under color of title to land only constructively 
 possessed ; that the only test should be, is the instrument 
 in form a conveyance, and did the claimant occupy a part 
 of the land under it claiming the whole? We conceive 
 that the better doctrine, both from a practical and moral 
 point of view, is, that good faith should be exacted in con- 
 ferring title by adverse possession to lands not actually 
 used and occupied. There is a wide difference between 
 the two cases. Constructive possession, as a matter of 
 fact is no possession at all ; it is a fiction ; the claimant is 
 often said to be in possession by the magic of an act of 
 parliament. Considering how rigid the requirements of 
 law are as to the notorious character of the actual adverse 
 possession that destroys the title of the true owner, and 
 that the law favors the occupant who improves the land, it 
 is important to observe that the same safeguard as to no- 
 tice, and the same public considerations as to the posses- 
 sor's rights, do not exist where constructive possession 
 only is being considered. The elements of notice to, and 
 laches and neglect on the part of, the true owner, are not 
 so conspicuous, for the color of title need not, as a rule, be 
 recorded ; in fact it is often concealed while the statute is 
 running, and such naturally would be the device of an oc 
 cupant who held in bad faith. The only notice to the true 
 owner is the actual possession perhaps of an obscure corner 
 or very small portion of the land, and this in a new coun- 
 try, where boundaries are not clearly defined, would often 
 constitute no actual notice of a disseizin whatever. 
 
 § 779. Difficulty of laying down a general definition of 
 color of title. — As we have seen, it is by no means easy to 
 
§ 780.] COLOR OP TITLE. 659 
 
 lay down a satisfactory definition, which shall accord with 
 the various opinions in the books, as to what, in general, 
 constitutes 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 res- 
 pect 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 ad- 
 vantageous to enumerate some of the instances of color of 
 title held to be such by the courts, as well as some of 
 those deemed insufficient for such purpose. 
 
 § 780. Instances of what held to le 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 exempt from taxation as belonging to a county, as 
 well as the deed from the purchaser ; 1 a tax deed of an 
 auditor, regular on its face, " without regard to the con- 
 stitutionality of the laws under which it was devised ;" 3 
 a sheriff's deed of land not in his own county ; 8 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 ; 4 a deed of a grantor, purport- 
 ing to convey as an administrator, under a special act of 
 the legislature, which act was unconstitutional and void ; 5 
 so also a conveyance by a guardian made in pursuance of 
 a void decree of a probate court ; 6 a paper writing pur- 
 porting to be a will, proved before the proper tribunal by 
 the oath of one witness only, 7 though contra, had the writ- 
 ing never been proved as a will. 8 A claim to land through 
 condemnation proceedings subsequently adjudged void, 
 
 1 County of Piatt v. Goodell, 97 111. 84. 
 
 ! Woodward v. Blanchard, 16 111. 424. See, also, Stubblefield v. Borders, 92 
 111. 280. 
 
 3 Beverly v. Burke, 9 Ga. 440. 
 
 4 Riggs v. Fuller, 54 Ala. 141. 
 
 5 Fagan v. Rosier, 68 111. 84. 
 
 6 Molton v. Henderson, 62 Ala. 426. 
 
 1 McConnell v. McConnell, 64 N. C. 342. 
 
 8 Callender v. Sherman, 5 Ired. (N. C.) Law, 711. 
 
660 COLOB OF TITLE. [§ 780. 
 
 was held to be under color of title ; * and so of a tax title 
 subsequently invalidated through individual or judicial 
 action. 2 It has been held that color of title and posses- 
 sion under it were not disturbed by a mere judgment in 
 ejectment against the claimant, the plaintiff's title hav- 
 ing been bought in by the claimant. 3 Other instances 
 are: an imperfect or invalid title bond ; 4 a deed under a 
 decree of a court void for want of jurisdiction, if the deed 
 purports to convey title ; 5 a tax deed regular on its face f 
 a tax deed void upon its face ; 7 a comptroller's deed ex- 
 ecuted without aiithority ; 8 a deed by an attorney in fact 
 without proof of his authority, 9 and a deed by a person 
 representing himself to have a written authority from the 
 owner, the deed being made by the assumed agent in his 
 own name without mention of the principal ; 10 a deed 
 made without authority by the clerk of the board of 
 bounty commissioners of land sold for taxes ; u a tax deed 
 of land against which no judgment had in fact been ob- 
 tained ; 12 a sheriffs deed without a seal but otherwise for- 
 mal ; 1S and a deed of a purchaser at a master's sale, where 
 a proper party had been omitted as defendant in the fore- 
 closure.' 4 Where lands were sold for delinquent taxes under 
 a judgment, and the sale was 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 
 
 1 Miss. & Tenn. R. R. Co. v. Devaney, 42 Miss. 555. 
 
 2 Hamilton v. Wright, 30 Iowa, 490. 
 
 3 O'Neal v. Boone, 53 111. 35. See § 743. 
 
 4 Bell v. Coats, 56 Miss. 776, 781. 
 
 s Huls v. Buntin, 47 111. 396 ; s, p. Welborn v. Anderson, 37 Miss. 162. 
 
 6 Stubblefield v. Borders, 92 111. 284 ; Woodward v. Blanchard, 16 111. 433; s. P. 
 Dawley v. Van Court, 21 111. 460. 
 
 7 Colvin v. McCune, 39 Iowa, 502 ; Douglass v. Tullock, 34 Iowa, 262 ; Pugh ■'- 
 Youngblood, 69 Ala. 296. " That a void deed may be good as color of title can 
 scarcely be said to admit of question." Allen v. Kellam, 69 Ala. 447. 
 
 8 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. 
 
 9 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. 
 
 10 Payne v. Blackshear, 52 Ga. 637. 
 " Edgerton v. Bird, 6 Wis. 527. 
 18 Coleman v. Billings, 89 111. 190. 
 13 Kruse v. Wilson, 79 111. 233. 
 >* Rawson v. Fox, 65 111. 200. 
 
I 780.] COLOR OP TITLE. 661 
 
 to be color of title. 1 A deed with a defective acknowledg- 
 ment ; 3 and a paper purporting to be a deed, but without a 
 seal, though held not to be valid for the purpose of convey- 
 ing title, is yet admissible in evidence for the purpose of 
 showing the extent of the possession of the claimant under 
 it, and hence fills the office of color of title. 8 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 is evidence of the adverse possession of 
 the claimant under it. 4 Written memoranda by a sheriff, 
 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. 5 Though a deed void for want of a description cannot 
 constitute color of title, 6 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 ; 7 so if a "bond for titles" received in good 
 faith, 8 even though the bond were forged, 9 if it appear that 
 the purchase-money had been paid. 10 A void patent may be 
 used to give color of title and fix the limits of possession ; " 
 .and a certificate of entry obtained in good faith, upon 
 the payment of the entrance money from an officer having 
 the right to make sales of public land, 12 though such certi- 
 ficate be subsequently cancelled, but without the knowl- 
 edge of the claimant. An invalid tax deed without attest- 
 ing witnesses ; 13 a quitclaim deed from one having no 
 interest ; u a deed from the husband of a life tenant after 
 
 1 Hardin v. Crate, 6o 111. 215. 
 
 2 Dalton v. Bank of St. Louis, 54 Mo. 105. 
 
 3 Barger v. Hobbs, 67 111. 592. 
 
 4 Pillow v. Roberts, 13 How. 472, 477. 
 
 5 Field v. Boynton, 33 Ga. 239, 242. 6 See supra, § 767. 
 ' Hanna v. Renfro, 32 Miss. 128. 
 
 8 Garrett v. Adrain, 44 Ga. 274. 
 8 Griffin v. Stamper, 17 Ga. 108. 
 
 10 Stamper v. Griffin, 20 Ga. 312, 322. See, also, s. P. McQueen v. Ivey, 36 Ala. 
 308. 
 
 " Logan v. Jelks, 34 Ark. 547, 549. 
 
 ,! Hannibal & St. J. R. R. Co. v. Clark, 68 Mo. 371, 377- 
 
 13 Dillingham v. Brown, 38 Ala. 311. 
 
 14 Wells v. Iron Company, 47 N. H. 253 ; s. P. Castleberry v. Black, 58 Ga. 386, 
 and cases cited; Cowly v. Monson, 10 Biss. 182. See, also, McCamy v. Higdon, 
 
662 COLOR OF TITLE. [§ 781, 
 
 the latter's death, the former being simply in possession, 
 and without any title to the land conveyed ; * a deed of 
 a wife's land, made by a husband and wife, but void as 
 to the latter through want of her private examination ; * 
 a deed founded upon a verdict or voidable decree in chan- 
 cery ; 3 an unregistered deed ; 4 a written agreement to 
 divide lands owned or claimed in common, though mad© 
 by the administrator of one of the tenants in common 
 without an order from the court for the partition thereof; 5 
 a forged writing believed to be genuine ; 6 and a deed which 
 had been cancelled 7 may all 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 execu- 
 tion before the expiration of the time given by law for 
 redemption ; 8 a tax deed of 100 acres of land of a survey 
 containing 600 acres, and without specifying what par- 
 ticular portion ; 9 an unprobated will, where there was 
 "nothing to show that it had ever been regarded and 
 acted on as conferring any right ; " 10 a guardian's deed 
 where the sale is not confirmed by the court as,required ; u a 
 tax certificate ; u and a bond, showing upon its face that the 
 
 50 Ga. 629. But see Brown v. Wells, 44 Ga. 573, where it is held that if defend- 
 ant knew he was only purchasing a mere squatter's title, he stands in no better con- 
 dition than the original squatter. 
 
 1 Forest v. Jackson, 56 N. H. 357. 
 
 2 Ferguson v. Kennedy, Peck (Tenn.), 321. 
 
 3 Whiteside v. Singleton, Meigs (Tenn.), 207. 
 
 4 Lea v. Polk County Copper Co., 21 How. 493 ; Rawson v. Fox, 65 111. 200- 
 Chastien v. Philips, 11 Ired. (N. C.) Law, 255; Davis v. Higgins, 91 N. C. 382; 
 Hardin v. Barrett, 6 Jones' (N. C.) Law, 159; Minot v. Brooks, 16 N. H. 374; Bel- 
 lows v. Jewell, 60 N. H. 420 ; Newmarket Mfg. Co v. Pendergast, 24 N. H. 63. 
 
 6 Shiels v. Lamar, 58 Ga. 590. 
 6 Stamper v. Griffin, 20 Ga. 312. 
 1 Hughes v. Israel, 73 Mo. 547. 
 
 8 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. 
 
 9 Humphries v. Huffman, 33 Ohio St. 395, and cases cited; S. P. Shackleford v. 
 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, B. & Q. R. R- 
 Co., 86 III. 425 ; Shiels v. Lamar, 58 Ga. 590. 
 
 10 Rothschild v. Hatch, 54 Miss. 554, 558. See, also, supra, McConnell •«. Mc- 
 Connell, 64 N. C. 342. 
 
 11 Rawlings v. Bailey, 15 111. 178. Compare Molton v. Henderson, 62 Ala. 426. 
 " McKeighan v. Hopkins, 14 Neb. 361. 
 
§ 781.1 COLOR OP TITLE. C63 
 
 obligor claimed no title, but admitted it to be in another. 1 
 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;" 2 and, 
 for the same reason, that a "certificate of purchase at a 
 tax sale," and "certificate of a land officer, showing that, 
 at one time, a party was entitled to a pre-emption," did 
 not constitute color of title 3 But in Alabama, it has been 
 held that, though the vendor's bond conditioned to make 
 title when the purchase-money is paid, cannot be color of 
 title so long as the purchase-money remains unpaid, yet 
 it becomes such after the payment is made. 4 The same 
 distinction is taken in New York. 5 A record of a survey 
 of lands has been held insufficient to constitute color of 
 title, though it may be evidence of a claim of title and of 
 the character of the actual possession. 6 So also, as shown 
 above, an indefinite description in a deed renders it insuffi- 
 cient 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. 8 
 
 1 Simmons v. Lane, 25 Ga. 181. 
 
 ! Rigor v, Frye, 62 111. 508, 509, and cases cited. 
 
 3 Bride v. Watt, 23 111. 507 ; Spellman v. Curtenius, 12 111. 409. 
 
 4 See supra, McQueen v. Ivey, 36 Ala. 308 ; s. P. Stamper v. Griffin, 20 Ga. 322. 
 See, also, Bell v. Coats, 56 Miss. 776. 
 
 s Briggs v. Prosser, 14 Wend. (N. Y.) 227. In this case, however, the contract 
 to convey seems to have been by parol, and the main question presented was, 
 whether, though the contract price had been paid, a claimant under such an execu- 
 tory contract could hold possession adversely, which the court decided in the affirm- 
 ative, because as the court say, " there is nothing in the character of it (such hold- 
 ing) 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 exec- 
 utory contract in writing, the consideration-money being paid, there seems to be 
 no doubt that possession thereunder would be strictly speaking under color of title. 
 See for example, Jackson v. Foster, 12 Johns. (N. Y.) 488 ; La Frombois v. Jackson, 
 8 Cow. (N. Y.) 589 ; s. P. Furlong v. Garrett, 44 Wis. in. See § 305. 
 
 6 See supra, § 765 ; Atkinson v. Patterson, 46 Vt. 750. See, also, Oatman v. 
 Fowler, 43 Vt. 462. 
 
 ' See supra, § 767 ; Wray v. Chicago, B. & Q. R. R. Co., 86 111. 425. See, also, 
 Henley v. Wilson, 81 N. C. 405. 
 
 8 Stephenson v. Doe d. Wait, 8 Blackf. (Ind.) 508. Hence if the part claimed 
 by constructive possession, be a tract distinct from the part actually occupied, the 
 deed, though covering both tracts, cannot perform the office of color of title for the 
 former ; in such a case there would have to be, in addition, some actual possession 
 of the former tract. 
 
CHAPTER XXXI. 
 
 PLAINTIFF'S TITLE AND EVIDENCE. 
 
 j 782. Limits of the treatise. 
 
 783. Sources of title. 
 
 784. Divesting the Government of title. 
 
 785. Patents. — Highest evidence of title. 
 
 786. Presumption of a grant. 
 
 787. No fixed rule as to length of time. 
 
 788. Difference between presumption 
 
 and prescription. 
 
 789. Missing links. 
 
 790. Legal and equitable titles. 
 
 791. Strength of plaintiff's title. 
 
 792. Facts entitling plaintiff to recover. 
 
 793. Title by execution. 
 
 794. Title by judicial record. 
 
 795. Title by relation. 
 
 796. Ejectment founded on a forfeiture. 
 
 797. Title by part performance. — Stat- 
 
 ute of frauds. 
 
 798. Title by parol gift. 
 798a. Title by estoppel. 
 
 799. Order of proof. 
 
 800. Burden of proof. 
 
 801. Right to begin and reply. 
 
 802. Production of title papers. 
 
 803. Common source of title. 
 
 804. Evidence of reputation. 
 
 805. Reputation as to private bounda- 
 
 § 806. 
 807. 
 
 809. 
 810. 
 
 811. 
 
 812. 
 
 813. 
 814. 
 
 8r 5 
 816 
 817 
 818, 
 819. 
 820. 
 821 
 822 
 823. 
 824 
 
 825 
 
 826 
 827 
 S2S 
 
 Conclusions from the cases. 
 
 Particular facts. 
 
 Declaration of deceased owner as 
 to boundary. 
 
 Statements of deceased grantor. 
 
 Statements qualifying possession. 
 — Res gestce. 
 
 Declarations as part of the resgesta. 
 
 Pedigree and family facts. 
 
 Ante litem motam. 
 
 Declarant's relationship must be 
 established by other testimony. 
 
 Pedigree. 
 
 Age. 
 
 Presumption of death. 
 
 Ancient deeds and wills. 
 
 Ancient surveys and maps. 
 
 Lost deeds. 
 
 Office copies of deeds. 
 
 Delivery of deed. 
 
 Recitals in deeds. 
 
 Parol evidence to vary written in- 
 strument. 
 
 Transactions with deceased per- 
 sons. 
 
 Seals. 
 
 Abstracts. 
 
 Unofficial records. 
 
 § 782. Limits of the treatise. — The general rules governing 
 the relevancy, admissibility and probative force of evidence 
 apply to all species of actions, and for a consideration of 
 these rules the reader must be referred to other treatises. 
 There are, however, many questions more or less peculiar 
 to actions to try title, or of frequent recurrence in them, 
 especially such as either cannot, or rarely do, arise in any 
 other proceedings, which may properly be considered in 
 this volume. It should be observed in advance that in all 
 the forms of remedy now in use throughout the United 
 States for the trial of title to land, the essential principles 
 of evidence are the same. 1 
 
 1 2 Greenl. Ev. § 303; see § 92. 
 
§§783, 784.] TITLE AND EVIDENCE. 665 
 
 § 783. Sources of title. — The European powers laid claim 
 to the title to the lands of the American continent by right 
 of prior discovery. A disposition prevailed on the part of 
 some of the powers to negotiate for the purchase of lands. 
 Yet, as was said by Chief Justice Marshall r 1 "While the 
 different nations of Europe respected the right of the 
 natives, as occupants, they asserted the ultimate dominion 
 to be in themselves, and claimed and exercised, as a conse- 
 quence of this ultimate dominion, a power to grant the 
 soil, while yet in possession of the natives. 2 These grants 
 have been understood by all, to convey a title to the gran- 
 tees, subject only to the Indian right of occupancy." 8 The 
 English rule declared that the king was the original pro- 
 prietor of all lands in the kingdom, and the true and only 
 source of title. This principle has been adopted in this 
 country, and, as Kent says: "It is a. settled and funda- 
 mental doctrine with us, that all valid individual title to 
 land within the United States is derived from the grant 
 of our own local governments, or from that of the United 
 States, or from the crown, or royal chartered governments 
 established here prior to the Eevolution." 4 
 
 § 784. Divesting tlie government of title. — There is no way 
 in which the United States can be divested of title except 
 in pursuance of some of its laws, and as no limitation runs 
 against the government, 5 occupancy and possession alone, 
 even for a great length of time, will not ripen into title 
 against the United States. 6 Since, as we have seen, all titles 
 are derived from the government, the existing possession 
 of a private owner presupposes a grant from the sovereign 
 power. 7 It is seldom necessary, however, in actual litiga- 
 tion, to invoke this presumption in this country, at the 
 present day, "except incases of very ancient possessions 
 
 'Johnson v. Mcintosh, 8 Wheat. 543, 574. 
 
 2 s. p. Beecher v. Wetherby, 95 U, S. 517, 525, and cases cited; United States v. 
 Cook, 19 Wall. 591. 
 
 3 See § 194. Commonwealth v. City of Roxbury, 9 Gray (Mass.), 478. 
 *3 Kent's Com. 378. 
 
 5 See § 753a . 
 
 6 Drew v. Valentine, 18 Fed. Rep. 712; see § 717 n. 
 
 ''Ante, § 192; People v. Trinity Church, 22 N. Y. 47; Gamble v. Horr, 40 Mich. 
 565. 
 
666 TITLE ASD EVIDENCE. [§§ 785-787. 
 
 running back to colonial days, as, since the commence- 
 ment of the present century, a record has been preserved 
 of all grants of the government, and of the various prelimi- 
 nary steps up to their issue; and provision is made by law 
 for the introduction of copies of the record when the orig- 
 inals are lost." 1 
 
 § 785. Patents. — Highest evidence of title. — It is frequently 
 said that a patent from the government is the highest or 
 best evidence of title. By this- is meant merely that, since 
 all titles come from the government, a chain of title de- 
 rived in due course from that source, accompanied by pos- 
 session, is perfect. But any kind of governmental grant is 
 of equal validity with a patent. An act of Congress, for 
 instance, is of the same rank as evidence, though, as an in- 
 strument of quiet and security, a patent is preferable to all 
 other species of grants. 3 Some general rules of evidence 
 affecting titles derived from patents are discussed in a 
 later chapter. 3 
 
 § 786. Presumption of a grant. — In actions for the trial of 
 title to land, a presumption of lawful origin of title by 
 proper instruments of conveyance, arises in favor of any 
 one shown to have been for a long period of time in enjoy- 
 ment of possession. This presumption is said to be found- 
 ed on the principle that the exercise of possessory rights 
 might and naturally would have been prevented by those 
 adversely interested if such possession was without lawful 
 origin. 
 
 § 787. No fixed rule as to length of time. — The length of 
 time which will warrant such a presumption must be deter- 
 mined by the circumstances of each particular case. No- 
 toriety of possession, such as arises in cities and all densely 
 populated localities, furnishes the most abundant opportu- 
 nities for the assertion of any adverse interest, and is on 
 this account, perhaps, the most important circumstance to 
 be considered. 4 Although some doubt has been expressed 
 
 'Field, J., in Oaksmith v. Johnston, 92 U. S. 345. 
 
 2 Morrow v. Whitney, 95 U. S. 551; Ryan v. Carter, 93 U. S. 78. 
 
 3 See Chap. XXXIV. 
 
 4 Wilson v. Stoner, 9 S. & R. (Pa.) 39; Mather v. Ministers of Trinity Church, 
 3 S. & R. (Pa.) 509; University of Vermont v. Reynolds, 3 Vt. 542. 
 
§ 788.] TITLE AND EVIDENCE. 667 
 
 as to whether this presumption is conclusive or one that 
 may be rebutted, the cases, we believe, show that the jury 
 cannot disregard the direction of the court in case it is of 
 opinion that the fact of possession is clear. There are 
 undoubtedly cases where the question must be submitted to 
 the jury, as where there are facts tending to show that the 
 possession was doubtful, or was consistent with an unlawful 
 origin, or where the question at issue is the existence or non- 
 existence of an ancient muniment of title ; but where there 
 is a total absence of evidence, except of unmolested, long- 
 continued possession, then there is nothing for the jury to 
 consider, and the court should direct it to presume a lost 
 grant. 1 
 
 § 788. Difference between presumption and prescription. — 
 This presumption should be carefully distinguished from 
 the presumption of a grant in the case of easements ac- 
 quired by prescription. In these latter cases, as we have 
 seen, 3 the periods of the statutes of limitation generally gov- 
 ern. The easement is gained by adverse user ; which, like 
 any fact, must be proved to the satisfaction of the jury. 
 The presumption of a lost deed or other muniment of title 
 will not ordinarily be allowed without a much greater lapse 
 of time. In almost all cases when the title to corporeal 
 hereditaments is involved the statutes of limitation ob- 
 viate the necessity of the presumption of a grant. But 
 when these statutes do not apply, as in case of special ex- 
 emption from their provisions, 3 or when the State is con- 
 cerned, 4 this doctrine may become of great importance. 
 Such presumptions can never arise where all the circum- 
 stances are perfectly consistent with the non-existence 
 of the grant. 5 
 
 1 University of Vermont v, Reynolds, 3 Vt. 542 ; Kingston v, Lesley, 10 S. & R- 
 (Pa.) 383. Compare Carter v. Robinett, 33 Gratt. (Va.) 429. 
 4 See §§ 724, 726. 
 
 3 University of Vermont v. Reynolds, 3 Vt. 542. 
 
 4 Goodtitle d. Parker v. Baldwin, u East, 488. See, further, Casey's Lessee v. In- 
 loes, 1 Gill (Md.), 430; Balto. Chem. Mfg. Co. v. Dobbin, 23 Md. 210; Lannay v. 
 Wilson, 30 Md. 536 ; Campbell v. Smith, 8 N. J. Law, 140; Fitzhugh v. Croghan, 2 
 J. J. Marsh. (Ky.) 429; Million v. Riley, 1 Dana (Ky.), 359; Valentine v. Piper, 22 
 Pick. (Mass.) 85. 
 
 * Arnold v. Stevens, 24 Pick. (Mass.) 106, and cases cited. 
 
€68 TITLE AND EVIDENCE. [§§ 789, 790. 
 
 § 789. Missing links. — The general rule is that in seek- 
 ing to make out proof of record title the plaintiff must go 
 back to the original source, and show a grant either from 
 the State or the United States, and then, should there be a 
 hiatus in the chain of title as shown, twenty years posses- 
 sion in conformity with the deeds will raise a presumption 
 of the existence of the missing links. 1 
 
 § 790. Legal and equitable titles. — Under the reformed 
 procedure, as we have already seen, 3 equitable defenses 
 may be interposed in the action of ejectment, and, where it 
 is possible, the defendant should ask for affirmative relief, 
 so that all questions relating to title and possession may 
 be disposed of in the same action. The converse of this 
 proposition, however, is by no means generally true. In 
 some States the statutes or codes permit the plaintiff to 
 recover in ejectment on an equitable title. 3 But generally 
 the rule is admitted to be that an equitable title will not 
 support ejectment. 4 The late Professor Pomeroy, in his 
 learned work on Eemedies and Remedial Eights, 5 contends 
 with great force that, on principle, the holder of a purely 
 equitable primary right, or the holder of a purely equitable 
 estate or interest in land, carrying with it the right to im- 
 mediate possession, should be able to maintain an eject- 
 ment as well as to defend one by asserting such an interest, 
 but he admits that the judicial decisions have not yet sat- 
 isfactorily established any such position. In Missouri the 
 cases have turned upon the question of the relief to be 
 granted and the mode of trial, audit is held that the plaintiff 
 is not entitled to a recovery of possession on an equitable 
 title, chiefly because the defendant in a dispute about the 
 possession is constitutionally entitled to a trial by jury. 6 The 
 
 1 Anderson v. Smith, 2 Mack. (D. C.) 280. 
 - Ante, § 485 et seq. 
 
 'Murray v. Blackledge, 71 N. C. 492; Kansas Pac. Ry. Co. v. McBratney, 12 
 Kan. 9. 
 
 4 See §§ 58, 184a. 
 
 s 2d ed., Boston, 1883, § 98 et seq. 
 
 6 Curd v. Lackland, 43 Mo. 139; Wynn v. Cory, 43 Mo. 301 ; Gray v. Payne, 
 43 Mo. 203; Bobb v. Woodward, 42 Mo. 482; Peyton v. Rose, 41 Mo. 257; Ma- 
 gwire v. Tyler, 47 Mo. 115; Eaton v. Smith, 19 Wis. 537; Gillett 11. Treganza, 13 
 Wis. 472; Henderson v. Dickey, 50 Mo. 161; Emeric v. Penniman, 26Cal.no; 
 
§ 790.] TITLE AND EVIDENCE. 66!) 
 
 case of Phillips v. Gorham, in the New York Court of Ap- 
 peals, 1 does not appear to us, as Professor Pomeroy seems 
 to think, to be in conflict with the decisions cited above. 
 It merely decides that, in an action to recover possession, 
 the plaintiff may attack a deed under which the defendant 
 claims title, both on legal and equitable grounds. The 
 parties were not deprived of a trial by jury. This case was 
 followed and approved by the New York Court of Appeals 
 in the subsequent cases of Lattiu v. McCarty, 2 and Sheehan 
 v. Hamilton. 8 It is difficult to understand why, when an 
 equitable defense is interposed to an action of ejectment, 
 the plaintiff is not as much entitled to this right of trial by 
 jury as the defendant is when the plaintiff attempts to 
 recover on an equitable title. We have already seen that 
 the defendant cannot change the nature of the plaintiff's 
 cause of action by interposing an equitable defense. 4 
 
 On the whole it would seem as if when the plaintiff, as 
 in the case of Phillips v. Gorham, 5 could have his equities 
 adjusted and his legal rights passed upon in the same suit, 
 the fact of his being clothed at the commencement of the 
 proceeding with a merely equitable title, is no objection 
 to his ultimate recovery in ejectment; but even here the 
 defendant is entitled to a jury trial of all issues properly 
 legal, and hence issues of this character must be sent 
 to a jury. In some cases it may be impossible to try 
 in one suit all the questions involved. Thus the holder of 
 an equitable title may have the right to a patent from the 
 government, or to a deed from his vendor. These rights, 
 generally speaking, he can only enforce by a direct pro- 
 ceeding instituted for the purpose of clothing himself with 
 the legal title. He cannot maintain ejectment against one 
 holding the patent title, or to secure a deed from his ven- 
 dor, perhaps because his right to a patent or deed cannot be 
 
 Clark v. Lockwood, 21 Cal. 222; Hartley v. Brown, 46 Cal. 201; Buhne v. Chism, 
 48 Cal. 467; Suttle v. R. F. & P. R. R. Co., 76 Va. 284. 
 
 ' 17 N. Y. 270. 
 
 ! 4iN. Y. 107. 
 
 3 4 Abb. App. Dec. (N. Y.) 211. 
 
 4 See §488. 
 
 " 17 N. Y. 270. 
 
670 TITLE AND EVIDENCE. [§ 791. 
 
 established collaterally. Further than this, without the 
 right to immediate possession, no action of ejectment can 
 ever be maintained, and possession is the usual incident of 
 the legal title. Thus, where the title is in trustees, the in- 
 ability of the cestui que trust to maintain the action is very 
 often independent of the question of procedure. 
 
 § 791. Strength of •plaintiff " 's title. — There is no rule more 
 frequently invoked and applied in cases involving land 
 titles, than that the plaintiff must recover in ejectment 
 upon the strength of his own title. 1 The petitioner or 
 plaintiff in a petitory action 2 or a writ of entry 3 is governed 
 by the same rule. This rule is a canon of the common 
 law which has never been questioned, however much its 
 meaning may have been misunderstood. The application 
 of the principle is not to be understood as requiring the 
 plaintiff at the outset, in making out his title, to trace the 
 chain back to the first grantor, but only that so much of 
 his title shall be exhibited as will put the defendant to 
 proof of a title superior to a mere naked possession. 4 
 Thus the possession of the ancestor at the time of his 
 death, under color of title, is sufficient evidence, prima 
 facie, to support ejectment by the heir. 5 The rule in 
 ejectment that the plaintiff must recover if at all on 
 the strength of his own title, and not upon the weak- 
 ness of that of his adversary, is held not to apply to 
 possessory actions for mining claims, where neither party 
 has, strictly speaking, any legal title, and where the prior 
 possession of plaintiff is pitted against the present pos- 
 session of the defendant. 6 Practically the real question 
 involved in all such cases is ; which, as against the other, 
 has the better right to mine the land in question ? 7 
 
 1 Wallace v. Swinton, 64 N. Y. 188, 192 ; Roe v. Harvey, 4 Burr. 2484, 2487, 
 per Lord Mansfield; Hurley v. Street, 29 Iowa, 429; Bradley v. Ewart, 18 W. Va. 
 598 ; Becker v. Howard, 47 How. Pr. (N. Y.) 423. 
 
 3 Winchester v. Cain, 1 Rob. (La.) 421 ; Gilmer v. Poindexter, 10 How. 257, 
 267. 
 
 3 Miller v. Ewer, 27 Me. 509. 
 
 4 Hartley v. Ferrell, 9 Fla. 375. 
 
 5 Wheeler v. Ladd, 40 Ark. 108. 
 
 6 Strepey v. Stark, 7 Col. 614, 621. 
 
 7 Richardson v. McNuIty, 24 Cal. 339. 
 
§792.] TITLE AND EVIDENCE. 671 
 
 § 792. Facts entitling plaintiff to recovery. — In order to 
 maintain an action of ejectment the plaintiff must first 
 prove title in himself, or the right to immediate possession 
 at the time of commencing the suit. This right must 
 exist at the time the suit is instituted ; a right of posses- 
 sion prior or subsequent to that time will not avail. 
 Plaintiff must then prove that possession was unlawfully 
 withheld at the time. A failure to prove either of these 
 essential elements will defeat the action. 1 If the plaint- 
 iff derives title from the State, inasmuch as the pos- 
 session of the State is always held to accompany its title, 
 it is not necessary for him to show any actual possession 
 until some adverse title is shown. But in every other 
 case the plaintiff must show an actual possession in him- 
 self, or in some person under whom he claims ; otherwise 
 he cannot maintain the action, and the defendant will be 
 ■entitled to a nonsuit or verdict as the practice of the court 
 may require. 2 A deed is not in itself evidence of title. As 
 the execution and delivery of a deed is no proof of title in 
 the grantor, the claimant of title can never rest upon the 
 mere production of a deed. 3 There must be evidence of the 
 grantor's possession. 4 It is also to be observed that while 
 the plaintiff may, if he please, prove a mere prima facie title, 
 or a very low degree of title, he must introduce his whole 
 evidence under it ; for it is only when the defendant has 
 offered evidence in disproof of this title that the claimant 
 can give evidence in reply. The most common instance 
 of a plaintiff being allowed to recover on a very low degree 
 •of title is that of a possessor obtaining a verdict against 
 an intruder. There the plaintiff may rest without tracing 
 title to any acknowledged source. 5 
 
 1 Ante, § 236, and cases cited; Herbert v. King, 1 Mont. 475 ; a. <-i. 5 Mor. Min. 
 Rep. 303. 
 
 2 Graves v. Amoskeag Co., 44 N. H. 462; Clarke v. Diggs, 6 Ired. (N. C.) Law, 
 159. 
 
 3 Smiths. Lawrence, 12 Mich. 431. 
 
 4 Miller v. Downing, 54 N. Y. 631; see Chap. XXVII. 
 
 6 Cole on Ejectment, 213, 300; Burt v. Panjaud, 99 U. S. 180. See Chap. 
 XXVII. It has been held in Tennessee, that a sheriff's deed, sustained by judgment, 
 execution and sale will authorize a verdict against the execution debtor in posses- 
 sion. This is founded on the presumption that the debtor had a legal estate subject to 
 levy and sale. Consequently in such a case, the plaintiff would only have to show the 
 
672 TITLE AND EVIDENCE. [§ 793. 
 
 § 793. Title ly execution. — If the plaintiff relies on title 
 derived from a sheriff's sale, two classes of cases are men- 
 tioned in the books ; first, those in which he brings eject- 
 ment against the execution defendant ; and second, those 
 in which the action is against a stranger to the judicial 
 proceedings under which the title is derived. In the for- 
 mer case, although there are authorities holding the con- 
 trary, it is enough for the plaintiff to show the execution 
 and proceedings under it ; 1 but if the defendant is not a 
 party or privy to these proceedings, a valid judgment must 
 be proved. 2 In a controversy between a purchaser and the 
 execution debtor, it is not necessary to show title in the 
 debtor at the time of the sale, but this is not the rule as 
 against a person other than the execution debtor. 8 Thus, 
 when the plaintiff as purchaser under the execution sale 
 brings ejectment against one claiming under the execution 
 defendant, on the ground that the defendant's title is void 
 as against creditors, the judgment on which the execution 
 issued is not conclusive evidence that the plaintiff was a 
 creditor as against the defendant, the latter not having had 
 any notice of it, and not being privy to it. 4 The cases on this 
 subject are not harmonious, and the limits of our space for- 
 bid us to do more than to briefly refer to a few of them. 
 With regard to the burden of proof, it has been held that 
 where a party relies on a sheriff's deed, it is only necessary 
 to prove the execution sale and the deed, and either estab- 
 lish title in the defendant, or possession subsequent to the 
 rendition of the judgment; and the burden of proof is 
 thereby cast upon the opposite party. 5 In North Carolina 
 it is said to be the rule that when the purchaser at the 
 sheriff's sale is the plaintiff in the execution, in an action 
 by him to recover the land purchased, it is incumbent 
 upon him to show both a judgment and execution, but if 
 
 debtor's possession and the subsequent proceedings to divest his title. Kimbrougb 
 v. Benton, 3 Humph. (Tenn.) 129. 
 
 1 2 Greenl. Ev. § 316, and cases cited ; Rutherford v. Raburn, 10 Ired. (N. C.) Law, 
 144; McKee v. Lineberger, 87 N. C. 181. 
 
 2 Tebbets v. Estes, 52 Me. 566; Cauly v. Blue, 62 Ala. 77. 
 
 3 Wilson v. Spring, 38 Ark. 181 ; Roper on Jud. Sales, § 1078 et seq. 
 
 4 Inman v. Mead, 97 Mass. 310. 
 
 * Hartley v. Ferrell, 9 Fla. 374 ; Whatley v. Newsom, 10 Ga. 74. 
 
§ 794.] TITLE AND EVIDENCE. 673 
 
 the purchaser is not the plaintiff in the execution he need 
 only prove the execution. 1 It was argued in the case of 
 Cooper v. Galbraith, 2 that the defendant might controvert 
 the execution title by showing that it was, at the time of 
 the sale, of an equitable character aud that he relinquished 
 the possession and afterwards re-entered. This was on the 
 ground that the decisions holding that such a title could 
 not be controverted by the judgment debtor or those claim- 
 ing under him, rested on the theory that the relations of the 
 parties were similar to those of a landlord and a tenant hold- 
 ing over, and that relinquishment and subsequent re-entry 
 would destroy the privity between them. But it was held 
 that he could not relieve himself of the estoppel by any 
 such device. The case of Carson v. Boudinot s was dis- 
 tinguished by the court from the case at bar, as that was 
 ejectment brought by the purchaser of a mere equity, not 
 against the debtor but against the owner of the legal es- 
 tate under whom the debtor claimed an equitable title. A 
 number of cases with regard to making title under execu- 
 tion are collected below ; and it may be advisable to add 
 that the force and effect of the muniments of title in these 
 cases is frequently regulated by statute. 4 
 
 § 794. Title by judicial record. — When the title rests 
 upon a judgment or decree the rules governing the admis- 
 sibility of such records in other actions control. It is 
 usually necessary to prove the whole record, but this is 
 by no means always essential. 5 In the recent case of Wil- 
 son v. Spring, 6 the Supreme Court of Arkansas had occasion 
 
 1 McKee v. Lineberger, 87 N. C. 181. 
 '' 3 Wash. 546. 
 
 3 2 Wash. 33. 
 
 4 Splahn v. Gillespie, 48 Ind. 397 ; Carpenter v. Doe, 2 Ind. 465 ; White v. 
 Cronkhite, 35 Ind. 483 ; Mercer v. Doe, 6 Ind. 80; Lewis v. Phillips, 17 Ind. 108; 
 Evans v. Ashby, 22 Ind. 15 ; Comparet v. Hanna, 34 Ind. 74; Armstrong v. Jack- 
 son, I Blackf. (Ind.) 210; Frakes v. Brown, 2 Blackf. (Ind.) 295 ; Burke v. Tregre, 
 22 La. Ann. 629; Davis v. Wilcoxen, 5 La. Ann. 583; Mithoff v. Dewees, 9 La. Ann. 
 55°; Millers. Wilson, 32 Md.297 ; Matter of Smith, 4 Nev. 254; Lenox v. Clarke, 52 
 Mo. 115; Hughes v. Watt, 26 Ark. 228 ; Fischer v. Eslaman, 68 111. 78 ; Boatright 
 11. Porter's Heirs, 32 Ga. 130. As to the effect of the recitals in a sheriff's deed, see 
 Rorer on Jud. Sales (2d ed.), §§ 1011 et seq. 
 
 "iGreenl. Ev. §§ 510, 511. 
 ' 38 Ark. 181. 
 
 43 
 
674 TITLE AND EVIDENCE. [§ 794. 
 
 to consider this subject. The plaintiff's title rested on a 
 decree in chancery, of which a certified copy was produced. 
 All the original records in the case had been destroyed 
 by fire. The court held that the certified copy was ad- 
 missible on this ground, but added: "A decree which 
 proprio vigore vests title, seems, in our State, to stand in 
 the place of a deed from one party to the other, or of a 
 commissioner's deed on a sale duly confirmed. It operates 
 in rem, as it were, upon property within its jurisdiction. 
 It cannot be collaterally attacked for irregularity in the 
 proceedings, if it be in a case where jurisdiction has 
 attached to the property, and the persons to be aifected. 
 The recitals in it, of notice to the person, are evidence 
 of the fact, aud the court has general jurisdiction of 
 all the lands in the county. The decree itself is a muni- 
 ment of title, and may be recorded as such in the Ee- 
 corder's office, without the accompanying proceedings. 1 
 The rule requiring the introduction of whole records, 
 where jurisdiction has been established, seems, from the 
 reasons usually given, to have been directed to cases in 
 which a judgment was offered as an estoppel as to some 
 facts or conditions necessary to be established in order to 
 sustain it, and was for the purpose of showing by the 
 pleadings and proceedings what facts were really in issue. 
 It can have no reasonable application to a case where a 
 decree proprio vigore establishes the status of property, as 
 to ownership, and binds all parties to the suit in that re- 
 gard, wholly regardless of what the previous proceedings 
 may have been. That is the case now in judgment. What 
 good purpose could the rest of the record serve? The 
 decree is, in any case, admissible to show that it was 
 rendered, and the law gives it effect until reversed or 
 shown to be void. Its recitals show prima facie that there 
 was jurisdiction, and it can only be voidable. Its effects, 
 until reversed, are the same, whether the proceedings 
 were regular or irregular, whatever may have been the 
 course of pleading or the nature of proof. Why, theu, in 
 such cases, impose upon the litigant the expense of pro- 
 
 Citing Gantt's Digest, Laws of Ark. § 3642. 
 
§§795,796.] TITLE AND EVIDENCE. 675 
 
 «uring a voluminous record? or upon the court the trouble 
 and delay of examining it, when in any event the effect of 
 the decree in divesting and investing title would be the 
 same?" 1 
 
 § 795. Title oy relation. — Whenever in actions to try 
 title it becomes necessary to advance the ends of justice 
 to treat a title as vesting at some date different from the 
 time when it vested by operation of law, this is said to be 
 accomplished by relation. The doctrine of relation is a 
 fiction of law adopted solely for the purpose of further- 
 ing the ends of justice, and is only applied for the security 
 and protection of persons who stand in privity with the 
 person who initiated proceedings for the land, and ac- 
 quired the equitable claim, or title. 3 The limitation of its 
 operation is that it shall do no wrong to strangers, 3 and in 
 Florida, and probably wherever ejectment cannot be 
 brought except upon a legal title vested at the time of 
 commencing the suit, the plaintiff cannot by relation avail 
 himself of an after-acquired title. 4 
 
 § 796. Ejectment founded on a forfeiture. — When eject- 
 ment is founded on an alleged forfeiture of an estate, for 
 breach of condition, or otherwise, the general rule is, that 
 clauses of re-entry are to be construed strictly. 5 It has 
 been said in England that clauses of re-entry in leases, 
 however, should be construed like ordinary contracts, 6 and 
 that the distinction between freeholds and chattel inter- 
 ests, with respect to the effect of conditions, is that the 
 freeholds can only be determined by the entry of the 
 lessor on the condition broken, but that the breaking of 
 the condition determines the chattel interest. There is 
 no doubt that in such cases the onus probandi is thrown 
 upon the landlord to establish a breach of condition, be- 
 
 1 Wilson v. Spring, 38 Ark. 181, 187. 
 
 2 Spratt v. Rice, 18 Fla. 289, 310 ; citing Lynch v. Bernal, 9 Wall. 315 ; Jackson 
 w.Bard, 4 Johns. (N. Y.) 230; Heath v. Ross, 12 Johns. (N. Y.) 140. 
 
 3 Ibid. 
 
 4 Paul v. Fries 18 Fla. 573. See §§ 454^, 495, 541. By the doctrine of rela- 
 tion an escheat grant relates back to the original grant. Casey's Lessee v. lnloes, I 
 Gill (Md.), 430, 507. 
 
 6 Doe d. Palk v.. Marchetti, 1 B. & Adol. 715, 720. See §§ 367, 368. 
 9 Doe d. Davis v. Elsam, Moody and M. 189. 
 
676 TITLE AND EVIDENCE. [§ 797, 
 
 fore the defendant need show performance. 1 A forfeit- 
 ure of any kind must be established by a direct proceed- 
 ing. Thus, in an action of ejectment, the plaintiff, a 
 corporation, made out an unquestioned prima facie title 
 and continued occupation for twenty years prior to the 
 defendant's entry. Defendant claimed under a tax title. 
 It appeared that the property of the company was by law 
 exempted from taxation, and it was argued for the defend- 
 ant that the company had forfeited its title for non-user, 
 thus making the sale and tax title good. But the Supreme 
 Court held that such a forfeiture could only be established 
 by a direct proceeding on the part of the public authori- 
 ties, and could not be brought up collaterally in this 
 action. 2 
 
 § 797. Title by part performance. — Statute of frauds. — 
 Although, as a general rule, under the provisions of the 
 Statute of Frauds, contracts for the sale of interests in 
 land must be in writing, in case of part performance under 
 an oral contract, and a fortiori of a full performance, a right 
 to an interest in land may be acquired without any written 
 evidence whatever. 3 The title thus acquired is an equi- 
 table one, resting, as has been variously held, on fraud, 
 estoppel, and the impossibility of restoring the parties to 
 their original position. Being equitable .in its nature, it is 
 ordinarily not sufficient to support ejectment, though it 
 may be interposed as a defense. In Pennsylvania, where 
 equitable ejectment by the vendee is allowed, and where 
 an action of ejectment upon an equitable title is a substi- 
 tute for a bill in equity for specific performance, the ver- 
 dict and judgment have all the conclusive effect of a decree 
 in chancery. In a recent leading case in that State this 
 principle was applied in the case of a title by part perform- 
 ance, and it was held that one action, where the defense 
 consisted of such a title, was conclusive. 4 As between the 
 
 1 Doe d. Palk v. Marchetti, i B. & Adol. 720 ; Doe v. Robson, 2 C. & P. 245- 
 Compare Woolley v. Newcombe, 87 N. Y. 605. 
 
 2 Mackall v. Chesapeake & O. Canal Co., 94 U. S. 308. See § 184a. 
 
 3 See §32ia; Reed on the Statute of Frauds, Chaps. XXIV-XXX; Eberly v. 
 Lehman, 100 Pa. St. 542; Miller v. Ball, 64 N. Y. 286. 
 
 4 Winpenny v. Winpenny, 92 Pa. St. 441; ». c. 7 W. N. C. (Pa.) 112, 114. 
 
§§ 798, 798a.] title astd evidence. 677 
 
 parties, title by part performance vests from the time of 
 the contract and not from the performance of those acts 
 which remove the bar created by the statute. 1 
 
 § 798. Title by parol gift. — Under the same head as the 
 foregoing fall what are commonly called gifts — oral trans- 
 fers of land. The evidence of such contracts, especially 
 between parent and child, generally requires close scru- 
 tiny, for it is by no means uncommon to place children in 
 possession of land without any intention of effecting a 
 ■change of title. 2 In Moore v. Small, 3 it is said that such 
 •contracts are not, properly speaking, gifts, because, as in 
 the case of all other agreements, there must be a considera- 
 tion, and that a. chancellor would treat evidence of " parol 
 gift" as "rubbish." The learned court added: "It is 
 true, the consideration may be in a prejudice to the vendee, 
 as well as in a benefit to the vendor. And if it be said 
 that a son, who goes upon land under a promise of a con- 
 veyance from his father, and expends his labor and money 
 in making valuable improvements which cannot be reason- 
 ably compensated, is entitled to a decree of conveyance, 
 it is because he is a purchaser for a valuable considera- 
 tion." But this appears to be merely another way of say- 
 ing that if it would be an injustice to the donee not to up- 
 hold the transfer, the conveyance will be excepted from 
 the statute. 
 
 § 798a. Title by estoppel. — Ejectment may even be main- 
 tained on a title by estoppel. Thus, in Stoddard v. Cham- 
 bers, 4 the Supreme Court of the United States supported 
 an action where the plaintiff's claim was derived from a 
 conveyance made when the grantor had not the legal title. 
 He afterwards acquired this title, which inured to those 
 claiming under him by way of estoppel, and the court laid 
 it down that "on a title by estoppel, an action of ejectment 
 may be maintained." This is probably to be confined, 
 however, to cases when the estoppel is by deed or record. 
 
 1 Mactier v. Frith, 6 Wend. (N. Y.) 103, 112. 
 
 2 Shellhammer v. Ashbaugh, 83 Pa. St. 28; Edwards v. Morgan, 100 Pa. St. 
 330; Willis v. Matthews, 46 Tex. 482; Freeman v. Freeman, 43 N. Y. 34. 
 
 3 19 Pa. St. 461, 469. 
 "2 How. 284, 317. 
 
678 TITLE AND EVIDENCE. [§§ 799, 830. 
 
 It is difficult to see how ejectment could be supported 
 resting solely on a mere equitable estoppel in pais. 1 
 
 § 799. Order of proof. — Where the real question in con- 
 troversy appears to be in regard to the title solely, the 
 onus of establishing a good title rests upon the plaintiff, 
 and he may usually commence with any part of his evi- 
 dence, and is not compelled to pursue any particular order 
 of proof in tracing his title. 2 But the testimony as pro- 
 posed must appear to be pertinent to the matter in contro- 
 versy, or be accompanied by an offer to show its relevancy 
 in the progress of the cause. 3 And this privilege of the 
 plaintiff is always exercised subject to the discretion of 
 the court. 4 
 
 § 800. Burden of proof. — It is necessary for the plaintiff" 
 to deduce title from some source before he can recover, 
 and until he shows a paramount title the defendant is en- 
 titled to a verdict, and this without producing the evidence 
 on which his right is based. 5 Possession is always either 
 regarded as prima facie evidence of title or as a species of 
 title itself, and a party cannot be deprived of possession by 
 any one but the lawful owner. This is but another way of 
 stating that the plaintiff must recover on the strength of 
 his own title and not upon the weakness of that of bis 
 adversary. 6 Even against a mere trespasser the plaintiff 
 must show prior possession. 7 Iu a suit by the State or 
 government the same rule prevails. In a leading New 
 York case, in which the subject was carefully considered,* 
 it was insisted, as we have already shown, 9 that the people 
 were presumptively owners of all the lands in the State, 
 and that, therefore, in an action of ejectment, they were 
 entitled to a verdict on showing the defendant in posses- 
 
 1 See Big. on Estoppel, 328. See, also, Chap. XXXII. 
 
 2 Langley v. Jones, 26 Md. 462. See Caton v. Carter, 9 G. & J. (Md.) 476. 
 
 3 Warner v. Hardy, 6 Md. 538. 
 
 4 McKee v. Lineberger, 87 N. C. 181. 
 
 5 Henry z>. Reichert, 22 Hun(N. Y.), 394; Cobb v. Lavalle, 89 111. 331; Holbrook 
 v. Nichol, 36 111. 168. 
 
 6 Boylan ads. Meeker, 28 N. J. Law, 297 ; Love v. Simms, 9 Wheat. 515 ; Jackson 
 v. Harrington, 9 Cow. (N. Y.) 86; 2 GreenL Ev. § 331. 
 
 'See § 718. 
 
 8 People v. Trinity Churchy 30 Barb. (N. Y.) 537 ; s. c. on appeal, 22 N. Y. 44- 
 
 'See § 192. 
 
§§801, 802.] TITLE AND EVIDENCE. . 679 
 
 sion, or, in other words, that in such a suit the burden of 
 proof was always on the defendant. But the Supreme 
 Court and Court of Appeals both decided that there was 
 no such presumption in favor of the people until it was 
 shown that possession had been vacant within the statu- 
 tory period. 
 
 § 801. Bight to begin and reply.— The right to begin and 
 reply depends upon the question of the burden of proof, 
 and as to this, the general rule is that the burden lies at 
 first on the party against whom the judgment of the court 
 would be given if no evidence were introduced on either 
 side. 1 In ejectment the plaintiff is generally entitled to 
 begin, because the onus lies on him to prove his title. But 
 the defendant will be allowed to begin upon admitting the 
 whole of the plaintiff's case, and relying upon a totally 
 distinct title. 2 The admission must not stop short of this 
 point. Thus, when plaintiff claims under a will and the 
 defendant under another will of later date, the plaintiff is 
 still entitled to begin, because an admission of the will 
 under which the plaintiff claims, without admitting it to be 
 the testator's last will, is insufficient. 3 As a general rule, 
 the right to reply is incident to the right to begin ; but 
 this general rule is subject to exceptions ; thus, where in 
 ejectment the lessor, claiming as heir-at-law, proved his 
 pedigree and stopped, and the defendant, claiming as de- 
 visee, set up a new case, which the lessor of the plaintiff 
 answered by evidence, it was held that the defendant was 
 entitled to the general reply. 4 
 
 § 802. Production of title papers. — While there is no rule 
 or practice in the common law action of ejectment, which 
 would authorize the court to compel counsel for plaintiff 
 to produce his client's title papers to enable defendant to 
 make out his defense, 5 yet where the object of the request 
 for a production of a title deed is to enable a party to show 
 
 1 I Greenl. Ev. § 74; Stephen's Dig. Ev. Art. 95 ; Younge v. Guilbeau, 3 Wall. 
 636 ; Cox v. Cock, 59 Tex. 521; Smith v. Hutchinson, 108 111. 662. 
 
 2 Cole on Eject, p. 284, and cases cited. 
 
 3 Doe d. Bather v. Brayne, 5 C. B. 655. 
 
 4 Goodtitle v. Braham, 4 T. R. 497. 
 ' Davis v. Davis, 47 Ga. 81. 
 
680 TITLE AND EVIDENCE. [§803. 
 
 it to be a forgery, the rule is otherwise. 1 This matter is 
 sometimes provided for by statute. 
 
 § 803. Common source of title. — Both at law and in equity 
 the plaintiff must recover upon the strength of his own title, 
 but this does not mean that he must show a good title 
 against all the world. It is enough that he shows a right 
 to recover against the defendant. Thus, whenever plaint- 
 iff and defendant both derive title from the same source, 
 the plaintiff usually need not go behind this source to 
 prove his title. 2 Some doubt exists as to how far this rule 
 extends. It is obviously sufficient, in order to make a 
 prima facie case, to prove derivation of title from the com- 
 mon source ; 3 but it may be essential to go behind the 
 common source. Hence, it is held that the rule is not 
 strictly an estoppel, though often spoken of as such, but a 
 rule of justice and convenience adopted by the courts to 
 relieve the plaintiff from the necessity of going behind the 
 common source. 4 Where the defendant can show a better 
 title outstanding, and has acquired it, the rule ceases to 
 apply. 5 When the defendant is allowed to impeach the 
 common source of title he must establish that he himself 
 has acquired a superior title, and except to this extent he 
 is not permitted to invoke the rule that the defendant can 
 defeat the plaintiff by showing a better title in a third per- 
 son. 6 But it is held in New York that, if the defendant's 
 
 1 Faircloth o. Jordan, 15 Ga. 511. 
 
 2 Gaines v. New Orleans, 6 Wall. 642, 715, and cases cited ; Garrett v. Lyle, 27 
 Ala. 589; Mickey v. Stratton, 5 Sawyer, 475 ; Brown v. Brown, 45 Mo. 414; Fel- 
 lows v. Wise, 49 Mo. 350 ; Butcher v. Rogers, 60 Mo. 140 ; Eagle Woolen Mills Co. 
 v. Monteith, 2 Oregon, 282; Ames v. Beckley, 48 Vt. 395 ; Hecht v. Boughton, 2 
 Wyoming, 368; 2 Greenleaf's Ev. § 307; Barton v. Erickson, 14 Neb. 164; Gilliam 
 v. Bird, 8 lied. (N. C.) Law, 280 ;' Ives v. Sawyer, 4 Dev. & Bat. (N. C.) Law, 51 ; 
 Copeland v. Sauls, 1 Jones' (N. C.) Law, 70; Thomas v. Kelly, 1 Jones' (N. C.) 
 Law, 375 ; Feimster v. McRorie, 1 Jones' (N. C.) Law, 547; Henry v. Reichert, 
 22 Hun (N. Y.), 394 ; Bigelow on Estoppel, 283 ; Roosevelt v. Hungate (Supr. Ct. 
 of 111.), 6 Legal Adviser, 48; Wolfe v. Doe d. Dowell, 21 Miss. 103; Whissenhunt v. 
 Jones, 78 N. C. 361. 
 
 3 Cronin v. Gore, 38 Mich. 381 ; Miller v. Hardin, 64 Mo. 545; Brown v. 
 Brown, 45 Mo. 4-2 ; Doe v. Pritchard, 19 Miss. 327 ; Ketchum v. Schicketanz, 73 
 Ind. 137 ; Riddle v. Murphy, 7 S. & R. (Pa.) 230, 235 ; Barton v. Erickson, 14 Neb. 
 164 ; Conger v. Converse; 9 Iowa, 554. 
 
 4 Johnson v. Watts, 1 Jones' (N. C.) Law, 228; Frey v. Ramsour, 66 N. C. 466; 
 Christenbury v. King, 85 N. C. 229. 
 
 5 Christenbury v. King, 85 N. C. 229; Caldwell v. Neely. 81 N. C. 114; Cope- 
 land v. Sauls, 1 Jones' (N. C.)Law, 70; Johnson v. Watts, 1 Jones' (N. C.)Law, 228. 
 
 6 Thomas v. Kelly, 1 Jones' (N. C.) Law, 375 ; Feimster v. McRorie, 1 Jones' 
 
§ 804.] TITLE AND EVIDENCE. 681 
 
 evidence shows that the common grantor had no title what- 
 ever, this is fatal to plaintiff's recovery. 1 And where the 
 plaintiffunuecessarily goes behind the common grantor, and 
 some link in the previous chain of title is defective, this is 
 immaterial. 2 The rule in ejectment holds good in the ordi- 
 nary action of trespass. 3 The rule, that neither party can 
 deny the title of him under whom they both claim, extends 
 to a defendant who claims as a purchaser at a judicial sale, 
 and is said to apply even when the plaintiff himself shows 
 title in a third person. 4 Where the plaintiff is himself the 
 common source, it has been held that the burden of proof 
 devolves upon the defendant at once. 5 
 
 § 804. Evidence of reputation. — Speaking generally, as to 
 all such public matters as the boundaries of manors, coun- 
 ties, municipalities, rights of common, and public highways, 
 the declarations of deceased persons are admissible, while 
 as to matters of private interest they are not competent. 
 This is on the ground that a trustworthy reputation may 
 arise from the discussions, conversations and disputes of 
 many parties unconnected with each other, all having a 
 ■common interest in the subject, while as to private matters 
 no such reputation is likely to arise. 6 Thus in Morewood v. 
 Wood, 7 Lord Kenyon said : " Evidence of reputation upon 
 general points is receivable, because all mankind being in- 
 terested therein, it is natural to suppose that they may 
 be conversant with the subjects, and that they should dis- 
 course together about them, having all the same means 
 
 <N. C.) Law, 547; Barwick v. Wood, 3 Jones' (N. C.) Law, 306; Brown v. Smith, 8 
 Jones' (N. C.) Law, 331 ; Love v. Gates, 4 Dev. & Bat. (N. C.) Law, 363 ;, Nor- 
 wood v. Marrow, 4 Dev. & Bat. (N. C.) Law, 442. See Moseley v. Moseley, 15 N. 
 Y - 334- 
 
 1 Henry v. Reichert, 22 Hun (N. Y.), 394. 
 
 8 Merchants Bank of St. L. v. Harrison, 39 Mo. 433. 
 
 3 McBurney v. Cutler, 18 Barb. (N. Y.) 203, 207. 
 
 4 Feimster v. McRorie, 1 Jones' (N. C.) Law, 547; Gilliam v. Bird, 8 Ired. (N. 
 C.)Law, 280; Murphy v. Barnett, 2 Murph. (N. C.) 251. 
 
 s Brown v. Brown, 45 Mo. 413. 
 
 6 Reg. v. Bedfordshire, 4 E. & B. 535 ; Crease v. Barrett, 1 C. M. & R. 919 ; 
 Butler v. Mountgarret, 7 H. L. Cas. 633 ; Boardman v. Reed, 6 Pet. 328 ; I Whart. 
 Ev., § 185 ; Ellicott v. Pearl, 10 Pet. 412 ; Shutte v. Thompson, 15 Wall. 151 ; 
 Toole v. Peterson, 9 Ired. (N. C.) Law, 180; Shook v. Pate, 50 Ala. 91 ; Cox v. 
 State, 41 Tex. 1 ; Child v. Kingsbury, 46 Vt. 47. 
 
 ' 14 East, 329. 
 
682 TITLE ATSD EVIDENCE. [§ 80(). 
 
 of information. But how can this apply to private titles? 
 . . . How is it possible for strangers to know anything 
 of what concerns only these private titles ? " 
 
 § 895. Reputation as to private boundaries. — In many of 
 the United States the rule that evidence of reputation 
 must relate to matters of public or common interest is 
 said to have been departed from by admitting the same 
 evidence as to private boundaries. 1 Thus, in Sasser v. 
 Herring, 2 the Supreme Court of North Carolina says: 
 " We have, in questions of boundary, given to the single 
 declarations of a deceased individual, as to a line or 
 corner, the weight of common reputation." Evidently this 
 is not, properly speaking, evidence of reputation at all, 
 and the language with regard to such evidence used by 
 the Supreme Court of the United States in Hunnicutt 
 v. Peyton, is peculiarly appropriate. "They [the decla- 
 rations] are not to be confounded with proof of reputa- 
 tion, — proof of what the community thought, believed or 
 said. As repeated by the witness, they were mere hear- 
 say, the unsworn declarations of a deceased person respect- 
 ing a particular fact not of a public nature. We do not 
 question that such declarations of reputation respecting 
 ancient public boundaries are admissible, and they have 
 sometimes been admitted in controversies respecting pri- 
 vate boundaries. But they are admissible in only a limited 
 class of cases, — a class much more limited than that in 
 which such evidence is offered to prove reputation of 
 public boundaries. Proof of reputation is open to re- 
 buttal by witnesses. Not so with declarations of a par- 
 ticular fact respecting a private boundary. They are, 
 therefore, receivable only when made coincidently with 
 pointing out the boundaries and generally as part of the 
 res gestceJ" s Referring to the apparently conflicting decis- 
 ions the court lays down the following as to the general 
 
 §145. 
 
 ! 3 Dev. (N. C.) Law, 340, 342. 
 
 3 Hunnicutt v. Peyton, 102 U. S. 333, 363. 
 
§ 805. J TITLE AND EVIDENCE. 68$ 
 
 conclusion to which they point : "In questions of private 
 boundary, declarations of particular facts, as distinguished 
 from reputation, made by deceased persons, are not admis- 
 sible unless they were made by persons who, it is shown, 
 had knowledge of that whereof they spoke, and who were 
 on the land, or in possession of it when the declarations 
 were made ; " i. e., "they must have been made when the 
 declarant was pointing out or marking the boundaries or 
 discharging some duties relatiug thereto " And the court 
 declares the decisions of the Supreme Court of Texas, from 
 which the case came up, not to be in conflict with this 
 rule. It seems in many cases to have been overlooked, 
 that the common law rule restricting evidence of reputa- 
 tion to matters of public interest, i. e., to matters in which 
 a considerable number of people have a direct interest, is 
 not an arbitrary one, for about a really private matter- 
 there can hardly be evidence of reputation at all. Bound- 
 aries in the United States being generally run under pub- 
 lic surveys, must often come within the spirit if not the 
 letter of the common law rule, and in a newly settled 
 country, as has been said by some of the courts, there 
 was, of necessity, a certain relaxation of the old rule. 
 Again in England, the absence of recording acts, and the 
 fact that title deeds are not accessible to strangers, and 
 that the boundaries of private lands are generally not 
 dependent upon public surveys laying down lines and 
 corners in which large numbers of people have a com- 
 mon interest, make evidence of reputation as to a pri- 
 vate boundary out of the question. In Massachusetts, 
 where the subject has received a good deal of attention, 
 the rule has been laid down that evidence of reputation 
 as to private boundaries in which no considerable number of 
 persons have any legal interest cannot be received. Decla- 
 rations as to boundaries constituting part of the res gest<z 
 stand, in that State as elsewhere, on an entirely different 
 footing. 1 
 
 1 Boston Water Power Co. v. Hanlon, 132 Mass. 483; Hall v. Mayo, 97 Mass. 
 416 ; Green v. Chelsea, 24 Pick. (Mass.) 80; Bartlett v. Emerson, 7 Gray (Mass.), 
 174; Long v. Colton, 116 Mass. 414. See these cases considered by Mr. S. G. 
 Croswell, the editor of the 14th edition of Greenleaf. 1 Greenl. Ev., 194, note a. 
 
684 TITLE AND EVIDENCE. [§§ 806, 807. 
 
 § 806. Conclusions from the cases. — After examining a 
 great number of cases on this point, we are inclined to 
 believe that the following general conclusions may be 
 relied upon : 
 
 First. Many American cases will be found in which it 
 is said, that evidence of reputation is admissible to estab- 
 lish private boundaries. In most of these the remarks of 
 the court are obiter, and the cases were actually rested on 
 different grounds. 1 
 
 Second. In a multitude of cases the evidence has been 
 rejected by the courts, and in these, of course, the general 
 language on the subject is of little weight. 
 
 Third. The courts have frequently failed to discriminate 
 carefully between declarations which were part of the res 
 gestm or declarations against interest, and evidence of 
 reputation. 
 
 Fourth. Inasmuch as there can be no evidence of repu- 
 tation, except where a considerable number of persons are 
 at least cognizant of the subject-matter of the dispute, the 
 true rule would seem to be that laid down by the Massa- 
 chusetts Supreme Court already referred to. 2 
 
 Fifth. Owing to the peculiar land system of this coun- 
 try, in all tbe new States and territories, the lines and 
 corners of public surveys, are actually matters in which 
 large numbers of people have a common interest, and in 
 which, on principle, evidence of reputation, where tbese 
 lines and corners serve as private boundaries, ought to be 
 admitted. 3 
 
 § 807. Particular facts. — It is frequently said that evi- 
 dence of reputation is not admissible as to particular facts 
 of a private nature, 4 but this seems to be merely a different 
 way of expressing the general rule. If the fact relates to 
 matters in which a large number of persons have a pecun- 
 iary interest or stake, a true reputation may grow up con- 
 
 1 E. g., see the New Hampshire cases, Shepherd v. Thompson, 4 N. H. 213 ; 
 Great Falls Co. v. Worster, 15 N. H. 412, 437; Smith v. Forrest, 49 N. H. 230, 
 237. 
 
 2 Boston Water Power Co. v. Hanlon, 132 Mass. 483. 
 
 •' A strictly piivate question may be so involved with a public one, however, that 
 it is impossible to sever them, and in this case the evidence cannot be excluded. 
 Reg. v. Bedfordshire, 4 E. & B. 535. 
 
 1 Shutte v. Thompson, 15 Wall. 151. 
 
§ 808.] TITLE AND EVIDENCE. 685 
 
 cerning it ; otherwise not. 1 All evidence, even that of 
 reputation, must relate to particular facts. The question 
 as to a boundary, or as to the lines and corners and monu- 
 ments which make up a boundary, must relate to par- 
 ticular facts. In Shutte v. Thompson, 2 the court refused 
 to admit evidence respecting the reputation in a neighbor- 
 hood as to a "poplar corner," unless it was derived from 
 ancient sources, and traditionary in its character. This 
 ruling was sustained by the Supreme Court, but the fact 
 that it related to a particular tree could not have been a 
 reason for excluding it. Evidence of reputation as to par- 
 ticular trees or stumps being the corners called for seems 
 to be regarded as admissible. 3 In Fraser v. Hunter, 4 the 
 court permitted a witness to be asked whether "Hall's 
 Spring" was generally called " The Head of Long Branch," 
 this being one of the calls of a patent, while refusing to 
 permit her to be asked whether the spring was one gener- 
 ally reported to be on land of the plaintiff's, and at the 
 same time permitting the question to be put: "Do you 
 know, by general reputation, any of the lines or boundaries 
 or corners of Mr. Walter Alexander's land ? " 
 
 § 808. Declaration of deceased owner as to ooundary. — In 
 a recent case 5 the Court of Appeals of West Virginia has 
 examined the question of the admissibility of declarations 
 of deceased owners of lauds as to boundaries, and reached 
 the conclusion, on a review of several cases, 6 that such 
 declarations stand on the footing of any others, and that 
 if the owner had no interest to misrepresent they are 
 admissible, otherwise not. Declarations by a party in 
 possession that he has paid for the land, or that the title 
 has been vested in him by deed, are not admissible,' and 
 the cases may perhaps be reconciled by the following con- 
 
 1 I Greenl. Ev., § 138. 
 
 ' 15 Wall. 151. 
 
 3 Murray v. Spencer, 88 N. C. 357; Icehour v. Rives, 10 Ired. (N. C.) Law, 256. 
 
 * 5 Cranch's C. C. 470. 
 
 6 Corbleys v. Ripley, 22 W. Va. 154. 
 
 6 Chapman v. Edmands, 3 Allen (Mass.), 512; Long v. Colton, 116 Mass. 414; 
 Great Falls Co. v. Worster, 15 N. H. 412 ; Smith v. Forrest, 49 N. H. 230 ; Caufman 
 v. Cong, of Cedar Spring, 6 Binn. (Pa.) 59, 
 
 ' Feig v. Meyers, 102 Penn. St. 10. 
 
686 TITLE AND EVIDENCE. [§§ 809-811. 
 
 sideration, viz.: that declarations regarding the character 
 and extent of possession (boundaries) are frequently 
 against interest, or at least unbiassed, while declarations 
 of the other species are manifestly in the nature of inter- 
 ested assertions. 1 A recent New Hampshire case illus- 
 trates the difference between declarations by a deceased 
 owner in his own favor and those against his interest. 2 It 
 was held that declarations made after the execution of a 
 deed, and not part of the res gestce, were inadmissible if 
 tending to impeach the title created by the deed, but 
 admissible if tending to support it. 
 
 § 809. Statements of deceased grantor — A deceased per- 
 son's statements are not admissible in favor of the heir or 
 executor, unless some rule of evidence would admit them 
 in favor of the decedent if living, as for instance the rule 
 of res gestce. s 
 
 § 810. Statements qualifying possession. — Res gestae. — In 
 Tennessee it is said that if a party make a deed, and re- 
 tain possession inconsistently with its terms, his state- 
 ments in explanation of his possession may be received as 
 part of the res gestce ; but that it is otherwise where his 
 possession is consistent with the terms of the deed. 1 
 
 § 811. Declarations as part of tlie res gestae. — Professor 
 Greenleaf in his Treatise on Evidence suggests that there 
 is no reason why every declaration accompanying the 
 acts of possession, whether in disparagement of the claim- 
 ant's title or otherwise qualifying his possession, if made 
 in good faith, should not be received as part of the res 
 gestce, leaving its effect to be governed by other rules of 
 evidence. 5 Such, we believe, to be the general tendency 
 of the somewhat divergent rules laid down in the different 
 States on this subject. Thus it is said in Massachusetts, 
 that the declarations of " ancient persons " deceased at the 
 time of trial, made while in possession of land owned by 
 
 1 See further, Quirm v. Eagleston, 108 111. 248. 
 9 Perkins v. Towle, 59 N. H. 583. 
 
 3 Kenney v. Phillipy, gi Ind. 511. 
 
 4 Williamson v. Williams, 11 Lea (Term.), 355. 
 1 Greenl. Ev. § 109. 
 
§ 812.] TITLE AND EVIDENCE. 687 
 
 them, pointing out the boundaries on the land itself are 
 admissible, where nothing appears to show that they were 
 interested to misrepresent in thus pointing out their 
 boundaries ; and it need not appear affirmatively that the 
 declarations were made against interest. 1 And the rule, 
 as suggested by Greenleaf, seems to prevail in Pennsyl- 
 vania and New York. 2 
 
 § 812. Pedigree and family facts. — Questions relating to 
 pedigree, and what are called family facts, of necessity, 
 frequently arise in actions to try title, and it is well settled 
 that such matters may be proved by declarations, both of 
 general facts and of reputation. 3 The rules governing the 
 introduction of such evidence is, however, substantially 
 the same in all classes of cases. We may suggest that 
 what we have already said with regard to evidence of 
 particular facts in boundary cases is applicable here. 4 The 
 general fact to be established in the one case is the 
 boundary line ; in the other that of a line of succession. 
 Eeputation as to the line itself, its corners, angles, dis- 
 tances, etc., in the one case bears an analogy to reputa- 
 tion as to birth, death or marriage in the other, and the 
 distinction sometimes made that " particular facts," 
 though not admissible to prove a boundary, are admis- 
 sible to prove pedigree, 5 seems without foundation. The 
 evidence admitted as to family facts may rest on a variety 
 of grounds. It may consist of declarations of deceased 
 persons as to reputation in the family; it may consist of 
 declarations against interest, it may come in as part of 
 the res gestrn. It is generally difficult and often impos- 
 sible to discriminate between these, one ground of admis- 
 sion being usually complicated with another. Sir James 
 Stephen, in bis Digest of the Law of Evidence, gives 
 three cases in which declarations as to pedigree are inad- 
 
 1 Wood v. Foster, 8 Allen (Mass.), 24 ; Long!'. Colton, 116 Mass. 414. 
 
 2 Bender v. Pitzer, 27 Penn. St. 333; Abeel v. Van Gelder, 36 N. Y. 513; 
 Swettenham v. Leary, 18 Hun (N..Y.), 284. 
 
 3 Cuddy v. Brown, 78 111. 415 ; 1 Greenl. Ev. 103 et seq.; 1 Wharton's Ev. 201 
 £t seq. 
 
 4 Berkeley Peerage Case, 4 Campb. 415, Mansfield, J. 
 ' 1 Whart. Ev. § 209. 
 
688 TITLE AND EVIDENCE. [§ 812. 
 
 missible. First, they are not admissible unless the pedi- 
 gree is itself in issue ; second, they are not admissible if 
 the declarant is neither a blood relation to the person 
 whom they concern, nor the husband or wife of such a 
 relation ; third, they must be made before the question 
 in relation to which they are to be proved has arisen 
 (though not considered irrelevant because made for the 
 purpose of preventing the question from arising). 1 
 
 Sir James Stephen supports the first of these exceptions 
 by a reference only to the nisi prius case of Whittuck v. 
 Waters. 2 The report does not show anything more than 
 that a witness was not allowed to prove a death by testify- 
 ing that he " had heard in the family that the person was 
 dead " — evidence manifestly inadmissible. On the other 
 hand, the Supreme Court of Massachusetts has decided, 
 after full consideration, that no such rule exists as that 
 suggested by Sir James Stephen. In Inhabitants of North 
 Brookfield v. Inhabitants of Warren, 3 the issue was the 
 settlement of a pauper. The legitimacy of the father of 
 the pauper became a material fact, and to prove this the 
 date of the death of a certain person became important. 
 The court admitted a family document and inscription as 
 on a tombstone (this stands on the same footing with 
 declarations) to prove this fact, and used the following 
 language: "It is not denied that this evidence would 
 have been competent, if it had been introduced to prove 
 a fact directly in issue, such, for instance, as the date 
 of the pauper's birth; but it is contended that it was 
 inadmissible to establish a fact collateral in its nature, 
 from which the main fact in issue was to be deduced by 
 inference. But we know of no such distinction in the 
 rules of evidence. The competency of proof cannot be 
 made to depend on the inference or conclusion which is 
 
 1 Declarations as to age, residence, or place of birth, are not properly declarations 
 as to pedigree. In a case involving a question of pedigree, these would be inad- 
 missible under the rules as to particular facts suggested in the case of boundaries. 
 Adams v. Swansea, 116 Mass. 591; Wilmington v. Burlington, 4 Pick. (Mass.) 174; 
 Londonderry v. Andover, 28 Vt. 416; Roe v. Doe d. Neal, Dudley (Ga.), 168; Car- 
 ter v. Montgomery, 2 Tenn. Ch. 216, 229, and numerous cases cited. 
 
 2 4 C. &P.475- 
 
 3 16 Gray (Mass.), 171. 
 
§§ 813, 814.] TITLE AND EVIDENCE. 689 
 
 sought to be drawn from it. If it is competent to prove a 
 particular fact in controversy when it is directly in issue, 
 it is equally competent when the same fact is to be estab- 
 lished in order to form the ground of an inference or pre- 
 sumption from which the material subject of inquiry can 
 be deduced. The true test is, to inquire whether the evi- 
 dence is admissible to prove the fact which it is offered to 
 establish, and not whether such fact is directly or only 
 collaterally in issue." It may be added to this that the 
 question of pedigree is almost always collateral to the 
 issue in ejectment, and probably in most other cases. 
 The reasoning of the Massachusetts court seems to leave 
 the first exception wholly without support. The second 
 exception states the English rule. In this country the limits 
 of the rule are not well defined. It seems that the decla- 
 rations of strangers, persons not related by blood or mar- 
 riage, are considered by the Supreme Court of the United 
 States inadmissible. 1 In Tennessee it is said that hearsay 
 from others than members of the family, and public repute 
 in the community, are admissible. 8 
 
 § 813. Ante litem motam. — The third exception states a 
 rule which applies to all declarations (though consisting of 
 hearsay), on the ground that they mnst be made by persons 
 occupying an unbiassed attitude. The declaration must 
 have been made before the matter reached the stage of 
 controversy. This does not mean before suit brought, but 
 refers to the commencement of a controversy preparatory 
 to suit actually commenced. 3 Declarations made post litem 
 motam are not admissible, even though it can be proved 
 that the existence of the controversy was not known to the 
 declarant. 4 Probably the question as to the precise time 
 at which the objection of lis mota arises, is one dependent 
 on the circumstances of each particular case, and no gen- 
 eral rule can be laid down. 
 
 § 814. Declarant's relationship must he established oy other 
 
 ' Conn. Mut. Life Ins. Co. v. Schwenk, 94 U. S. 593. 
 9 Carter v. Montgomery, 2 Tenn. Ch. 216, 228. 
 3 1 Greenl. Ev. (14th ed.) § 131. 
 
 * 1 Greenl. Ev. (14th ed.) § 133; Berkeley Peerage Case, 4 Campb. 401. 
 44 
 
690 TITLE AND EVIDENCE. [§§ 815-817. 
 
 testimony. — It is well settled that before the declarations 
 can be admitted the relationship of the declarant to the 
 family must be established by other testimony. 1 The dec- 
 larations themselves cannot be relied upon for this purpose. 
 In the first of the cases cited, the question related to the 
 family of one Dr. Crawford. The defendants in error claimed 
 to belong to the family, and to be his nephews and nieces. 
 To prove this relationship, it was held competent for them 
 to give in evidence the declarations of that family, but 
 the declarations of a person belonging to another family — 
 such person claiming to be connected with such family 
 only by the intermarriage of a member of each family — was 
 held by the Supreme Court of the United States not to be 
 such evidence as the law requires. 2 
 
 § 815. Pedigree. — General reputation in the family as to 
 the birth of issue alive is admissible, 3 and the time of birth 
 may be proved by hearsay or reputation. 4 The testimony 
 must in all cases concern the repute in the family, and not 
 relate to isolated statements of members of it. 8 
 
 § 816. Age. — The declarations, and, a fortiori, the sworn 
 declarations of a deceased person as to the date of his 
 birth, are admissible. 6 Any person may testify to his own 
 age, which it is said he is presumed to know as he does any 
 matter of custom or prescription. 7 
 
 § 817. Presumption of death. — The question sometimes 
 arises whether, in the absence of any evidence, there can 
 be a presumption as to death, marriage, or the birth of 
 children. The Supreme Court of New Hampshire after a 
 full consideration of the cases, reached the conclusion 
 that there is no presumption in such cases. The ordinary 
 presumption of the cessation of life after seven years must 
 
 1 Blackburn v. Crawfords, 3 Wall. 175 ; Thompson v. Woolf, 8 Ore. 454. 
 
 2 The declarant, it is perhaps unnecessary to remind the reader, must be 
 dead. Greenleaf v. Dubuque & S. C. R. R. Co., 30 Iowa, 301; Mooers v. Bunker, 
 29 N. H. 420. 
 
 3 Doe d. Cannon v. Killen, 5 Houst. (Del.) 14. 
 
 4 Swink v. French, 11 Lea (Tenn.), 78. 
 
 5 Harland v. Eastman, 107 111. 535. 
 
 1 Greenl. Ev. §§ 125, 555 ; Greenfield v. Camden, 74 Me. 56. 
 7 Cherry v. State, 68 Ala. 29. 
 
§ 818.] TITLE AND EVIDENCE. 601 
 
 not be considered as a contradiction of this conclusion, 
 as that never arises except on proof that the person whom 
 it affects has not been heard from by those who, in the 
 ordinary course of events, would have heard from him. 1 It 
 has been said in Indiaua, that, in the absence of evidence, 
 a person is presumed to be an adult, but the dictum rests 
 on no satisfactory grounds, as will be seen by an examina- 
 tion of the cases. 2 
 
 § 818. Ancient deeds and ivills. — It is frequently said 
 that a deed or will thirty years old proves itself. The 
 period has been fixed at thirty years, because there is 
 said to be a presumption, that in that time the subscrib- 
 ing witnesses are dead. Such a presumption is, of course, 
 not absolute ; it depends upon the circumstances of the 
 «ase whether it will be indulged. If possession has ac- 
 companied the deed, and it has been in the proper cus- 
 tody, or there are other circumstances tending to show 
 its genuineness, this will be enough. 3 It is not absolutely 
 necessary that possession should be shown. 4 In Willson 
 v. Betts'it is said that the mere efflux of time, unaccom- 
 panied by other circumstances, will not of itself be enough. 
 
 An instrument is entitled to be proved as ancient, if 
 thirty years old when offered in evidence, without regard 
 to its age when the suit was begun. 6 The presumption of 
 possession is not an absolute presumption of law, but is so 
 
 1 Emerson v. White, 29 N. H. 482 ; Jackson v. Etz, 5 Cow. (N. Y.) 314 ; People 
 v. Fulton Fire Ins. Co., 25 Wend. (N. Y.) 205 ; Fosgate v. Herkimer Mfg. &c. 
 Co., 12 Barb (N. Y.) 352 ; Sandys v. Sandys, 1 Q. B. 316, note ; Doe d. Oldham v. 
 Wolley, 8 B. & C. 22 ; Doe d. Lloyd v. Deakin, 4 B. & Aid. 433; Doe v. Jesson, 
 6 East, 80; King v. Fowler, 11 Pick. (Mass.) 302; McComb v. Wright, 5 Johns. 
 Ch. (N. Y.) 263; Crouch v. Eveleth, 15 Mass. 305 ; Clark v. Trinity Church, 5 W. 
 & S. (Pa.) 266; Wilson v. Hodges, 2 East, 312; Doe v. Griffin, 15 East, 293; 
 Richards v. Richards, 15 East, 294 n. 
 
 2 Garber v. State, 94 Ind. 219 ; citing Palmer v. Wright, 58 Ind. 486. 
 
 8 Jackson v. Blanshan, 3 Johns. (N. Y.) 292 ; Hewlett v. Cock, 7 Wend. (N. Y. ) 
 37i ; Jackson v. Davis, 5 Cow. (N. Y.) 127 ; Jackson v. Christman, 4 Wend. (N. Y.) 
 277 ; Enders v. Sternbergh, I Keyes (N.Y.), 264; Clark v. Owens, 18 N. Y. 434; 
 Carter v. Doe d. Chaudron, 21 Ala. 72 ; Doe v. Roe, 31 Ga. 593 ; Hedger v. Ward, 
 15 B. Mon. (Ky.) 106 ; Crane v. Marshall, 16 Me. 27 : Stockbridge v. West Stock- 
 bridge, 14 Mass. 257; Roberts v. Stanton, 2 Munf. (Va.) 129. 
 
 1 Ensign v. McKinney, 12 Abb. N. C. (N. Y.) 463 ; Johnson v. Timmons, 50 
 Tex. 521 ; Holmes v. Coryell, 58 Tex. 680 ; Harlan v. Howard, 79 Ky. 373. 
 
 6 4 Denio (N. Y.), 201. See Jackson v. Luquere, 5 Cow. (N. Y.) 221. 
 
 8 Bass v. Sevier, 58 Tex. 567. 
 
692 TITLE AND EVIDENCE. [§§ 819, 820. 
 
 far binding on the jury as to make a prima facie case 
 upon which they should find possession, unless the same is 
 satisfactorily rebutted, and for a disregard of this presump- 
 tion the court is authorized to set the verdict aside. 1 In 
 most cases when a deed would be admissible in evidence 
 as an ancient deed, the power under which it purports to 
 be executed will be presumed. 3 In Florida it is said that 
 in the case of an ancient deed, if it appears that the name 
 of a party, who could not write, is in the handwriting of 
 a third person present, but not a party to the deed or in 
 interest, and there is no suspicion of fraud, the presump- 
 tion is that the signature was made by virtue of an oral 
 direction duly given. 3 
 
 § 819. Ancient surveys and maps. — Ancient surveys, 
 field-books, plans, maps, and surveyors' certificates, are 
 admissible in evidence, on much the same principle as 
 governs in the case of ancient deeds, 4 and a survey 
 made under an order in the cause by a surveyor who 
 afterwards dies, is still admissible. 5 It is said in a 
 recent Massachusetts case, 6 that plottings for plans and 
 field-notes are inadmissible, because they are mere mem- 
 oranda which may never have been acted on ; but there 
 was another ground for the decision. The court below 
 found that the plans and field-notes did not appear to have 
 been made by authority of the parties from whom title was 
 derived. 
 
 § 820. Lost deeds. — It is the general rule that every doc- 
 ument of a public nature which there would be an incon- 
 venience in removing, and which the party has a right to 
 inspect, may be proved by a duly authenticated copy. 
 This applies, under the recording system of the United 
 States, to patents, deeds, wills and all other muniments of 
 
 1 Johnson v. Timmons, 50 Tex. 521. 
 
 5 Ensign v. McKinney, 30 Hun (N. Y.)24g; Johnson v. Timmons, 50 Tex. 
 521 ; Watrous v. McGrew, 16 Tex. 513 ; Storey v. Flanagan, 57 Tex. 649, and cases 
 cited. 
 
 3 Hogans v. Carruth, ig Fla. 84. 
 
 4 Morse v. Emery, 49 N. H. 239, note ; Casey's Lessee u. Inloes, 1 Gill (Md.), 
 430, 492 ; McCausland v. Fleming, 63 Pa. St. 36. 
 
 6 Cline's Heirs v. Catron, 22 Gratt. (Va.) 378. 
 
 6 Boston Water Power Co. v. Hanlon, 132 Mass. 483. 
 
§ 820. J TITLE AND EVIDENCE. 693 
 
 title. 1 Where the original deed is proved, if the witnesses 
 are shown to be dead, the execution may be established by 
 proof of the handwriting of the witnesses ; and proof of 
 the handwriting of a single witness is sufficient. 8 Where 
 the deed is lost or destroyed, the contents may be proved 
 by parol testimony if no copy exists, and its execution 
 established by proof of handwriting of the witnesses. 3 The 
 production of the copy does not prove the execution of the 
 original, and whatever proof of execution would be needed 
 if the original were produced, is also required in case a copy 
 is used. 4 In Kiggs v. Tayloe, 5 the United States Supreme 
 Court said : " The general rule of evidence is, if a party in- 
 tend to use a deed, or any other instrument, in evidence, 
 he ought to produce the original, if he has it in his posses- 
 sion ; . . . or if the original is lost or destroyed, sec- 
 ondary evidence, which is the best that the nature of the 
 ■case allows, will in that case be admitted." Secondary 
 evidence of the contents of a written instrument when al- 
 lowed does not obviate the necessity of proving the gen- 
 uineness of the instrument, but renders it more imperative. 6 
 On the other hand, it is said that if secondary evidence is 
 admissible, it requires no more evidence to establish a fact 
 than though the best evidence were offered. 7 Finally we 
 may notice a principle frequently invoked and of consider- 
 able practical importance in the case of lost deeds — that 
 registration raises a presumption of delivery. 8 
 
 ' Stebbins v. Duncan, 108 U. S. 32, 50. Compare Mason v. Libbey, 90 N. Y. 
 ■683. 
 
 1 Clarke v. Courtney, 5 Pet. 319 ; Cooke v. Woodrow, 5 Cranch, 13; Adam v. 
 Kerr, 1 B. & P. 360. 
 
 3 Earley v. Euwer, 102 Pa. St. 338 ; Vandergriff v. Piercy, 59 Tex. 371 ; Ortiz v. 
 De Benavides, 61 Tex. 60; Stebbins v. Duncan, 108 U. S. 32. 
 
 4 Wells v. Iron Co., 48 N. H. 491, 535. 
 • 9 Wheat. 486. 
 
 6 Nichols v. Kingdom Iron Ore Co., 56 N. Y. 618. 
 
 7 Silver Mining Co. v. Fall, 6 Nev. 116 ; s. c. 5 Mor. Min. Rep. 283. 
 
 8 Holmes v. Corvell, 58 Tex. 680. The courts have power to restore lost records 
 and papers. Bowman v. McLaughlin, 45 Miss. 461; Hale v. Hord, 11 Heisk. 
 (Tenn.) 232; Jackson v. Hammond, 1 Cai. (N. Y.) 496; Jackson d. Kemp v. Parker, 
 2 Cai. (N. Y.) 385; People v. Burdock, 3 Cai. (N. Y.) 104; Cook v. Wood, 1 McCord's 
 (S. C.) Law, 139; Walker v. Greenlee, 3 Hawks (N. C), 281 ; Lowry v. Cady, 4 
 Vt. 504 ; Inhabs. of Stockbridge v. Inhabs. of West Stockbridge, 12 Mass. 399 ; 
 Lyons v. Gregory, 3 Hen. & M. (Va.) 237. See Robinson v. Ferguson, 78 
 HI- 538 ; Hord v. Baugh, 7 Humph. (Tenn.) 576. But equity cannot restore the 
 lost records of another court. Keen v. Jordan, 13 Fla. 327. When records have 
 
G94 TITLE AND EVIDENCE. [§§821, 822. 
 
 § 821. Office copies of deeds. — It is said to be well settled 
 in the United States, that after proof of the original deed 
 to himself, or of his title by descent or devise, a party may 
 use an office copy of a deed to which he is not a party, hut 
 which constitutes part of his chain of title, as prima facie 
 evidence, without showing the loss of the original, and 
 without proof of execution and delivery. But the party can 
 only use office-copies in this way in the proof of his own 
 title ; not in proof of that of his adversary or of a third per- 
 son. 1 If he desires to prove deeds, showing title in his. 
 adversary, or in a third person, he can only resort to sec- 
 ondary evidence and must do it after notice, in accordance 
 with the ordinary rules. In Woodman v. Ooolbroth, 2 the 
 origin of the American practice was thus explained by 
 Paris, J.: " It is true that, according to the English practice,, 
 office copies are inadmissible, and the party attempting 
 to support title must do it by producing the original title- 
 deeds, not only to himself, but to those under whom he 
 claims. This he is supposed to be able to do without in- 
 convenience, as this evidence uniformly accompanies the 
 title. It is not unfreqnently the case that the owner in 
 fee is possessed of all the original title-deeds to his estate 
 to a very remote period. But such is not our practice. 
 Hence has arisen the rule that office copies may be used 
 in tracing title, until we come to the party himself, who, 
 being presumed to be in possession of the original evi- 
 dence of his own title, must produce it." 8 
 
 § 822. Delivery of deed. — Under ordinary circumstances, 
 no other evidence of the delivery of a deed is required 
 than the possession of it by the person claiming under it. 4 
 
 been destroyed by fire, an exemplified copy may be read in evidence. Wilson v. 
 Spring, 38 Ark. 181. 
 
 1 Wells v Iron Co., 48 N. H. 491, 535 ; Harvey v. Mitchell, 31 N. H. 575, 582; 
 Homer v. Cilley, 14 N. H. 85; Farrar v. Fessenden, 39 N. H. 269; Forsaith ». 
 Clark, 21 N. H. 409 ; Stevens v Reed, 37 N. H. 49, 54; Woodman v. Coolbroth, 
 7 Me. 181 ; Scanlan v. Wright, 13 Pick. (Mass.) 523; Pollard v. Melvin, 10 N. H. 
 554- 
 
 2 7 Me. 181, 185. 
 
 3 A copy of a deed not certified or recorded according to law, is inadmissible,, 
 though between the parties the instrument may be valid. Raines v. Walker, 77 
 Va. 92. 
 
 4 Games v. Stiles, 14 Pet. 322 ; Flagg v. Mann, 2 Siimn. 489 ; Rhine v. Robin- 
 son, 27 Pa. St. 30; Story v. Bishop, 4 E. D. Smith (N. Y.), 423 ; Carnes v. Piatt, 
 9 J. & S. (N. Y.) 435. 
 
§§ 823, 824.] TITLE AND EVIDENCE. 695 
 
 So the recording of a deed in the absence of opposing evi- 
 dence justifies a presumption of delivery. 1 But the pre- 
 sumption is one which may always be overcome by direct 
 negative proof. 2 The grantor iu such cases cannot affirm 
 or recognize the grantee's possession of the instrument as 
 valid for some purposes, and disclaim it as being nugatory 
 for all others. 8 Again, a deed not delivered, or a deed 
 fraudulently obtained by the grantee, is void for want of 
 delivery, and will convey no title even to an innocent 
 purchaser. 4 The same is true of a stolen deed. 6 
 
 § 823. Recitals in deeds. — Recitals in ancient deeds ap- 
 pear to be governed by the same rules as declarations. 
 They may be admissible as against interest, as part of the 
 res gestae, as made by persons in a position to know the 
 facts, and having no interest to distort the truth. They 
 are also subject to the rule of post litem motam? The gen- 
 eral rule in the United States is, that all recitals in deeds 
 are received as primary evidence of the facts contained in 
 them against the parties, and also against privies in blood, 
 estate and law. And this applies to a recital of a deed in an- 
 other deed. 7 But such recitals do not bind strangers, or 
 those claiming by title paramount. 8 The recital in an an- 
 cient deed of the residence of the grantor is competent evi- 
 dence as ante litam motam, and a part of the res gestae? 
 Eecitals in deeds are not evidence of a valuable consid- 
 eration as against antecedent creditors. 10 
 
 § 824. Parol evidence to vary written instrument. — The 
 general rule that parol evidence, though admissible for 
 the purpose of explaining, cannot be received to control 
 or vary a written instrument, is of special importance in 
 cases involving title to land, the evidence of which gen- 
 
 1 Younge v. Guilbeau, 3 Wall. 636; Jackson v. Perkins, 2 Wend. (N. Y.) 30S; 
 Rigler v. Cloud, 14 Pa. St. 361; Kille v. Ege, 79 Pa. St. 15: Otis v. Spencer, 102 
 111. 624 ; Hitnes v. Keighblingher, 14 111. 469. 
 
 2 Metcalfe v. Brandon, 60 Miss. 685. 
 
 3 Cotton v. Gregory, 10 Neb. 129. 
 
 4 Taylor v. Davis, 72 Mo. 291. 
 
 6 Tisher v. Beckwith, 30 Wis. 55. The delivery of a deed is a question for the 
 jury. Galbraith v. Zimmerman, 100 Pa. St. 374. 
 6 Greenfield v. Camden, 74 Me. 56. 
 ' Ellen v. Ellen, 18 S. C. 489. 8 Ibid. 
 
 8 Greenfield v. Camden, 74 Me. 56. I0 Tutwiler v. Munford, 68 Ala. 124. 
 
696 TITLE AND EVIDENCE. [§§ 825, 826. 
 
 erally consists exclusively of written instruments. It may 
 be useful to refer to a few recent cases. In Alabama it 
 has been held, that where a deed reserved title in the 
 vendor till the performance of certain conditions, a con- 
 temporaneous parol agreement was not admissible to show 
 that the vendor was to be estopped to assert its title on the 
 performance of only one of the conditions. 1 So in Iowa, 
 it has been decided that covenants of general warranty 
 cannot be contradicted by evidence of a contemporaneous 
 parol agreement that a certain mortgage was to be ex- 
 cepted from their operation. 2 And a description clearly 
 given cannot be varied by parol. 8 Though parol evidence 
 is inadmissible to vary or contradict a will or deed, it may 
 be introduced to explain the terms used. Land inade- 
 quately described may be thus identified. 4 
 
 § 825. Transactions with deceased persons. — The statutes 
 of the various States provide, where parties are allowed 
 to testify in their own behalf, that this shall not extend 
 to cases where the parties adversely interested are dead. 
 Thus, in ejectment, where plaintiff and defendant claimed 
 under the same person, deceased, the plaintiff as heir, 
 and the defendant under a contract, the defendant was 
 not allowed to testify to a parol agreement made and 
 carried out by such deceased person to convey the 
 premises in controversy to defendant. 5 And where the 
 grantee in a deed absolute on its face, is dead, the gran- 
 tor cannot show that it was intended as a conveyance in 
 trust for himself. 6 
 
 § 826. Seals. — In the absence of testimony to impeach 
 such a document, it is not necessary to prove by parol 
 
 1 Tennessee & Coosa. R. R. Co. v. East Ala. Ry. Co., 73 Ala 426. 
 
 2 Johnson v. Walter, 60 Iowa, 315. 
 
 3 Gillespie v. Sawyer, 15 Neb. 536 ; Stowell v. Buswell, 135 Mass. 340. 
 
 4 Chambers v. Watson, 60 Iowa, 339; Griscom v. Evens, 40 N. J. Law, 402; Wal- 
 dron v. Waldron, 45 Mich. 350; Jones v. Dove, 7 Ore. 467; Cleverly v. Cleverly, 124 
 Mass. 314; Peters v. Porter, 60 How. Pr. (N. Y.) 422 ; Allen v. Bowen, 105 111. 
 361 ; Pickerings. Pickering, 50 N. H. 349; Aldrich v. Aldrich, 135 Mass. 153. 
 
 5 Pemberz/. Congdon, 55 Vt. 58. 
 
 6 Murray v. N. Y. L. & VV. R.R. Co., 103 Pa. St. 37. And see further, Sanford v. 
 EUithoip, 95 N. Y. 48 ; Harding v. Elzey, 88 Ind. 321; Wright v. Jackion, 59 
 Wis. 569; Oram v. Rothermel, 98 Pa. St. 300; Ewing v. Ewing, 96 Pa. St. 381; 
 Pope v. Allen, 90 N. Y. 298; Cantey v. Whitaker, 17 S. C. 527; McLaurin v. Wil- 
 son, 16 S. C. 402. 
 
§§ 827, 828.] TITLE AND EVIDENCE. 697 
 
 testimony, that a will upon which a seal appears had the 
 seal upon it at the time of the alleged execution. The 
 presumption is that it was properly placed there, and it is 
 proper to instruct the jury that the fact that there was a 
 seal upon the will was evidence from which they might 
 find that the will was properly sealed. No doubt the same 
 rule applies in the case of any sealed instrument. 1 In 
 many of the western States scrolls are used instead of seals, 
 in accordance with statutory provisions. The decisions 
 .generally turn upon the language of the statute. 2 If it 
 appears affirmatively by a copy of a grant from the record- 
 ing officer, that it was issued under the seal of the State, 
 it is no objection to the document that no scroll or imi- 
 tation of the form of the seal appears on the copy. 3 
 
 § 827. Abstracts. — As a general rule abstracts of instru- 
 ments in a chain of title are not evidence ; but under 
 special circumstances they may be. Thus, in North Car- 
 olina, abstracts of grants from the Crown and from the 
 State, have been kept as records, and these, when properly 
 authenticated, are admissible.* In Illinois, in cases of cer- 
 tain records destroyed by fire, abstracts of title made in 
 the ordinary course of business are, by statute, made com- 
 petent evidence of title. 5 
 
 § 828. Unofficial records. —In deducing title from the 
 United States, or, indeed, from any other source, the rules 
 governing the introduction of records of entries, patents, 
 deeds, etc., are prescribed by statutes, either of the 
 United States or of the State in which the land lies, and 
 records not reqxiired to be kept by law, or made evidence, 
 such as copies of entries from the United States Laud 
 Office, or a volume purporting to contain township plots, 
 even though produced from the Register's office, are not 
 admissible. 6 
 
 1 Foggw. Moulton, 59 N. H. 499. 
 
 8 See Dickens v. Miller, 12 Mo. App. 408 ; Benefiel v. Aughe, 93 Ind. 401. 
 
 3 Aycock v. Railroad, 89 N. C. 321. 
 
 4 Strickland v. Draughan, 88 N. C. 315; Tolson v. Mainor, 85 N. C. 235; 
 McLenan v. Chisholm, 64 N. C. 323 ; Clarke v. Diggs, 6 Ired. (N. C.) Law, 159. 
 
 6 Compton v. Randolph, 104 111. 555. 
 
 6 Smith v. Lawrence, 12 Mich. 431 ; Newell v. McLamey, 49 Mich. 232. 
 
CHAPTER XXXII. 
 
 DEFENSES. 
 
 § 829. Defenses in general. 
 
 830. Defendant may set up several de- 
 
 fenses. 
 
 831. Outstanding title. 
 
 832. Possession acquired by fraud. 
 
 833. Defective condemnation of lands. 
 
 834. License to use lands by railroad. 
 
 835. Possession by execution defendant. 
 
 836. Defeating tax title. 
 
 837. Advancement. 
 
 838. Concealment of will. — Effect of 
 
 after probate. 
 
 839. Equitable defenses. 
 
 840. Injunction against ejectment. 
 
 841. Defective, doubtful or unmarket- 
 
 able titles. 
 
 842. Estoppel. 
 
 § 843. Equitable estoppel or estoppel by 
 conduct. , 
 
 844. Different classes of cases. 
 
 845. Fraud in the estoppel. 
 
 846. The statute of frauds. 
 
 847. Brant v. Virginia Coal & Iron Co. 
 
 848. Distinction between right and 
 
 remedy in equity. 
 
 849. Is equitable estoppel available at 
 
 law ? 
 
 850. Estoppel by deed. —Warranty. — 
 
 After-acquired title. 
 
 851. No estoppel through void or illegal 
 
 contract. 
 
 852. Estoppel must be direct. 
 
 853. No estoppel againsf grantee. 
 
 854. Estoppel against a State. 
 
 855. Pleading estoppel. 
 
 § 829. Defenses in general. — Since the introduction of 
 equitable defenses in the reformed procedure in some ot 
 our States, 1 and recoveries upon equitable titles in actions 
 in the nature of ejectment, the great field of equity juris- 
 prudence is open to the litigants. Manifestly, only such 
 prominent features of this important jurisdiction as arise 
 incidentally in land cases can be considered in this treatise. 
 It has been shown that when equitable defenses are inter- 
 posed in these actions, the rights of the parties are adjudi- 
 cated upon and protected in substantially the same manner 
 as though an independent bill in chancery had been filed. 3 
 But we .will first glance at defenses that are legal in char- 
 acter. 
 
 The necessity of pleading the statute of limitations, 8 
 and the elements of this highly important defense, have 
 already been discussed at length. 4 Incidentally the de- 
 
 See §§ 485-488. 
 1 See § 482. 
 
 See Chaps. XVIII, XXXI. 
 1 See Chaps. XXVIII, XXIX, XXX 
 
§ 830.] DEFENSES. 699 
 
 fenses available between landlord and tenant, 1 mortgagee 
 and mortgagor, 2 vendor and vendee, 8 and co-tenants 4 have 
 been considered, and tbe general subject of defenses has 
 received passing attention in treating of the answer, 6 
 parties defendant, 6 possession, 7 interests for which eject- 
 ment will not lie, 8 and plaintiff's title and evidence. 9 
 
 Ejectment proceeds for the possession of the premises^ 
 claiming that they have been unlawfully entered into aud 
 unjustly withheld, and facts which go to disprove these 
 assertions make a legal defense. 10 It is not necessary, as 
 we have seen, for the adverse party to produce evidence 
 to defeat the demandant's title, when by his own showing 
 he has no title. 11 In other words, until the plaintiff in 
 ejectment has shown some right to disturb the defendant's 
 possession, the latter need not show title in himself. 12 But 
 the plaintiff having put the defendant to his proofs, the 
 latter is bound to bring forward all matters of a strictly 
 defensive character, or be precluded from subsequently 
 litigating such questions ; but this does not extend to other 
 matters constituting a cause of action in his favor. 13 
 
 § 830. Defendant may set up several defenses. — A defend- 
 ant, as we have seen, is not confined to a single defense, 14 
 or title, but may set up several titles, 15 or, under the re- 
 formed procedure, as many defenses as he has, 15 provided 
 
 I See Chap. XII. 2 See Chap. XI. 
 3 See Chap. X. 4 See Chap. IX. 
 6 See Chap. XVIII. 6 See Chap. VII. 
 ' See Chap. XXVII. " See Chap. IV. 
 ' See Chap. XXXI. 
 
 10 St. Louis, A. & T. H. R. R. Co. v. Karnes, ioi 111. 402 ; Stow v. Russell, 36 
 111. 18, 36. 
 
 II Allen v. Morse, 72 Me. 502, 504. 
 
 ' ,! Henry v. Reichert, 22 Hun (N. Y.), 394. 
 
 13 Ayres v. Bensley, 32 Cal. 620. 
 
 It is not generally advisable to rely on a mere prima facie case of possession 
 where a good title could be proved by conclusive evidence, unless there be some 
 special reason for so doing, e. g., the difficulty of proof, the great expense and 
 the poverty of the defendant, or the wish to avoid disclosing the real title, and the 
 contents of the deeds etc., or the impossibility of the defendant rebutting a prima 
 facie case by evidence on his behalf. Cole on Ejectment, p. 213. 
 
 14 See § 478. . 
 
 16 Kahn v. Old Telegraph M. Co. 2 Utah, 174. 
 
 "Crary v. Goodman, 12 N. Y. 266; Penny v. Cook, 19 Iowa, 538. 
 
700 DEFENSES. [§ 831. 
 
 they are not inconsistent, 1 and even inconsistent defenses 
 have been allowed under some of the codes. It has been 
 decided in Texas that when the defendant, who is permitted 
 to plead the general issue, but instead of or besides so doing 
 pleads specially, aud sets out a title in himself, he is confined 
 in his defense to the title set up ; 3 but this rule, according 
 to a recent decision of the United States Circuit Court, does 
 not apply in case the claim of title specially pleaded is 
 under the statute of limitations, for that defense or title is 
 required by law to be so pleaded. 3 
 
 § 831. Outstanding title. — A most common defense in 
 ■ejectment is an outstanding title. 4 This is but another 
 means of stating the rule that the plaintiff must recover 
 upon the strength of his own title, and of course he has no 
 title when it is shown to be vested in another. 5 The de- 
 fense of an outstanding title is not favored in our 
 courts. To defeat an action of ejectment at law, the 
 outstanding title must be a present, subsisting, oper- 
 ative and available title ; such an one as the owner 
 could recover on, and not one reverted, barred or aban- 
 doned. 6 A deed delivered in escrow is not an out- 
 standing title ; 7 nor is a sheriff's certificate upon which no 
 deed has been executed ; 8 nor an outstanding equity, un- 
 less the defendant is connected with it ; 9 and the outstand- 
 ing title will defeat the plaintiff only to its extent ; 10 and it 
 is competent for the plaintiff to rebut such a defense by 
 
 1 Yocum v. Morice, 4 Phila. (Pa.) 106. 
 -' Rivers v. Foote, 11 Tex. 662, 670. 
 
 3 Sheirburn v. Hunter, 3 Woods, 281. 
 
 4 Trenouth v. Gordon, 63 Cal. 379. 
 
 5 Hallett v. Eslava, 2 Stew. (Ala.) 115 ; King v. Stevens, 18 Ala. 475 ; Brum- 
 balo v. Baxter, 33 Ga. 81 ; Jones v. Sullivan, 33 Ga. 486. See also § 791. 
 
 6 Howard v. Massengale. 13 Lea (Tenn ), 577, 585; Peck v. Carmichael, 9 Yerg. 
 (Tenn.) 325 ; Jackson v. Hudson, 3 Johns. (N. Y.) 375 ; Hunter v. Cochran, 3 Pa. 
 St. 105 ; Bennett v. Hoir, 47 Mich. 223; McDonald v. Schneider, 27 Mo. 405; 
 Masterson v. Cheek, 23 III. 72 ; Sutton v. McLeod, 29 Ga. 589; Atkins v. Lewis, 
 14 Graft. (Va.) 30 ; Lee v. Cook, 2 Wyoming, 305 ; Humble v. Spears, 8 Baxter 
 (Tenn.), 156. 
 
 1 Lloyd v. Giddings, 7 Ohio, 375. 
 
 8 Cruger v. Dougherty, 43 N. Y. 107. 
 
 9 Johnson v. Timmons, 50 Tex. 521 ; Shields v. Hunt, 45 Tex. 424, 428. 
 10 Riddle v. Bickerslaff, 50 Tex. 155. 
 
§832.] DEFENSES. 701 
 
 introducing a conveyance of such outstanding title made 
 to him since the commencement of the action. 1 The rule 
 that an outstanding title will defeat a recovery does not 
 apply where both parties claim by mere possession. 3 in 
 the case cited, Sanderson, 0. J., said : " Only a question of 
 possession is involved. The naked prior possession of the 
 plaintiif is pitted against the naked present possession of 
 the defendants. Strict title is not involved. The doctrine 
 that the plaintiff must recover upon the strength of his own 
 title is applied to cases where the strict legal title in con- 
 tradistinction from a mere possession is involved. In such 
 a case the defendant may defeat the legal title relied upon 
 by the plaintiff, by showing the true legal title to be in a 
 third person. But where mere prior possession is relied 
 on, and the defendant is a mere intruder, he cannot justify 
 his act by showing the true title to be outstanding. Eject- 
 ments for mining claims, where neither party has, strictly 
 speaking, any legal title, but both, in strict law, are in- 
 truders upon what belongs to another, are mere contests 
 for possession, and their solution is only embarrassed by 
 an attempt to adhere to language only adapted to cases 
 where the strict legal title to land is involved. Such eject- 
 ments might be more properly called actions to determine 
 the right to mine in a certain locality." 
 
 § 832. Possession acquired iy fraud.— It has been expressly 
 decided that a party who has a present right of entry upon 
 .lands, and who has entered by force or fraud, cannot be 
 turned out of possession by an action of ejectment. The 
 right of entry of the true owner is not impaired or affected 
 by any fraud, false representation, or collusion practiced 
 by him upon one having no right of possession. The 
 plaintiff must rest his case solely upon his legal title to 
 the possession ; evidence of the fraudulent acts of the de- 
 fendant in acquiring the possession will not strengthen 
 the case, and are wholly immaterial in an action devised 
 to try title. 3 An ousted tenant in common is justified in 
 
 1 Ballard v. Perry, 28 Tex. 347. 
 
 5 Richardson v. McNulty, 24 Cal. 3391 s. c. 1 Mor. Mil). Rep. II. 
 
 3 Depuy v. Williams, 26 Cal. 309, 314- 
 
702 defenses. [§§ 833, 834. 
 
 regaining possession by stealth, if accomplished without 
 breach of the peace. 1 
 
 § 833. Defective condemnation of lands. — The pendency 
 of condemnation proceedings is not a valid defense in 
 ejectment. 2 Hence, a corporation that has condemned 
 land, but not paid the damages, may be evicted in eject- 
 ment; 3 and the same rule appertains where the con- 
 demnation is defective and void for want of proper no- 
 tice. 4 
 
 § 834. License to use lands by railroad. — In Pryzbylowicz 
 v. Missouri Eiver E. E. Co., 5 it was held that if an owner 
 gives a license, either express or fairly implied ; if he ex- 
 pressly consents or with full knowledge of the possession 
 makes no objection, but permits a public corporation to 
 enter upon his land and expend money, and carry into 
 operation the purposes for which such land is ordinarily 
 taken, he will not be permitted to eject the parties for 
 want of payment of the compensation. Ordinarily a mere 
 parol license to use land cannot work a transfer of title, 
 and in cases of this kind the estoppel must rest on the 
 great inconvenience that would follow if railroads, once 
 established, could be evicted like ordinary trespassers. 
 Of the existence of the rule there can be no doubt. Slight 
 acts of acquiescence on the part of an owner in permitting 
 a corporation to take possession will estop him from inter- 
 fering with the running of a railroad, though he will not 
 be deprived of the right to enforce payment of his claim 
 for damages. If there has been a waiver, either express or 
 implied, by acquiescence in the proceedings of the com- 
 pany to the extent of not insisting upon pre-payment as a 
 condition precedent, but consenting to let the damages be 
 and remain a mere debt, it is impossible to regard the cor- 
 poration " in any sense in the light of a trespasser or liable 
 in ejectment." 6 
 
 1 Wood v. Phillips, 43 N. Y. 152. 
 
 2 Coburn v. Pacific L. and M. Co., 46 Cal. 31. 
 
 3 Chicago, B. & Q. R. R. Co. v. Knox College, 34 111. 195. 
 
 4 Chicago & A. R. R. Co. v. Smith, 78 111. 96: Smith v. Chicago, A. & St. L. 
 R. R. Co., 67 111. 191. 
 
 5 3 McCra. 586.- 
 
 6 Provolt v. Chicago, R. I. & P. R. R. Co., 57 Mo. 256; McAulay v. Western Vt 
 
§§ 835-838.] defenses. 703 
 
 § 835. Possession by execution defendant. — When the de- 
 fendant in the judgment is in possession at the time of 
 the levy and sale, he can make no defense against the ex- 
 ecution purchaser, for the latter acquires at least a right 
 to the debtor's possession. 1 The books are fall of cases 
 holding that the execution defendant, when sued in eject- 
 ment by the execution purchaser, cannot dispute the 
 latter's title. 3 If the debtor gives up the possession and 
 re-acquires it from a third party claiming under an entirely 
 independent title, he will then be permitted to interpose 
 this outstanding title as a defense. 8 
 
 § 836. Defeating tax title. — An owner of the fee in pos- 
 session may defend against a defective tax title. 4 
 
 §837. Advancement. — An advancement by a father to 
 his son may constitute a good ground of defense in eject- 
 ment, 5 and may be established by parol. Controversies of 
 this kind may arise where the advancement to the son was 
 intended to be in full for his share as heir, and he sub- 
 sequently attempts to recover a full share of the estate 
 without regard to the advancement. 
 
 § 838. Concealment of will. — Effect of after probate. — In an 
 instructive case recently before the New York Court of 
 Appeals, it appeared that plaintiff's ancestor died in 1836, 
 leaving a will which was clandestinely taken from the 
 widow in 1841, by, and concealed about the person of, one 
 of the plaintiffs until 1855, when it was probated. In 1841 
 the real estate in question, the property of the ancestor or 
 
 R. R. Co., 33 Vt. 311. See Smart v. Portsmouth and C. R. R. , 20 N. H. 233; 
 Harrison, N. T. &c. Turnpike Co. v. Roberts, 33 Ind. 246. It is no defense to a 
 writ of entry that a tenant owns a building erected on the land by consent of the 
 landlord, for the tenant would have a reasonable time after judgment to remove it. 
 Bullen v. Arnold. 31 Me. 583. 
 
 1 Bunker v. Rand, ig Wis. 253; s. p. Addison v. Crow, 5 Dana (Ky.), 271 ; 
 Locke v. Coleman, 4 Mon. (Ky. ) 315 ; Ferguson v. Miles, 8 111. 358. 
 
 8 Hayes v. Bernard, 38 111. 297 ; Ferguson v. Miles, 8 111. 358 ; Sherry v. Denn, 
 8 Blackf. (Ind.) 552 ; Jackson v. Graham, 3 Cai. (N. Y.) 188. 
 
 3 Hayes v. Bernard, 38 111. 297. 
 
 4 Lockridge v. Daggett, 54 Iowa, 332 ; Chandler v. Keeler, 46 Iowa, 596; Tully 
 v. Bauer, 52 Cal. 487. 
 
 6 Parker v. McCluer, 36 How. Pr. (N. Y.) 301 ; s. c. 5 Abb. Pr. N. S. (N. Y. ) 
 97; Smith v. Smith, 59 Me. 214. Compare Dewees' Estate, 3 Brewst. (Pa.) 314. 
 
704 DEFENSES. [§§ 839, 840. 
 
 testator, was soldiu chancery, in proceedings to sell infant's 
 real estate, to a party who purchased in good faith and 
 from whom the defendant claimed. The proceedings were 
 very informal. Yet the court held that the probate of the 
 will did not affect the title of the purchaser in these pro- 
 ceedings, and that a case of concealment within the mean- 
 ing of the statute of ISTew York, 1 was not made out when 
 it was shown that one of the devisees had knowledge of 
 the existence of the will. 
 
 § 839. Equitable defenses. — The subject of equitable de- 
 fenses, heretofore discussed, 2 presents many novel ques- 
 tions which, as we have seen, could not, under the early 
 practice, arise in the class of remedies for the recovery of 
 real property which we are considering. Thus, in a case 
 in Georgia, where it appeared that the defendant had made 
 advances for the plaintiff's benefit, and had purchased the 
 land in question at trustee's sale, by order of the chancel- 
 lor, the court decided that, though the chancellor had no 
 authority at chambers to appoint the trustee and order the 
 sale, yet the defendant having purchased the property in 
 good faith under color of legal proceedings, might set up 
 the facts in an equitable plea and claim to be reimbursed 
 before a recovery could be had. 8 
 
 § 840. Injunction against ejectment. — The remedy by in- 
 junction against an ejectment is not so frequently resorted 
 to in the modern procedure as formerly, because in many 
 States equitable defenses may be interposed in the action 
 at law. 4 Manifestly the owner of the legal title cannot ob- 
 tain an injunction against an ejectment, because he has a 
 perfect defense at law. 5 Thus, a purchaser from a judg- 
 ment debtor, prior to the lien of a judgment, cannot have 
 an injunction to prevent a sale of the land under execution 
 upon such judgment, as the sale would not dispossess him 
 
 1 I R. S. 749, § 3 ; Cole v. Gourlay, 79 N. Y. 527. 
 8 See §§ 485-488, 790. 
 
 3 Askew u. Patterson, 53 Ga. 209. 
 
 4 See §§ 485-489. 
 
 s Padgett v. Lawrence, 10 Paige (N. Y.), 170. 
 
§ 841.] DEFENSES. 705 
 
 or deprive him of any of his legal rights or remedies. 1 The 
 general rule that courts of equity will not enjoin a judgment 
 at law, unless the complainant has an equitable defense to 
 the cause of action of which he could not avail himself at 
 law, because it did not amount to a legal defense, 2 is appli- 
 cable to ejectments. 3 By coming into equity seeking an 
 injunction, the complainant concedes that he has no de- 
 fense which he can make effectual at law. 4 The remedy by 
 injunction is an extraordinary one, to be resorted to, as a 
 general rule, only where an injury, without adequate re- 
 dress, may result if the writ be not employed. 5 It will be 
 found, upon examination, that only exceptional circum- 
 stances and equitable considerations have moved the courts 
 in cases where chancery has interposed by injunction 
 against ejectment. 6 
 
 § 841. Defective, doubtful or unmarketable titles. — Though 
 not strictly defensive matter in ejectment, the rules gov- 
 erning the question of defective or unmarketable titles, 
 which a vendee or purchaser will not be compelled to 
 accept, may be briefly stated. A court of equity will 
 not compel a purchaser to take a doubtful title. If 
 there is such an element of uncertainty about a title 
 as to affect its marketable value, even though the court 
 might consider it good, still a decree of specific perform- 
 ance will not be granted. 7 There must, however, be some 
 debatable ground upon which the doubt can be justified. 8 
 A rational doubt may be said to exist where a court of law 
 would not feel called upon to instruct a jury to find that 
 
 1 Whitman v. Willis, 51 Tex. 429. See Henderson v. Morrill, 12 Tex. 1. 
 ' Crim v. Handley, 94 U. S. 653 ; Hendrickson v. Hinckley, 17 How. 443. 
 
 3 See Savage v. Allen, 54 N. Y. 458. 
 
 4 Trousdale v. Maxwell, 6 Lea (Tenn.), 161, 164. 
 ' Savage v. Allen, 54 N. Y. 463. 
 
 6 See Big Mountain Imp. Co.'s Appeal, 54 Pa. St. 361 ; Thornton v. Ramsden, 
 4 Gift. 519; Ferguson v. Bobo, 54 Miss. 121; Hill v. Billingsly, 53 Miss. 111; 
 Parrill v. McKinley, 6 W. Va. 67 ; Reavis v. Reavis. 50 Ala. 60 ; Detroit & M. R. 
 R. Co. v. Brown, 37 Mich. 533; High on Inj., Ch. VI. 
 
 1 Vreeland v. Blauvelt, 23 N. J. Eq. 483 ; Emery v. Grocock, Mad. & Geld. 54 ; 
 Shriver v. Shriver, 86 N. Y. 575, 584. 
 
 8 Vreeland v. Blauvelt, 23 N. J. Eq. 483 ; Hellreigel v . Manning, 97 N. Y. 56. 
 
 45 
 
706 DEFENSES. [§ 842. 
 
 the facts existed on which the vendor's title depended. 1 
 In the case of The Brooklyn Park Coinm'rs v. Armstrong, 3 
 the court said: "When it is ascertained that there is an 
 existing defect in the title, the purchaser will not be com- 
 pelled to perform on the allegation that it is doubtful 
 whether the defect will ever incommode him. If there be 
 any reasonable chance that some third person may raise a 
 question against the owner of the estate after the comple- 
 tion of the contract, the court considers this a circumstance 
 which renders the bargain a hard one for the purchaser, 
 and one which it will not, in the exercise of its discretion, 
 ■compel him to execute." 3 Folger, Oh. J., said in Shriver 
 v. Shriver 1 : 4 "As a general rule, a title which is open to 
 judicial doubt is not a marketable title." The learned 
 court in the course of the opinion observes that what con- 
 stitutes sufficient ground for judicial doubt cannot be con- 
 clusively reduced to fixed and determinate principles, for 
 it depends in some degree upon the discretion of the court. 5 
 A purchaser will not be required to take property which 
 he can only reduce to possession by litigation and judicial 
 decision, 6 which is considered equivalent to saying that he 
 cannot be compelled to take a title, the possession of which 
 he must thus defend, as where the title depends upon a 
 matter of fact, which is not capable of satisfactory proof,' 
 or facts capable of proof, yet not proved. 8 
 
 § 842. Estoppel. — Estoppels are treated by Greenleaf 
 and other writers as a branch of the law of evidence.' 
 But since they constitute good defenses or good grounds 
 
 1 Emery v. Grocock, Mad. & Geld. 54 ; Chase v. Chase, 95 N. Y. 373 ; Shriver 
 ■v. Shriver, 86 N. Y. 584. 
 
 2 45 N. Y. 234, 248. 
 
 3 Citing Seaman v. Vawdvey, 16 Ves. 390. It is not necessary that a vendor 
 should furnish a perfect paper title. Defects in a paper title may be cured or re 
 moved by parol evidence. Hellreigel v. Manning, 97 N. Y. 56. 
 
 4 86 N. Y. 584. 
 
 6 Citing White v. Damon, 7 Ves. 33. 
 
 6 Price v. Strange, Mad. & Geld. 159. 
 
 ' Lowes v. Lush, 14 Ves. 548. 
 
 8 Smith v. Death, 5 Macld. 371. In case of an executory contract of saleof land, 
 the vendor impliedly warrants that he has good title. Burwell v. Jackson, 9 N. 
 Y. 535 ; Wheeler v. Tracy, 49 N. Y. Superior, 208. 
 
 3 1 Greenl. Ev., § 22 ; Stephens' Dig. Ev., §§ 102-105. 
 
§ 843.] DEFENSES. 707 
 
 for claiming title, 1 as the case may be, and since they 
 frequently operate, as we shall see, to transfer or bar 
 title with the same full effect that a conveyance or statu- 
 tory adverse possession would have, the better opinion 
 now is, that they determine primary rights of property, 
 and not the mode or means by which such rights are 
 proved. 2 They are here considered under the head of 
 defenses, chiefly because they are introduced in litiga- 
 tion to defeat a legal title on one side or the other, not 
 because they naturally form part of a defendant's rather 
 than a plaintiff's case. Our space forbids us, in the 
 present edition, to enter upon the subject as fully as we 
 should like, and we can do little more than discuss a few 
 of its more important aspects, referring the reader else- 
 where for fuller discussions. 3 
 
 § 843. Equitable estoppel or estoppel oy conduct. — Estoppel 
 by matter in pais, as is evident from the term itself, is not 
 properly the equivalent of equitable estoppel, though fre- 
 quently used in that sense. Strict legal estoppels maybe in 
 pais as well as by record or deed, and at common law there 
 seem to have been several varieties of such legal estop- 
 pels, as by livery, acceptance of rent, etc. 4 In modern 
 times, however, strict legal estoppel by matter in pais is 
 not common, and this explains why equitable estoppel 
 is so frequently spoken of as if co-extensive with estop- 
 pel in pais. 6 Equitable estoppel or estoppel by conduct 
 so far as it relates to trial of title to land is a doc- 
 trine by which a party is prevented from setting up his 
 legal title, because he has, through his acts, words or 
 
 1 Stoddard v. Chambers, 2 How. 284. 
 
 ! 2 Pom. Eq. Jur., § 801. 
 
 s See especially Bigelow on Estoppel ; 3 Washburn's Real Property, Ch. II, 
 §6; 2 Pom. Eq. Jur., § 801 etseq.; 1 Greenl. Ev., § 22 etseq. j Rawle on Cove- 
 nants, Ch. XI ; 2 Smith's Lea. Cas. (8th ed.) 784. We have already con- 
 sidered the subject of estoppel between vendee and vendor (ante, §§ 316- 
 318); the effect of judgments in actions to try title, operating by way of 
 estoppel I ante, Ch. XX); estoppel between landlord and tenant (ante, %% 351,361. 
 751); and between co-tenants (tj 291 etseq.). 
 
 4 Co. Litt. 352 a; Bigelow on Estoppel, 350. 
 
 5 The main estoppel arising from a lease, is of the same force and effect, whether 
 it arises in pais (from the mere transfer of the possession) or under a written lease. 
 Mr. Bigelow treats all such estoppels as in. pais. They are, of course, legal in char- 
 acter. Big. on Estop., p. lvii (outline). 
 
708 defenses. [§§ 844, 845. 
 
 silence, led another to take a position in which the asser- 
 tion of the legal title would be contrary to equity and 
 good conscience. 1 
 
 § 844. Different classes of cases. — Thus, if one having title 
 to laud, intentionally induces another to purchase from 
 one who has no title, a court of equity will not permit him 
 to assert his title and defeat the purchaser. 2 And it has 
 been held that the same consequence follows even if he 
 only stands by in silence at a public auction sale, when 
 he has an unrecorded title in his possession. 8 But when 
 the superior title is recorded, mere silence will not create 
 an estoppel, and it has even been held that, in such a 
 case, active intervention will not produce an estoppel, for 
 the record is notice. 4 The estoppel may take the form of a 
 promise or assurance. 5 Thus, where the holder of an equity 
 of redemption assures an intending purchaser of the fee 
 that he will not redeem, thus inducing him to purchase, he 
 will be estopped afterwards to redeem. 6 
 
 § 845. Fraud in the estoppel. — The question to which 
 courts and text writers have, perhaps, devoted most at- 
 tention in connection with estoppel by conduct is, when 
 and how far actual fraud, or intent to deceive, or such 
 gross negligence as may in law be considered its equiva- 
 lent, is essential to an estoppel. Mr. Bigelow ' seems to 
 regard fraud or gross negligence as essential. The late 
 Prof. Pomeroy, on the other hand, insisted 8 that fraud- 
 ulent iatent is not essential, and that the word fraud is 
 continually introduced in the cases simply as signifying 
 that the repudiation of the conduct which constitutes the 
 estoppel would be a fraud upon the rights of tlie person bene- 
 fitted by tlie estoppel. But Mr. Pomeroy himself lays it down 
 
 1 Horn v. Cole, 51 N. H. 287. 
 
 2 Sherrill v. Sherrill, 73 N. C. 8. 
 
 3 Saunderson v. Ballance, 2 Jones' Eq. (N. C.) 322. 
 
 4 Sulphine v. Dunbar, 55 Miss. 255 ; Staton v. Bryant, 55 Miss. 261.; 
 6 Perry v. Hall, 75 Mo. 503. 
 
 6 Fay v. Valentine, 12 Pick. (Mass.) 40 ; Chapman v. Pingree, 67 Me. 198 ; South- 
 ard v. Sutton, 68 Me. 575. 
 
 7 Big. on Estoppel, 484. 
 
 8 2 Pom. Eq. Jur., § 805. 
 
§ 846.] DEFENSES. 709 
 
 that cases affecting legal title to land constitute an excep- 
 tional class, and that in them a fraudulent intent is neces- 
 sary, chiefly on the ground 1 that such estoppels are op- 
 posed to the statute of frauds, and that it would greatly 
 tend to the insecurity of titles if they were allowed to be 
 affected by evidence of a light or doubtful character. If 
 this view be correct, we have two species of estoppels by 
 conduct, one affecting title to land, in which there must 
 be an actual fraudulent intent (or its equivalent degree 
 of negligence) ; another affecting title to personal prop- 
 erty and contracts, which is much broader, and may be 
 resolved, as Mr. Pomeroy clearly shows, into the still 
 more general principle, that where one of two innocent 
 persons, that is, persons each guiltless of an intentional, 
 moral wrong, must suffer a loss, it must be borne by that 
 one of them who, by his conduct, acts or omissions, has 
 rendered the injury possible. 2 With great diffidence we 
 venture to suggest that his distinction, though apparently 
 having abundant support in the cases, is not sound ; that 
 cases affecting title to land must rest on the same general 
 principle with all other cases, and that fraudulent intent 
 is not essential in any case. 
 
 § 846. The statute of frauds. — In the first place the ques- 
 tion as to what facts are necessary to take a case out of 
 the statute of frauds, is purely one of public policy. Courts 
 of equity originally resorted to fraud as a ground for up- 
 setting the statute, probably because fraud was one of their 
 jurisdictional grounds of interference ; but it must be re- 
 membered that every equitable estoppel prevents the oper- 
 ation of a rule of strict law, and is resorted to for that very 
 purpose. Now, is the strict law contained in a statute, such 
 as the statute of frauds, of such superior sanctity to that con- 
 tained in ordinary common law rules that equity will violate 
 the one and respect the other ? If so, why ? The answer 
 must be that real estate titles are involved in one and not in 
 the other. There is, then, only one case in which this sanc- 
 tity of the statute will not be respected, and that is inten- 
 
 See Storrs v. Barker, 6 Johns. Ch. (N. Y.) 166. 
 1 2 Pom. Eq. Jur., § 803. 
 
710 DEFENSES. [§ 847. 
 
 tional deceit. But if Mr. Pomeroy's view, that the whole 
 law of estoppel is referable to the general principle that 
 where one of two innocent parties must suffer, he through 
 whom the loss occurs must bear it, we are led to the curious 
 result that in estoppels affecting real estate the exact oppo- 
 site of this principle prevails, and here, in case both parties 
 are innocent, he must suffer through whom the loss did not 
 occur. But we do not think that the distinction is borne 
 out by the cases. Here, as elsewhere in the law of estop- 
 pel, the word fraud is very loosely used, and sometimes is 
 referred to the intention, and sometimes merely to the 
 consequences, as explained above. But cases holding that 
 acts not amounting to deceit will estop are numerous, 1 
 while cases cited in support of the proposition that fraud 
 is essential do not always bear out this interpretation. 
 The subject is so important that a brief consideration of 
 the most recent case in the Supreme Court of the United 
 States 2 seems necessary. 
 
 § 847. Brant v. Virginia Coal <& Iron Co. — This case, like 
 that of Boggs v. Merced Mining Co., 3 is frequently cited in 
 support of the proposition that fraudulent intent is neces- 
 sary. Mr. Justice Meld, in deciding the former case, used 
 the following language : " For the application of that doc- 
 trine [estoppeij there must generally be some intended 
 deception in the conduct or declarations of the party to 
 be estopped, or such gross negligence on his part as to 
 amount to constructive fraud, by which another has been 
 misled to his injury. ' In all this class of cases,' say& 
 Story, ' the doctrine proceeds upon the ground of construc- 
 
 1 Timon v. Whitehead, 58 Tex. 290; Wendell v. Van Rensselaer, 1 Johns. Ch. 
 (N. Y.) 344; Storrs v. Barker, 6 Johns. Ch. (N. Y.) 166; Trenton Banking Co. v. 
 Duncan, 86 N. Y. 221. The case of Blaomstein ■v. Clees, 3 Tenn. Ch. 433, speaks 
 of "fraud" as essential, but it is clear from the context that the court meant not 
 fraud in its legal sense, but such circumstances as would make refusal to abide by 
 what had been done a fraud. Spencer v. Carr, 45 N. Y. 406, which was the case of 
 an infant of sixteen being held not to be estopped, cannot be considered as opposed 
 to the above case, as she was held to have had no legal or actual knowledge of the 
 nature of the acts on which it was attempted to rest the estoppel. Hart v. Giles, 67 
 Mo. 175, and cases cited; Breeding v. S amper, 18 B. Mon. (Ky.) 175. In Hill ». 
 Epley, 31 Pa. St. 331, the court speaks of the doctrine as resting on fraud, yet it 
 defines the equitable principle as being that " when a loss must befall one of tw» 
 innocent persons , that one must bear it through whose act it was occasioned." 
 
 * Brant v. Va. Coal & Iron Co., 93 U. S. 326. 
 
 * 14 Cal. 279. The opinions in both cases were by the same eminent judge. 
 
§ 847.] DEFENSES. 711 
 
 tive fraud or of gross negligence, which in effect implies 
 fraud. And, therefore, when the circumstances of the case 
 repel any such inference, although there may be some 
 degree of negligence, yet courts of equity will not grant 
 relief. It has, accordiugly, been laid down by a very learned 
 judge, that the cases on this subject go to this result only, 
 that there must be positive fraud, or concealment, or negli- 
 gence, so gross as to amount to constructive fraud.' x To 
 the same purport is the language of the adjudged cases. 
 Thus it is said, by the Supreme Court of Pennsylvania, 
 that 'the primary ground of the doctrine is, that it would 
 be a fraud in a party to assert what his previous conduct 
 had denied, when on the faith of that denial others have 
 acted. The element of fraud is essential, either in the in- 
 tention of the party estopped, or in the effect of the evi- 
 dence which he attempts to set up.' 2 And it would seem 
 that to the enforcement of an estoppel of this character 
 with respect to the title of property, such as will prevent 
 a party from asserting his legal rights, and the effect of 
 which will be to transfer the enjoyment of the property to 
 another, the intention to deceive and mislead, or negli- 
 gence so gross as to be culpable, should be clearly estab- 
 lished. There are undoubtedly cases where a party may 
 be concluded from asserting his original rights to prop- 
 erty in consequence of his acts or conduct, in which the 
 presence of fraud, actual or constructive, is wanting ; as, 
 where one of two innocent parties must suffer from the 
 negligence of another, he through whose agency the neg- 
 ligence was occasioned will be held to bear the loss ; and 
 where one has received the fruits of a transaction, he is 
 not permitted to deny its validity whilst retaining its bene- 
 fits. But such cases are generally referable to other prin- 
 ciples than that of equitable estoppel, although the same 
 result is produced ; thus, the first case here mentioned is 
 the affixing of liability upon the party who from negligence 
 
 1 See I Story's Eq. Jur. § 391. 
 
 3 See Hill v. Epley, 31 Pa. St. 334. See, also, Henshaw v. Bissell, 18 Wall. 271 ; 
 Boggs v. Merced Min. Co., 14 Cal. 368; Davis v. Davis, 26 Cal. 23; Common- 
 wealth v. Moltz, 10 Pa. St. 531 ; Copeland v. Copeland, 28 Me. 539; Delaplaine 
 v. Hitchcock, 6 Hill(N. Y.), 16; Hawes v. Marchant, I Curt. C. C. 136; Zuchtmann 
 ■d. Roberts, 109 Mass. 53. 
 
712 DEFENSES. [§ 848. 
 
 indirectly occasioned the injury, and the second is the 
 application of the doctrine of ratification or election. Be 
 this as it may, the general ground of the application of the 
 principle of equitable estoppel is as we have stated. It 
 is also essential for its application with respect to the 
 title of real property that the party claiming to have 
 been influenced by the conduct or declarations of another 
 to his injury was himself not only destitute of knowledge 
 of the true state of the title, but also of any convenient 
 and available means of acquiring such knowledge. Where 
 the condition of the title is known to both parties, or both 
 have the same means of ascertaining the truth, there can 
 be no estoppel." * JSTow, the facts on which this case 
 turned were that both parties knew, or had ample means 
 of knowing, the title, and there was no misrepresentation 
 in fact. Hence the court itself says : " It is difficult to see 
 where the doctrine of equitable estoppel comes in here," 
 and all the remarks of the court about an intent to deceive 
 are clearly obiter. In this discussion it should be noticed 
 that in cases in which both parties know the title, or are 
 held chargeable with knowledge (as by the recording acts), 
 estoppel by deceit cannot arise. And generally the principle 
 of estoppel cannot be invoked by one who was acquainted 
 with the character of his title, or the fact that he had none. 2 
 To sustain an estoppel because of an omission to speak, 
 there must be both the specific opportunity and the appar- 
 ent duty to speak ; the party maintaining silence must 
 have known that some one was relying thereon, and was 
 either acting or about to act, as he would not have done 
 had the truth been told, and so when a proper search in 
 the records would have disclosed the defect in the title, 
 mere silence will not work an estoppel. 8 
 
 § 848. Distinction between right and remedy in equity. — 
 It must be carefully noted that there is here a distinction 
 often overlooked by the courts between the right to set 
 up an equitable estoppel in cases falling short of fraud, and 
 
 1 Brant v. Va. Coal & Iron Co., 93 U. S. 326, 335. Citing Crest v. Jack, 3 Watts 
 (Pa.), 240; Knouffz/. Thompson, 16 Pa. St. 361. 
 
 2 Steel 7/. Smelting Co., 106 U. S. 447; Neal v. Gregory, 19 Fla. 356. 
 
 3 Viele v. Judson, 82 N. Y. 32. 
 
§ 849.] DEFENSES. 713 
 
 the question as to whether the equitable estoppel, admit- 
 ting one to exist, is available in suits at law. The first 
 question, which we have just been considering, whether 
 an estoppel exists, may be determined either way without 
 affecting the second, which is solely one of procedure. In 
 a recent leading case in Michigan, 1 which contains a very 
 full collection of authorities, the real question at issue was 
 the right of a plaintiff to recover on an equitable estoppel 
 in an action of ejectment. But the case is discussed by the 
 learned court, as if the question had been whether the doc- 
 trines of estoppel were different (as suggested above) in the 
 case of real and personal estates. 
 
 § 849. Is equitable estoppel available at law f — It has been 
 held in many cases that estoppel by conduct is not avail- 
 able at law, 2 but the Supreme Court of the United States in 
 two recent cases, 3 and the State courts in many instances, 4 
 have held that such estoppel constitutes a good defense 
 to a common law action of ejectment. Of course the 
 authority of the Federal courts in this matter must be con- 
 sidered conclusive, as the equitable jurisdiction in these 
 tribunals is still sharply distinguished from the legal. 5 In 
 Hayes v. Livingston, 6 as we have seen, the Supreme Court of 
 Michigan, in a learned opinion (delivered by Oooley, C. J.), 
 examined the question whether ejectment could be main- 
 tained on the strength of an estoppel in pais, and held 
 that it could not. In another chapter 7 it is suggested that 
 equitable issues like this ought to be kept sharply dis- 
 criminated from legal issues, triable by a jury, and this 
 matter is adverted to by the Supreme Court of Michigan. 
 The ground taken by the Michigan court is consistent with 
 the general principles which govern trials of title. The 
 
 1 Hayes v. Livingston, 34 Mich. 384. 
 
 2 Wimmer v. Ficklin, 14 Bush (Ky.), 193 ; Hayes v. Livingston, 34 Mich. 384 ; 
 Bigelow on Estoppel, 596, and cases cited ; Winslovv v. Cooper, 104 111. 235 ; Kelly 
 11. Hendricks, 57 Ala. 193 ; Hendricks v. Kelly, 64 Ala. 388; Allen v. Kellam, 69 
 Ala. 442. 
 
 3 Kirk v. Hamilton, 102 U. S. 68; Dickerson v. Colgrove, 100 U. S. 578. 
 
 4 Big. on Est., 599, and cases cited. 
 
 5 See post, Ch. XXXIV. 
 
 6 34 Mich. 384. 
 
 ' See Chapter XXXI. 
 
714 DEFENSES. [§ 850. 
 
 point of difficulty now is to determine how equitable 
 matters in an action at law which cannot be introduced by 
 the plaintiff, may still be made available by way of de- 
 fense. The point seems to call for further elucidation by 
 the courts. 1 
 
 § 850. Estoppel by deed. — Warranty. — After-acquired title. 
 — The question with regard to estoppel by deed which has 
 in modern times caused most controversy is, whether the 
 estoppel effected by a warranty in the case of an after- 
 acquired title, actually passes the estate to the grantor, or 
 merely precludes the grantor from setting it up. The 
 question is of great importance as it affects innocent 
 purchasers. If the estoppel actually conveys the title, it 
 cuts off the innocent purchaser who had bought an ap- 
 parently valid title, and protects the purchaser who has 
 bought when there was no title. Thus, where A., having 
 no title, sells to B. with warranty ; and subsequently ac- 
 quiring title, to 0., if the estoppel passes title, the estate 
 inures to the benefit of B. This doctrine, under the registry 
 acts, leads to the practical inconvenience that purchasers 
 of estates have no certain way of protecting themselves 
 against losing their property by estoppel. In the case 
 supposed, 0., having searched the records, and found that 
 at a given time A. had title, considers himself safe in 
 taking title from him. But if the estoppel has the effect 
 suggested he would not be safe unless he were to search 
 the records during the entire lifetime of A. to see that 
 he had not at some time when he had no title, conveyed it 
 to a third person with warranty, and so, also, in the case of 
 every successive holder. The subject, and the cases have 
 been learnedly examined by several writers. 3 In Massachu- 
 setts it is settled that the title actually passes by means of 
 the estoppel, so as to cut off innocent purchasers. 3 In Vir- 
 ginia, on the other hand, the opposite conclusion has been 
 reached. 4 Full collections of all the authorities are to be 
 
 1 See this case followed, Nims v. Sherman, 43 Mich. 45 ; DeMill u. Moffat, 49 
 Mich. 125. 
 
 Q Bigelow on Estoppel, 348-381 ; Rawle on Covenants for Title, Ch. XI; 2 Smith's 
 Lea. Cas. (8th Am. ed.) 838 et seq. 
 
 * Knight v. Thayer, 125 Mass. 25. 
 
 * Burtners v. Reran, 24 Gratt. (Va.) 42. 
 
§ 850.] 
 
 DEFENSES. 715 
 
 found in the works already quoted, and we cannot do 
 more here than to express the opinion that the arguments 
 against the transfer of the title by virtue of the estoppel, . 
 when the question is open, seem to be conclusive. It 
 should be observed that many decisions speak of the 
 estoppel passing the estate, when the question merely 
 aifects the grantor and his heirs (who, as they take with- 
 out consideration, stand equitably in his place) or where, 
 at any rate, no innocent third person is affected. These 
 cases can hardly be considered of binding force where the 
 question is between an innocent assignee of the grantor, 
 after title acquired, and the grantee claiming by virtue of 
 the estoppel. 1 
 
 1 Mickles v. Townsend, 18 N. Y. 575 ; Middlebury College v. Cheney, 1 Vt. 
 336 ; Blake v. Tucker, 12 Vt. 39 ; Boston & W. R. R*. Co. v. Sparhawk, 5 Mete. 
 (Mass.) 469; Massie v. Sebastian, 4 Bibb (Ky.), 436 ; Logan v. Steele, 4 Mon. (Ky.) 
 430; Logan v. Moore, 7 Dana (Ky.), 76; Philly v. Sanders, 11 Ohio St. 490; Dick- 
 erson o. Talbot, 14 B. Mon. (Ky.) 60 ; Rigg v. Cook, 9 111. 348 ; Robertson v. 
 Gaines, 2 Humph. (Tenn.) 383; Kennedy v. McCartney, 4 Port. (Ala.) 159 ; Jack- 
 son v. Hubble, 1 Cow. (N. Y.) 613; Jackson v. Winslow, 9 Cow. (N. Y.) 18; 
 Jackson v. Bradford, 4 Wend. (N. Y.) 619 ; Pelletreau v. Jackson, 11 Wend. (N. 
 Y.) 119; Jackson v. Waldron, 13 Wend. (N. Y.) 178 ; Kellogg v. Wood, 4 Paige 
 (N. Y.), 578; Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 567; Funk v. 
 Newcomer, 10 Md. 301 ; Packard v. Agawam Mut. F. I. Co., 2 Gray (Mass.), 334; 
 Skinner v. Starner, 24 Pa. St. 123; Washabaugh v. Entriken, 34 Pa. St. 74; Bust 
 v. Marshall, 6 How. 291; Hoyt v. Dimon, 5 Day (Conn.), 479; Dart v. Dart, 7 
 Conn. 250 ; Fox z/. Widgery, 4 Me. 214 ; Lawry v. Williams, 13 Me. 282 ; Ham v. 
 Ham, 14 Me. 351 ; Pike v. Galvin, 29 Me. 185 ; Kimball v. Blaisdell, 5 N. H. 535; 
 Morrison v. Underwood, 20 N. H. 369 ; Kimball v. Schoff, 40 N. H. 196 ; Robert- 
 son v. Wilson, 38 N. H. 48 ; Hayes v. Tabor, 41 N. H. 521 ; Ross v. Adams, 28 
 N. J. Law, 160; Hassell v. Walker, 5 Jones' (N. C.) Law, 270 ; Jewell v. Porter, 
 31 N. H. 34; Benick v. Bowman, 3 Jones' (N. C.) Eq. 314; Mays v. Lewis, 4 Tex. 
 38; Wade v. Lindsey, 6 Mete. (Mass.) 407; Gough v. Bell, 21 N. J. Law, 165; 
 Moore v. Rake, 26 N. J. Law, 574; Brundred v. Walker, 12 N. J. Eq., 140; Doug- 
 lass v. Scott, 5 Ohio, 194; Barton v. Morris, 15 Ohio, 408; Doswell v. Buchanan, 
 3 Leigh (Va.), 376; Drake v. Root, 2 Col. 685 ; Pratt v. Pratt, 96 111. 184 ; People 
 v. Herbel, 96 111. 384; Dugan v. Follett, 100 111. 581; Scoffins v. Grandstaff, 12 
 Kan. 467; Lee v. Clary, 38 Mich. 223; House v. McCormick, 57 N. Y. 310; Broad- 
 well v. Phillips, 30 Ohio St. 255; Wilson v. McEwan, 7 Ore. 87; Bailey v, Hoppin, 
 12 R. I. 560 ; Robertson v. Sharpton, 17 S. C. 592 ; Cross v. Martin, 46 Vt. 14 ; 
 Prouty v. Mather, 49 Vt. 415; Burtners v. Keran. 24 Gratt. (Va.) 42; Mann v. 
 Young, i Wash. Ter. (N. S.) 454; North v. Henneberry, 44 Wis. 306 ; McCarthy 
 v. Mann, 19 Wall. 20 ; White v. Patten, 24 Pick. (Mass.) 324 ; CJark v. Baker, 14 
 Cal. 612; Bush v. Cooper, 18 How. 82; aff'g s. c. 26 Miss. 599 ; Boone v. Arm- 
 strong, 87 Ind. 168; Gotham v. Gotham, 55 N. H. 440; DeWolf v. Haydn, 24 III. 
 525 ; Hill v. West, 8 Ohio, 226 ; Nash v. Spofford, 10 Mete. (Mass.) 192 ; Wellborn 
 v. Finley, 7 Jones' (N. C.) Law, 228; King v. Rea, 56 Ind. 1 ; Rawle on Covenants 
 for Title (3d ed.), 433 ; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167 ; Martin 
 v. Dwelly, 6 Wend. (N. Y.) 9; Wight v. Shaw, 5 Cush. (Mass.) 56; Den d. Hopper 
 i). Demarest, 21 N. J. Law, 541 ; Preston v. Evans, 56 Md. 476 ; Bank of America 
 v. Banks, 101 U. S. 240; Sheffield w. Griffin, 21 Kan. 417; Hannah v. Collins, 94 
 Ind. 201 ; Sherman v. Kane, 46 N. Y, Superior Ct. 325 ; s. c. on appeal, 86 N. Y. 
 68 ; Bixby v. Bent, 59 Cal. 522 ; Norcum v. Gaty, 19 Mo. 65 ; Tefft v. Munson, 57 
 N. Y. 97. 
 
716 DEFENSES. [§§ 851-854. 
 
 § 851. No estoppel through void or illegal contract. — To 
 work an estoppel, the contract between the parties must 
 be valid. And therefore in the case of an illegal, fraudu- 
 lent, or void deed, no estoppel can arise. 1 Thus, between 
 landlord and tenant, where the land leased is reserved by 
 the Government, and its occupation is contrary to law, 
 the estoppel cannot be set up, and the courts will take 
 judicial notice of the fact that the land is so reserved. 2 
 
 § 852. Estoppel must oe direct. — Again, a party to such 
 an instrument is not estopped in an action not founded on 
 the deed, but collateral to it. In such cases the recitals 
 may be evidence, but are not conclusive. 3 
 
 § 853. No estoppel against grantee. — It is settled that 
 between grantor and grantee there is no estoppel or other 
 principle which prevents the grantee setting up a para- 
 mount title. The estoppel exists only where there is an 
 obligation, express or implied, that the occupant will at 
 some time, or in some event, surrender the possession. 4 
 And the rule applies with equal force to a grantee of an 
 estate for life as to a grantee in fee. 5 But the rule that 
 the vendee is not estopped to deny the vendor's title is 
 not applicable to a case in which the only title asserted or 
 claimed by the grantee is the precise title he acquired from 
 the grantor. 6 
 
 § 854. Estoppel against a State. — Title may be acquired 
 against a State by estoppel in pais.'' 
 
 1 Big. on Estoppel, 286, and cases cited. 
 
 2 Dupas v. Wassell, 1 Dill. 213 ; Uhlig v. Garrison, 2 Dak. 71, 99 (see Ap- 
 pellant's brief for full collection of authorities) ; French v. Lancaster, 2 Dak. •546. 
 See §358. 
 
 3 Big. on Estoppel, 290. 
 
 4 Blight v. Rochester, 7 Wheaton, 535; Grosholz v. Newman, 21 Wall. 481! 
 Bigelow v. Finch, 11 Barb. (N. Y.) 498; Averill v. Wilson, 4 Barb. (N. Y.) 180; 
 Sparrow v. Kingmah, 1 N. Y. 242 ; Henry v. Reichert, 22 Hun (N. Y), 394; Bige- 
 low on Estoppel, 283, 377, and cases cited. 
 
 5 Robertson y. Pickrell, 109 U. S. 608. Compare Traver v. Baker, 8 Sawy. 535, 
 where a quitclaim deed was held to estop the grantor because it warranted the pos- 
 session. 
 
 6 Wilcoxon v. Osborn, 77 Mo. 62T. 
 
 7 State of Indiana v. Milk, 11 Biss. 197 ; citing Commonwealth v. Andre, 3 Pick.' 
 (Mass.) 224; Commonwealth v. Pejepscut Prop'rs, 10 Mass. 155; People v. Society, 
 Ac, 2 Paine, 545; State v. Bailey, 19 Ind. 452; People v. Maynard, 15 Mich. 463; 
 Cahn v. Barnes, 7 Sawy. 48. See Bigelow on Estoppel, 278. 
 
§ 855.] DEFENSES. 717 
 
 § 855. Pleading estoppel. — The opinion in the case of 
 Eaynor v. Timerson * has been cited as tending to hold that 
 evidence of an estoppel against the plaintiff is admissible 
 under a general denial, but the point was not involved in 
 the case, and it is not an authority for that proposition. 
 The question was incidentally noticed in Creqne v. Sears,* 
 where it is said that the essence of an action of ejectment is 
 the right to the possession ; a denial of such right contro- 
 verts a fact essential to plaintiff's recovery, and hence any 
 evidence showing that he never had any right of recov- 
 ery against the defendant is admissible under the general 
 issue. The subject is not free from doubt. An equitable 
 estoppel may be proved under the plea of " not guilty " in 
 trespass to try title in Texas. 3 The rule laid down by the 
 Supreme Court of the United States on this subject is that 
 if a party has an opportunity to plead an estoppel and 
 voluntarily omits to do so, he waives the estoppel ; but if 
 he have not the opportunity to show the estoppel by plead- 
 ing, he may exhibit the matter in evidence. 4 It is said by 
 Mr. Bigelow 5 that it is well settled at common law that an 
 estoppel need not be pleaded, but that this rule has been 
 changed by statute in some of the States. This statement 
 does not seem to be accurate. At common law the rule 
 just cited from the decision of the Supreme Court is prob- 
 ably the correct one ; while the only change introduced by 
 statute is that, under the modern system of code pleading, 
 the rule that affirmative defenses must be set out would 
 seem to reinforce the rule that estoppel should be pleaded 
 when it is possible. And this applies to both sides. Thus 
 matter of estoppel may be relied on as evidence by plaint- 
 iff where the only defense is the general issue, because the 
 estoppel in such case cannot be pleaded ; but when the 
 matter out of which the estoppel arises is specially pleaded, 
 
 1 46 Barb. (N. Y.) 518. See Phillips v. Blair, 38 Iowa, 649. 
 " 17 Hun (N. Y.), 124. Compare Suttle v. Richmond F. & P. R. R. Co., 76 Va. 
 291. 
 
 3 Mayer v. Ramsey, 46 Tex. 371. But see Wood v. Ostram, 29lnd. 177; Etche- 
 borne v. Auzerais, 45 Cal. 121; Davis v. Davis, 26 Cal. 23; Clarke v, Huber, 25 Cal. 
 593- 
 
 4 Phila. W. & B. R. R. Co. v. Howard, 13 How. 307, 335. 
 
 6 Big. on Estoppel, 585. 
 
718 DEFENSES. [§ 855. 
 
 then the estoppel must be specially replied. 1 But cases 
 often arise where an estoppel appears in the case whether 
 the parties plead it or omit to do so. Thus in Brown v. 
 Bo wen 2 the New York Court of Appeals affirmed a judg- 
 ment of the court below on the strength of an estoppel to 
 which "the attention of neither court nor counsel was 
 drawn on the trial." It was said that it was useless to 
 grant a new trial because the facts constituting the 
 estoppel were conclusive. 3 
 
 1 Hayes v. Mutual Prot. Assn., 76 Va. 225 ; and see Knight v. Mutual Life Ins. 
 Co., 14 Phila. (Pa.) 1S7; Bray w. Marshall, 75 Mo. 327; Burlington & M. R. R. Co. 
 v. Harris, 8 Neb. 140; Coleman v. Pearce, 26 Minn. 123; Turnipseed v. Hudson, 50 
 Miss. 429; Mayers. Ramsey, 46 Tex. 371; Wood v. Ostram, 29 Ind. 177; Ransoms. 
 Stanberry, 22 Iowa, 334; Phillips v. Van Schaick, 37 Iowa, 229; Dalez/. Turner, 34 
 Mich. 405 ; Warder v. Baldwin, 51 Wis. 450. In Welland Canal Co. v. Hathaway, 
 8 Wend. (N. Y.) 483, it is said that estoppel in pais cannot be pleaded, but the remark 
 is obiter, and must not be relied upon as stating a true rule of law. Pleas of estoppel 
 must always be precise and certain, leaving nothing to intendment. Stewart v. Beck, 
 90 Ind. 458. 
 
 a 30 N. Y. 519. 
 
 3 lb. 541, 542. 
 
CHAPTER XXXIII. 
 
 BOUNDARIES. 
 
 856. Construction of grants. 
 
 857. Land bounded on a street or river. 
 
 858. Leading cases. 
 
 859. Particular words and phrases. 
 
 860. Grants on the sea-shore. 
 
 861. General rales. 
 
 862. Natural and ascertained objects 
 
 govern course and distance. 
 
 § 863. Destruction of monuments. 
 
 864. Monuments erected under deed. 
 
 865. Remedies. — Equitable jurisdiction. 
 
 866. Statutory remedies. 
 
 867. Agreements as to boundaries. 
 
 868. Estoppel. 
 
 869. Conclusions. 
 
 § 856. Construction of grants. — The principle of most 
 common application in the determination of boundaries, 
 or the extent of grants, is that the intention of the parties 
 as expressed in the deeds which establish them must fur- 
 nish the guide of construction ; but this is a principle of 
 equal importance in all contracts, and is very general in its 
 nature. The secondary rules elaborated by the courts in 
 various classes of cases are so numerous that it is impos- 
 sible to give them all, and we shall confine ourselves to a 
 few of the most important. 
 
 §857. Land hounded on a street or river.— "It may be 
 considered," says Chancellor Kent, "as the general rule, 
 that a grant of land bounded upon a highway or river 
 carries the fee in the highway or river to the centre of 
 it, provided the grantor at the time owned to the centre 
 and there be no words or specific description as to show a 
 contrary intent." 1 This, so far as a way is concerned, 
 is on the ground that, as the public has what is practically 
 a perpetual easement 2 in the road, the grantor can have 
 no object in retaining any interest, and must, therefore, 
 have intended to convey all that he had. The case of a 
 river, in which there is very often no public easement at 
 all, is generally treated as similar to that of the road. It is 
 manifest, however, that land under water, in the case of 
 
 1 3 Kent's Com. 433, 434. 
 
 See § 7530; also Chap. VIII. 
 
720 BOUNDARIES. [§ 858. 
 
 great rivers used for commerce and such as flow by densely 
 populated districts, may become, and continually does be- 
 come, of immense value ; and a great deal of confusion 
 would be removed from the cases if this distinction of fact 
 were more frequently kept in view. It is also clear from 
 the early cases cited by Kent, 1 and from the qualifications 
 incorporated in the rule itself, that it is not strictly a 
 matter of law, but a mere inference from general exper- 
 ience. From this and similar inferences of fact, the courts 
 have endeavored to evolve rules of construction, of which 
 the most comprehensive is the following, laid down by Gray, 
 J., in Oity of Boston v. Richardson. 2 "Whenever land 
 is described as bounded by other land, or by a building 
 or structure, the name of which, according to its legal 
 and ordinary meaning, includes the title in the land of 
 which it has been made part, as a house, a mill, a wharf, 
 or the like, the side of the land or structure referred to 
 as a boundary is the limit of the grant; but when the 
 boundary line is simply by an object, whether natural or 
 artificial, the name of which is used in ordinary speech as 
 defining a boundary, and not as describing a title in fee, 
 and which does not in its description or nature include the 
 earth as far down as the grantor owns, and yet which has 
 width, as in the case of a way, a river, a ditch, a wall, a 
 fence, a tree, or a stake and stones, then the centre of 
 the thing so running over or standing on the land is the 
 boundary of the lot granted." 
 
 § 858. Leading cases. — If we examine a few of the im- 
 portant cases, we shall find that the courts have generally 
 been governed by the rule of intention as far as it could 
 be drawn from the deeds or circumstances of possession. 
 In Child v. Starr, 3 it was held by the New York Court of 
 Errors, that a description of a lot running eastwardly to 
 the Genesee river, and thence along the shore of said river, 
 excluded the bed of the stream, the use of the word 
 
 1 Stevens u. Whistler, n East, 51; Headlam v. Hedley, Holt's N. P. 463; 
 Wright v. Howard, 1 Sim. & Stu. 190. 
 
 2 13 Allen (Mass.), 146, 154. 
 
 3 4 Hill (N. Y.), 369. 
 
§§859,860.] BOUNDARIES. 721 
 
 "shore " making it clear that the grantor had not meant 
 to go beyond it. In The City of Boston v. Richardson, 1 
 an ancient record showed possession of a house and lot 
 "bounded with the street." It was held that this carried 
 the grant to the center, and that the jury should have 
 been so positively instructed. In Kings County "Fire 
 Ins. Co. v. Stevens, 2 the description began "at a point 
 on the southerly side of the Wallabout Bridge road," 
 adjoining land of S., thence by certain courses and dis- 
 tances "to the Wallabout Bridge road," thence "along 
 said road to the place of beginning." The court held the 
 road-bed excluded. On the other hand, a description be- 
 ginning "on the northerly side " of a road, and thence 
 running "by said road," has been held by the Supreme 
 Court of Maine, not to be sufficient to overcome the ordi- 
 nary presumption. 3 
 
 § 859. Particular words and phrases. — It is idle to at- 
 tempt to collect all the cases of descriptions of boundaries 
 to be met with in the books. An examination of the 
 cases will show that the general rule of intention is always 
 held in view by the courts ; but judges do not in all cases 
 take the same view of the effect of the same words. 
 
 § 860. Grants on the sea-shore. — The construction of 
 grants, bounding on the sea, is governed by the same gen- 
 eral principles. In Massachusetts, when an abutter on the 
 shore owns the flats, his intention to retain or convey the 
 flats is to be gathered from the words employed, 4 and the 
 general principle is said to be that a boundary by the tide 
 water passes the flats, while a boundary by the land under 
 the water excludes them. Thus, a grant bounded "by 
 the harbor;" 5 "or the sea or salt water;" 6 or "the 
 
 1 13 Allen (Mass.), 146. 
 
 ! 87 N. Y. 287. 
 
 3 Cottle v. Young, 59 Me. no. 
 
 * 2 Dane's Abr. 691, 699; Valentine v. Piper, 22 Pick. (Mass.) 85, 94; Drakes. 
 Curtis, 1 Cush. (Mass.) 395, 413. Doubtful words are to be taken most strongly 
 against a private grantor. Adams v. Frothingham, 3 Mass. 352, 361; Saltonstall v. 
 Prop'rs of Long Wharf, 7 Cush. (Mass.) 195, 201 ; Winslow v. Patten, 34 Me. 25. 
 Otherwise as to public grants. Commonwealth v. City of Roxbury, 9 Gray (Mass.), 
 451; Martin v. Waddell, 16 Pet. 367, 411. 
 
 5 Mayhew v. Norton, 17 Pick. (Mass.) 357, 359. 
 
 6 Green v. Chelsea, 24 Pick. (Mass.) 71, 77. 
 
 46 
 
722 BOUNDARIES. [§ 861. 
 
 sea ;" 1 by " the creek; " 2 on the "stream;" 3 or "river;"'* or 
 " bay," 5 carries the flats ; while the flats are excluded by such 
 words as "by the shore;" 6 or "beach;" 7 or "flats;" 6 
 a boundary "by a way;" 9 "by the marsh;" 10 or "by a 
 cliff," u excludes the flats ; while a private grant "on the 
 sea or flats," being ambiguous, passes them. 12 
 
 § 861. General rules. — From the general principle that 
 the intention of the parties, as expressed in the deed, gov- 
 erns, the courts have evolved numerous rules of construc- 
 tion, which are not to be taken as invariable tests, but 
 
 1 Jackson v. Boston & W. R. R. Co. I Cush. (Mass.) 578; Saltonstall v. Prop'rs of 
 Long Wharf, 7 Cush. (Mass.) 195, 200. 
 
 2 Harlow v. Fisk, 12 Cush. (Mass.) 302. 
 
 2 Lapish v. Bangor Bank, 8 Me. 85, 92, 93. 
 
 4 Moore v. Griffin, 22 Me. 350. 
 
 5 Partridge v. Luce, 36 Me. 19. 
 
 6 Storer v. Freeman, 6 Mass. 435, 439. 
 
 ' Niles v. Patch, 13 Gray (Mass.), 254, 257. 
 
 8 Parsons, C. J., in Storer v. Freeman, 6 Mass. 435, 439 ; Fletcher, J., in Sal- 
 tonstall v. Prop'rs of Long Wharf, 7 Cush. (Mass.) 195, 200. 
 
 9 Codman v. Winslow, 10 Mass. 146, 149. 
 
 10 Rust v. Boston Mill Corporation, 6 Pick. (Mass.) 158, 166. 
 
 11 Barker v. Bates, 13 Pick. (Mass.) 256, 261. 
 
 12 Saltonstall v. Prop'rs of Long Wharf, 7 Cush. (Mass.) 195. These cases maybe 
 found cited in the learned note of the reporter in the case of Commonwealth v. City 
 of Roxbury, 9 Gray (Mass.), 451, 525. See, also, Sibley v. Holden, 10 Pick. (Mass.) 
 249; Tyler v. Hammond, 11 Pick. (Mass.) 193; Phillips v. Bowers, 7 Gray(Mass.),2i; 
 Smith v. Slocomb, 9 Gray (Mass.), 36; s. c. 11 Gray (Mass.), 280; Revere v. Leonard.l 
 Mass. 91; Oxton v. Groves, 68 Me. 371 ; Cottle v. Young, 59 Me. 105; Perkins v. 
 Oxford, 66 Me. 545 ; Johnson v. Anderson, 18 Me. 76; Pike v. Munroe, 36 Me. 
 309; Robinson v. White, 42 Me. 209, 218; Cold Spring Iron Works z>. Inhabitants 
 of Tolland, 9 Cush. (Mass.) 495, 496; Bucknam v. Bucknam, 12 Me. 465; Newhall 
 v. Ireson, 8 Cush. (Mass.) 598 ; Canal Appraisers v. People, 17 Wend. (N. Y.) 590; 
 Comm'rs of Canal Fund v. Kempshall, 26 Wend. (N. Y.) 404 ; Jackson v. Hatha- 
 way, 15 Johns. (N. Y.) 454 ; Warner v. Southworth, 6 Conn. 471, 474 ; Fisher v. 
 Smith, 9 Gray (Mass.), 444 ; Hollenbeck v. Rowley, 8 Allen (Mass.), 473 ; Rice v. 
 County of Worcester, 11 Gray (Mass.), 283, note; Banks v. Ogden, 2 Wall. 68; 
 Bissell v. N. Y. Central R. R. Co., 23 N. Y. 61 ; Marsh v. Burt, 34 Vt. 289 ; Ber- 
 ridge v. Ward, 10 C. B. [N. S.] 400; Reg. v. Board of Works, 4 B. & S. 548, 553 ; 
 Webber v. Eastern R. R. Co., 2 Mete. (Mass.) 151; Codman v. Evans, 1 Allen 
 (Mass.), 446 ; Brainard v. Boston & N. Y. Cent. R. R. Co., 12 Gray (Mass.), 407 ; 
 Winslow v. King, 14 Gray (Mass.), 321 ; Jamaica Pond Aqueduct Corp. v. Chand- 
 ler, 9 Allen (Mass.), 159; Berry & Goodman's Case, 2 Leon. 147, 148; Holmes v. Bel- 
 lingham, 7 C. B. [N. S.] 329 ; Jones v. Soulard, 24 How. 41; Lunt v. Holland, 14 
 Mass. 149 ; Hatch v. Dwight, 17 Mass. 289; Bradford v. Cressey, 45 Me. 9 ; Phin- 
 ney v. Watts, 9 Gray (Mass.), 269 ; Harlow v. Fisk, 12 Cush. (Mass. ) 304; Chapman 
 v. Edmands, 3 Allen (Mass.), 512; Dunlap v. Stetson, 4 Mason, 366; Thomas v. 
 Hatch, 3 Sumner, 178, 179; Moore v. Griffin, 22 Me. 350; Ipswich Petitioners, 13 
 Pick. (Mass.) 431 ; State v. Canterbury, 28 N. H. 195 ; Lord v. Comrs. of Sydney, 
 12 Moore's P. C. 473; Halsey v. McCormick, 13 N. Y. 296; Seneca Nation v. Knight, 
 23 N. Y. 498 ; English v. Brennan, 60 N. Y. 609 ; White's Bank v. Nichols, 64 N. 
 Y. 65; Dunham v. Williams, 37 N. Y. 251. 
 
§ 862.] BOUNDARIES. 723 
 
 should always be applied in the light of the general princi- 
 ple from which they spring. It must be observed that 
 under oar system of law such rules are of vastly more im- 
 portance than they can be under systems derived from the 
 Komau law, inasmuch as contradictions or misapplications 
 ■of them, by the court, constitute misdirections to the jury, 
 and are cause for a reversal of the judgment. 1 
 
 § 862. Natural and ascertained objects govern course and 
 distance. — This rule is not an arbitrary one, but is derived 
 from experience of the fact that in describing boundaries, 
 visible objects, standing or erected on the ground, are less 
 likely to be mistaken than direction and distance, which 
 are very often matters of inference or conjecture. Conse- 
 quently, whenever known monuments are referred to as 
 boundaries, they must govern, though neither courses, 
 distances, nor contents correspond. 2 
 
 But in many cases courses and distances, consisting for 
 instance, as in the newer States and Territories, of lines 
 established by government surveys, may be more certain 
 than monuments, and in a recent case in North Carolina 3 
 it has been said that it has never been decided in that 
 State which should control, a marked tree or the line of 
 another tract, when both are called for and found to be 
 inconsistent. " Much," the Supreme Court of that State 
 says, "it would seem in such a case, should depend upon 
 the character of the line called for, its age, certainty, and 
 length, and stability of its reputation." The cardinal test 
 is, of course, in all such cases certainty, and monuments 
 
 ' As in City of Boston v. Richardson, 13 Allen (Mass.), 146, 161. 
 
 5 Land Co. v. Saunders, 103 U. S. 316; Preston v. Bowmar, 6 Wheat. 580; New- 
 born v. Pryor, 7 Wheat. 7; Johnson v. McMillan, 1 Strob. (S. C.) Law, 143; 
 Bruckner z>. Lawrence, 1 Dougl. (Mich.)ig; Wendell v. People, 8 Wend. (N. Y.) 
 183; Seaman v. Hogeboom, 21 Baib. (N. Y.) 398; Pollard v. Shively, 5 Col. 309; 
 Ayers v. Watson, 113 U. S. 594, 605 ; Stafford v. King, 30 Tex. 257 ; Haynes v. 
 Young, 36 Me. 557 ; Beal v. Gordon, 55 Me. 482; Oxton v. Groves, 68 Me. 371; 
 Cudney v. Early, 4 Paige (N.Y.), 209; Jackson z<. Widger, 7 Cow. (N.Y.) 723; White 
 •v. Williams, 48 N. Y. 347; Jones v. Smith, 73 N. Y. 205 ; Graybeal v. Powers, 76 N. 
 C. 66; N ash z<. Wilmington & W. R. R. Co., 67 N. C. 413; McEowenf. Lewis, 26 N.J. 
 Law, 451; Keenan v. Cavanaugh, 44 Vt. 268; Kellogg v. Mullen, 45 Mo. 571; 
 Nivin v. Stevens, 5 Harr. (.Del.) 272; Piercy v. Crandall, 34 Cal. 334; Lodge v. 
 Barnett, 46 Pa. St. 477 ; Lewis v. Lewis, 4 Oregon, 177; Adams v. Alkire, 20 W. 
 Va. 480; Dogan v. Seekright, 4 H. & M. (Va.) 125. 
 
 3 Murray v. Spencer, 88 N. C. 357. 
 
724 boondaeies. [§§ 863-865, 
 
 are preferred to courses and distances only because and 
 only when they are more certain. 1 
 
 §863. Destruction of monuments. — It frequently happens- 
 that in the lapse of time monuments originally fixed are 
 obliterated or destroyed. In such cases parol evidence 
 is admissible to show where they stood at the time the de- 
 scription was inserted in the deed. 3 
 
 § 864. Monuments erected under deed. — Another rule of 
 construction is that where monuments are referred to in a 
 deed, which at the time do not exist but which are after- 
 wards established by the parties under and in accordance 
 with the deed, these will be taken to be the monuments 
 intended, and the facts may be proved by parol. 3 
 
 § 865. Remedies. — Equitable jurisdiction. — The ordinary 
 remedy to settle questions of disputed boundary is eject- 
 ment, or the statutory substitutes for it. As the line of 
 demarcation between estates determines the extent of the 
 possession on either side, and the right to possession is a 
 legal right, a contest about the line necessitates a trial by 
 jury, and equity cannot be resorted to in such cases. 4 Never- 
 
 1 Higinbotham v. Stoddard, 72 N. Y. 94; White v. Luning, 93 U. S. 514; 
 Jones v. Burgett, 46 Tex. 284 ; Buffalo, N. Y. & E. R. R. Co. v. Stigeler, 61 N. Y. 
 348 ; Miller v. Bryan, 86 N, C. 167. 
 
 * Robinson v. Kime, 70 N. Y. 147, 154, and cases cited. 
 
 s Makepeace v. Bancroft, 12 Mass. 469; Waterman v. Johnson, 13 Pick. (Mass.) 
 261, 267. Among the numerous rules of construction resorted to by the courts for 
 the purpose of ascertaining the intention of the parties, we may notice the follow- 
 ing : A particular description will control a general description : Herrick »„ 
 Hopkins, 23 Me. 217; Nuttings. Herbert, 35 N. H. 120; McEowen v. Lewis, 26 
 N.J. L. 457. The whole instrument is to be looked at, and mistakes and misde- 
 scriptions rejected. Abbott v. Abbott, 53 Me. 356, 361 ; Drew v. Drew, 28 N. H- 
 489; Berry v. Wright, 14 Tex. 270; Raymond v. Coffey, 5 Oregon, 132 ; Seaman 
 v. Hogeboom, 21 Barb. (N. Y.) 398 ; Johnson v. Simpson, 36 N. H. 91 ; Shewalter 
 v. Pirner, 55 Mo. 218; Beal v. Gordon, 55 Me. 482 ; Gibson v. Bogy, 28 Mo. 478;. 
 Mizell v. Simmons, 79 N. C. 182. In the absence of monuments the general rale 
 is, that courses and distances control quantity. Seaman v. Hogeboom, 21 Barb. 
 (N. Y.) 398 ; Opdyke v. Stephens, 28 N. J. L. 83 ; Drew v. Swift, 46 N. Y. 204; 
 Bagley v. Morrill, 46 Vt. 94. It is sometimes said that distance must yield to 
 course. Hoffman v. Riehl, 27 Mo. 554 ; Wilson v. Inloes, 6 Gill (Md.), 121. 
 Quantity is usually regarded as the least important particular in a description 
 (Petts v. Gaw, 15 Pa. St. 218; Doe d, Phillips v. Porter, 3 Ark. 18), and yields to 
 monuments, courses and distances. Nichols v. Turney, 15 Conn. 101; Campbell v. 
 Johnson, 44 Mo. 247 ; Chandler v. McCard, 38 Me. 564 ; Fuller v. Carr, 33 N. J. 
 Law, 157. It will be seen that all these rules are but variations of the general rule 
 that the less certain description must yield to the more certain, a principle not pe- 
 culiar to deeds, but applicable to all contracts. 
 
 4 Wolcott v. Robbins, 26 Conn. 236 ; Norris' Appeal, 64 Pa. St. 275 ; Wetherbee 
 v. Dunn, 36 Cal. 249; Hale v. Darter, 5 Humph. (Tenn.) 79; Haskell v. Allen, 23 
 
§ 866.] BOUNDAKIES. 725 
 
 theless, from very early times, the jurisdiction of chancery 
 to fix disputed boundaries, where these have become ob- 
 scure, has been recognized by the courts, but only in cases 
 in which some special equity attaches and there is no 
 adequate relief at law. If these circumstances do not 
 exist, the attempt to obtain equitable relief is regarded as 
 a mere ejectment bill, which, as we have already seen, will 
 never lie.' Among the grounds of equitable interference 
 may be mentioned multiplicity of suits, irreparable mis- 
 chief not easily measured by damages, fraud or mistake. 2 
 
 § 866. Statutory remedies.— In many of the States laws 
 have been passed establishing a jurisdiction to settle 
 boundaries by commission ; and in these cases the ques- 
 tion has arisen whether these statutes merely establish, in 
 a new way, the old equitable jurisdiction, or add some- 
 thing to it, and if so, what ? The cases on this point are 
 by no means harmonious. 3 The view taken in Pennsyl- 
 vania is, that the statute of that State does not increase 
 the equitable jurisdiction. In Connecticut the cases do 
 not seem to be reconcilable with each other. 1 In Ehode 
 Island the view taken seems to be that the object of the 
 statute is to enable the court simply to restore lost 
 bounds, where there are no special matters of equitable 
 cognizance. This would leave the old equitable jurisdic- 
 tion still in existence with a new jurisdiction added, which 
 the court says, "in no way interferes with common law 
 remedies "(i e., as to title and possession). 5 The great 
 question as to all these statutes is whether the intention 
 is to dispose in an equitable procedure of matters prop- 
 erly triable only at law. This the Supreme Court of 
 Pennsylvania declares in the cases above cited, is a vi- 
 
 Me.448 ; Hill v. Proctor, 10 W. Va. 59 ; Fraley v. Peters, 12 Bush (Ky.), 469 ; Dog- 
 gett v. Hart, 5 Fla. 215; Wolfe v. Scarborough, 2 Ohio St. 361. 
 
 1 Tillmes v. Marsh, 67 Pa. St. 507 ; ante, § 169. 
 
 2 Boyd v. Dowie, 65 Barb. (N. Y.) 237 ; Deveney u. Gallagher, 20 N. J. Eq. 33; 
 Stockham v. Browning, 18 N. J. Eq. 390; Merriman v. Russell, 2 Jones' Eq. (N. C.) 
 470; O'Donnell v. Kelsey, 10 N. Y. 412,415; Aborn v. Smith, 11 R. I. 594; Thorn- 
 ton v. ..Grant, 10 R. I. 477. 
 
 8 Norris' Appeal, 64 Pa. St. 275 ; Tillmes v. Marsh, 67 Pa. St. 507. 
 
 4 Perry v. Pratt, 31 Conn. 433; West Hartford Eccles. Soc. v. First Bap. Church, 
 35 Conn. 117. 
 
 5 Washington Co. v. Matteson, 11 R. I. 550, 555. 
 
726 boundaries. [§§ 867, 868. 
 
 olation of the constitutional right of the citizen, and 
 cannot be done. 
 
 § 867. Agreements as to boundaries. — We have already 
 considered the question of possession under a mistake, 1 
 and the effect of erroneously located boundary lines, 2 as 
 applied to adverse possession. The subject is not free 
 from doubt, but we believe the better rule to be that an 
 agreement by adjoining owners as to a boundary line, fol- 
 lowed by the usual acts which are ordinarily evidence of 
 adverse possession, up to such line, will confer a complete 
 title upon the occupant although the location of the line 
 was erroneous. 
 
 § 868. Estoppel. — To establish an equitable estoppel, or 
 estoppel by conduct, it is frequently said, as we have 
 seen, that fraud is essential, and that the representa- 
 tion on which the estoppel rests must have been made 
 with knowledge of the truth to one ignorant of it. 8 This 
 principle has been applied to questions of boundary 
 in a number of cases which hold that where an incorrect 
 line is established there must be knowledge of the true 
 boundary by one party and ignorance of it by the other,, 
 to create an estoppel within the period of limitation. 4 
 Other decisions, however, hold that an agreement as- 
 to a disputed boundary line, followed by improvements- 
 made by the defendant on the faith of the agreement; or,, 
 according to some of the authorities, by acquiescence, will 
 estop the claimant from asserting that the line is in fact 
 erroneous. 5 If the agreement, however, is one to establish 
 
 1 See § 759. 2 See g ?6a 
 
 3 Bigelow on Estoppel, 519. 
 
 J Proprs. of Liverpool Wharf v. Prescott, 7 Allen (Mass.), 494; Thayer v. Bacon, 
 3 Allen (Mass.), 163 ; Boston & W. R. R. Co. v. Sparkhawk, 5 Mete. (Mass.) 469; 
 Brewer v. Boston & W. R. R. Co., 5 Mete. (Mass.) 478; Big. on Estoppel, 524; Ruth- 
 erford v. Tracy, 48 Mo. 325 ; Davenport v. Turpin, 43 Cal. 597 ; Kincaid v. Dor- 
 mey, 51 Mo. 552; Louks v. Kenniston, 50 Vt. 116; Spiller v. Scribner, 36 Vt. 245. 
 
 6 Vosburgh v. Teator, 32 N. Y. 563; Corkhill u. Landers, 44 Barb. (N. Y.) 218; 
 Laverty v. Moore, 33 N. Y. 658 ; Dewey v. Bordwell, 9 Wend. (N. Y.) 66; Reed v. 
 McCourt, 41 N. Y. 435; Baldwin v. Brown, 16 N. Y. 359; Jordan v. Deaton, 23- 
 Ark. 704; Reed v. Farr, 35 N. Y. 113; Stanwood v. McLellan, 48 Me. 275; Combs 
 v. Cooper, 5 Minn. 254; Mc Arthur v. Henry, 35 Texas, 801 ; Kellogg v. Smith, 7 
 Cush. (.Mass.) 375; Dolde v. Vodicka, 49 Mo. 98. SeeCronin v. Gore, 38 Mich. 381, 
 384; Stewart v. Carleton, 31 Mich. 270; Joyce v. Williams, 26 Mich. 332; Ratcliffe 
 v. Cary, 4 Abb. Ct. App. Dec. (N.Y.) 8; Hagey v. Detweiler, 35 Pa. St. 409; Hek 
 ner v. Downing, 57 Tex. 576; Cooper v. Austin, 58 Tex. 494; Medlin v. Wilkins,, 
 
§ 869.] BOUNDARIES. 727 
 
 a new line by parol where the boundary was not indefinite 
 or uncertain, then it would probably be void by the statute 
 of frauds. But when a disputed line is fixed and adopted 
 by a parol agreement of the parties, it binds them, as we 
 have said, not by way of transfer of title, but by estop- 
 pel. 1 The law favors agreements to settle controversies of 
 this character. Such an agreement is binding, though the 
 period necessary to confer title by adverse possession has 
 not expired, 2 for title by adverse possession is not the 
 question considered ; and, when followed by the acts and 
 course of conduct indicated, is not considered to be within 
 the statute of frauds. 3 
 
 § 869. Conclusions. — It is not altogether possible to re- 
 concile these decisions. Mr. Bigelow, in his work on Es- 
 toppel, suggests that the doctrine of the Massachusetts 
 cases above cited should be followed. But the weight of 
 authority seems to be against these cases. The following 
 are the conclusions to which the current of decision seems 
 to point : First. In cases where there is ignorance on one 
 side, and knowledge and misrepresentation on the other, 
 the strict doctrine of estoppel applies. Second. Where 
 there is the establishment of a disputed boundary line, fol- 
 lowed by actual improvements, the change of situation is 
 held, in most States, to work an estoppel. Third. Where 
 there is simply a parol settlement of a disputed boundary, 
 followed by occupation without improvements, it does not 
 seem to be clear whether or not this works an estoppel. 4 
 
 6o Tex. 409 ; Davis v. Smith, 61 Tex. 18 ; Kinsey v. Satterthwaite, 88 Ind. 342 ; 
 Main v. Killinger, go Ind. 165 ; Hartung v. Witte, 59 Wis. 285 ; Johnson v. Brown, 
 63 Cal. 391 ; Pritchard v. Young, 74 Me. 419 ; Trussel v. Lewis, 13 Neb. 415 ; Hass 
 v. Plautz, 56 Wis. 105 ; Cooper v. Vierra, 59 Cal. 283; Pangburn v. Miles, 10 Abb. 
 N. C. (N. Y.) 42 ; Parkinson v. McQuaid, 54 Wis. 473. 
 
 1 Vosburgh v. Teator, 32 N. Y. 561. 
 
 "Smith v. Hamilton, 20 Mich. 433. 
 
 3 Kellum v. Smith, 65 Pa. St. 86. See Jordan v. Deaton, 23 Ark. 704; Orr v. 
 Hadley, 36 N. H. 575; Palmer v. Anderson. 63 N. C. 365 ; Acton v. Dooley, 74 Mo. 
 63; Davis v. Townsend, 10 Barb. (N. Y.) 333; Jamison v. Petit, 6 Bush (Ky.), 669. 
 See § 760. 
 
 4 See Bramble v. Kingsbury, 39 Ark. 131, where the controversy was over a strip 
 of land on which a house had been erected, and it was held that the estoppel barred 
 disturbance of the possession, although the plaintiff was allowed to prevail in the 
 ejectment. This is not in accordance with the principles governing in such actions; 
 and the case may probably be better supported on another ground mentioned by the 
 court, that the right to maintain the house on the strip constituted an easement ap- 
 purtenant. 
 
CHAPTER XXXIV. 
 
 EJECTMENT IN FEDERAL COURTS. 
 
 § 870. State law binding in Federal 
 Courts. 
 
 871. Exceptions to the rule. 
 
 872. State rules of evidence. 
 
 873. Rules of pleading and practice. 
 
 874. Amendments. 
 
 875. Jurisdiction in equity. 
 
 876. Ejectment not maintainable on 
 
 equitable title. 
 
 877. Examples. 
 
 878. Equitable title no defence. 
 
 879. State statutes recognizing equi- 
 
 table title. • 
 
 880. Robinson v. Campbell. 
 
 881. Rule not affected by the practice 
 
 act. 
 
 882. Rule different in Pennsylvania. 
 
 883. Cases in conflict with the rule. 
 
 884. Exceptional cases. — Equitable es- 
 
 toppel. 
 
 885. Equitable relief not granted where 
 
 relief at law is adequate. 
 
 886. Ejectment bill not allowable in 
 
 Federal Courts. 
 
 887. Conclusiveness of a patent. 
 
 888. Wirth v. Branson. 
 
 889. Doctrine of relation. — Conflicting 
 
 patents. 
 
 890. Title under United States not de- 
 
 termined by State laws 
 
 891. Possessory title of no avail against 
 
 patent title. 
 
 892. Practice where equitable relief 
 
 necessary. 
 
 § 893. 
 
 895- 
 896. 
 897. 
 898. 
 899. 
 
 900. 
 901. 
 902. 
 
 9°3- 
 904. 
 905. 
 906. 
 
 907. 
 908. 
 909. 
 910. 
 911. 
 912. 
 913- 
 
 914. 
 915. 
 916. 
 917. 
 918. 
 919. 
 
 Jurisdiction of Federal Courts. 
 
 Original jurisdiction of the Su- 
 preme Court. 
 
 Inter-state boundaries. 
 
 Question of State title to lands. 
 
 Intervention by United States. 
 
 Practice. 
 
 Controversies between citizens of 
 same State. — Original act and 
 changes. 
 
 New theory of the jurisdiction. 
 
 Pecuniary limit. 
 
 Appellate jurisdiction of the Su- 
 preme Court. — Federal question. 
 
 Title under treaty. 
 
 Appeals from Circuit Courts. 
 
 Territorial mining claim. 
 
 Original jurisdiction of the Circuit 
 Courts. 
 
 Jurisdictional amount. 
 
 Different parcels. 
 
 Recovery of less than claim. 
 
 Change of residence. 
 
 Collusive transfers. 
 
 The removal statutes. 
 
 Ejectment for land confiscated 
 during lebellion. 
 
 Title by act of Congress. 
 
 Ejectment on Indian title. 
 
 Venue. 
 
 Statutes of limitations in equity. 
 
 Pleading citizenship of parties. 
 
 Mandamus to compel issue of 
 patent. 
 
 § 870. State law Mnding in Federal Courts. — Under the 
 provisions of the Constitution of the United States, and 
 the Acts of Congress conferring jurisdiction upon the Fed- 
 eral tribunals, questions relating to the title to land may 
 come before these courts, either by virtue of their original 
 jurisdiction, or by removal or appeal from the State courts. 
 The most general, and perhaps the most important rule 
 affecting all such cases, is that the State laws, and decis- 
 ions of the highest State tribunals, construing the laws 
 
§870.] EJECTMENT IN FEDERAL COURTS. 729 
 
 of the State, relating to titles and real property, are, by 
 the Statutes of the United States, and the decisions of 
 its courts, binding in the Federal courts. 1 Section 721 
 of the Eevised Statutes, 2 provides that "the laws of the 
 several States, except where the Constitution, treaties or 
 statutes of the United States otherwise require or provide, 
 shall be regarded as rules of decision in trials at common 
 law, in the courts of the United States, in cases where they 
 apply." This is substantially the language used on the 
 same subject by the Judiciary Act of 1789. Under this 
 section, the United States Supreme Court has always 
 held that local laws constituting rules of property, and 
 especially those respecting titles, are rules of decision 
 in the Federal courts ; consequently, as we have seen, 8 
 a State statute allowing a defendant in an ejectment 
 action a new trial upon payment of costs, common- 
 ly called a statutory new trial, is binding in the Fed- 
 eral courts. 4 The courts of the United States in the 
 absence of legislation by Congress, recognize the statutes 
 of limitations of the several States, and construe them in 
 accordance with the construction given by the local tribu- 
 nals. They are a rule of decision under the 34th section 
 of the Judiciary Act of 1789. The construction given to 
 a local statute by the highest State court is as binding 
 upon the Federal courts as the text itself, and if the 
 highest judicial tribunal of a State adopts new views of 
 the proper construction of a statute, and reverses its 
 former decision, the latest settled adjudications must 
 
 1 1 Stat, at Large, 92 ; U. S. R. S., § 721 ; Jackson v. Chew, 12 Wheat. 153 ; 
 Henderson v. Griffin, 5 Pet. 150 ; Polk v. Wendal, 9 Cranch, 87 ; Shipp v. MiUer, 
 ■2 Wheat. 316 ; Gardner v. Collins, 2 Pet. 58 ; Green v. Neal, 6 Pet. 291 ; Thatcher 
 ■v. Powell, 6 Wheat. 119 ; Shelbys. Guy, 11 Wheat. 361; Miles v Caldwell, 2 Wall. 
 35; Blanchard v. Brown, 3 Wall. 245; Sturdy v. Jackaway, 4 Wall. 174 ; Christy 
 v. Pridgeon, 4 Wall. 203; League v. Egery, 24 How. 266; Tioga R. R. v. Bloss- 
 burg <fe C. R. R., 20 Wall. 137; Kibbe v. Ditto, 93 U. S. 674; Fairfield v. County 
 of Gallatin, 100 U. S. 47; Hogan v. Kurtz, 94 U. S. 773; Barrows v. Kindred, 4 
 Wall. 399; United States w. Fox, 94 U. S. 320 ; Williams v. Kirtland, 13 Wall. 306 ; 
 Cowell v. Springs Co., 100 U. S. 55 ; Whiting v. Wellington, 10 Fed. Rep. 810 
 {C. C. Dist Mass.); Burgess v. Seligman, 107 U. S, 20. 
 
 ' 1 Stat. L. 92, 24 Sept., 1789, Ch. XX, § 34. 
 
 8 See § 607. 
 
 4 Hiller v. Shattuck, 1 Flippin, 272 ; Equator Co. v. Hall, 106 U. S. 86 ; ante, 
 § 607. 
 
730 EJECTMENT IN FEDERAL COURTS. [§§ 871-873. 
 
 be followed. 1 But whether this is so in a case decided the 
 other way in the Federal court, before the decision of 
 the State court, is not entirely clear. 2 State laws abolish- 
 ing fictions are regarded as rules of property which the 
 Federal courts must follow. 3 
 
 § 871. Exceptions to the rule. — The general rule is subject, 
 however, to an important exception. The Constitution 
 confers upon the courts of the United States equity 
 jurisdiction, which is uniform throughout the United States, 
 and does not vary according to the local State law. 4 Hence 
 the Federal courts in matters of equitable cognizance, 
 are not always controlled by State laws. Thus, although, 
 as a general rule, State statutes of limitations are followed 
 in the Federal courts, they may, if necessary, be disregard- 
 ed in equity. 5 So in Steinkuhl v. York, 6 it was said to be 
 doubtful whether the Federal courts would follow the Ten- 
 nessee rule, that an adverse claimant of land, though out 
 of possession, and though entitled to bring ejectment, 
 might file a bill to remove the deeds standing as a cloud 
 on his title, and in such a proceeding be put in possession. 
 
 § 872. State rules of evidence. — As a general thing, the 
 rules of evidence are held to be covered by the provisions 
 of the Revised Statutes of the United States, 7 and conse- 
 quently the laws of the States are the laws of the courts of 
 the United States, except so far as they have been modified 
 by Acts of Congress, or by rules of courts adopted under 
 them. 8 
 
 § 873. Rules of pleading and practice. — By section 914 of the 
 
 1 Leffingwell v. Warren, 2 Black, 599, and cases cited. 
 
 - Moores v. National Bank, 104 U. S. 625; Green v. Neal, 6 Pet. 291 ; Burgess 
 v. Seligman, 107 U. S. 20. 
 
 3 Hogan v. Kurtz, 94. U. S. 773 ; Barrows v. Kindred, 4 Wall. 399. It was con- 
 tended in Hogan v. Kurtz, that the change converted ejectment into a writ of right, 
 so as to extend the period of limitation to the same term as is by law allowed for 
 remedies in that form of proceeding. But the Supreme Court held otherwise. See 
 §518. 
 
 4 Neves v. Scott, 13 How. 268 ; Robinson v. Campbell, 3 Wheat. 212 ; Strettell 
 v. Ballou, 3 McCra. 46. 
 
 "Tice v. School Dist. No. 18, 17 Fed. Rep. 283. 
 
 2 Flipp. 376. 
 
 1 U. S. R. S. § 721. 
 
 * Curtis' Jurisd. U. S. Cts. 227 ; Ryan v. Bindley, 1 Wall. 66. 
 
§ 873.] EJECTMENT IN FEDERAL COURTS. 731 
 
 Eevised Statutes, "the practice, pleadings, and forms and 
 modes of proceeding in civil causes, other than equity and 
 admiralty causes, in the circuit and district courts, shall 
 conform, as near as may be, to the practice, pleadings, and 
 forms and modes of proceeding existing at the time in like 
 causes in the courts of record of the State within which 
 such circuit or district courts are held, any rule of court to 
 the contrary notwithstanding." Under this act it is be- 
 lieved that the general practice in ejectment suits in the 
 Federal courts conforms to that of the State courts, not- 
 withstanding the words " as near as may be " give the court 
 an apparent discretion. 1 In Indianapolis & St. Louis E. E. 
 Oo. v. Horst, 2 Mr. Justice Swayne, referring to this section, 
 said : " While the act of Congress is to a large extent man- 
 datory, it is also to some extent only directory and advi- 
 sory." But with regard to actions involving title to land, it 
 is reinforced by the general principle, that remedies, with 
 respect to real estate, are to be pursued according to the 
 law of the place where the land is situate. 8 An earlier 
 act of Congress* provided that the ' ' forms and modes of 
 proceeding" in the Federal courts in suits at common law, 
 in the States admitted since 1789, should be the same with 
 those of the highest State court of original jurisdiction. 
 The State of Alabama, having passed an act to abolish fic- 
 titious proceedings in ejectment, and to substitute in their 
 place the action of trespass to try title, it was held by the 
 Supreme Court of the United States that a judgment of a 
 circuit court, dismissing an action of trespass so brought, 
 upon the ground that the law of the State was not in force 
 in the circuit court, was erroneous. 5 This was a decision 
 under the act, but we have already seen that State laws, 
 abolishing fictions, are now regarded in the Federal courts 
 as rules of property, and as such binding in all cases. 6 
 
 1 Nudd v. Burrows, qi U. S. 426 ; Indianapolis & St. L. R. R. Co. v. Horst, 93. 
 U. S. 291. 
 
 2 93 U. S. 301. 
 
 3 Robinson v. Campbell, 3 Wheat. 212. See § 467a. 
 
 4 4 Stat. L. 278(1828). 
 
 5 Sears v. Eastburn, 10 How. 187. 
 
 8 Hogan v. Kurtz, 94 U. S. 773 ;}Barrows v. Kindred, 4 Wall. 399. 
 
732 EJECTMENT IN FEDERAL COURTS. [§§ 874-876. 
 
 § 874. Amendments. — The Federal courts, under the old 
 as well as the new practice, have always been liberal in 
 allowing amendments. 1 Thus, under the old practice, 
 where various demises had been laid, but verdict and judg- 
 ment were entered on one only, it was contended that a 
 new trial should have been ordered ; but the Supreme 
 Court held that if this objection had been made in the cir- 
 cuit court on a motion in arrest, the plaintiff would have 
 been permitted to strike out all the other demises; that the 
 error was nothing more than an error of form, and under 
 the Act of Congress of 1789 must be disregarded. 2 
 
 875. Jurisdiction in equity. — The jurisdiction of the 
 Federal courts in equity differs essentially from that which 
 they exercise as courts of law. Under section 913 of the Be- 
 vised Statutes, declaring that the modes of proceeding in 
 equity causes shall be according to the principles which be- 
 long to courts of equity, remedies in equity are adminis- 
 tered, not according to the State practice, but according to 
 the practice of courts of equity in the parent country. 3 
 
 § 876. Ejectment not maintainable on equitable title. — As 
 we have already seen, ejectment cannot be maintained 
 upon an equitable title. This principle is of especial im- 
 portance in the Federal tribunals, owing to the preserva- 
 tion in those courts of the distinction between law and 
 equity jurisdiction. In Watkins v. Holman 4 the Supreme 
 Court of the United States made an examination of some 
 early cases in apparent conflict with this rule. In that 
 case the defendants relied on a title-bond, and insisted that 
 a court of law would give effect to the trust resulting there- 
 from (the purchase-money having been paid), at least so far 
 
 1 Wright v. Hollingsworth, I Pet. 165; Ledgerwood v. Pickett, 1 McL. 143; Pick- 
 ett v. Legerwood, 7 Pet. 144 ; Gilleland v. Martin, 3 McL. 490. 
 
 8 Van Ness v. Bank of the U. S., 13 Pet. 17. 
 
 3 Boyle v. Zacharie, 6 Pet. 648, 658; Strettell v. Ballou, 3 McCra. 46; United 
 States v. Howland, 4 Wheat. 108, 115; Neves v. Scott, 13 How. 271; Noonany. Lee, 
 2 Black, 499. The recent leading case of Thomson -j. Wooster, 114 U. S. 114, con- 
 tains an important note by the Supreme Court, pointing out that the 1st edition of 
 Daniell's Chancery Practice (.1837) and the 2d edition of Smith'? Practice (1837) 
 are the most authoritative works for determining the English chancery practice, 
 which was adopted by the Supreme Court of the United States in 1842 as the stand- 
 ard of equity practice for the Federal courts when their own rules do not apply. 
 
 4 16 Pet. 25. 
 
§876.] EJECTMENT IN FEDERAL COURTS. 733 
 
 as to prevent the trustees from recovering the possession 
 against the cestui que trust. The Supreme Court said: 
 "This doctrine seems to have been sanctioned to some 
 extent in New York, in the cases of Foote v. Colvin ; 1 Jack- 
 son v. Matsdorf; 3 Jackson v. Morse. 3 These decisions may 
 have been influenced somewhat by the statute- concerning 
 uses in that State, which subjects the estate of the cestui 
 que trust to execution. In one of the cases, Spencer, Jus- 
 tice, giving the opinion of the court, says : ' Without the 
 aid of the statute, I consider James Litchfield, if he ad- 
 vanced the purchase-money, as having an interest liable 
 to be sold on execution.' 4 In the case of Jackson v. 
 Leggett, 5 the court remark : ' The legal estate must 
 prevail. The only exception to the rule is in the case of 
 a resulting trust ; in such case the trust may be proved 
 by parol, and the estate of the cestui que trust may be 
 sold on execution, and has been so far considered the 
 property of the cestui que trust, as to be a defence in 
 an action of ejectment.' This was the doctrine of Lord 
 Mansfield, in the case of Armstrong ex dem. Tinker v. 
 Peirse. 6 In Doe on the demise of Bristow v. Pegge, 7 
 he lays down the broad doctrine, that 'a trust shall 
 never be set up against him for whom the trust was in- 
 tended;' and the other judges concurred. It is known 
 that that great judge had a strong leaning to the princi- 
 ples of equity in trials at common law. His successor 
 seemed to be under a different influence ; although he had 
 been Master of the Eolls for some years. This equitable 
 doctrine in a court of law was overruled in the case of Doe 
 v. Staple. 8 Lord Kenyon says : ' Is it possible for a court of 
 lawto enter into the discussion of such nice points of equity ? 
 We have no such authority. Sitting in this court, we must 
 look at the record, and see whether a legal title is conveyed 
 to the party claiming under these instruments ; now there 
 is no color for saying that these give any legal title. With- 
 
 '3 Johns. (N. Y.) 216. 2 " Johns. (N. Y.) 91. 
 
 3 16 Johns. (N. Y.) 197. 
 
 4 Foote v. Colvin, 3 Johns. (N. Y.) 222. ' 7 Wend. (N. Y.) 377. 
 
 • 3 Burr. 1899. ' I T. R. 758, note a. 
 
 8 2 T. R. 684, 695. 
 
734 EJECTMENT IN FEDERAL COURTS. [§ 877. 
 
 out deciding, or presuming to think what a court of equity- 
 would do in this case, it is enough for me to say that we are 
 to decide a legal question, and cannot enter into such an 
 entangled equity.' The other judges, except Buller, con- 
 curred with the Chief Justice. In Doe on the demise of 
 Shewen v. Wroot, 1 Lord Ellenborough said : ' We can only 
 look to the legal estate, and that is clearly not in the dev- 
 isees, but in the heir at law of the surrenderor ; and if the 
 devisees have an equitable interest, they must claim it else- 
 where, and not in a court of law. For as to the doctrine that 
 the legal estate cannot be set up at law by a trustee against 
 his cestui que trust, that has been long repudiated.' And this 
 is the settled doctrine in England on this subject ; and, with 
 few exceptions, in this country. In the States where no 
 courts of chancery are established, courts of law, in giving 
 relief, of necessity, trench upon an equitable jurisdiction. 
 It is not perceived why a court of law should regard a result- 
 ing trust more than other equitable rights ; and any attempt 
 to give effect to these rights at law, through the instru- 
 mentality of a jury, must lead to confusion and uncertainty. 
 Equitable and legal jurisdictions have been wisely separ- 
 ated; and the soundest maxims of jurisprudence require each 
 to be exercised in its appropriate sphere. We are clearly 
 of the opinion that the title-bond in question constituted no 
 defence in the above action." 2 And the general rule that 
 equitable titles cannot be relied upon to support ejectment 
 suits in the Federal courts has been repeatedly laid down. 8 
 
 § 877. Examples. — Thus, where, under a mechanics' lien 
 law, the sheriff sells the right and title of one who has by 
 a building contract an equitable title to the premises, the 
 purchaser cannot maintain ejectment against the legal 
 owner. 4 And so a defendant in ejectment cannot protect 
 himself by setting up a record in a prior chancery suit to 
 
 1 5 East, 132. 
 
 ! Watkins v. Holman, 16 Pet. 25, 57 
 
 4 Carson v. Boudinot, 2 Wash. C. C. 33. 
 
§ 877.] EJECTMENT IN FEDERAL COURTS. 735 
 
 quiet the title between the same parties by which the 
 plaintiff has been ordered to convey his title to the de- 
 fendant in ejectment, no such conveyance having been 
 made, in consequence of the party not being within the 
 jurisdiction, although the chancery court had enforced its 
 decree by issuing a habere facias (under a State statute) 
 and put the defendant in ejectment in actual possession. 1 
 On this point the Supreme Court of the United States 
 said: "To enable the defendants in this case to defend 
 their possession successfully, upon their own title, that 
 title must be shown to be a good and subsisting legal title, 
 and superior in law to that set up by the plaintiffs ; other- 
 wise it opposes no legal bar to the recovery in the action 
 of ejectment. And conceding, what was contended for in 
 argument, that the decree and possession under it, by the 
 writ of habere facias, is equivalent to a judgment in eject- 
 ment, followed by like possession, it would avail the de- 
 fendants nothing in this case, because such a judgment 
 and possession are no bar to another action of ejectment 
 for the same premises. The defendant in ejectment can 
 never defend his possession against the plaintiff upon a 
 title in himself, by which he could not recover the pos- 
 session, if he were out, and the plaintiff in possession. 
 Eeversing the positions of the parties in this case, could 
 the defendants, if plaintiffs, recover the land in contro- 
 versy upon this decree and evidence of possession under it, 
 against the title of the plaintiffs? We have no hesitation 
 in saying they could not, and, therefore, the decree, if 
 founded upon a valid equitable title, would be no legal 
 bar to the action of the plaintiffs." 2 And so a bond for a 
 conveyance of land will not serve as a defence in an action 
 of ejectment. 3 In Smith v. McCanu, 4 the Supreme Court 
 of the United States held that where there was a deed 
 of land to a debtor, in trust, which conveyed to him the 
 legal title, he took no beneficial interest which could be 
 levied upon and sold on execution ; and the purchaser at 
 such a sale could not maintain ejectment, nor could he 
 
 ' Hickey v. Stewart, 3 How. 750. ! lb. 759- 
 
 1 Agricultural Bank v. Rice, 4 How. 224 ; Watkins v. Holman, 16 Pet. 25, 57. 
 
 ' 24 How. 398. 
 
736 EJECTMENT IN FEDERAL COURTS. [§§ 878, 879. 
 
 strengthen his case by evidence showing that the deed 
 was fraudulent, and taken by the debtor in this way to 
 hinder and defraud his creditors. 
 
 § 878. Equitable title no defence. — As ejectment cannot 
 be maintained on an equitable title, neither will an equita- 
 ble title serve as a defence. Thus the defendant cannot in- 
 troduce in evidence an agreement signed by the plaintiff 
 for the sale and conveyance of the land to him. 1 The court 
 in deciding this case distinguished it from Sims v. Irvine, 2 
 in which it was laid down that a warrant, survey and pay- 
 ment of purchase- money gave a legal right of entry. 
 
 § 879. State statutes recognizing equitable title. — A prac- 
 tice has prevailed in some of the new States of the Union 
 of permitting the action of ejectment to be brought on 
 warrants for land, entries made with the register and re- 
 ceiver of the land office, and other titles, not complete and 
 legal in character. " It is, however, well known," said Mr. 
 Justice Miller, in delivering a recent decision of the Su- 
 preme Court of the United States, 3 " that early purchasers 
 of the public lands were careless about their patents. But, 
 as a reason for this, they attached primary importance to the 
 paper issued when a sale was made, and delivered to the 
 purchaser by the register and receiver of the land-office, 
 called a certificate of entry. This is a paper in two parts, 
 the first of which is signed by the register, giving a de- 
 scription of the land, the amount paid for it, the name of 
 the purchaser, and a statement that on its presentation at 
 the General Land-Office a patent would be issued to the 
 purchaser. The second, signed by the receiver, is a simple 
 receipt for the payment of the price, and a description of 
 the land for which it was paid. The statutes of almost 
 every State and Territory in which the public lands have 
 been sold provide for the registration of this instrument, 
 and in all actions concerning title or possession, declare it 
 to be prima facie evidence of title In the es- 
 timation of the people generally, and in the practice of 
 the courts, it became the efficient substitute or equivalent 
 
 1 Willink v. Miles, Pet. C. C. 429. » 3 Dall. 425. 
 
 3 Simmons v. Ogle, 105 U. S. 271, 274. 
 
;§ 879.] EJECTMENT IN FEDERAL COURTS. 737 
 
 of the patent, and in regard to millions of acres of land 
 the patent either was never issued, or if issued never de- 
 livered, but remains in the local or the general land-office, 
 subject to the call of the owner." Many decisions have 
 been rendered to the effect that in the Federal courts such 
 statutes are of no binding effect. Thus, in Fenn v. Holme, 1 
 a case which arose in the United States Circuit Court, 
 for the District of Missouri, the defendant in error, a cit- 
 izen of the State of Illinois, instituted an action of eject- 
 ment against the plaintiff in error, and obtained a verdict 
 and judgment against him. Both parties derived title 
 through mesne conveyances from the settlement claim of 
 one O'Carroll, located by virtue of a Spanish certificate. 
 No title derived from the United States was shown. The 
 Supreme Court on this state of facts said that the judg- 
 ment could not stand. The plaintiff must, in ejectment, 
 always recover on the strength of his legal title, and by 
 the Constitution of the United States, 2 the distinction 
 between common law and equity jurisdiction has been 
 carefully defined and established. The plaintiff in the 
 «ase at bar, having shown an equitable and not a legal 
 title, could not recover upon it. So when an ejectment 
 was brought in the Circuit Court of the United States 
 for the Eastern District of Arkansas, founded upon an entry 
 made in a United States land-office, and this was the only 
 title produced by the plaintiff on the trial, but it appeared 
 that a statute of Arkansas provided that an action of eject- 
 ment might be maintained where the plaintiff claimed 
 possession by virtue of an entry made with the register and 
 receiver of the proper land-office, it was held that no ac- 
 tion of ejectment would lie on such an equitable title. 5 
 The distinction maintained in these cases between legal 
 and equitable titles constitutes an important qualification 
 of the general principle that the State law is followed in 
 the Federal tribunals whenever it constitutes a rule of 
 
 1 21 How. 481. 
 
 8 Const. U. S., Art. Ill, § 2. 
 
 8 Hooper v. Scheimer, 23 How. 235 ; and so held in Sheirburn v. Cordova, 24 
 How. 423 ; Young v. Dunn (Circ. Ct. E. D. Tex.), 10 Fed. Rep. 717 ; Swayze v. 
 Burke, 12 Pet. 11; Foster v. Mora, 98 U. S. 425 ; Simmons v. Ogle, 105 U. S. 271; 
 Clagett v. Kilbourne, I Black, 346. 
 47 
 
738 EJECTMENT IN FEDERAL COURTS. [§ 880.- 
 
 property. In cases where the legal title derived from the- 
 patent is in one person, who is in possession, but another 
 has superior equities, it would seem from these cases that 
 in the State courts he might proceed in ejectment and re- 
 cover possession, while in the Federal courts he would be 
 obliged to resort to a bill in equity to compel a conveyance 
 of the legal title. 1 
 
 § 880. Robinson v. Campbell. — Iu Robinson v. Campbell, 2 
 a somewhat peculiar question as to land titles was con- 
 sidered by the United States Supreme Court. By a settle- 
 ment of the boundary lines between Virginia and North 
 Carolina made in 1802, and certain legislation thereunder, 
 it was provided that all land claims and titles derived from. 
 Virginia, North Carolina or Tennessee, should remain as 
 secure as if derived from the government, within whose 
 lines they had fallen. In the case at bar, both plaintiff's 
 and defendant's titles to lands falling within the limits 
 of Tennessee, were derived under grants from Virginia^ 
 The plaintiff's title was a prior grant, founded on a junior 
 entry ; the defendant offered evidence of a junior grant 
 founded on a prior entry. It appeared that by the law 
 of Tennessee, the priority of entries was examinable at 
 law, and that in an action of ejectment the junior patent 
 founded on a prior entry, though of course a title equita- 
 ble in its nature, must prevail. The Supreme Court held, 
 however, that the case was governed by the law of Vir- 
 ginia, and that the equitable title could not be asserted. 
 It is remarked in this case, 3 that, " consistently with this 
 construction, it may be admitted that where, by the stat- 
 utes of a State, a title, which would otherwise be deemed 
 merely equitable, is recognized as a legal title, or a title 
 which would be good at law, is under circumstances of 
 an equitable nature declared by such statutes to be void, 
 the rights of the parties in such case may be as fully con- 
 sidered in a suit at law in the courts of the United States,. 
 as they would be in any State court." 4 
 
 1 See Simmons v. Ogle, 105 U. S. 271. * 3 Wheat. 212. 
 
 3 Ibid. p. 223. 
 
 4 In Strother v. Lucas, 6 Pet. 763, the Supreme Court refused to express an 
 opinion on this point. 
 
§§ 881, 882.] EJECTMENT IN FEDERAL COURTS. 739 
 
 § 881. Rule not affected hy the practice act. — The Practice 
 Act of 1872 ' conforming " the practice, pleadings, and 
 forms and modes of proceedings" in other than equity 
 and admiralty causes, in the Federal courts, to those in 
 existence in like cases in the State courts, does not impair 
 or affect in any way the rule that ejectment cannot be 
 maintained or defended on an equitable title, even when 
 this is allowed by the State court. 2 
 
 § 882. Rule different in Pennsylvania.— In Pennsylvania, 
 a warrant and legal survey accompanied by payment of 
 the consideration, gives a legal right of entry and con- 
 fers a sufficient title to maintain ejectment, 8 and this rule 
 was adopted in 1799, by the Supreme Court of the United 
 States, as the local rule of property. 4 But a warrant alone 
 without survey or payment of the purchase-money is insuf- 
 ficient. 5 It should be noticed that in this State plaintiff 
 may recover, and defendant defend on any title good in 
 equity. 6 It was said by Washington, J., in the course of 
 his charge to the jury in Holtzapple v. Phillibaum, 7 that 
 in the case of an elder equitable title, opposed to a jun- 
 ior equitable title, clothed, however, with an elder legal 
 title, the equities in Pennsylvania, and consequently in 
 the Federal court, could be considered in ejectment ac- 
 tions. This, he added, he "was ashamed to say," because 
 the question presented by such a case was properly cog- 
 nizable only on the equity side of the court In Swayze 
 v. Burke, 8 too, the Supreme Court says that it is not the 
 practice in the courts of the United States, to allow eject- 
 ment on an equitable title even on cases arising in Penn- 
 sylvania. This broad statement is subject to the limita- 
 tion expressed in the ab/)ve rule as to ejectment founded 
 on warrants and legal surveys, accompanied by payment 
 of the consideration-money. 
 
 1 U. S. R. S., § 914. 2 Butler -v. Young, I Flipp. 276. 
 
 3 Penn v. Klyne, 4 Dall. 402 ; s. C. Pet. C. C. 497, note ; Copley v. Riddle, 2 
 Wash. 354 ; Dubois v. Newman, 4 Wash. 74. 
 
 4 Sims v. Irwine, 3 Dall. 425, 465. 
 
 6 Vanhorn v. Chesnut, 2 Wash. 160. 
 
 e Edwards v. Morgan, 100 Pa. St. 330. 
 
 ' 4 Wash. 356, 365. 3 12 Pet. 11. 
 
740 EJECTMENT IN FEDERAL COURTS. [§§ 883, 884. 
 
 § 883. Cases in conflict with the rule. — There are, too, 
 several cases holding that wherever the courts of law of 
 a State in an action of ejectment look beyond the grant, 
 or strict legal title, and examine into the equities, and 
 this has become established as a rule of property, the 
 courts of the United States will follow the State practice. 1 
 
 § 884. Exceptional cases. — Equitable estoppel. — The Su- 
 preme Court of the United States, in two recent decisions, 2 
 has held that a party entitled to set up an equitable 
 estoppel may avail himself of it as a defense to a common 
 law ejectment. In the first of these actions the plaintiff 
 claimed title by virtue of a quitclaim deed from a tenant in 
 common who had by a letter relating to the land disclaimed 
 all interest in it, and lulled the defendant's grantor into 
 security, so that the latter had taken no steps to perfect 
 his title. It was held that the letter constituted an estop- 
 pel in pais, and was an available defense to the action ; 
 that the plaintiff was not a bona fide purchaser, was not 
 entitled to possession, and could not maintain the action. 
 In the second case the plaintiff' knew that the defendants 
 claimed the property under a sale made in an equity suit 
 to which he was a party. Instead of repudiating the sale, 
 he, with a knowledge of all the facts, indicated by his 
 conduct generally his intention not to raise any question 
 with regard to the proceedings in the suit, and allowed 
 defendants to expend large sums of money in improve- 
 ments. This was held to estop him from bringing eject- 
 ment. It seems to be well settled in the Federal courts, 
 that cases of equitable estoppel, or estoppel in pais, consti- 
 tute an exception to the general rule that in ejectment 
 equitable defenses are not allowed. 3 The reason for this 
 exception is thus stated by Mr. Bigelow in his learned 
 work on Estoppel : " The ground upon which equity treats 
 
 1 Ross v. Doe d. Barland, I Pet. 655 ; French v. Spencer, 21 How. 228, 239, 
 citing Smith v. Mosier, 5 Blackf. (Ind.) 51; Robinson v. Campbell, 3 Wheat. 212, 
 223, and dissenting opinions in Bagnell v. Broderick, 13 Pet. 436, 451. 
 
 2 Dickerson v. Colgrove, 100 U. S. 578; Kirk v. Hamilton, 102 U. S. 68. See this 
 case followed, Gillespie v. Sawyer, 15 Neb. 536. 
 
 3 It should be noticed that this is very different from the rule laid down in Stod- 
 dard v. Chambers, 2 How. 284, 317, that ejectment maybe maintained on a title by 
 estoppel, the reference there being to legal estoppel. 
 
§ 884.] EJECTMENT IN FEDERAL COURTS. 741 
 
 the case as out of the Statute of Frauds, to wit, the fraud 
 of the person to be estopped, should be sufficient to justify 
 a court of law in acting. The ground of estoppel by con- 
 duct in any case is fraud ; and it cannot be that a statute 
 made to prevent the accomplishment of fraud should stand 
 in the way of preventing such a result in any court." 1 It 
 sometimes happens that the plaintiif has apparently a legal 
 title, but cannot recover because of some fact in pais which 
 shows that he is not the real owner. Thus, in the United 
 States Circuit Court for the Northern District of Illinois, in 
 the case of Henry v. Henry, 3 plaintiff'claimed under a war- 
 ranty deed from defendant, but it appeared that the deed 
 had been delivered under an agreement by which a life- 
 lease was. to be executed back. On a motion to exclude all 
 testimony relating to the conditions on which the deed 
 was executed, Davis, J., held that the question of the in- 
 tention of the parties was one of fact for the jury, and that 
 if the execution of the lease and deed were intended to be 
 simultaneous acts the plaintiff could not recover, and sub- 
 sequently under a charge, given in accordance with this 
 decision, the jury returned a verdict for the defendant. 
 Again, in Melenthin v. Keith, 8 it was held by Miller, 
 J., at circuit, that one who has paid part of the pur- 
 chase-money of land, and has actually gone into posses- 
 sion under an agreement with the holder of the legal 
 title, with a right to a deed on payment of the balance, 
 may maintain ejectment, and that this is not in contra- 
 vention of the general rule. This is on the same prin- 
 ciple that a mortgagee who has acquired the right to 
 possession by agreement with the mortgagor can, if dis- 
 turbed, maintain ejectment, though the mortgagor has 
 not parted with the legal title. 4 In Dolton v. Cain 5 the 
 Supreme Court had under consideration an Illinois limita- 
 tion law providing that adverse possession for seven years, 
 
 1 Bigelow on Estoppel (3d ed.), 600. .See Dickerson v. Colgrove, 100 U. S. 578; 
 Wirth v. Branson, 98 U. S. 118; Branson w. Wirth, 17 Wall. 32; Kirk v. Hamil- 
 ton, 102 U. S. 68. On this point St. Louis Smelting & Ref. Co. v. Green, 13 Fed. 
 Rep. 208, seems not to be law. 
 
 8 4 Biss. 354. 3 17 Fed. Rep.583 (C. C. DisL Minn.). 
 
 4 Chapman v. Delaware, L. & W. R. R. Co., 3 Lans. (N. Y.) 261. 
 
 ■ 14 Wall. 473. 
 
742 EJECTMENT IN FEDERAL COURTS. [§ 885. 
 
 accompanied by " a connected title in law or equity, dedu- 
 cible of record from the State or the United States," should 
 constitute a defense in ejectment. The plaintiff derived 
 title from the United States, and his chain of proof included 
 a deed of the land in trust, the death of the trustee and 
 cestui qui trust, and a conveyance to him by the heirs of 
 both trustee and cestui qui trust. The defendant relied on 
 a sale by the cestui qui trust to him, followed by adverse 
 possession. It was held that this constituted a good de- 
 fense. So, notwithstanding a patent title is generally the 
 best title, this is not always the case. Thus, in Simmons 
 v. Wagner, 1 the defendant claimed under a certificate of 
 a register of the land-office, which showed that full pay- 
 ment had been made for the lands, thus entitling him to a 
 patent, though none had ever been issued. The plaintiff 
 claimed under a junior patent regular on its face. It was 
 held that after the issue of the certificate the lands were 
 no longer a part of the public domain, and that the plaint- 
 iff could not recover. 8 
 
 § 885. Equitable relief not granted where relief at law is 
 adequate. — Not only is the equitable jurisdiction of the 
 Federal courts entirely distinct from their common law 
 jurisdiction, but the Eevised Statutes expressly provide 
 that " suits in equity shall not be sustained in either of the 
 courts of the United States in any case where a plain, 
 adequate and complete remedy may be had at law." 3 In 
 Steam Stone Cutter Oo. v. Jones, 4 a bill in equity was filed 
 
 1 ioi U. S. 260. 
 
 2 In Wilcox v. Jackson, 13 Pet. 498, the action was virtually against the United 
 States; no patent had been issued ; the attempt of the plaintiff was to maintain his 
 title by virtue of a statute of Illinois, declaring that a certificate ef entry should be 
 deemed evidence of title. The Supreme Court said that the effect of allowing this 
 State statute to govern would be to make the laws of Illinois paramount to those of 
 Congress. Distinguishing (he case of Ross v. Doe d. Barland, I Pet. 655, they pro- 
 ceed to lay down the general rule as follows : " Whenever the question in any court, 
 State or Federal, is, whether a title to land which had once been the property of the 
 United States has passed, that question must be resolved by the laws of the United 
 States;" but " whenever, according to those laws, the title shall have passed, then 
 that property, like all other property in the State, is subject to State legislation; so 
 far as that legislation is consistent with the admission that the title passed and vested 
 according to the laws of the United States." I Pet. 517. This case, therefore, is 
 not in conflict with Ross v. Doe d. Barland. 
 
 3 U. S. R. S. § 723. 
 
 4 13 Fed. Rep. 567 (C. C. Dist. Vt.). See, also, Ward v. Chamberlain, 2 Black, 
 430. 
 
•*§§ 886, 887.J EJECTMENT IN FEDERAL COURTS. 743 
 
 to remove a cloud on title. The complainant was adjudged 
 to be entitled to the equitable relief, but the court held 
 that, as to obtaining damages and possession of the prem- 
 ises, there was a plain, adequate and complete remedy at 
 law, and hence a suit in equity could not extend to such 
 relief. Blatchford, J., said: "An ejectment suit might 
 have been brought first, and the title tried, and possession 
 and damages obtained, without the equitable relief here 
 asked ; but the fact that the equity suit was first brought 
 does not authorize the overriding of the plain provision of 
 section 723, or warrant the giving in the equity suit of the 
 purely legal relief asked for." 
 
 § 886. Ejectment till not allowable in Federal Cowrts. — As 
 we have already seen, it is a principle generally recognized, 
 that the relief peculiar to ejectment cannot be obtained by 
 means of a bill in equity. 1 In the Federal courts, the sharp 
 distinction between law and equity makes this rule of 
 special importance. Thus, in Ellis v. Davis, 3 where an 
 heir-at-law brought a bill to set aside the probate of a will, 
 to recover possession of real estate, and to obtain an ac- 
 counting of rents and profits from an adverse party in pos- 
 session, claiming under the will, it was recently held, on 
 demurrer, by the Supreme Court of the United States, that 
 the bill was bad, the plaintiff having a complete remedy at 
 law. And so, on the other hand, there cannot be a union 
 of legal and equitable causes in one suit, although this 
 practice obtains in the State courts. 3 
 
 § 887. Conclusiveness of a patent. — This subject is closely 
 connected with that of the effect and force of a patent 
 or other title derived from the United States. It has been 
 repeatedly decided 4 by the United States courts, that a 
 patent or grant is the highest evidence of title, and con- 
 clusive at law so long as it remains in force against the 
 government, and all claiming under junior patents, and that 
 it can only be attacked for fraud or mistake by a bill in 
 
 1 Ante, § 169. 
 
 2 log U. S. 489; following Hipp v. Babin, 19 How. 271. 
 
 ' Hurt v. Hollingsworth, ioo U. S. 100. See Chap. XXIV. 
 4 See § 785. 
 
744 EJECTMENT IN FEDERAL COURTS. [§ 888~ 
 
 equity. 1 The theory of the law is that the land depart- 
 ment acts judicially in issuing a patent, that the officers^ 
 charged with this duty exercise a judicial function, and" 
 that their judgment as to matters of fact properly deter- 
 minable by them, is conclusive when brought in question- 
 in a collateral proceeding. The patent, duly signed anti^ 
 sealed, does not merely pass title, but is an official declara- 
 tion by the government that all the requirements prelimi- 
 nary to its issue have been complied with. If this were- 
 not so, the patent, instead of being a source of security, 
 would depend for its efficacy upon the fluctuating opinions 
 of juries. The doctrine stated is, however, subject to cer- 
 tain limitations. If the department had no jurisdiction, 
 e. g., if the lands were not public property, or not subject 
 to sale, the conveyance would be void, and evidence as to 
 such matters may be given and considered in an action of 
 ejectment in which the patent title is involved. On the 
 other hand, where the jurisdiction or authority to issue 
 depends upon the existence of particular facts, and it is. 
 the duty of the land department to ascertain whether the 
 facts exist, its determination is conclusive of the existence 
 of the authority. 2 
 
 § 888. Wirth v. Branson. — A recent important decision, 
 of the Supreme Court seems to be in conflict with the 
 doctrine of the conclusiveness of the patent title in legal 
 
 1 Stoddard v. Chambers, 2 How. 284, 317 ; Easton v. Salisbury, 21 How. 426;. 
 United States v. Stone, 2 Wall. 528, 535 ; Bagnell v. Broderick, 13 Pet. 436;' 
 Hooper v. Scheimer, 23 How. 235 ; Smelting Co. v. Kemp, 104 U. S. 636; Pacific 
 Coast Mining & Milling Co. v. Spargo, 16 Fed. Rep. 348; Doe v. Wilson, 23 
 How. 457 ; Crews v. Burcham, 1 Black, 352 ; Marquez v. Frisbie, 101 U. S. 473 ;. 
 Withevinton v. McDonald, 1 Hen. & M. (Va.) 306 ; Stringer v. Young, 3 Pet. 320 ;. 
 Jackson v. Lawton, 10 Johns. (N. Y.) 23 ; Cooper v. Roberts, 6 McL. 93 ; Norvell 
 v. Camm, 6 Munf. (Va.) 233 : Klein v. Argenbright, 26 Iowa, 493 ; Carter v. Spencer,, 
 5 Miss. 42 ; Simmons v. Ogle, 105 U. S. 271; Burgess v. Gray, 16 How. 48 ; Shep- 
 ley v. Cowan, 91 U. S. 330. 
 
 2 Polk v. Wendal, 9 Cranch, 87, 99; Patterson v. Winn, 11 Wheat. 380; 
 Hoofnagle v. Anderson, 7 Wheat. 212; Boardman v. Reed, 6 Pet. 328, 342; 
 Bagnell v. Broderick, 13 Pet. 436; Johnson v. Towsley, 13 Wall. 72; Moore 
 v. Robbins, 96 U. S. 530 ; Smelting Co. v. Kemp, 104 U. S. 636 ; People v. Living- 
 ston, 8 Barb. (N. Y.) 253 ; Boggs v. Merced Mining Co. 14 Cal. 279, 361 ; Robbins 
 v. Bunn, 54 111. 48, and cases cited; Dixon, Doe d. v. Porter, 23 Miss. 84; 
 Hil-tuk-ho-mi v. Watts, 15 Miss. 363 ; Parkison v. Bracken, 1 Pinney (Wis.), 174 ;. 
 Boatner v. Ventress, 8 Martin, N. S. (La.) 644 ; Patterson v. Tatum, 3 Sawy. 
 164; Morton v. Nebraska, 21 Wall. 660; Beard v. Federy, 3 Wall. 478, 492; 
 State v. Bachelder, 5 Minn. 223 ; Sherman v. Buick, 03 U. S. 200; Best v. Polity 
 18 Wall. 112. 
 
§ 888.] EJECTMENT IN FEDERAL COURTS. 745 
 
 actions. On January 10, 1818, the government granted 
 the northeast quarter of a section of land to one Egerton, 
 in pursuance of a warrant and location of a military 
 bounty land warrant. The patent was not produced, but 
 on the margin of the exemplified copy of the record there 
 was a memorandum (by whom made did not appear) 
 setting forth that the patent was issued for the south- 
 east quarter and not the northeast as recorded. It also 
 appeared that on January 7, 1818, the government had 
 issued a patent to one Durney for this southeast quarter. 
 By mesne conveyances, land described as the southeast 
 quarter was transferred to Shaw, and in 1827 a private act 
 of Congress was passed authorizing the legal representa- 
 tives of Egerton to take out another quarter section in 
 lieu of the quarter section " previously patented to James 
 Durney ; " and this Shaw proceeded to do. In 1843 the 
 northeast quarter was sold under the laws of Illinois for 
 taxes, and bought by defendant. In 1868 the same quar- 
 ter was patented by the United States to plaintiff, who 
 brought ejectment. On this state of facts it was held by 
 the Supreme Court of the United States, 1 that no estoppel 
 was created by the deeds from Egerton or the subsequent 
 deeds under him, nor by the private act of Congress, nor 
 by the selection of a new lot, which prevented the defend- 
 ants from showing that their patent was for the northeast 
 quarter; that the memorandum could not be received to 
 contradict the record, and that accordingly it was error 
 to instruct the jury that the defendants had not shown 
 outstanding title in the northeast quarter. On a new trial 
 the plaintiff, in addition to the other evidence, introduced 
 the original patent to Egerton, which appeared to be for 
 the southeast quarter. The court below instructed the 
 jury that as the land warrant had been duly located in 
 1818 upon the northeast quarter, the subsequent patent 
 in 1868 was of no validity, and a verdict was thereupon 
 given to the defendants, and this judgment was affirmed 
 by the Supreme Court. 2 Bradley, J., said, in delivering 
 the opinion of the court: "The rule is well settled, by 
 
 1 Branson v. Wirth, 17 Wall. 32. 3 Wirth v. Branson, 98 U. S. 118. 
 
748 EJECTMENT IN FEDERAL COURTS. [§ 888. 
 
 a long course of decisions, that when public lands have 
 been surveyed and placed in the market, or otherwise 
 opened to private acquisition, a person who complies with 
 all the requisites necessary to entitle him to a patent in a 
 particular lot or tract, is to be regarded as the equitable 
 owner thereof, and the land is no longer open to location. 
 The public faith has become pledged to him, and any sub- 
 sequent grant of the same land to another party is void, 
 unless the first location or entry be vacated and set aside. 
 This was laid down as a principle in the case of Lytle 
 v. The State of Arkansas, 1 and has ever since been 
 adhered to. 2 Subsequent cases, which have seemed to be 
 in conflict with these, have been distinguished from them 
 by the fact that something remained to be done by the 
 claimant to entitle him to a patent : such as the payment 
 of the price, the payment of the fees of surveying, or the 
 like. The proper distinctions on the subject are so fully 
 stated in the case of Stark v. Starrs, 3 Frisbie v. Whitney, 4 
 The Yosemite Valley Case, 5 Eailway Company v. Mc- 
 Shane, 6 and Shepley v. Cowan,' that it would be superero- 
 gation to go over the subject again." 8 This case was fol- 
 lowed in a later case, 9 in which it was held by the 
 Supreme Court that a party in possession of lands, 
 holding an uncancelled certificate of the register of the 
 land-office, showing a vested right to a patent, may 
 successfully defend an ejectment suit against the holder 
 of a subsequent patent title. In this case the court 
 said: "The question is not whether Wagner, if he was 
 out of possession, could recover in ejectment upon the 
 
 1 9 How. 314. 2 See Stark v. Starrs, 6 Wall. 402. 
 3 6 Wall. 402. 
 
 * 9 Wall. 187. » I5 Wall. 77. 
 
 • 22 Wall. 444. i 9 i u. S. 330. 
 
 8 Wirth v. Branson, 98 U. S. 118, 121. An examination of the cases on which 
 this decision is rested will show that they hardly warrant the universal application 
 of the above rule in ejectment suits : Lytle v. The State of Arkansas, was a bill in 
 equity to enforce a pre-emption right; Stark v. Starrs was a bill to quiet title; 
 Frisbie v. Whitney, was an equitable proceeding to compel the conveyance of the 
 legal title ; in the Yosemite Valley Case no patent title was involved, and the pre- 
 vailing party was the holder of the legal title under Act of Congress ; Railway Com- 
 pany v. McShane, was a bill to enjoin the collection of taxes ; Shepley v. Cowan, 
 was an equitable proceeding to settle the conflicting claims of the parties arising 
 from their respective patents. 
 
 8 Simmons v. Wagner, 101 U.'S. 260. 
 
■§§ 889-891.] EJECTMENT IN FEDERAL COURTS. 747 
 
 certificate, but whether Simmons can recover as against 
 him. He is in a situation to avail himself of the weakness 
 of the title of his adversary, and need not assert his own." 
 But in Barney v. Dolph, 1 it seemed to have been decided 
 that ejectment may be maintained as well as defended 
 under such circumstances. 
 
 § 889. Doctrine of relation. — Conflicting patents. — In many 
 oases both parties claim under different patents or grants, 
 or under the same patent from the State or the United 
 States. In such cases the doctrine of relation prevails, i. e., 
 that all the acts and ceremonies necessary to a comjjlete 
 conveyance must be taken together as one act, and oper- 
 ate from the substantial part by relation. 2 The younger 
 patent may be founded on the best right in equity, and 
 the equities may be tried in the action of ejectment. But 
 in such cases the patent does not aid the equitable title ; 
 the decision of the action depends upon the equities, and 
 hence if the earlier claim had no standing in a court of 
 law or equity up to the date of its confirmation, and de- 
 pended upon the political power, this is a fatal objection 
 ' to it. s 
 
 § 890. Title under United States not determined oy Slate 
 laws. — Of course, the question whether a title to land 
 which has been the property of the United States, has 
 passed, must be determined by the laws of the United 
 States, and hence a State cannot declare by law that a 
 title derived from the United States, which by their laws 
 is only inchoate and imperfect, shall be deemed as perfect 
 a title as if a patent had issued. 4 
 
 § 891. Possessory title of no avail against patent title. — As 
 the patent is the highest evidence of title, and possession 
 
 1 97 U. S. 652. 
 
 ! See the doctrine clearly stated in Landes a. Brant, 10 How. 348, 372 ; Pacific 
 Coast Min. &c. Co. v. Spargo, 16 Fed. Rep. 348. 
 
 a Chouteau v. Eckhart, 2 How. 344 ; Les Bois v. Bramell, 4 How. 449 ; citing, 
 Rossi/. Doe d. Barland, I Pet. 655; Bissell v. Penrose, 8 How. 317; Stoddard v. 
 Chambers, 2 How. 285; Bagnell v. Broderick, 13 Pet. 436, 451 ; Kissell v. St. Louis 
 Public Schools, 18 How. 19; French v. Spencer, 21 How. 228. 
 
 4 Wilcox v. Jackson, 13 Pet. 498. The case of Bryan v. Forsyth, 19 How. 334, 
 is not in conflict with this rule, as there the junior patent was taken out expressly 
 subject to earlier rights. 
 
748 EJECTMENT IN FEDERAL COURTS. [§§ 892-894. 
 
 is of no avail against the government, no adverse occupa- 
 tion, however long, will enable a party to maintain a suit 
 at law against one who derives title from the United 
 
 States. 1 
 
 § 892. Practice where equitable relief necessary. — In gen- 
 eral where the legal title is in one, and the equitable title 
 in another, a bill in chancery to compel a conveyance of 
 the legal title is a proper remedy, 2 and courts of equity 
 will grant an injunction at the instance of the holder of 
 the equitable title to restrain ejectment. 8 So a court of 
 equity will set aside and decree the surrender of a patent 
 of the United States obtained from its officers by mis- 
 take or inadvertence, on an information in the nature of 
 a bill in equity. 4 
 
 § 893. Jurisdiction of Federal Courts. — Having now stated 
 the general rules governing the Federal courts in actions 
 to try title, we proceed to examine the various classes of 
 cases in which these tribunals may obtain jurisdiction of 
 such suits. Such jurisdiction may be obtained, either 
 originally or by removal in a proper case from the State 
 courts, or by appeal from such courts. 
 
 § 894. Original jurisdiction of the Supreme Court. — The 
 Constitution of the United States 5 vests the judicial power 
 of the United States in " one Supreme Court, and in such 
 inferior courts as the Congress may, from time to time, 
 ordain and establish." By the second section of the same 
 article, it is provided that this judicial power shall extend 
 to "controversies between two or more States ; between a 
 State and citizens of another State," and "between a State 
 or the citizens thereof, and foreign States, citizens or sub- 
 jects." It is also provided that, in cases "in which a 
 State shall be a party, the Supreme Court shall have orig- 
 inal jurisdiction." Under these clauses, a peculiar equita- 
 ble jurisdiction has been exercised by the Supreme Court 
 
 1 Burgess v. Gray, 16 How. 48 ; Oaksmith v. Johnston, 92 U. S. 343. 
 
 2 Simmons v. Ogle, 105 U. S. 271. 
 
 3 Apgar v. Christophers, 10 Fed. Rep. 857. 
 
 4 Hughes v. United States, 4 Wall. 232, 
 ° Const. Art. Ill, § j. 
 
§ 895.] EJECTMENT IN FEDERAL COURTS. 749 
 
 for the purpose of ascertaining and determining the bound- 
 aries between two States. 1 
 
 § 895. Inter-state boundaries. —In cases concerning dis- 
 puted boundaries between States, it is important to notice 
 that the original jurisdiction of the Supreme Court cannot 
 be invoked unless a State is actually a party. It will often 
 happen that an ordinary ejectment suit may bring up the 
 question of State boundaries. Thus in Fowler v. Lindsey, 
 and Fowler v. Miller, 2 ejectments were brought in the 
 Circuit Court for the District of Connecticut, for lands 
 over which both New York and Connecticut claimed juris- 
 diction. The defendants insisted that they were inhabit- 
 ants of New York, and obtained a rule to show cause why 
 the actions should not be removed by certiorari into the 
 Supreme Court, as exclusively belonging to that jurisdic- 
 tion. But the rule was discharged, Washington, J., say- 
 ing: "It is not contended that the States are nominally 
 the parties ; nor do I think that they can be regarded as 
 substantially the parties to the suits ; nay, it appears 
 to me, that they are not even interested or affected. They 
 have a right either to the soil or to the jurisdiction. If 
 they have the right of soil they may contest it, at any 
 time, in this court, notwithstanding a decision in the pres- 
 ent suits ; and though they may have parted with the 
 right of soil, still the right of jurisdiction is unimpaired. 
 A decision as to the former object, between individual 
 citizens, can never affect the right of the State as to the 
 latter object ; it is res inter alios acta. For, suppose the 
 jury in some case should find in favor of the title under 
 New York, and in others they should find in favor of the 
 title under Connecticut, how would this decide the right 
 of jurisdiction ? And on what principle can private citi- 
 zens, in the litigation of their private claims, be compe- 
 tent to investigate, determine, and fix the important rights 
 of sovereignty ?" s The learned judge then went on to 
 
 'State of New Jersey v. State of New York, 5 Pet. 284; Missouri v. Iowa, 7 
 How. 660 ; Florida v. Georgia, 17 How. 478 ; State of Alabama v. State of Georgia, 
 23 How. 505 ; State of Rhode Island v. State of Massachusetts, 12 Pet. 657 ; Vir- 
 . ginia v. West Virginia, 11 Wall. 39. 
 
 * 3 Dall. 411. ' 3 Dall. 413- 
 
750 EJECTMENT IN EEDEKAL COUETS. [§§ 896-898.. 
 
 suggest), that to determine the question of jurisdiction,, 
 there being no adequate remedy at law, the State of New 
 York might file a bill against the State of Connecticut 
 praying to be quieted as to the boundaries of the disputed 
 territory. In consequence of the rejection of this motion 
 for a certiorari, the State of New York filed a bill against 
 the State of Connecticut, setting forth the title of New 
 York to the lands in dispute, an agreement between the 
 two States on this subject, and praying discovery, relief" 
 and an injunction to stay the proceedings in the Circuit 
 Court. The injunction was refused, on the ground that 
 the State of New York was not a party to the ejectments. 1 
 
 § 896. Question of State title to lands. — This equitable 
 jurisdiction need not necessarily raise any question of title 
 in the State, being merely invoked to determine the bound- 
 ary line between it and an adjoining sovereignty. In case 
 the actual dominion and ownership of the soil were con- 
 tended for by two States, an ejectment suit would seem to 
 be the appropriate legal remedy; but this case, barely sug- 
 gested by Washington, J., in the extract above given, 
 seems never to have arisen. 
 
 § 897. Intervention ly United States. — In the case of 
 Florida v. Georgia, 2 the question arose whether, if the 
 interests of the United States were involved in a boundary 
 dispute between two States, there was any way by which 
 the government might come into court and introduce 
 proofs and claim the right to a hearing ; and it was held 
 by a divided court (McLean, Daniel, Curtis, and Camp- 
 bell, JJ., dissenting) that the Attorney-General might in- 
 tervene for these purposes, without the United States be- 
 coming a party to the suit in the technical meaning of the 
 term. 
 
 § 898. Practice.— The practice of the court requires that 
 in all cases under the original jurisdiction of the Supreme 
 Court leave must be obtained before a bill is filed, 3 and no 
 step can be taken in any suit pending on the "original" 
 
 1 State of New York v. State of Connecticut, 4 Dall. 1, 3, 6. 
 
 * 17 How. 478. The cases involving the right of the United States to intervene 
 in ejectment actions in erder to protect its title to lands, have been considered in 
 Chap. VII. 
 
 3 State of Georgia v. Grant, 6 Wall. 241. 
 
§899.] EJECTMENT IN FEDERAL COURTS. 751 
 
 docket of the Supreme Court without a special order ob- 
 tained, of course, on motion. Process in suits in which a 
 State is defendant is served upon the governor or chief 
 executive magistrate, and attorney-general of such State. 1 
 If a State fails to appear in obedience to the summons, no 
 compulsory process is resorted to, but the suit proceeds ex 
 parte. 2 
 
 § 899. Controversies between citizens of same State. — Origi- 
 nal act and changes. — The judicial power of the United States 
 extends to controversies "between citizens of the same 
 State, claiming lands under grants of different States." a 
 The Judiciary Act of 1789 did not give the circuit courts 
 original jurisdiction of controversies of this character ; but 
 merely provided for their removal from the State courts. 
 By Section 12 of the act : "If in any action commenced in a 
 State court, the title of land be concerned, and the parties 
 are citizens of the same State, and the matter in dispute 
 exceeds the sum or value of five hundred dollars, exclusive 
 of costs, the sum or value being made to appear to the sat- 
 isfaction of the court, either party, before the trial, shall 
 state to the court and make affidavit if they require it, 
 that he claims and shall rely upon a right or title to the 
 land, under a grant from a State other than that in which 
 the suit is pending, and produce the original grant or an 
 exemplification of it, except where the loss of public records 
 shall put it out of his power, and shall move that the ad- 
 verse party inform the court, whether he claims a right or 
 title to the land under a grant from the State in which the 
 suit is pending ; the said adverse [party] shall give such in- 
 formation, or otherwise not be allowed to plead such grant, 
 or give it in evidence upon the trial, and if he informs 
 that he does claim under such grant, the party claiming 
 under the grant first mentioned may then, on motion, re- 
 move the cause for trial to the next circuit court to be 
 
 held in such district but if he is the 
 
 defendant, shall do it under the same regulations as in the 
 before-mentioned case of the removal of a cause into such 
 
 1 S. C. Rules, No. 5. ' Curtis' U. S. Cts. 22, 23, and cases cited. 
 
 3 Const. U. S. Art. Ill, § 2. 
 
752 EJECTMENT IN FEDERAL COURTS. [§ 900. 
 
 court by an alien ; and neither party removing the cause 
 shall be allowed to plead or give evidence of any other title 
 than that by him stated as aforesaid as the ground of his 
 claim." x This provision is retained in the Revised Stat- 
 utes in essentially the same language. 2 The Act of March 
 3, 1875, s however, gives the circuit courts original cogni- 
 zance of all such controversies. The language of the 
 provision relating to removal is also somewhat changed, 
 so as to make the case removable at the option of "one 
 or more of the plaintiffs or defendants," and whether the 
 removing party claims under a grant from the State " other 
 than that in which the suit is pending," or not. The lan- 
 guage of the act is that if the moving party rely on " a 
 grant from a State," he may require that " any one or more 
 of the adverse party" inform the court whether he or they 
 claim title to the land under "a grant from some other 
 State." 
 
 § 900. New theory of the jurisdiction. — This enlargement 
 of the jurisdiction can readily be understood by reference 
 to the case of Shepherd v. Young, 4 decided in 1824, when 
 the original removal act was in force. In this case it was 
 decided by the Court of Appeals of Kentucky, that the act 
 did not authorize the party claiming under a grant from 
 the State where the suit was pending, to remove the cause on 
 the ground that his adversary claimed under a grant from 
 another State. The language of the statute plainly for- 
 bidding such a construction is thus criticised by the court : 
 " The provision (that the reliance must be upon a grant 
 from a State other than that in which the suit is pending) is 
 evidently founded upon the jealousy entertained of State 
 tribunals, that they might be partial to the grants of their 
 own State." Hence there was no reason to take from the 
 State tribunals the right to proceed in cases where the ap- 
 plicant claims under a grant from the same State. The 
 legislation of 1875 is, however, founded on the general 
 theory that controversies of this character present a 
 Federal question, which either party may remove into the 
 
 1 i Stat. L. 8o. 2 U. S. R. S. sec. 647. 
 
 3 18 Stat. L. 470, §3. «iT.B. Mon. (Ky.) 203. 
 
§901.] EJECTMENT IN FEDERAL COURTS. 753 
 
 Federal tribunals. The new act therefore disposes of the 
 question raised in Shepherd v. Young. Iu the case of the 
 Town of Pawlet v. Olark, 1 the Supreme Court of the United 
 States had before it a controversy in which one party 
 claimed under a grant made by the State of New Hamp- 
 shire before the formation of the State of Vermont out of 
 a part of its territory, the other claiming under a grant by 
 the latter State. It was argued that the grant under 
 which the defendant claimed was not a grant of a different 
 State within the meaning of the Constitution, because 
 Vermont, at the time of its emanation, was not a distinct 
 government, but was included in the same sovereignty as 
 New Hampshire. The Supreme Court, however, decided 
 that there was nothing in the objection ; and so in Colson 
 v. Lewis, 3 where both parties claimed under grants, the 
 one issued by the State of Kentucky and the other by 
 the State of Virginia, but upon warrants issued by Vir- 
 ginia, and location founded thereon, prior to the separa- 
 tion of Kentucky from Virginia, the same court held 
 the case removable. On the other hand it seems essen- 
 tial to give jurisdiction in these cases, that the grant 
 should come from the State in its sovereign capacity. In 
 Thompson v. Kendrick, 3 the applicant claimed under a 
 grant from North Carolina, and the other party under a 
 grant from Tennessee, but it appeared that Tennessee 
 acted only by virtue of a power delegated by North 
 Carolina to perfect titles which before the separation of 
 the two were imperfect and inaccurate, and the court de- 
 cided that the grants iu question might therefore be held 
 to be grants of the same State. 
 
 § 901. Pecuniary limit— In the same case the ques- 
 tion arose whether the pecuniary limit of jurisdiction 
 ($500) applies to the whole locus, or only to the lands 
 claimed by the applicant for removal. The court say " it 
 would prove more reasonable and agreeable to the words 
 of the law to let the removal depend on the value of the 
 land claimed by the party praying the removal than on 
 
 1 9 Cranch, 292. 
 
 ' 2 Wheat. 377. 3 5 Hayw. (Tenn.), 113. 
 
 48 
 
754 EJECTMENT IN FEDERAL COURTS. [§§ 902, 903. 
 
 the title set up by his antagonist." In the same case it 
 was held that there was no error in calling witnesses to 
 ascertain the value of the land. 
 
 § 902. Appellate jurisdiction of the Supreme Court. — 
 Federal question. — Besides the branches of j urisdiction 
 already considered, suits involving title to land may come 
 into the Supreme Court of the United States, on appeal 
 from a State court of last resort, when what is commonly 
 called a Federal question is involved. By the provisions 
 of the Judiciary Act as modified and embodied in the 
 Bevised Statutes, the Supreme Court may review a final 
 judgment or decree of the highest court of a State, 
 1st, where the validity of a treaty or statute of, or au- 
 thority exercised under, the United States is involved, and 
 the decision is against their validity ; 2d, where the 
 validity of a statute of or authority under any State is 
 drawn in question, on the ground of their being repugnant 
 to the Constitution, treaties or laws of the United States, 
 and the decision is in favor of their validity ; 3d, where 
 any right, title, privilege or immunity is claimed under 
 the Constitution, or any treaty or statute of, or commis- 
 sion held or authority exercised under the United States, 
 and the decision is against the right, title, privilege or 
 immunity, specially set up or claimed by either party 
 under such Constitution, treaty, statute, commission or 
 authority. 1 
 
 § 903. Title under treaty. — The general rule that a de- 
 fendant may rely on an outstanding title in a third person 
 to defeat the plaintiff's suit is, as we have seen, recognized 
 in the Federal courts. 2 The twenty-fifth section of the 
 Judiciary Act 3 giving a right of appeal to the Federal 
 -courts from the State courts of last resort, whenever the 
 validity of a United States treaty is drawn in question, 
 and the decision of the State court is against the treaty, 
 has given rise to a curious question in the Supreme Court 
 of the United States. In Henderson v. Tennessee, 4 it was 
 
 1 i U. S. R. S. § 709. 
 
 s Marsh v. Brooks, 8 How. 223 ; Love v. Simms, 9 Wheat. 515 ; ante, §§ 57, 831 
 
 3 U. S. R. S. § 709. 
 
 * 10 How. 311. A decision by the highest court of a State, that a United States 
 
$904.] EJECTMENT IN FEDERAL COURTS. 755 
 
 held, by a bare majority of that court, that when in an eject- 
 ment the defendant claimed the land under a treaty title, 
 and the State court decides against it, the Supreme Court 
 has jurisdiction to review the decision; but that if the 
 defendant merely sets up the treaty title as outstanding 
 for the purpose of defeating the plaintiff without connect- 
 ing himself with it, and the State court then decides 
 against him, the Supreme Court has no appellate jurisdic- 
 tion. To give jurisdiction the party must rely on the title, 
 not as outstanding in a third person, but as in himself. 
 
 § 904. Appeals from Circuit Courts. — The appellate juris- 
 diction of the Supreme Court over the circuit courts was 
 limited by the Judiciary Act of 1789, to writs of error 
 founded upon " final judgments and decrees." The pecu- 
 niary limit of appeal was originally $2,000, but by the act 
 of Feb. 16, 1875, 1 this has been raised to $5,000. In de- 
 termining whether the pecuniary value of the matter 
 in dispute is sufficient to give the court jurisdiction, it 
 should be noticed that the collateral effect of the judg- 
 ment in subsequent suits will not be considered or allowed 
 to weigh. 2 This rule has been applied to actions relating 
 to the trial of title to land. We have already seen 3 that 
 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. Grant v. McKee 4 was 
 a writ of error from a judgment of a circuit court of the 
 United States awarding restitution of a parcel of land. The 
 defendant in error moved to quash the writ because the 
 matter in controversy was not of the value of $2,000. The 
 
 patent for land is void, is appealable. Reichart v. Felps, 6 Wall. 160. For other 
 cases under this section see Miller v. Lancaster Bank, 106 U. S. 542 ; Chouteau v. 
 Gibson, in U. S. 200: McStay v. Friedman, 92 U. S. 723 ; Romie v, Casanova, 91 
 U- S. 379 ; Poppe v. Langford, 104 U. S. 770 ; Semple v. Hagar, 4 Wall. 431 ; 
 Ross v. Doe d. Barland, 1 Pet. 655 ; Baldwin v. Stark, 107 U. S. 463. 
 
 1 18 Stat. L. 316. 
 
 'Grant v. McKee, 1 Pet. 248; Stinson v. Doustnan, 20 How. 461; Gray v. Blan- 
 chard, 97 U. S. 564 ; Tintsman v. Nat. Bank, 100 U. S. 6 ; Russell v. Stansell, 105 
 U. S. 303; Elgin v. Marshall, 106 U. S. 578. 
 
 * Ante, §§ 60, 568, 575. " 1 Pet. 248. 
 
756 EJECTMENT IN FEDERAL COURTS. [§ 904. 
 
 motion was resisted on the ground that the whole property, 
 which was recovered in the ejectment, might be considered 
 as involved in this motion. The court (Marshall, 0. J.) 
 held, however, that the motion involved only the lot to 
 which the party prayed to be restored, and dismissed the 
 writ of error. In Smith v. Trabue's Heirs * it was decided, 
 moreover, by Chief Justice Marshall, that a writ of restitu- 
 tion was not a final judgment in a civil action, nor a decree 
 in a court of equity, and nothing more than an act within 
 the discretion of the court issuing it, and that, therefore, 
 the Supreme Court had no jurisdiction to review it under 
 any circumstances. The act regulating the right of appeal 
 to the Supreme Court provides that appeals may be taken 
 only when the " matter in dispute," " exclusive of costs," 
 exceeds the sum or value of $5,000. 3 In actions for the trial 
 of title to land, it may be that no damages are demanded, 
 and the record will not usually show the value of the land. 
 The practice of the Supreme Court in such cases is thus de- 
 scribed by the late learned Judge Curtis in his invaluable 
 handbook on the jurisdiction of the United States courts •? 
 ' ' An allegation in such a case, as, for instance, in a real ac- 
 tion, that the land demanded was of greater value than two 
 thousand dollars, would be an appropriate allegation for the 
 purpose of laying the foundation for an appeal. It is not a 
 necessary foundation ; the Supreme Court, if the amount in 
 controversy is questioned, will receive affidavits in that 
 court of what the value is, provided they are seasonably 
 made." 4 It must be noticed also that when the value is 
 stated in the pleadings or proceedings of the court below, 
 affidavits are not received by the Supreme Court to vary or 
 enhance it in order to give jurisdiction. 3 In the Federal 
 courts the value of the land may be and usually is proved 
 at the trial. 6 We have already seen 7 that, under the modern 
 
 1 9 Pet. 4. 
 
 2 U. S. R. S. § 691; amended by Act of Feb. 16, 1875, § 3 (18 Stat. L. 316). 
 
 3 Jurisdiction, Practice and Peculiar Jurisprudence of the Courts of the United 
 States. By Benjamin Robbins Curtis, LL.D. Boston. Little, Brown & Co. 1880. 
 
 4 Curtis' Jur. U. S. Courts, 6g, citing Richmond v. City of Milwaukie, 21 How. 
 391. 
 
 5 Richmond v. City of Milwaukie, 21 How. 391. 
 
 8 Beard v. Federy, 3 Wall. 478, 494. ' Ante, § 460. 
 
§ 904.] EJECTMENT IN FEDERAL COURTS. 757 
 
 practice, the general rule is that the plaintiff may unite in 
 the same action his claim for a recovery of possession, and 
 for damages and mesne profits. Hence, the matter in dis- 
 pute may be either land, the value of which would be ascer- 
 taiued as above stated, or money, or both. From this double 
 aspect of the matter in dispute, peculiar questions of juris- 
 diction may arise. In Beard v. Federy, just cited, which 
 arose when the jurisdictional limit was $2,000, the plaintiff 
 demanded judgment for possession of several parcels of 
 land, for mesne profits stated to be $5,000 a year, and for 
 costs and damages alleged to be $1,000. On the trial the 
 claim for mesne profits was stricken out ; but it was then 
 mutually admitted that the value of one of the parcels was 
 $2,500. The plaintiff recovered judgment for this parcel. On 
 appeal it was contended that by striking out from the com- 
 plaint the claim for the rents and profits, the court had lost 
 jurisdiction of the case on the ground that the facts neces- 
 sary to give jurisdiction must appear affirmatively from 
 the pleadings ; that the money demands having been struck 
 out, left the court under the pleadings without jurisdic- 
 tion, and that this defect could not be supplied by proof or 
 admissions made on the trial. The court held, however, 
 and it is hard to see how, under the general rule given 
 above, any other conclusion could have been reached, that 
 the admission on the trial was sufficient proof of value. 1 
 Neither interest on the judgment below, nor costs of suit, 
 can enter into the computation of the pecuniary value of 
 the matter in dispute. 3 As a general rule, the pecuniary 
 limit is determined up to the time of final judgment by the 
 amount claimed iu the declaration, or pleaded as a set-off 
 or counter-claim. But after judgment the right of appeal 
 is governed by a different rule. Suppose that in the dec- 
 laration five thousand dollars is demanded, but a verdict is 
 rendered for only one thousand. The only matter in dis- 
 pute now is, so far as the defendant is concerned, whether 
 he must pay one thousand dollars, or whether some error 
 has been committed which would relieve him from this pay- 
 
 1 Beard v. Federy, 3 Wall. 478. This case is not very clearly reported. 
 
 2 Western Union Tel. Co. v. Rogers, 93 U. S. 565. 
 
758 EJECTMENT IN FEDERAL COURTS. [§§ 905, 906. 
 
 merit. Bat the pecuniary limit of jurisdiction forbids th& 
 Supreme Court to review the record. Ou the other hand, 
 the plaintiff demanded five thousand dollars, and if in the 
 course of the trial he has taken proper exceptions to the 
 proceedings by which his claim has been reduced, then he 
 may have these questions re-examined, because, so far a& 
 he is concerned, the matter in dispute is still five thousand 
 dollars. 1 When an appeal has been allowed after a contest 
 as to the value of the matter in dispute, and there is evi- 
 dence in the record which sustains the jurisdiction, the 
 Supreme Court will not dismiss the appeal simply because, 
 upon examination of all the affidavits, it may be of the- 
 opinion that the estimates acted upon below were possibly 
 too high. 2 
 
 § 905. Territorial mining claim. — In Lownsdale v. Par- 
 rish, 3 the Supreme Court held, that an obstruction to the 
 enjoyment of land claimed under a law or regulation of 
 a convention in the territory of Oregon, held without the 
 sanction of the United States, and during the joint occu- 
 pancy of that country by Great Britain and the United 
 States, was not an injury capable of being so valued as to 
 give jurisdiction ; but this was upon special grounds, and in 
 general a mining claim like any other may be found to 
 be of sufficient value, though the land in which the mine 
 exists has never been surveyed or brought into market. 4 
 
 § 906. Original jurisdiction of the Circuit Courts. — By far 
 the most common source of jurisdiction in the Federal 
 courts, in the class of cases under consideration, is the 
 provision of the Revised Statutes authorizing them to 
 entertain suits when there is a controversy between cit- 
 izens of different States, and the matter in dispute, exclu- 
 sive of costs, exceeds the sum or value of five hundred 
 dollars. 5 
 
 1 Curtis' Jur. U. S. Courts, 67; Gray v. Blanchard, 97 U. S. 564. 
 
 * Gage v, Pumpelly, 108 U. S. 164. 
 3 21 How. 290. 
 
 * Sparrow v. Strong, 3 Wall. 97. It should be noticed that in appeals from 
 Territorial courts, there is a pecuniary limit, as in the case of appeals from the Circuit 
 Courts. U. S. R. S., § 702. 
 
 ' U. S. R. S. § 629 (Act of March 3, 1875). 
 
§§ 907-909.] EJECTMENT IN FEDERAL COURTS. 759 
 
 § 907. Jurisdictional amount. — la Den v. Wright, 1 a 
 case in which the value of the premises were stated in 
 the declaration, but the jury had not found the value in 
 their verdict, Washington, J., said, on a motion in arrest 
 of judgment, that it was enough that the value had been 
 proved, and that it would be sufficient to fix the juris- 
 diction if the value were proved, after trial, by witnesses or 
 by affidavit. In Lanning v. Dolph, 2 decided in 1826, it was 
 held by the same judge to be absolutely essential to state 
 in the declaration the value of the land in controversy, 
 and this, notwithstanding it had been the uniform prac- 
 tice of the bar of the District of Pennsylvania, to omit 
 any such allegations. With regard to the contention 
 that the damages in this case, being laid at $3,000, amply 
 supported the jurisdiction, he said: "It would, at this 
 day, be a waste of words and of time to attempt to prove 
 what is so well settled, that the right to the premises 
 mentioued in the declaration is the sole matter in contro- 
 versy, and that the damages claimed and recovered are 
 merely nominal." Notwithstanding this early decision, 
 the rule is now well settled that the value may be shown 
 at the trial, and that it is not necessary to state it in the 
 declaration. 8 
 
 § 908. Different parcels. — Where the lands consist of dif- 
 ferent parcels, and the complaint alleges a joint entry and 
 ouster, and the answer does not set up separate claims 
 to distinct parcels of the land by the several defendants, 
 it is enough if the value of all the land together reaches 
 the jurisdictional amount. 4 But where there is no joint 
 ownership or possession in the defendants, but each claims 
 separately, the value of the separate parcels cannot be 
 united so as to give jurisdiction. 6 
 
 § 909. Recovery of less than claim. — As a general rule, 
 wherever in the Federal tribunals the jurisdictional amount 
 
 1 Pet. C. C. 64. 
 
 ! 4 Wash. C. C. 624. 
 
 3 Ex parte Bradstreet, 7 Pet. 634, 647 ; .Beard v. Federy, 3 Wall. 478 ; Crawford 
 v. Burnham, I Flipp. 116. 
 
 4 Friend v. Wise, in U. S. 797. 
 
 5 Tupper v. Wise, no U. S. 398 ; Lynch v. Bailey, no U. S. 400, n. 
 
760 EJECTMENT IN FEDERAL COURTS. [§§ 910, 911. 
 
 is demanded in the declaration, it is said that the jurisdic- 
 tion is not defeated by the recovery of a less amount. 1 
 
 § 910. Change of residence. — The citizenship sufficient to 
 give the Federal court jurisdiction may be acquired by abona 
 fide change of residence, even though it appear that one of 
 the motives of the party in removing, or indeed his only 
 motive, was to enable him to bring suit in a Federal court, 
 sitting in the State from which he had removed. 2 On the 
 other hand, "it is well settled," says the court in Hatfield 
 v. Bnshnell, 3 " that if the jurisdiction of the Circuit Court 
 be once vested in a suit between citizens of different States, 
 a subsequent change of domicile of the parties pendente lite, 
 either by the defendant removing into the State where 
 the plaintiff resided, or by the plaintiff removing into 
 the State where the defendant resided and the suit was 
 brought, will not divest the jurisdiction." 4 Applying 
 this principle to an action of ejectment, where the plaint- 
 iff having died before judgment, his administrator was, 
 under the 31st section of the Judiciary Act of 1789, 
 allowed to prosecute the action, the court held that the 
 fact that the administrator was a citizen of the same 
 State with the defendant was immaterial. 
 
 § 911. Collusive transfers. — Collusive or fraudulent trans- 
 fers of the land, during the pendency of an ejectment 
 suit, will not be allowed to defeat the ends of justice, or to 
 affect the jurisdiction of the Federal tribunal, if it has once 
 attached. Thus in Thomas v. Newton, 5 a case decided in 
 the District of Pennsylvania under the old practice, while 
 the ejectment suit was going on, the land in dispute was 
 sold under a judgment on a mortgage. The purchaser paid 
 the defendant in the ejectment suit a sum of money, and 
 thus obtained possession. After this the defendant con- 
 fessed judgmeut, upon which a habere facias issued in favor 
 
 ' Curtis' Jurisd. U. S. Courts, 124; Hulsecamp v. Teel, 2 Da.ll. 358; Green v. 
 Liter, 8 Cr. 229 ; Martin v. Taylor, 1 Wash. 1 ; Sherman v. Clark, 3 McL. 91 ; 
 Judson v. Macon Co., 2 Dill. 213. 
 
 2 Cooper 11. Galbraith, 3 Wash. C. C. 546, 554, charge of Washington, J. 
 
 a 1 Blatchf. 393. 
 
 4 Citing Morgan v. Morgan, 2 Wheat. 290; Cameron v, McRoberts, 3 Wheat. 
 591 ; Thomas v. Newton, Pet. C. C. 444; Dunn v. Clarke, 8 Pet. 1. 
 
 6 Pet. C. C. 444. 
 
§ 911.] EJECTMENT IN FEDERAL COURTS. 761 
 
 of the plaintiff. Upon an order to show cause why the 
 judgment and subsequent proceedings should not be set 
 aside and the purchaser be admitted as defendant, it ap- 
 peared that the purchaser was a citizen of Pennsylvania. 
 Had he been made defendant the court would have been 
 ousted of its jurisdiction, and it was therefore ordered that 
 the judgment and execution should be set aside, and the 
 original defendant should still remain as the nominal de- 
 fendant, and that the purchaser should indemnify him 
 against further costs. 
 
 In Hoyt v. Wright 1 it was held in the Circuit Court for 
 the District of Colorado, that while a bond fide transfer of 
 property to one qualified by citizenship to sue in a Federal 
 court will confer jurisdiction ; if the transfer is purely color- 
 able, that is, if the grantor retains his interest, the pro- 
 ceeding would be collusive, and the objection might be 
 raised by a plea to the jurisdiction, and the case, if origi- 
 nally removed from a State court, might be remanded. The 
 rule that a sham conveyance of this sort is of no validity 
 for the purpose of bringing the case within the province of 
 the Federal courts, was early laid down in Maxwell v. Levy, 2 
 and was followed recently in Greenwalt v. Tucker, 3 in the 
 Circuit Court for the Eastern District of Missouri. 
 
 In DeLaveaga v. Williams, 4 in the Circuit Court for the 
 District of California, Mr. Justice Field held that a plea in 
 abatement founded on such a transfer was bad, and that it 
 was only where the conveyance was " accompanied with an 
 agreement to re-transfer the property at the request of the 
 grantor upon the termination of the litigation that the pro- 
 ceeding will be treated as a fraud upon the court." This 
 decision was followed in Marion v. Ellis. 5 In Barney v. 
 Baltimore City e it was said by the Supreme Court of the 
 United States, that a transfer, though made for the avowed 
 purpose of conferring jurisdiction, will accomplish that 
 purpose; 7 but it was held that where it was made without 
 
 1 4 Fed, Rep. 168. 2 2 Dall. 381. 
 
 3 3 McCra. 450. 4 5 Sawyer, 573. 
 
 5 10 Fed. Rep. 410 (C. C. E. D. of Louisiana). 
 
 6 6 Wall. 280, 288. 
 
 1 Citing McDonald v. Smalley, 1 Pet. 620. 
 
762 EJECTMENT IN FEDERAL COURTS. [§§ 912, 913. 
 
 consideration, and " with a distinct understanding that the 
 grantors retained all their real interests," jurisdiction 
 would be denied. In Smith v. Kernochen 1 it was said by 
 the Supreme Court, that the true and only grounds of ob- 
 jection in all these cases is that the grantor is the real party, 
 the plaintiff on the record being only a nominal party, and 
 that the suit is in fact, notwithstanding the conveyance, a 
 controversy between the former and the defendants. 
 
 § 912. The removal statutes. — The statutes authorizing 
 the removal of suits from the State to the Federal tri- 
 bunals, apply to actions for the trial of title to land. For 
 the principles governing such removals, it is not pos- 
 sible to do much more here than to refer to the statutes 
 themselves, 3 and the treatises which discuss the decisions 
 under them. 3 The right of removal depends either upon 
 the subject-matter of the suit, or upon the citizenship of 
 the parties. 4 
 
 § 913. Ejectment for land confiscated during rebellion. — 
 By the act of July 17, 1862, 5 Congress authorized the 
 seizure and sale of the estate and property of persons en- 
 gaging in rebellion against the United States. The Con- 
 stitution provides 6 that "no attainder of treason shall 
 work corruption of blood, or forfeiture, except during the 
 life of the person attainted." By a joint resolution ex- 
 planatory of this Confiscation Act, passed on the same 
 day, 7 Congress declared that no punishment or proceedings 
 under it should be "so construed as to work a forfeiture of 
 the real estate of the offender beyond his natural life." 
 By act of March 3, 1863, 8 the defendant was authorized, in 
 
 1 7 How. 198, 216; and in Hurst v. McNeil, I Wash. C. C. 70. See, also, Boy- 
 reau v. Campbell, McAll. 119, 128 ; Briggs v. French, 2 Sumn. 251. 
 
 2 U.S. R. S., % 639 el seg. 
 
 3 Especially Judge Dillon's learned work on " Removal of Causes." 
 
 4 Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286 ; 
 Exparte Turner, 3 Wall. Jr. 258; Allin v. Robinson, I Dill. 119 ; Chapman v. Barger, 
 4 Dill. 557; Hoadley v. San Francisco, 94 U. S, 4; Steinkuhl v. York, 2 Flipp. 
 376 ; Field v. Lownsdale, Deady, 288 ; Johnson v. Monell, 1 Woolw. 390 ; Fields 
 v. Lamb, Deady, 430 ; Railway Co. v. Whitton, 13 Wall. 270; Sands v. Smith, 1 
 Dill. 290. 
 
 6 12 Stat. L. 589. • Art. Ill, § 3. 
 
 ' 12 Stat. L. 627. * 12 Stat. L. 755- 
 
§914.] EJECTMENT IN FEDERAL COURTS. 763 
 
 case of a proceeding in a State court founded on wrongs 
 and trespasses committed during the rebellion, under color 
 of authority from the President or Congress, to remove 
 the case into the United States courts. In Bigelow v. 
 Forrest, 1 it appeared that one Forrest had been divested 
 of his title to lands in Virginia under the confiscation act ; 
 that he had subsequently died, leaving the plaintiff as his 
 sole heir. The latter brought ejectment for the land, and 
 the defendant attempted to remove under the act of March 
 3, 1863. The Supreme Court held, however, that this 
 statute did not apply to ejectment cases ; that the estate 
 sold was only a life interest, and that the plaintiff, on the 
 death of the original owner, was entitled to recover. The 
 court notices the anomalies presented by this case — a for- 
 feiture of lands of which the offender was seized in fee, yet 
 for life only and no longer, and this without corruption of 
 heritable blood ; and a descent cast upon an heir, although 
 the ancestor had no seizin at his death. 2 The case can 
 hardly be a precedent except for decisions under the same 
 peculiar statute. In Kirk v. Lynd, 3 it was held that under 
 the act of August 6, 1861, passed to confiscate property, 
 used for insurrectionary purposes, the purchaser of lands 
 seized and condemned took an estate in fee. The distinc- 
 tion between the two acts is held, in the latter case, to be 
 that one is punitory, while the other provided merely for 
 the condemnation of property used by a public enemy in 
 warfare. 
 
 § 914. Title by Act of Congress. — Titles under the United 
 States may rest upon a statute as well as a patent. Such 
 a statute is a grant. 4 In Hogan v. Page, 5 it appeared that 
 after the Louisiana cession in 1803, an Act of Congress 
 was passed to settle imperfect French and Spanish claims. 
 The Act provided for a confirmation of title to any one 
 who had for ten consecutive years been in possession of a 
 tract of land not owned by any other person. In 1808 one 
 
 1 g Wall. 339. 
 
 8 Bigelow v. Forrest, 9 Wall. 339. 3 106 U. S. 315. 
 
 4 Strother v. Lucas, 12 Pet. 410, 454. " 2 Wall. 605. 
 
764 EJECTMENT IN FEDERAL COURTS. [§ 915. 
 
 Lamondo presented a claim for a tract " formerly the prop- 
 erty of Auguste Condi." The Board of Commissioners 
 granted it to " the representatives of Auguste Condi," and 
 their minutes showed that they had before them the orig- 
 inal French concession to Condi. The title was made ab- 
 solute by Act of Congress in 1814. In ejectment by one 
 claiming under Lamondo, it was contended that the con- 
 firmation enured to the benefit, not of the original assignee 
 of Condi, but of his heirs. The Supreme Court, however, 
 held that this was a question of fact, which should have 
 been submitted to the jury. Mr. Justice Nelson gave the 
 following explanation of the somewhat peculiar character 
 of grants of this description : "A difficulty had occurred 
 at the Land-Office at an early day, in respect to the form of 
 patent certificates and of patents, arising out of applica- 
 tions to have them issued in the name of the assignee or 
 present claimant, thereby imposing upon the office the 
 burden of inquiring into the derivative title presented by 
 the applicant. This difficulty, also, existed in respect to 
 the Boards of Commissioners under the Acts of Congress 
 for the settlement of French and Spanish claims. The re- 
 sult seems to have been, after consulting the Attorney- 
 General, that the Commissioner of the Land-Office recom- 
 mended a formula that has since been very generally 
 observed, namely, the issuing of the patent certificate, and 
 even the patent, to the original grantee, or 7m legal repre- 
 sentatives, and the same has been adopted by the several 
 boards of commissioners. This formula, ' or his legal 
 representatives,' embrace representatives of the original 
 grantee in the land, by contract, such as assignees or 
 grantees, as well as by operation of law, and leaves the 
 question open to inquiry in a court of justice, as to the 
 party to whom the certificate, patent or confirmation should 
 enure." 
 
 § 915. Ejectment on Indian title. — Ejectment may be 
 maintained on an Indian right to occupancy and use 
 secured by treaty with the United States, 1 though not 
 
 1 Marsh v. Brooks, 8 How. 223, 232 ; Cornet v. Winton, 2 Yerg. (Tenn.) 143 ; 
 ante, §§ 194, 228. 
 
§916.] EJECTMENT IN FEDERAL COURTS. 765 
 
 on a title resting on a private Indian grant ; at least not 
 if in conflict with the title derived from the United 
 States. 1 The reason for the distinction seems to be, that 
 the only Indian right recognized by our courts is that 
 of occupancy. The right to the soil rests on discovery 
 and conquest, and the Indian tribes cannot of themselves 
 dispose of the lands occupied by them in severalty in 
 any way, so as to defeat the right of sovereignty orig- 
 inally residing in the English Crown or its grantees or 
 successors. 2 In the Federal tribunals the general rule 
 is, that when the same land has been granted twice, the 
 elder patent may be set up as an outstanding title, even 
 by a trespasser, when sued by a claimant under the 
 younger grant, without inquiring as to who is the act- 
 ual owner of the land at the time of the trial. Thus, 
 in Marsh v. Brooks, 8 an Indian title consisting of the 
 usufruct and right of occupancy and enjoyment, was set 
 up successfully as an outstanding title against those 
 claiming the land by patent subsequent to the ratifica- 
 tion of the treaty. It is said, in Jackson ex dem. Sparkman 
 v. Porter, 4 that a purchaser from the Indians holds the title 
 according to their laws, and if they choose to resume it 
 the courts cannot protect the right. "The purchaser in- 
 corporates himself with the Indians, and the purchase is to 
 be considered in the same light as if the grant had been 
 made to an Indian ; and might be resumed by the tribe, 
 and granted over again at their pleasure," e. g., by a sub- 
 sequent treaty with the Crown. 5 Such a treaty would 
 make the possession of the occupant under the Indian 
 grant a mere tenant at will of the Crown, and his hold- 
 ing not being adverse no length of possession would 
 ripen it into a title. 6 
 
 § 916. Venue.— In suits of a local nature it is provided, 
 by the Eevised Statutes, 7 that when the defendant resides 
 
 ' Johnson v. Mcintosh, 8 Wheat. 543. 
 
 s Johnson v. Mcintosh, 8 Wheat. 543, 586. 
 
 3 8 How. 223. " 1 Paine, 457, 472. 
 
 s lb. 476. 6 lb. 477- 
 
 1 §§ 740, 741. See Chap. XVII, and § 475. 
 
766 EJECTMENT IN FEDERAL COURTS. [§§ 917-919. 
 
 in a different district in the same State from that in 
 which the suit is brought, the plaintiff may have orig- 
 inal and final process against him, directed to the marshal 
 of the district in which he resides ; and that any suit of a 
 local nature wheu the land or other subject-matter lies 
 partly in one district and partly in another, within the 
 same State, may be brought in either district. 
 
 § 917. Statutes of limitations in equity. — As a general rule 
 the Federal courts in equity apply the principles of the 
 statutes of limitations, and, therefore, an adverse possession 
 sufficient to bar an ejectment is also an equitable bar. 1 In 
 equity the Federal courts hold that the statute runs against 
 equitable titles and operates as a bar, by analogy, as in the 
 case of a legal title. 8 
 
 § 918. Pleading citizenship of parties. — In the recent case 
 of Wythe v. Myers, 3 it appeared that the practice of the 
 State courts furnished no guide as to whether a defense 
 based on citizenship should be made by plea in abatement 
 or by simple denial of the allegation in the complaint. 
 Under these circumstances the court thought the rule laid 
 down by the Supreme Court prior to the enactment of 
 section 914 of the Revised Statutes, 4 must be followed, and 
 that the objection must be taken by plea in abatement. 
 
 § 919. Mandamus to compel issue of patent. — It is a rule 
 underlying the jurisdiction of the courts to issue writs of 
 mandamus, that where the exercise of discretion and judg- 
 ment on the part of the officer is required mandamus will 
 not lie. 5 Thus mandamus will not lie against the Commis- 
 sioner of the Land-Office to issue a patent where there are 
 conflicting claims to the land, the determination of which 
 depends on facts and circumstances resting in parol, and 
 requiring judicial action. The proper remedy in such a 
 
 1 Hunt v. Wicklifle, 2 Pet. 201; Bisbee v. Evans, 17 Fed. Rep. 474. 
 
 2 Miller v. Mclntyre, 6 Pet. 61 ; Elmendorf v. Taylor, 10 Wheat. 168. 
 
 3 3 Sawy. 595. 
 
 4 Citing Jones v. League, 18 How. 81. 
 
 ' High on Extraordinary Legal Remedies, § 42, and cases cited. 
 
g 919.] EJECTMENT LN FEDERAL COURTS. 767 
 
 case is by bill in equity. 1 On the other hand, when a 
 patent has been regularly signed, sealed, countersigned 
 and recorded, the patentee may compel its delivery by 
 mandamus, the duty of issuing it being merely ministerial, 
 and the writ will lie against the Secretary of State. 2 So, 
 relief by mandamus may be had against a State land com- 
 missioner, 3 and, in those States in which the writ is held to 
 lie against the Chief Executive, against the Governor. 4 
 
 1 United States v. The Commissioner, 5 Wall. 563 ; Secretary v. McGarrahan, 
 ■9 Wall. 298. 
 
 2 United States v. Schurz, 102 U. S. 378. 
 
 3 Houghton Co. v. Commrs. of State Land-Office, 23 Mich. 270. 
 * Middleton v. Low, 30 Cal. 596. 
 
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, 6G1-689. 
 
 upon death of defendant, heirs may be substituted, 658-689. 
 
 ancient demesne good plea in, 26, n. 
 
 of nuisance, 156, 156, n. 
 ABSOLUTE DEED, proved a mortgage, 337. 
 
 accounting concerning, 337. 
 ABSTRACTS as evidence, 827. 
 
 rule in North Carolina, 827. 
 in Illinois, 827. 
 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. 
 
 remedies of, 269. 
 
 injunction or damages, 269. 
 
 conveyance by, 860. 
 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. 
 
 claimant must establish title to shore, 125. 
 ACQUIESCENCE by silence not waiver of forfeiture, 371, n. 
 ACT OF CONGRESS, as source of title, 785, 914. 
 
 49 
 
770 References} INDEX. Y are to sections. 
 
 ACTIONS. See Ejectment; Real Actions; Trespass to Tby Title, 
 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, 1, 63, 162. See Ejectment. 
 real actions, 2, 3, 5, 8, 64-66, 79. See Real Actions. 
 for value of land, 177a. 
 to quiet title, judgment in, 532c. 
 new trials in suits to quiet title, 586. 
 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 Answee. 
 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. 
 ACTUAL POSSESSION, meaning of, 231. 
 
 same as pedis possessio, 231. 
 ACTUAL SETTLERS, possessory rights of, 717, n. 
 ADAMS ON EJECTMENT, 8, n. 
 
 views of, as to fictions, 63a. 
 ADDITION to house, an improvement, 699. 
 
 ADMEASUREMENT OP 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, 207-209. 
 
 cum testamento annexe may bring ejectment in Pennsylvania, 208, 
 rights of, in New York, 210, n. 
 may recover in ejectment estates for years, 208. 
 not freehold terms or leases, 209. 
 may recover land acquired by foreclosure, 210. 
 statutory changes, 211. 
 
 de facto, appointment not questioned in ejectment, 184a. 
 ADMISSION of parties to defend, 39, 259, 265, 658. 
 landlord, 39, 264-266. 
 joint owners, 259. 
 
 claimant under title paramount to both litigants, 260, 
 parties claiming against defendant, 261, 
 
References'] INDEX. [are to sections. 771 
 
 ADMISSION— continued. 
 
 mortgagee, 262. 
 
 purchaser pendente lite, 263. 
 
 of possession, 236. 
 ADVANCEMENT, as defence in ejectment, 837. 
 
 may be shown by parol, 837. 
 ADVERSE POSSESSION, under statutes of limitations, 724, 753, 754, 760, 
 761, 781. See Color of Title; Constructive Possession. 
 
 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 actions, 
 725-727. 
 
 rule as to pleading, 482, 483. 
 
 nature of adverse possession discussed, 482. 
 
 adverse possession and possession sufficient to support ejectment dis- 
 tinguished, 723. 
 
 character of possession to render deed champertous, 190, 776. 
 
 by corporation incapable of acquiring title, 251. 
 
 superseded in England, 725, n. 
 
 how title is made, 726. 
 
 is a perfect title, 727. 
 
 purchaser compelled to take, 727. 
 
 legislation cannot affect, when acquired, 727. 
 
 not acquired by stealth, 730, n. 
 
 by flowing lands, 149, 734, n. 
 (1.) Distinction ietween limitations and prescription, 724, 726, 727, 727, n. 
 
 prescription " creates," 724. 
 
 limitation "destroys," 724. 
 (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. 
 
 duties of court and of jury, 729, n. 
 
 actual 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. 
 
772 References} INDEX. [are to sections. 
 
 ADVERSE POSSESSION"— continued. 
 effect of cutting timber, 783. 
 
 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 insufficient, 739. 
 possession must be stationary, 739. 
 roving possession will not suffice, 739. 
 possession of true owner must not intervene, 737, n. 
 (7.) Interruption of ike possession, 740-745. 
 stops tbe statute, 740. 
 by re-entry of the owner, 741. 
 by unsuccessful ejectment, 743, n. 
 by forcible entry, 743, n. 
 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. 
 (8.) Tacking, 746-748. 
 
 tbe term " tacking of possessions " criticised, 746. 
 possession must be continued in the same right, 746. 
 unconnected possessions cannot be tacked, 746. 
 what possessions tacked, 747. 
 landlord and tenant, 747. 
 vendor and vendee, 747. 
 ancestor and heir, 747. 
 the test stated, 747. 
 various illustrations, 748. 
 (9.) Hostile possession, 749. 
 
 must be in derogation of rights of true owner, 749. 
 without permission and not in subserviency to him, 749. 
 presumption that possession is rightful, 372, 749. 
 (10.) Possession begun in subserviency to owner's title, 750. See Ouster. 
 between tenants in common, 750. 
 
 exclusive claim must be more unequivocal than between strangers, 
 278, 280, 750. 
 
References] INDEX. [an to sections. 773 
 
 ADVERSE POSSESSION— continued. 
 
 possession by one tenant in common not per se adverse, 750. 
 
 possession of one possession of all, 276, 750. 
 
 presumption of ouster from lapse of time, 289, 750. 
 (11.) Privity of title or possession, 751. 
 
 rule as to co-tenants applied generally where privity exists, 751. 
 
 between landlord and tenant, 730, n., 751, 751, n. 
 
 how inaugurated, 751, n. 
 
 trustee and beneficiary, 751. 
 
 grantor and grantee, 751. 
 
 mortgagor and mortgagee, 751. 
 
 vendor and vendee, 305, 751. 
 
 agent, 751, 751, n. 
 (12.) Possession must be exclusive, 752. 
 
 of the owner and all others, 752. 
 
 reason of the rule, 752. 
 (13.) Conflicting possessions, 753. 
 
 general principles regulating, 753. 
 
 the rule stated, 753. 
 
 cannot be two actual possessions at same time, 753. 
 
 possession follows the title, 728, 737, 753. 
 
 or better right, 753. 
 
 or older color of title, 753. 
 (14.) Intention, claim of right, 754-760. 
 
 possession must be accompanied by adverse intent, 729, 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. 
 
 occupant must claim the fee, 756. 
 
 good faith in assertion of adverse claim, 757. 
 
 important only in connection with constructive possession, 757. 
 
 acts and declarations of the occupant indicating intent, 758. 
 
 possession under mistake, 759. 
 
 disputed boundary lines erroneously located, 760, 867. 
 (15.) Constructive possession, 761, 781. 
 
 See Constructive Possession ; Colob of Title ; Intention ; 
 Disabilities. 
 (16.) Disabilities and exceptions, 753o-753/. 
 
 no adverse possession against State, 753a. 
 
 municipal corporations, 753a. 
 
 infants, 753J. 
 
 co-existing disabilities, 753c. 
 
 subsequent disabilities, 75Zd. 
 
 suspension by agreement, 753«. 
 
 rule as to co-tenants, 276, 753/. 
 
774 References'] INDEX. [are to sections. 
 
 ADVERSE POSSESSION— continued. 
 (17.) Adverse possession of mines, 733, n. 
 
 discovery and working, 733, n. 
 
 nature of the acts, 733, n. 
 
 when digging coal is not, 733, n. 
 ADVERSE POSSESSION TO AVOID DEED, 190. 
 
 character of, to render deed champertous, 190, 776. 
 
 must be under claim of specific title, 190. 
 
 general assertion of ownership insufficient, 190. 
 
 must be actual as distinguished from constructive possession, 190. 
 ADVERSE TITLE, claim of, 235. 
 
 forfeits right to notice to quit, 389. 
 
 something more than idle declaration required, 235. 
 ADVOWSON, not recoverable iu ejectment, 148. 
 AFFIRMATIVE RELIEF, 483, 485, 487, 488. See Answer. 
 AFTER-ACQUIRED TITLE, judgment not conclusive upoD, 541. 
 
 effect of estoppel, 850. 
 
 supplemental complaint, 454c. 
 AGE, evidence as to, 816. 
 
 presumption of death, 817. 
 
 person may testify as to, 816. 
 AGENT of corporation may give notice to quit, 407. 
 
 authority of general agent to bring ejectment, 418. 
 
 adverse possession by, 751, 751, n. 
 
 disclaimer by, 751, n. 
 
 may commit an ouster, 277. 
 
 sheriff may take possession of land as agent, 557. 
 
 of government as defendant in ejectment, 244-249. 
 
 judgment against, not binding on government, 540. 
 AGREEMENT, for a lease held tantamount to a lease, 51. 
 
 to attorn does not create new tenancy, 354. 
 
 when champertous, 421a. 
 
 not in writing, 321ns. 
 
 to suspend statute of limitations, 753«. 
 
 as to boundaries, 760, 867, 868. 
 AID, praying for, 6, u . 
 ALABAMA, two remedies for trial of title given, 90. 
 
 fictions retained in ejectment, 90. 
 
 fictitious form of action not common, 90. 
 
 trespass to try title, 88. 
 
 principles regulating ejectment applied to trespass to try title, 88-92. 
 
 statutory changes, 89. 
 
 trespass to try title abolished, 89. 
 
 statute of limitations need not be pleaded, 482. 
 
 executor or administrator may bring ejectment, 211. 
 
 requisites of complaint in ejectment, 439. 
 
References] INDEX. [are to sections. 775 
 
 ALABAMA — continued. 
 
 plea of not guilty and denial of possession incompatible, 480. 
 
 description of the lands, 554. 
 
 rule as to abatement, 689. 
 ALIAS WEITS of possession, 552. See Writ of Possession. 
 ALIEN, cannot usually maintain a real action, 226. 
 
 by statute may recover in ejectment until office found, 226. 
 
 title of, can only be assailed by the State, 226. 
 
 may acquire title by purchase, 226. 
 
 gift of income to valid, 206, n. 
 
 alien friends may bring ejectment, 195. 
 
 as defendant, 253as. 
 
 title of, by adverse possession, 253as. 
 
 alien enemy may be sued, 253a. 
 
 receiver against, 614, n. 
 ALIENATION pending suit, 187, 454c, 495. 
 
 ALLEY, right to use not recoverable in ejectment, 102, n., 148, 527. 
 ALLOWANCE FOR IMPROVEMENTS, 690, 691. See Improvements. 
 ALLUVION, defined, 125. 
 
 ALTERNATIVE, notice to quit, 401. See Notice to Quit. 
 AMELIORATIONS, 690, 716. See Improvements. 
 AMENDMENT, power to grant limited in early times, 3. 
 
 at common law very little room for amendments, 3. 
 
 enlarging term of the fictitious lease favored, 53, 424. 
 
 of descriptions, 464. See Description. 
 
 of description after close of evidence, 464. 
 
 of complaint, 436, 4546, 464. See Complaint. 
 
 illustrations, 454J. 
 
 of writ of entry, 436. 
 
 striking out unnecessary plaintiffs, 187, 189. 
 
 striking out unnecessary defendants, 240. 
 
 from equitable action to ejectment not allowed, 179. 
 
 nor from legal to equitable title, 437. 
 
 from ejectment to suit in equity inadmissible, 182. 
 
 from ejectment to action to redeem permitted, 180. 
 
 action to determine conflicting claims changed to ejectment, 181. 
 
 individual plaintiff may amend to recover as administrator, 211. 
 
 from fee to life estate, 436. 
 
 of award in ejectment, 501. 
 
 of verdict, 498, 503. 
 
 of judgment, 525. 
 
 in trespass to try title, 91. 
 
 supplemental complaint, 454c. 
 
 in Federal courts, 874. 
 AMERICAN LAWYERS, familiarity with real writs, 75, n. 
 ANCESTOR, ejectment by heir or devisee for land of, 205, 206. 
 
 actual entry not necessary, 205. 
 
776 References} INDEX. V arl *» sections. 
 
 ANCESTOR —continued. 
 
 dying out of possession, heir may sue, 205. 
 
 rule of pleading by heir, 443. 
 
 and heir tacking possessions of, 747. 
 
 tort of, cannot be predicated of heir, 658. 
 ANCESTRAL DROITURAL writs, 65. 
 ANCIENT demesne, plea of in ejectionefirmce, 26, n. 
 
 lease, 27, 28, 34, 35. 
 ANCIENT DEEDS AND "WILLS, proof of, 818. 
 
 thirty years of age, 818. 
 
 surreys and maps, 819. 
 
 possessions, presumption of grant, 784, 786. - 
 ANCILLARY relief, 610, 632. See Provisional Remedies; 
 ANIMO REVERTENDI, question for jury, 744, n. 
 ANIMUS of entry under color of title, 775, 778a. 
 
 of adverse possession, 754, 755. 
 ANNEXATION TO THE SOIL, not a sure test as to right to bring eject- 
 ment, 103. 
 ANNUAL RENTAL VALUE, measure of damages, 62, 665, 666. 
 ANNUITY, acceptance of, waives right to claim forfeiture, 371. 
 ANSWER, 476-495. See Complaint ; Pleading. 
 
 early practice, 476, 477. 
 
 the general issue — u not guilty," 476, 484. 
 
 plea of non-tenure, 480a. 
 
 setting up forfeiture, 486. 
 
 advantages of the plea to defendant, 476. 
 
 plaintiff liable to be surprised, 476. 
 
 tendency to favor the plea, 476. 
 (1.) Evidence admissible under general issue, 476, 477, 483. 
 
 all defenses admissible thereunder in Indiana, 477. 
 
 defendant need not plead title in California, 477. 
 
 coverture shown under, in Pennsylvania, 477. 
 
 homestead right provable under, in Illinois, 477. 
 
 outstanding title may be shown under, 477. 
 
 exception as to trespassers and intruders, 477. 
 
 principle underlying the cases, 477. 
 
 answer of tenant must set up fraud, 355. 
 
 failing so to do, proof of fraud not received, 355. 
 
 setting up title dispenses with proof of ouster, 290, 291. 
 (2.) Denial of title in plaintiff, 478. 
 
 general denial ordinarily sufficient, 478. 
 
 what may be shown under, 476-478. 
 
 denial of unlawful withholding insufficient, 478. 
 (3.) Effect of general issue on question of possession, 479, 480. 
 
 authorities not uniform, 479. 
 
 general rule that denial by defendant admits possession, 479. 
 
 special plea usually necessary to controvert possession, 479; 
 
References} INDEX. [are to sections. Ill 
 
 ANSWER— continued, 
 
 general denial equivalent to consent rule, 480. 
 special plea is not abandonment of general denial in Texas 481. 
 (4.) Pleading statute of limitations, 482, 483. 
 subject regulated by statute, 482. 
 sufficiency of plea, 482. 
 
 practice in Wisconsin, Mississippi, Alabama, Illinois, North Carolina 
 
 Florida, California and New York, 482. 
 adverse possession under general issue, 482. 
 rule in the United States Supreme Court, 482. 
 theory of adverse possession explained, 482. 
 the better rule, 482. 
 
 (5.) Practice in Texas, 483. 
 
 plea of " not guilty," 483. 
 
 lets in all defenses except statute of limitations, 483. 
 
 puts in issue question of possession, 483. 
 
 defendant may even show a deed or mortgage without special plea 
 483. * 
 
 legal or equitable defense, by way of estoppel, may be shown under 
 this plea, 483. 
 
 affirmative equitable relief must be prayed for, and the facts plead- 
 ed, 483. 
 
 (6.) Equitable defenses and, affirmative relief 483, 485-488. 
 
 rule in early practice, 485. 
 
 legal titles only considered, 485. 
 
 equitable title established in chancery, 485. 
 
 injunctions granted to restrain ejectments pending chancery pro- 
 ceedings, 485. 
 
 modern changes, 485. 
 
 equitable titles or defenses may now be interposed, 485-487. 
 
 same rule applies as if proceeding was in equity, 485. 
 
 equitable defenses must be distinctly pleaded and proved, 486, 487. 
 
 rule in New York, 486, 488. 
 
 facts which constitute ground of relief in equity may be set up as a 
 defense, 486. 
 
 elements of an equitable defense, 487. 
 
 is in the nature of cross-bill, 487. 
 
 must contain all the elements of bill in chancery, 487. 
 
 must ordinarily ask affirmative relief, 487. 
 
 formerly held that defendant must become an actor, 487. 
 
 not the rule in New York, 488. 
 
 no affirmative judgment need be pronounced in that State, 488. 
 
 reply to affirmative defense, 493. 
 (7.) Pleading special title, 492. 
 
 effect of pleading a special title, 492. 
 
 defense confined to title as pleaded, 492. 
 
 defense of not guilty usually waived, 492. 
 
778 References^ INDEX. [ore to sections. 
 
 ANSWER — continued. 
 
 pleading determines relevancy of testimony offered, 492. 
 
 in Oregon defendant must disclose his title, 492. 
 
 defendant concluded by answer setting up particular title, 492. 
 (8.) Supplemental answer, 495. 
 
 matters occurring after suit brought, how availed of, 495. 
 
 by amended or supplemental pleading, 495. 
 
 plea puis darrein continuance, 495. 
 
 reasons for the practice, 495. 
 ANTE LITEM MOTAM, 813. 
 
 meaning of the rule, 813. 
 
 declarations post litem motam, 813. 
 
 as to deeds, 823. 
 APPEALS from Circuit Courts, 904. 
 
 pecuniary limit, 904. 
 APPEARANCE of attorney, effect of, 415, 421. See Attorney's Author- 
 ity to bring Ejectment. 
 
 adverse party may rely upon, 415. 
 
 judgment entered on, 415. 
 
 of landlord who held to be, 39, 264-266. 
 
 impeaching, 415. 
 
 forged notice of, 415. 
 APPORTIONMENT of mesne profits, 685. 
 
 of improvements, 707. 
 APPURTENANT RIGHTS, in ejectment, 102, 102, n. 
 
 what passes as, 102. 
 
 conveyance of, not champertous, 190. 
 ARBITRATION, effect of, on adverse possession, 744. 
 
 considered abandonment of hostile intent, 744. 
 
 ejectment submitted to, 1796. 
 
 boundaries determined by, 1796. 
 
 validity of submission to, 1796. 
 
 prohibited in New York, 1796. 
 ARKANSAS, mortgagee may bring ejectment, 333. 
 
 statute as to disclosing chain of title, 444, n. 
 ARLINGTON case discussed, 248, 249. See United States. 
 ARREST, right of, in ejectment, 630. 
 
 not generally allowed, 630. 
 
 policy of New York, 630. 
 
 rule in Wisconsin, 630. 
 ARTIFICE, no adverse possession by, 730, n. 
 ASCERTAINED OBJECTS, govern course and distance, 862. 
 ASSAULT AND BATTERY, joinder of, with ejectment, 505. 
 
 misjoinder cured by verdict, 505. 
 
 right of property does not justify, 94. 
 ASSENT to use of land does not carry title, 250. 
 
 to create tenancy at sufferance, 385. 
 
References] INDEX. [are to sections. 779 
 
 ASSESSMENT, allowance for, to disseizor, 088. 
 
 lease not basis of title by adverse possession, 697, 756. 
 
 lease basis of allowance for improvements, 697. 
 
 of damages down to day of trial, 66i, 670. 
 ASSIGNEE of bankrupt or insolvent, right of, to bring ejectment, 225. 
 
 of rent charge may support the action, 230. 
 
 provisional assignee, 225. 
 
 of claim for mesne profits may sue for, 656. 
 ASSIGNMENT of claim for mesne profits, 656. 
 
 of set-off for improvements, 706. 
 ASSISTANCE, writ of, 548. 
 
 resembles writ of possession, 548. 
 ASSUMPSIT, influence of, in the early practice in ejectment, 11. 
 
 title to land cannot be tried in, 176. 
 
 tort cannot be waived to test the title to realty, 176. 
 
 will not lie for mesne profits, 652. 
 
 rule of damages applicable to, governs in mesne profits, 666. 
 
 mesne profits treated as action of assumpsit, in Illinois, 649. 
 ATTAINTED FELON, 229. See Felons. 
 ATTORNEY'S AGREEMENT AS TO FEES, 421a. 
 
 when champertous, 421a. 
 
 to be paid in land, 421a. 
 ATTORNEY'S AUTHORITY TO BRING EJECTMENT, 
 
 effect of appearance of an attorney in an action, 415. 
 
 adverse party may rely upon it as authentic, 415. 
 
 power of the courts to compel production of authority, 415. 
 
 power not ordinarily exercised, 415. 
 
 not against reputable attorney, 415. 
 
 nor in the preliminary stages of an action, 415. 
 
 presumption that attorney had authority to prosecute, indulged,415. 
 
 rule in real actions more strict, 416. 
 
 rights of occupant of land favored, 416. 
 
 statute of New York, 416-420. 
 
 written evidence of authority must be produced, 416. 
 
 court has no discretion, 416. 
 
 early practice in Virginia, 417. 
 
 authority to prosecute writ of right, 417. 
 
 practice in Pennsylvania, 417. 
 
 attorney required to file warrant of attorney, 417. 
 
 authority of general agent to bring ejectment, 418. 
 
 rule in New York, 418. 
 
 authority from co-tenants, 419. 
 
 from joint owners, 419. 
 
 rule in cases of outstanding title, 420. 
 
 grantee suing in grantor's name for lands held adversely, 420. 
 
 may use grantor's name without his consent, 190, 420, 421. 
 
780 References] INDEX. \<we to sections. 
 
 ATTORNEY'S AUTHORITY TO BRING EJECTMENT— continued. 
 
 must indemnify grantor against costs, 420. 
 
 grantor liable to defendant for costs, 421. 
 
 attorney not allowed to be lessee in early practice, 37, n. 
 
 production of title papers by, 802. 
 ATTORNMENT does not create new tenancy, 354. 
 
 is continuation of old tenancy, 354. 
 
 operative as to tenant — void as to landlord, 354. 
 
 void for fraud, 355. 
 
 tenant may repudiate, 357. 
 
 by tenant to purchaser at foreclosure, 360. 
 
 to work a forfeiture, 388. 
 AUTHORITY of attorney to bring ejectment, 415-421. See Attorney's 
 Authority to bring Ejectment. 
 
 of grantee to use grantor's name, 190, 420, 421. 
 AVAILABLE AT LAW, equitable defense ie, 485, 839. 
 
 equitable estoppel is, 849. 
 AVERSION to ejectments, 73. 
 
 to real writs, 86. 
 AWARD in ejectment, amendment of description, 501. See Arbitration,. 
 1796. 
 
 BAD FAITH, affecting color of title, 775-778a. 
 
 defeats improvement claim, 692, 694, 695. 
 BAILIFF to the freeholder — tenant for years regarded as, 13. 
 BANKRUPT, assignee of, right to bring ejectment, 225. 
 BANKRUPTCY not a defense to claim for mesne profits, 665, 681. 
 
 reason for the rule, 681. 
 BASIS OF VALUATION of improvements, 707. 
 
 should be co-extensive with estimate of rents and profits, 707. 
 BATTLE, trial by, 2 n. 
 
 abolished in England and New York, 2, n. 
 
 among the Germans, 2, n. 
 BEACH, ejectment for, 123. 
 BED OF STREAM, when conveyed, 857. 
 
 title of ocean bed, 121. 
 
 of tide waters, 121. 
 BEGIN, right to, 801. 
 
 depends on burden of proof, 801. 
 BENTHAM, hostility of, to fictions, 63a. 
 
 BETTERMENTS, ALLOWANCE FOR, 694. See Improvements. 
 BILL IN EQUITY, to recover land claimed under legal title not allowed. 
 168. 
 
 ejectment not maintainable in form of, 166, 169-172. 
 jurisdiction in equity when remedy at law is incomplete, 173, 174. 
 mesne profits allowed, 687. 
 improvements set off. 693. 
 
References} INDEX. [are to sections. 781 
 
 BILL OP EXCEPTIONS presents question of title more effectually than 
 appeal in equity, 170. 
 
 BILL OP PARTICULARS in ejectment, 464a. 
 allowed in New York, 464a. 
 in what actions granted, 464a, 464J. 
 order for, does not stay proceedings, 464a. 
 furnishing map, 464a. 
 rule as to producing documents, 464a. 
 of breaches, 464J. 
 inspection of lease ordered, 4646. 
 BLACKSTONE, ejections firmm denned by, 21. 
 objection of, to fictitious parties, 37. 
 views on right of the king to bring ejectment, 191. 
 BLAST FURNACE, condition against erection of, upheld, 213. 
 BOILERY OP SALT, ejectment for, 126. 
 BONA FIDE OCCUPANT. See Improvements. 
 
 allowed for improvements, 690, 691, 694, 696. 
 
 character of, defined, 694, 696. 
 
 under color of title, 697, 775. 
 
 good faith presumed, 775, n. 
 
 basis of valuation of improvements, 707. 
 BOND FOR TITLES, notice to quit in ejectment by obligor, 395. 
 BOOTH, comments by, on real writs, 45. 
 BOUNDARIES, disputed, statutory new trial iD case of, 591. 
 
 reputation as to, 805, 806. 
 
 erroneously located, effect of, on adverse possession, 760. See De- 
 scription. 
 
 on sea-shore, 122. 
 
 private reputation as to, 805, 806. 
 
 rules as to, 856-869. 
 
 construction of grants, 856. 
 
 land bounded on a street or river, 857. 
 
 leading cases, 858. 
 
 particular words and phrases, 859. 
 
 grants on the sea-shore, 860. 
 
 general rules, 861. 4 
 
 natural and ascertained objects govern course and distance, 862. 
 
 destruction of monuments, 863. 
 
 monuments erected under deed, 864. 
 
 remedies, equitable jurisdiction, 865. 
 
 statutory remedies, 866. 
 
 inter-state, rule as to, 895. 
 
 declaration as to, 808. 
 
 agreement as to, 867. 
 
 estoppel, 760, 868. 
 
 conclusions, 869. 
 
 arbitration, 179&. 
 
782 References] INDEX. Y are to sections. 
 
 BRANCHES OF TREES overhanging land may be cut off, 156. 
 BRANT v. VIRGINIA COAL & IRON CO., 847. 
 
 rule of, as to estoppel, quoted, 847. 
 BREACH OP CONDITIONS, 212, 213. 
 
 construction of conditions, 367, 368. 
 
 subsequent, 212, 213. 
 
 who may take advantage of, 212. 
 
 particulars of, 464a. 
 BREACH OP COVENANT OP SEIZIN, burden of proof, 447, n. 
 BROWNE (IRVING), rules as to possession formulated by, 717, n. 
 BUILDING, ejectment lies for portion of, 105, 155. 
 
 encroachment of, when not the basis of ejectment, 156, 157. 
 BURDEN OP PROOF as to ouster, 282. 
 
 as to breach of covenant, 447, n. 
 
 generally in ejectment, 800. 
 
 rule as to, explained, 800. 
 
 when the people sue, 192, 800. 
 
 right to begin depends on, 801. 
 BUTCHER, covenant not to carry on trade of, 365. 
 
 CALIFORNIA, complaint in ejectment must aver seizin, 446. 
 technically have no action of ejectment, 79. 
 
 allegation that plaintiff claims the premises in fee simple sufficient, 435. 
 precision in pleading, 447. 
 right of possession need not be alleged, 446. 
 effect of judgment in ejectment, 533, 544. 
 form of judgment, 544. 
 
 when judgment conclusive upon landlord, 538. 
 ejectment on deed intended as a mortgage, 338. 
 title of defendant need not be pleaded, 477. 
 statute of limitations must be pleaded, 482. 
 what a sufficient plea of, 482. 
 
 equitable defense in ejectment must contain averments similar to 
 bill in equity, 487. 
 
 equitable defense first passed upon by the court, 487, 496. 
 when title is admitted by answer, 490. 
 
 wife claiming title cannot be evicted under writ against her 
 husband, 560. 
 
 appointment of receiver, 621. 
 
 application for is a proceeding in the action of ejectment, 621. 
 
 injunction restraining waste, 624, 626. 
 
 title cannot be tried in condemnation proceedings, 177. 
 
 trespassers not entitled to notice to quit, 377. 
 
 bed of the ocean vested in the State, 121. 
 
 may be recovered in ejectmeDt, 121. 
 
 rule as to prior and adverse possession, 723. 
 
 one tenant in common may eject trespasser, 300. 
 
References] INDEX. \. are to sections, 783 
 
 CANONRY, or ecclesiastical office, not the subject of an ejectment, 148. 
 CASUAL EJECTOR, 37, 31, 37, 38. 
 
 character of, in early practice, 31, 37. 
 judgment for damages against, 647. 
 servant a sufficient ejector, 30. 
 or person entering by chance, 30. 
 abuses under the practice, 81. 
 notice to tenant in possession, 32. 
 judgment against, 39. > 
 
 CENTRE, of river or street, conveyance to, 857, 858. 
 CESTUIS QUE TRUSTENT, right of, to bring ejectment, 223. 
 may maintain suit for construction of a will, 163. 
 title of, is equitable, 222, 223. 
 
 ejectment for lands of, must usually be brought by trustee, 222. 
 ejectment by trustee against, 222. 
 
 wrongdoer or stranger cannot set up title against, 222, 223. 
 may recover mesne profits, 656. 
 CHAIN OF TITLE, effect of pleading it, 443, 444, 444, n. 
 evidence confined to title as alleged, 443. 
 muniments of title should not be set forth, 444. 
 statute and rules in Arkansas and Missouri, 444, n. 
 motion to strike out portion of complaint setting forth chain of 
 
 title granted, 444. 
 evidence of title not to be pleaded, 445. 
 factB, not evidence of facts, to be stated, 445. 
 CHAMBER or room, ejectment for, 105, 155. 
 CHAMPERTOUS agreement, what is, 190, 421a. 
 
 is not a defense, 421a. 
 CHAMPERTY STATUTES, repeal of, recommended, 190. 
 no longer of practical value, 190. 
 view of Federal courts, 190, n. 
 nature of the possession sufficient to render deed champertous, 190, 
 
 776. 
 must be under claim of specific title, 190. 
 grantee suing in grantor's name, 190, 421. 
 statutes not applicable to rights appurtenant, 190. 
 nor to licenses or confirmatory deeds, 190. 
 statute and rule in New York, 190. 
 CHANCERY. See Equity. 
 
 guardian, right of to lease ward's estate, 199. 
 CHANGE from ejectment to real writs, 8. 
 causes of, 12. 
 of county lines, 473, 474. 
 in action for mesne profits, 648. 
 of residence, 910. 
 CHANGE OP VENUE, 471. See Venue. 
 
784 References} INDEX. \. are to sections. 
 
 CHAKACTER and scope of ejectment, 162. 
 
 of possession with color of title, 771. 
 CHARACTERISTICS of real actions, 66. 
 CHATTEL INTEREST, mortgage is, 331. 
 
 term for years regarded as, 1 3. 
 CHIEF JUSTICE ROLLE, practice introduced by, in ejectment, 35. 
 CHURCH PROPERTY, the early practice, 144. 
 
 ejectment for church ground upheld, 144, 271. 
 
 action should be brought against corporation and not its trustees, 250. 
 CIRCUIT COURTS, appeals from, 904. 
 
 original jurisdiction of, 906. 
 CITIZENSHIP in Federal courts, 899, 910. 
 CITY, ejectment by, 267, 275. See Municipal Corporations. 
 
 vested with the fee, 267. 
 
 vested with public easement, 268. 
 
 conflict of the cases, 271-273, 275. 
 
 ejectment against, for wrongfully converting land to a street, 161, 252. 
 
 may defend suit against its tenant, 252. 
 
 may gain title by adverse possession, 753a. 
 
 adverse possession against, 753a. 
 CIVIL LAW, allowance for improvements, 691. 
 
 allowance for incumbrances, 704. 
 CLAIM FOR IMPROVEMENTS, 690, 716. See Improvements. 
 
 not the subject of an ejectment, 159, 713. 
 CLAIM OF TITLE by defendant to warrant ejectment, 93, 161, 235. 
 
 must be of such character that, if reduced to possession, would con- 
 stitute actual occupation, 161. 
 
 assertion of adverse title, 235. 
 
 of ownership necessary to establish adverse possession, 756. 
 
 more than idle declaration required, 235. 
 
 simple trespass insufficient, 93. 
 
 distinguished from color of title, 763, 764. 
 CLANDESTINE entry not the basis of adverse possession, 730. 
 CLASSES of ejectment, 349. 
 
 of estoppel, 844. 
 CLASSES OF INJURIES affecting realty, 80. 
 
 distinction betweeu a trespass and a disseizin, 80, 93. 
 CLASSIFICATION of real actions, 65. 
 CLAY BED, trespass affecting, 105, n. 
 
 CLERGYMEN not amenable as defendants in ejectment, 243. 
 CLOUD ON TITLE, character of, 154, 154, n., 179. 
 
 must purport to create or convey paramount estate, 179. 
 
 or to constitute prior incumbrance, 179. 
 
 action to remove cannot be substituted for ejectment, 179. 
 
 cannot be cleared or foreclosed in ejectment, 154. 
 
 bill in nature of quia timet, 154, n. 
 
References} INDEX, [are to sections. 785 
 
 CLOUD ON TITLE— continued. 
 
 character of, explained, 154, n. 
 
 must be valid on its face, 154, n. 
 
 test to determine existence of, 154, n. 
 
 void deed not canceled, 154, n. 
 
 forged deed canceled, 154, n. 
 
 jurisdiction of the suit, 154, n. 
 COAL MINES, ejectment maintainable for, 109, 113, 114. 
 
 not considered a profit a prendre, 109. 
 CO-EXISTING DISABILITIES, 753c. 
 
 subsequent disabilities, 753d. 
 COKE, opposition of, to introduction of ejectment, 45. 
 COLLUSIVE TRANSFERS, effect of, 910. 
 COLONIAL TIMES, equity jurisprudence in, 74. 
 
 real -writs imperfectly known, 75. 
 
 objections to real actions, 75. 
 
 their adoption in New England, 76. 
 
 writs of entry in Massachusetts, 70. 
 
 changes effected in, 75, 77, 79. 
 
 ejectment in New England, 73. 
 
 unpopularity of the remedy, 74. 
 COLORADO, title by occupancy in, 296, 717. 
 
 judgment for want of replication, 530. 
 COLOR OF TITLE, 761, 781. See Adverse Possession; Construottvb 
 Possession. 
 
 general character of adverse possession with, 761. 
 
 is a substitute for a fence, 767. 
 
 of service only in aid of possession, 770, n. 
 
 does not dispense with necessity for hostile claim, 761. 
 
 important as establishing constructive possession, 761. 
 
 color of title, definition of, 762, 772, 779. 
 
 views of the different courts, 697, 762. 
 
 to be effectual must concur with actual possession, 774. 
 
 distinction between claim of title and color of title, 763, 764. 
 
 color of title important as showing the character and extent of the 
 possession, 763. 
 
 misapplication of the term color of title, 764. 
 
 color aud claim of title confounded, 764. 
 
 instrument insufficient as color of title may evidence claim of title, 
 765. 
 
 color of title as creating a constructive possession, 766. 
 
 must describe and define the lands, 767. 
 
 constructive possession limited to land described, 768. 
 
 no constructive possession without written instrument, 769. 
 
 some actual possession necessary upon which to base constructive 
 possession, 770. 
 50 
 
786 References} INDEX. [are to sections. 
 
 COLOB OF TITLE— continued. 
 
 character of such possession, 771. 
 
 underlying principles of color of title and constructive possession 
 summed up, 772. 
 
 certain exceptions noticed, 773. 
 
 extent of construction possession limited, 774. 
 
 good faith as an ingredient in constructive possession, 775, 778a. 
 
 the New York doctrine on the subject, 776. 
 
 statement of the prevailing rule, 777. 
 
 doctrine of New Jersey Court of Errors, 777. 
 
 good faith required by statute in some States, 778. 
 
 the true distinction, 778a. 
 
 difficulties of defining color of title, 779. 
 
 instances of what is held to be color of title, 780. 
 
 what held insufficient to constitute color of title, 781. 
 
 as the basis of a claim for improvements, 697. 
 COMITY, corporations may bring ejectment by, in foreign States, 195. 
 
 unless prohibited by statute, 195. 
 
 same rules as to alien friends, 195, 226. 
 COMMISSIONS, mortgagee possibly entitled to, 341. 
 COMMITTEE OP LUNATIC cannot bring ejectment, 203. 
 
 legal character of, 203, 204. 
 
 not vested with title to the estate, 203. 
 
 not trustee of an express trust, 203. 
 
 powers and duties of, 204. 
 
 resemble those of general guardian, 204. 
 
 may bring equitable action, 204. 
 
 rule as to joinder of committee and lunatic, 204. 
 COMMON appendant and appurtenant, ejectment for, 145. 
 COMMON L.VW, new trials at, 577. See New Trials. 
 
 new trials at, not counted in estimating statutory new trials, 596. 
 
 statutes granting statutory new trials in effect restrictive of common 
 law rights, 580. 
 
 rights of mortgagee, 330. 
 
 ejectmerit at, 1, 63. 
 
 COMMON PLEAS, English court of, had exclusive jurisdiction of real ac- 
 tions, 12. 
 
 concurrent jurisdiction in ejectment, 12. 
 
 effect of, upon ejectment, 12. 
 COMMON REPUTATION as to boundaries, 804-806. 
 COMMON, BIGHT OF, not recoverable in ejectment, 148. 
 COMMON SOURCE OF TITLE, 803. 
 
 meaning of the rule, 803. 
 
 not an estoppel, 803. 
 
 when rule does not apply, 803. 
 
 applies in trespass, 803. 
 
References] INDEX. ["re to sections. 787 
 
 COMPENSATION, of attorney, 421a. 
 
 champertous agreement as to, 421a. 
 lien for, 421a, n. 
 
 COMPLAINT. See Declaration ; Description ; Venue ; Parties ; Plaint- 
 iff ; Defendant ; Pleading. 
 (1.) The early practice, 5, 27, 28, 34, 35, 37, 56, 422-424. 
 
 parties formerly fictitious, 35, 37, 422. 
 
 declaration formerly the process of the court, 422. 
 
 fictitious lease, how set forth, 37-39, 423. 
 
 demise, though a fiction, required to be consistent, 28, 424. 
 
 liberality in granting amendments, 53, 424. 
 (2.) Modern pleading, 56, 425, 431, 454. 
 
 fictitious parties and lease obsolete, 55, 425. 
 
 real parties in interest are now nominal parties, 425. 
 
 names of the parties, 426. 
 
 initials, or middle names, not recognized, 426. 
 
 senior and junior no part of name, 426. 
 
 when fictitious names are used record should so state, 426. 
 
 written pleadings required, 427. 
 
 hostile claimants cannot join, 188, 450. 
 
 prayer for relief, 454a. 
 (3.) Construction of pleadings. 
 
 doubtful phraseology taken against pleader, 428. 
 
 liberal construction of pleadings, 428. 
 
 uncertainty in pleading reached by motion, 428. 
 
 precision in pleading in modern practice, 447. 
 (4.) Pleadings in real actions, 2, 3, 5, 429, 654. 
 
 strictness in early time3, 3, 5. 
 
 demandant must aver seizin, 429, 439, 446. 
 
 and allege taking of esplees or profits, 429. 
 
 writ of entry in Maine, 430. 
 
 requisites of the declaration, 430. 
 (5.) Modern complaint, allegations of, 56, 425, 431, 454. 
 
 regulated by statute, 431. 
 
 essential allegations the same in the several States, 431. 
 
 must allege possession by defendant, 231, 236, 432, 433. 
 
 rule the same where possession is not actual, 432. 
 
 allegation of possession of part of premises sufficient, 432. 
 
 objection as to absence of allegation of possession cured by verdict, 
 432. 
 {6.) Must allege wrongful or unlawful withholding of possession, 433. 
 
 defendant must be put in the wrong by the pleadings, 433. 
 
 omission of allegation of unlawful withholding of possession fatal, 
 433, 439. 
 
 must allege that plaintiff is entitled to the possession, 433. 
 
788 References] INDEX. [are to sections. 
 
 COMPLAINT— continued. 
 
 (7.)" Allegation of title nnd seisin, 429, 430, 434, 446, 448. 
 
 in New York seizin must be alleged, 434. 
 
 so in California, 446. 
 
 seizin is an issuable fact, 446. 
 
 right of possession follows, 446. 
 
 need not be alleged, 446. 
 
 estate must generally be specified, 434-436. 
 
 defective pleading of estate ground of demurrer, 434. 
 
 claimant must allege title at commencement of action, 435, 448. 
 
 allegation that plaintiff "claims" the premises ''in fee simple ab- 
 solute," sufficient in California, 435. 
 (8.) Variance, 436, 437. 
 
 under claim of fee simple life estate not recoverable, 436. 
 
 real writ for fee simple not maintainable on proof of fee tail. 436. 
 
 complaint on legal title— equitable title cannot be shown, 437. 
 
 equitable relief not usually given under complaint in ejectment, 182. 
 
 practice in New York as to joinder of legal and equitable relief, 184, 
 639. 
 
 joint demise supported only by proof of joint title, 187, 189, 449. 
 
 suing in representative capacity, recovery on individual interest, 
 211. 
 (9.) Nature of estates, how set forth, 438-442. 
 
 general form and character of estate must be averred, 439. 
 
 details of the facts or evidence need not be alleged, 439. 
 
 seizin of some certain estate must be averred, 429, 439, 446. 
 
 rule as to allegations of quantity or amount of the interest, 438. 
 
 amendment to conform pleading to proof, 438. 
 (10.) Fee simple, how pleaded, 440, 442. 
 
 sufficient to declare on an estate in fee, 440, 442. 
 
 or that demandant is seized in fee, 440. 
 
 claim or title under which defendant entered need not be specified, 
 440. 
 
 estate in fee simple may be pleaded in general terms, 440. 
 
 origin of the estate need not be traced, 440. 
 
 not necessary for heirs to plead that they claim by inheritance, 
 442. 
 (11.) Particular estates, 441. 
 
 commencement of particular estates must be shown, 441. 
 
 must be traced from last seizin in fee, 441. 
 
 origin of the distinction in the nature of the estates, 441. 
 
 general allegation of seizin traversable, 441. 
 
 allegation of seizin of particular estate combines law and fact, 441. 
 
 hence not traversable, 441. 
 
 strictness of the rules impaired, 441. 
 (12.) Specific chain of title, 443, 444. 
 
 evidence will be confined to title as alleged, 443. 
 
References] INDEX. {are to sections. 789 
 
 COMPLAINT— continued. 
 
 not necessary to aver evidence of title, 443, 445. 
 
 if alleged, substantial elements of title must be stated, 443. 
 (18.) Muniments of title, 444, 445. 
 
 muniments should not be set forth, 443-445. 
 
 motion granted striking out chain of title, 444. 
 
 deeds should not be set out in extenso, 444. 
 
 exhibit, not a part of a pleading, how stated, 444. 
 See Chain of Title. 
 (14.) Evidence of title, 444, 445. 
 
 rules and customs of mining on which title depends need not be 
 pleaded, 445. 
 
 evidence of title not to be disclosed, 445. 
 
 facts, not evidence of facts, must be stated, 445. 
 (15.) Joint title, 187, 189, 449. 
 
 must be truly stated, 449. , 
 
 only supported by showing title in each to demise the whole, 449. 
 
 if one plaintiff has no title, or title is several, action fails, 187, 449. 
 
 joint demise by husband and wife not sustained on proof of title in 
 husband, 449. 
 (16.) Co-tenants, pleading between, 376, 453. 
 
 complaint must aver actual ouster, 453. 
 
 or act amounting to total denial of plaintiffs right, 453. 
 (17.) Several defendants, one declaration will lie against several defendants, 
 452. 
 
 one declaration sufficient against occupants of different stories of a 
 house, 452. 
 (18.) Joinder of actions, ejectment and claim for damages, 454, 650, 651. 
 
 objections to the practice, 651. 
 (19.) Amendments, enlarging term of fictitious lease, 53, 424. 
 
 to conform pleading to proof, 438. 
 
 of the description, 464. 
 
 striking out unnecessary plaintiffs, 187, 189. 
 
 from equitable action to ejectment not allowed, 179. 
 
 from ejectment to suit in equity inadmissible, 182. 
 
 from ejectment to action to redeem permitted, 180. 
 
 from action to determine conflicting claims to ejectment, 181. 
 
 from claim of fee to life estate, 436. 
 
 from title in fee to mortgagee in possession, 436. 
 
 liberally allowed, 454J. 
 
 supplemental complaint, 454c. 
 
 individual plaintiff may amend to recover as administrator, 211. 
 
 forcible entry proceedings changed to ejectment, 183. 
 
 See Description ; Venue; Parties; Pleading; Answeb. 
 CONCEALMENT OF WILL, effect of after probate, 838. 
 CONCLUSIVENESS of a patent, 184a, 887. 
 
790 References} INDEX. V are io sections. 
 
 CONCURRENT REMEDIES, ejectment and bill to foreclose, 330. 
 
 vendor and vendee, 307. 
 CONDEMNATION PROCEEDINGS, trial of title in, 177. 
 rule in Calfornia, 177. 
 change of venue in, 471. 
 judgment in, 532J. 
 when defective, 833. 
 pendency of, 833. 
 license to use land, 834. 
 CONDITIONAL PEE, owner of, may bring ejectment, 230. 
 CONDITIONS, severance of, in a lease, 366. 
 
 construction of, 367, 368. 
 CONDITIONS SUBSEQUENT, breach of, 212, 213. 
 rule as to pleading breach, 447. 
 who may take advantage of, 212. 
 against selling liquor, valid, 213. 
 
 so of conditions against a school-house, distillery, blast furnace, liv- 
 ery stable, machine shop, powder magazine, hospital, or ceme- 
 tery, 213. 
 CONDUCT, estoppel by, 843, 884. 
 CONFESSION, effect of judgment by, 532. 
 
 of lease, entry, and ouster, 35-39. 
 CONFISCATION, title by, 913. 
 
 CONFLICTING CLAIMS, action to determine, changed to ejectment, 181. 
 statutory new trial in actions of this class, 592. 
 injunction in, 622. 
 CONFLICTING PATENTS, doctrine of relation, 889. 
 CONFLICTING POSSESSIONS, general principles regulating, 753. 
 CONGRESS, Act of, as source of title, 785, 914. 
 CONNECTICUT, conditional verdict in ejectment, 503. 
 
 rights of riparian proprietors to land under water, 119. 
 may be vindicated in ejectment, 119. 
 judgment in action of disseizin, 513. 
 CONSENT, judgment rendered upon, binding, 531. 
 CONSENT RULE, 36, 38. 
 
 special rule applicable to co-tenants, 277. 
 ouster not confessed, 277. 
 signed for purpose of testing title, 61, 647. 
 framed so as to require plaintiff's lessor to pay costs, 36, 37. 
 CONSIDERATION, tendering back by infant, 198. 
 
 as affecting parol gift, 486, 798. 
 CONSOLIDATION OF EJECTMENTS, 638. 
 the early practice stated, 638. 
 objections to the practice, 638. 
 of partitions, 638, n. 
 
References'] INDEX. {are to sections. 79J_ 
 
 CONSTITUTIONALITY of improvement statutes, 692, 712. 
 
 views of Cooley, J., 712, n. 
 
 of statutes prohibiting ejectment by mortgagees, 334. 
 CONSTRUCTION. See Pleadings. 
 
 of pleadings, 428, 428, n. 
 
 doubtful phraseology taken against pleader, 428. 
 
 rule in Texas, 428. 
 
 uncertainty must be reached by motion, 428. 
 
 of verdict, 498. 
 
 of covenants against waste, 365. 
 
 of contracts, 321. 
 
 of grants, intention governs, 856. 
 
 of public and private grants, 860, n. 
 
 of conditions in lease, 367. 
 
 rule in New York, 367. 
 
 liberal construction of Lord Tenterden, 368. 
 
 of statutes granting new trials, 584. 
 
 of statutes — circumstances leading to the enactment of, considered, 
 193. 
 
 CONSTRUCTION OF WILL, action for, cannot be substituted for eject- 
 ment, 163. 
 
 questions of trust must arise to uphold the action, 163. 
 court must be moved on behalf of executor, trustee, or cestui que 
 trust, 163. 
 CONSTRUCTIVE NOTICE, defined, 723a, n. 
 character of, 723a, n. 
 must be distinct, 723a, n. 
 not notice of possessor's rights, 723a. 
 in law of improvements, 696. 
 
 CONSTRUCTIVE POSSESSION. See Adverse Possession; Coloe of 
 Title. 
 follows the better title, 753, 774. 
 
 no constructive possession without written instrument, 769. 
 color of title as creating constructive possession, 766. 
 limited to amount described in color of title, 768. 
 
 some actual possession necessary on which to base constructive pos- 
 session, 770. 
 
 character of such possession, 771. 
 
 occupant parting with actual, loses constructive possession, 770. 
 
 underlying principles of color of title and constructive possession, 
 
 772. 
 extent of the constructive possession limited, 774. 
 good faith as an ingredient in constructive possession, 775. 
 New York doctrine on the subject, 776. 
 statement of the prevailing rule, 777. 
 good faith required by statute in some States, 778. 
 difficulty of laying down a general definition of color of title, 779. 
 what held to be color of title, 780. 
 
792 References] INDEX. ["** to sections. 
 
 CONSTRUCTIVE POSSESSION— continued. 
 
 what held insufficient, 781. 
 
 constructive possession of mining claims, 773. 
 CONTEMPT, disobeying order for restitution punishable as, 575. 
 
 for releasing costs under early practice, 49. 
 
 to sue a receiver without permission, 252a. 
 CONTINGENT INTERESTS, provision for, in partition, 532a, n. 
 CONTINUENDO, ejectment not laid with, 25, n. 
 
 CONTINUOUS, adverse possession must be, 731, 737, 738. See Advekse 
 Possession. 
 
 continuity the essence of the doctrine and policy of the statute of 
 limitations, 738. 
 CONTROVERSIES between citizens of same State, 899. 
 CONVENIENCE, fence erected for, 760, 760, n. 
 
 CONVEYANCE of entire estate by mortgagor to mortgagee, how regarded,. 
 344. 
 
 sustained only when lonafide and fair, 344. 
 
 of entire estate is an ouster between tenants in common, 287, 750. 
 
 exceptions noticed, 288. 
 COOLET, J., views of, as to improvements, 712, n. 
 
 as to ouster, 289, n. 
 COPARCENERS. -See Co-tenants. 
 
 ejectment by, 303. 
 
 joinder of, 303. 
 
 each may recover moiety, 303. 
 
 ejectment between— actual ouster must be shown, 295. 
 CORNICES projecting over land, remedy for, 156. 
 
 gutters or eaves overhanging, not ground of ejectment, 93, 156. 
 CORPORATIONS, ejectment by, 195. 
 
 foreign corporations may bring ejectment by comity, 195. 
 
 vested with power to hold land may bring ejectment, 195. 
 
 right of, to hold land usually limited, 195. 
 
 corporations as defendants, 250. 
 
 in forcible entry proceedings, 94. 
 
 claim of easement by, 161. 
 
 ejectment against, for using land as a street, 132, 135, 140, 158, 161. 
 
 agent of corporation may give notice to quit, 407. 
 
 authority under seal not necessary, 407. 
 
 ejectment by municipal corporations vested with fee, 267. 
 
 vested with public easement, 139, 140, 161, 268. 
 
 theory of the decisions, 269. 
 
 right to bring ejectment founded on public necessity, 270. 
 
 ejectment for streets and public places, 271, 275. 
 
 exceptions to the rule, 272-274. 
 
 may recover mesne profits, 656. 
 
 liable for mesne profits, 658. 
 
 right to hold real estate, how determined, 184a. 
 
References] INDEX. {are to sections. 79S 
 
 CORPORATIONS— continued. 
 
 may gain title by adverse possession, 250, 753a. 
 forfeiture established by direct proceeding, 184a, 796. 
 
 CORPOREAL HEREDITAMENTS, ejectment will lie for, 95, 97, 98, 101,. 
 127, 146, 162, 185. 
 
 consist of permanent and substantial objects, 95. 
 CORPUS of railroad, what is, 690, n. 
 COSTS, infant plaintiff must give security for, 197. 
 
 of tenant applying to defend, security for, 32. 
 
 staying new ejectment until paid, 51, 197, n. 
 
 liability of landlord, for, 537. 
 
 condition of granting new trial, 584, 598, 602. 
 
 recoverable in action for mesne profits, 679. 
 
 but not counsel fees, 679. 
 
 releasing costs contempt of court under early practice, 49. 
 
 fictitious parties not favored because costs could not be collected, 37. 
 
 objection obviated by form of consent rule, 37. 
 
 CO-TENANTS, 276, 303. 
 
 See Tenants in Common ; Coparceners ; Joint Tenants - t 
 Complaint; Ouster ; Verdict ; Writ of Possession^ 
 Title. 
 
 ejectment between, 276, 295. 
 
 actual ouster must be shown, 277, 295, 453, 660, 750. 
 
 special rule in case of, 277. 
 
 ouster a question of fact, 281, 504. 
 
 joinder of, against third parties, 297, 299, 302, 303. 
 
 of tenants in common, 205, 206, 297-299. 
 
 of joint tenants, 302. 
 
 of coparceners, 303. 
 
 verdict between co-tenants, 504. 
 
 writ of possession as to, 570. 
 
 mesne profits between, 660. 
 
 distinctions in the cases, 660. 
 
 allowance for improvements, 711. 
 
 receiver of, 621a. 
 
 disabilities, 276, 753/. 
 COUNSEL FEES, 679. See Costs. 
 
 COUNTER-CLAIM for rents, 489. 
 
 cannot be interposed in action for dower, 489. 
 COUNTY, 465, 468, 469, 471, 473. See Venue. 
 
 ejectment must be instituted in county where land lies, 465. 
 
 ejectment for lands in several counties, 468. 
 
 change in boundaries of counties, 473, 474. 
 
 rule in Federal courts, 473. 
 
 ejectment may be brought against, 251. 
 
 is a quasi corporation, 251. 
 
794 References} INDEX. \. afe to sections. 
 
 COURSE yields to monuments, 862. 
 
 distance yields to, 864, n. 
 COURT, must determine what constitutes adverse possession, 729, n. 
 COVENANT against waste, construction of, 365. 
 
 once waived is waived forever, 371, n. 
 
 action of, not maintainable, when, 306. 
 
 writ of, in early times, 14. 
 COVERTURE may be shown under general issue in Pennsylvania, 477. 
 
 See Maeried "Women. 
 CREDITORS may reach widow's dower, 129. 
 
 recover debtor's improvements, 709, n. 
 
 statute of limitations against, 751, n. 
 
 adverse possession against, 751, n. 
 CROPS pass by recovery in ejectment, 563, 683. 
 
 severed from the land and harvested do not pass, 683. 
 
 rule in New York, 683. 
 
 title to, 683. 
 CROWN, petition of right for lands in possession of, 244. 
 
 See United States. 
 CUMULATIVE, statutory remedies are, 186. 
 CURTESY, tenant by, may bring ejectment, 219. 
 CUSTOMS AND RULES OP MINING, when title depends upon, 445. 
 
 need not be pleaded, 445. 
 
 DAMAGES, 61, 454, 646, 689. See Mesne Profits and Damages. 
 
 originally the only recovery in ejectment, 1, 23, 61, 510, 546, 647. 
 
 reasons for extending recovery to include the term, 9, 23, 546. 
 
 usually nominal after introduction of fictions, 61, 656. 
 
 judgment for, in name of nominal plaintiff, 61, 656. 
 
 distinction between claim for damages and for mesne profits, 65S. 
 
 measure of, 664-666. 
 
 payment of, does not pass title, 177. 
 
 by abutting owner, 269. 
 
 of vendee not restricted to purchase-money, 319. 
 
 exemplary, 668a. 
 
 for waste and trespass, 668. 
 
 after judgment, 669. 
 
 only redress of landlord having no right of re-entry, 160, 350. 
 
 claim for and ejectment joined, 61, 454, 650, 651. 
 
 objections to the practice, 651. 
 
 plaintiff may proceed for, though term has expired, 657. 
 
 not allowed when not claimed in pleading, 655. 
 DAY of ouster, need not be stated, 53. 
 
 in court, parties entitled to, 231. 
 DEATH, 49, 648, 658, 661, 689. See Abatement. 
 
 of widow, heirs may recover lands assigned as dower, 205. 
 
References'] INDEX. We to sections. 795 
 
 DEATH— continued. 
 
 of ancestor, heirs or devisees may recover lands, 205, 206. 
 
 of plaintiff in early practice did not abate action, 49. 
 
 presumption of. 817. 
 DEBATABLE TITLE, may be rejected, 841. 
 DEBTOR, improvements made by, reached, 709, n. 
 DECEASED GRANTOR, statements of, 809. 
 
 admissible as res gestm, 809. 
 DECEASED PERSONS, transactions with, 825. 
 DECLARATION, 422, 454. See Complaint ; Descbiption. 
 
 the fictitious lease, 37, 422. 
 
 how set forth, 423. 
 
 demise, though a fiction, required to be consistent, 28, 424. 
 
 writ of entry in Maine, 430. 
 
 declaration and notice served on tenant in possession, 31, 37, 423. 
 
 service of, resemble service of writ, 32. 
 
 modern complaint in ejectment, 425, 427, 431-433, 435. 
 
 for mesne profits, 654, 655. 
 
 DECLARATIONS of deceased party, 808, 809. 
 
 as to boundary, 808. 
 
 as part of the res gestm, 811. 
 
 as to age, 816. 
 
 as to family facts, 812. 
 
 in deeds, 823. 
 DECREE, 506-545. See Judgment. 
 
 only binding on parties, 231. 
 DEED, tender of, by vendor, 313. 
 
 evidence when lost, 820. 
 
 office copies of, 821. 
 
 not evidence in itself, 792. 
 
 vendeie must point out defects, 313. 
 
 when tender not necessary, 314. 
 
 may be proved a mortgage, 337, 483. 
 
 delivery of, 822. 
 
 recitals in, 823. 
 
 evidence to vary, 824. 
 
 estoppel by, 850. 
 
 ejectment on deed intended as a mortgage, 338. 
 
 disaffirmance of, by infant, 198. 
 
 disaffirmance should be set forth in complaint, 451. 
 
 deed should not be set out in extenso in pleading, 444. 
 
 pleading and deed governed by same rule of interpretation, 458. 
 
 ancient, how proved, 818. 
 presumption as to, 818. 
 monuments erected under, 864. 
 
796 References] INDEX. \. art to sections. 
 
 DEFAULT, judgment by, 530. 
 
 when conclusive in New York, 530. 
 
 in Colorado and Pennsylvania, 530. 
 DEFEATING TAX TITLE, by owner of fee, 836. 
 DEFECTIVE CONDEMNATION of lands, 833. 
 DEFECTIVE TITLE, surrender of possession, 323. 
 
 lien for improvements, 323. 
 
 lien for unrefunded purchase-money, 323. 
 
 descriptions, 463. 
 
 when rejected, 841. 
 
 what considered, 841. 
 DEFENDANTS, 231-266. See Parties. 
 
 in ejectment, 231, 266. 
 
 all tenants should be, 238. 
 
 need not become an actor, 488. 
 
 in writs of entry, 233. 
 
 in action for mesne profits, 658. 
 
 plaintiff may dismiss as to some, 238. 
 
 relief between, 266a. 
 (1.) Party in possession, 231. 
 
 tenant or actual occupant must be defendaut, 231. 
 
 all possessors should be summoned, 231. 
 
 what is meant by party in possession, 231. 
 
 effect of abandonment of possession, 232. 
 
 unoccupied lands, 234. 
 
 what is sufficient claim of adverse title, 235. 
 
 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, 244-249, 249, n. See United States. 
 corporations liable to ejectment, 250. 
 
References'] INDEX. [ate to sections. 'JQJ 
 
 DEFENDANTS— continued. 
 city, 252. 
 county, 251. 
 aliens, 253a. 
 insolvents, 253. 
 receivers, 252«. 
 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. 
 purchaser pendente lite not admitted, 263. 
 mortgagee, 262. 
 landlord as defendant, 264. 
 third party claiming as landlord, 265, 266. 
 relief between, 266a. 
 DEFENSES, 839-855. 
 
 defenses in general, 829. 
 
 defendant may set up several defenses, 830. 
 
 outstanding title, 831. 
 
 possession acquired by fraud, 832. 
 
 defective condemnation of lands, 833. 
 
 license to use lands by railroad, 834. 
 
 possession by execution defendant, 835. 
 
 defeating tax title, 836. 
 
 advancement, 837. 
 
 concealment of will, effect of after probate, 838. 
 
 equitable defenses, 839, 878. 
 
 injunction against ejectment, 840. 
 
 defective, doubtful or unmarketable titles, 841. 
 
 estoppel, 842. 
 
 equitable estoppel or estoppel by conduct, 843. 
 
 different classes of cases, 844. 
 
 fraud in the estoppel, 845. 
 
 the statute of frauds, 845. 
 
 Brant «. Virginia Coal & Iron Co., 847. 
 
 distinction between right and remedy in equity, 848. 
 
 is equitable estoppel available at law ? 849. 
 
 estoppel by deed, warranty, after-acquired title, 850. 
 
798 References] INDEX. [ are to sections. 
 
 DEFENSES —continued. 
 
 no estoppel through void or illegal contract, 851. 
 
 estoppel must be direct, 853. 
 
 no estoppel against grantee, 853. 
 
 estoppel against a State, 854. 
 
 pleading estoppel, 855. 
 
 bankruptcy not a defense to claim for mesne profits, 681. 
 
 equitable, allowed in modern practice, 485, 487. See Answer. 
 
 elements of equitable defense, 487. 
 
 easement of drainage no defense, 100, n. 
 
 to partition suits, 167. 
 
 must be pleaded, 486. 
 
 outstanding title, 57, 194, 233, 339, 477. 
 
 statute of limitations, 483, 727. 
 DEFINITION of disseizin, 80. 
 
 of ouster, 276. 
 
 of notice to quit, 373. 
 
 of color of title, 762. 
 
 of estoppel, 843. 
 DELIVERY of deeds, 822. 
 
 record, proof of, 820, 822. 
 
 when no delivery, 823. 
 DEMAND OF POSSESSION, 310, 373, 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. 
 
 or sets up title by answer, 290, 391. 
 
 in^case of tenant at will, 384. 
 DEMAND OF RENT, necessity of, 370. 
 
 is waiver of forfeiture, 371. 
 DEMISE, though a fiction, required to be consistent, 28, 434. 
 DEMURRER, uncertainty in pleading not reached by, 428. 
 
 defective pleading of estate is ground for, 434. 
 
 for misjoinder, 494a. 
 
 to answer, 494. 
 
 may be interposed to ejectment bill, 169. 
 DERAIGNING title in trespass to try title, 91. 
 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, 457. 
 
 peculiarities of a personal action retained, 455. 
 
 rule that sheriff must find the land without assistance relaxed, 455. 
 
References} INDEX. [are to sections. 799. 
 
 DESCRIPTION OF THE LANDS— continued. 
 
 Lord Mansfield's statement of requisites of description, 455. 
 
 insufficient description ground of attacking verdict, 497. 
 
 not varied by parol, 824. 
 
 inadequately described land identified, 824. 
 (1.) 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 or cattle gates, 456. 
 
 for messuage or tenement called Black Swan, 456. 
 
 for coin mills, stable, and passage room, 456. 
 
 room, " part of a house in A," and place called a vestry, 456. 
 
 " ten acres of pease," 456. 
 (2.) Modern practice, 457, 458, 534. 
 
 regulated by statute, 56, 458. 
 
 State or couutry must be stated, 457, 467. 
 
 county must be named, 457. 
 
 town or city given, 457. 
 
 section or subdivision of county added, 457. 
 
 allegations as to geographical position of lands jurisdictional, 457. 
 
 description of tin bound, 110. 
 (3.) General and particular descriptions, 458. 
 
 more particular description controls words of general description, 
 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. 
 
 descriptions considered sufficient, 462a. 
 
 defective description, 463. 
 (4.) Street numbers, 460. 
 
 "No. 136 South Third Street, in the city of Philadelphia, "sufficient 
 description, 460. 
 
 object of giving metes and bounds, 460. 
 
 necessary only to identify the property, 460. 
 (5.) Reputed name, 461. 
 
 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 inadmissi- 
 ble, 464. 
 
§00 References] INDEX. [ are to sections. 
 
 DESCRIPTION OF THE LANDS— con tinued. 
 
 admissible to render description furnished more certain, 464. 
 
 in Texas new land may be included by amendment, 4.64. 
 
 amendment of description at the trial, 464. 
 
 amendment after close of evidence, 464. 
 DESTRUCTION OF MONUMENTS, 863. 
 
 parol evidence in case of, 863. 
 DETERMINATION OF CONFLICTING CLAIMS, possession to support, 
 7235. 
 
 new trial in, 592. 
 
 injunction in, 622. 
 
 changed to ejectment, 181. 
 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. 
 DIFFERENT PARCELS of land, jurisdiction, 908. 
 DISABILITIES under statute of limitations, 725, 753a-753/. 
 
 statutes vary as to, 725. 
 
 no adverse possession against government, 753a. 
 
 rule as to municipal corporations, 753<s. 
 
 infancy, 7536. 
 
 co-existing disabilities, 753c. 
 
 subsequent disabilities, 753a\ 
 
 of co-tenants, 276, 753/. 
 
 suspension by agreement, 753*. 
 DISAFFIRMANCE of infant's deed, 198, 451. 
 
 of lunatic's deed, 203, n. 
 
 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, 91, 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. 
 
 plea of non-tenure, 480a. 
 DISCLOSING CLAIM OF TITLE, 444, 444, n. 
 DISCOVERY OF WILL, conveyance by heir before, 205. 
 DISSEIZIN. See Ousteb ; Tenants in Common. 
 distinction between, and trespass, 80, 93. 
 
References] INDEX. [are to sections. 801 
 
 DISSEIZIN— continued. 
 
 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. 
 DISTANCE, monuments control course and, 862, 864, n. 
 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. 
 
 suit to abate nuisance, 187, n. 
 
 joinder of defendants, 238, 240. 
 DISTINCTION between real writs and personal actions, 64<s. 
 
 between ejectment and forcible entry, 94, 94, n. 
 
 between title and color of title, 762, n. 
 
 between presumption and prescription, 788. 
 DISTURBANCE of adverse possessor, 740-744. 
 DIVESTING government of title, 784. 
 DIVORCE, title of receiver in, to sequestrate rents, 227. 
 
 when reply ordered, 493. 
 
 second trial of title in action concerning, 597, n. 
 DOCTRINE OP RELATION, conflicting grants, 889. 
 DOCUMENTS, production of, not enforced, 464a. 
 DOUBTFUL TITLE, ground for rejecting, 841. 
 DOUBTFUL WORDS, taken against grantor, 860, n. 
 DOWER, recoverable in ejectment, 129. 
 
 not before admeasurement, 129. 
 
 in partnership lands, 129, 221. 
 
 widow's grantee cannot recover before admeasurement, 129. 
 
 validity of widow's claim may be contested notwithstanding ad- 
 measurement, 129. 
 
 lost by husband's breach of condition subsequent, 212. 
 
 not subject to set-off, 489. 
 
 receiver in action of, 614, n. 
 
 lands assigned as, may be recovered by heirs after widow's death,, 
 205. 
 DRAINAGE, easement of, no defense, 100, n. 
 DROITURAL ACTIONS, 65. 
 
 subdivisions of, 65. 
 51 
 
#02 References'] INDEX. [<**? to sections. 
 
 DRUNKARD, not an insane man, 204. 
 
 proofs to avoid acts of, 204. 
 DWELLING, separate owners of stories in, 105, n. 
 
 EASEMENT, " lyeth in grant and not in livery," 146. 
 is not an estate in lands, 147. 
 distinguished from license, 98, n., 147, n. 
 ejectment will not lie for, 95, 97, 102, 146, 161. 
 nor will writ of entry, 146. 
 remedies for interruption of, 147. 
 ieffect of grant of, 102. 
 
 ■ownership of land and right to easement independent, 132, 147. 
 ■public and private, attempted distinction between, 140, 161. 
 public easement will support ejectment, 139, 161, 267-269, 271, 275. 
 municipal corporation vested with, may bring real action, 161, 267, 
 
 268, 275. 
 right not fully recognized, 272-274. 
 title to, by prescription, 724, 726. 
 right to, a mixed question of law and fact, 729, n. 
 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. 
 plea of, no defense, 492a. 
 subject to ferry right, 132. 
 eviction from, as defense, 485. 
 passage-way, 132. 
 homestead right, 141. 
 party wall, 158. 
 passes by tax title, 102, n. 
 judgment for land subject to, 526. 
 writ of possession for land subject to, 571. 
 implication that title is free from, 311, n. 
 EAVES, projecting over land, remedy for, 156. 
 
 encroachment will not sustain ejectment, 93, 156. 
 ECCLESIASTICAL OFFICE not recoverable in ejectment, 148. 
 EJECTIONE FIRM^I, 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. 
 
References] INDEX. \. are to sections. 803 
 
 EJECTMENT. See Complaint ; Plaintiffs ; Defendants ; Venue ; De- 
 scription ; Answee; Vebdict; Judgment; Writ of Posses- 
 sion ; Federal Courts. 
 history of, 1, 12, 19, 63, 510, 546. 
 origin and nature of, 1, 10, 12, 16, 20, 25. 
 character and scope of the action, 162. 
 right of possession involved in, 94. 
 two classes of, 349. 
 
 originally a simple action of trespass, 1, 510, 546. 
 damages the exclusive recovery, 1, 23, 96, 647. 
 advantages of personal actions, 7, 10. 
 objections to real writs, 2, 3, 5, 6, 75. 
 their abandonment, 8, 26, 78. 
 influences leading to the change, 7, 9-11. 
 effect of forcible entry statutes, 4. 
 influence of practice in trover and assumpsit, 11. 
 ejectment in New England, 73. 
 unpopularity of the remedy, 74. 
 (1.) Ejectione firmm, sketch of, 12, 19. See Ejectione TPiRtim. 
 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, 548. 
 
 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 slated, 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. 
 
804 References^ INDEX. \are to sections. 
 
 EJECTMENT— continued. 
 (6.) Judgment, effect of, 41. 
 
 possession, but not seizin, recovered, 41. 
 
 claimant possessed " according to his right," 41, 510. 
 
 judgment not conclusive, 42-44, 511, 513, 524. See Judgment. 
 
 policy in America, 43, 44, 524. 
 
 abolition of Actions renders judgment conclusive, 43, 515-517, 524. 
 
 injunctions against further ejectments, 46, 47, 840. 
 
 rule as to injunction stated, 840. 
 
 is an extraordinary remedy, 840. 
 (7.) Method of regulating ejectment, 48-50. 
 
 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 views 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, 
 101. 
 
 true test as to when ejectment lies, 101. 
 
 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, 110. 
 
 quarry, 111. 
 
 oil wells, 112-114. 
 
 conflict of the cases, 112. 
 
References] INDEX. We to sections. 805 
 
 EJECTMENT— continued, 
 
 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. 
 
 made lands, 118. 
 
 land under water granted by land office, 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. 
 
 not for interference with property in possession, 93. 
 
 not for incorporeal hereditaments, 146. 
 
 the reason stated, 146. 
 
 easement not an estate in land, 147. 
 
 not maintainable for profit a prendre, 148. 
 
 nor for pannage, 148. 
 
 nor privilege for a landing place, 148. 
 
 right to an alley, a way, or a road, 148. 
 
 glebe, advowson, canonry, and 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. 
 
 for room or chamber, 105, 106, 155. 
 
 projecting eaves, 156. 
 
 projecting foundations, 157. 
 
806 References] INDEX. [are to see/ions. 
 
 EJECTMENT— continued. 
 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 he 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, 168-171. 
 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, 180-183. 
 distinction between ejectment and trespass, 80, 93, 641. 
 between ejectment and forcible entry, 94. 
 ejectment and covenant, or specific performance, 306. 
 (14.) Issues not determinable in ejectment, 184a. 
 right of corporation to hold land, 184a. 
 validity of a patent, 184a. 
 equitable title, 184a. 
 irregularity in foreclosure, 184a. 
 de jure officers of corporations, 184a. 
 tax title in New Jersey, 184a. 
 EJECTMENT BILLS defined, 169. 
 
 not maintainable, 109, 885, 886. 
 demurrer may be interposed to, 169. 
 EJECTOR, casual, 27, 30, 31, 37, 38, See Casual Ejector. 
 ELECTION OP REMEDIES by vendor, 307. 
 may rescind or sue for damages, 307. 
 EMPLOYEES AND SERVANTS, as defendants, 242, 243. 
 ENGLAND, real actions extinct in, 72. 
 feeling with reference to, 78. 
 aversion to ejectments, 73. 
 
 real property commissioners, report of, on ejectments, 78. 
 origin and growth of ejectment in, 1, 54. 
 change of venue in ejectment, 471. 
 adverse possession superseded, 725, n. 
 ENTIRETY, tenancy by, in New York, 295, n. 
 ENTRY, right of, essential to support ejectment, 99-101. 
 
 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. 
 
References] INDEX. Y are to sections. 807 
 
 ENTEY, WRITS OF. See Writs of Entry. 
 EQUITABLE title will not support ejectment bill, 171. 
 writ of entry, 70. 
 
 relief not usually awarded in ejectment, 154, 182. 
 interference, when justified, 622, n. 
 relief not granted when relief at law is adequate, 885. 
 
 estoppel, 843, 884. 
 
 estoppel, defense in Federal courts, 884. 
 
 relief, when awarded, 169, 173. 
 
 action cannot be changed to ejectment, 179. 
 
 defenses must be pleaded, 483, 485, 486. 
 
 defenses, elements of, 487. 
 
 title, no defense in Federal courts, 878. 
 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. 
 
 jurisdiction as to boundaries, 865. 
 EQUITABLE DEFENSES in ejectment, 485, 839. 
 EQUITABLE TITLE will not support writ of entry, 70, 169. 
 
 nor ejectment, 169, 184as, 790. 
 
 in Federal courts, 876. 
 
 supports trespass to try title, 91. 
 
 party claiming may defend, 259. 
 
 nature of, to be a defense, 485. 
 
 and legal title, 790. 
 
 State statutes recognizing, 879. 
 EQUITIES equal, possession prevails, 717. 
 EQUITY, mesne profits in, 687. 
 
 improvements allowed in, 693. 
 
 receiver in, 615. 
 
 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. 
 
 rights of widow in, 169. 
 
 jurisdiction to restrain trespass, 174, n. 
 
 will not set aside probate of will, 205, n. 
 
 nor review errors at law, 507, n. 
 
 when judgment set aside for fraud, 507, n. 
 
 jurisdiction as to boundaries, 865. 
 
 practice in Federal courts, 875. 
 
 statute of limitations in, 917. 
 
808 References] INDEX. [ are to sections. 
 
 ERROR, 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. 
 
 conveyance before entry, 192, n. 
 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. Bee Judgment. 
 
 vendee in default cannot impeach vendor's title, 317. 
 
 avoidance of, 539. 
 
 between landlord and tenant, 351. Bee Landlokd and Tenant. 
 
 must be mutual, 351. 
 
 when landlord is estopped, 351. 
 
 tenant cannot dispute landlord's title, 351, 751. 
 
 reason of the rule, 352. 
 
 ejectment on, 798a. 
 
 when estoppel ceases, 353. 
 
 what titles applicable to, 353. 
 
 between co-tenants, 291, 361. 
 
 purchase of outstanding title, 291. 
 
 no estoppel against infant, 198. 
 
 as a defense, 842, 884. 
 
 equitable or by conduct, 843. 
 
 different classes of cases, 844. 
 
 promise or assurance, basis of, 844. 
 
 fraud in connection with, 845. 
 
 statute of frauds, 846. 
 
 distinction between right and remedy in equity, 848. 
 
 equitable estoppel available at law, 849. 
 
 by deed, warranty, 850. 
 
 after-acquired title, 850. 
 
 illegal contract, 851, 358. 
 
 must be direct, 852. 
 
 not against grantee, 853. 
 
 against the State, 854. 
 
 in Federal courts, 884. 
 
 pleading, 855. 
 
 as to boundaries, 760, 868. 
 EUROPEAN POWERS, claim of title by, 783. 
 EVENT, when it determines tenancy without notice, 381. 
 
References] INDEX. We to sections. 809 
 
 EVIDENCE of title not to be pleaded, 445, 4935. See Plaintiff's Title 
 and Evidence, 782-828. 
 
 may be stricken out, 4925. 
 
 rules of, similar in the various actions, 92, 782. 
 
 parol, admissible to show deed a mortgage, 337. 
 
 admissible under general issue, 477. 
 
 and title of plaintiff, 782-828. 
 
 patents, 785. 
 
 presumption of grant, 786. 
 
 missing links, 789. 
 
 title by execution, 793. 
 
 judicial record, 794. 
 
 relation, 795, 889. 
 
 parol gifts, 798. 
 
 estoppel, 798a, 842. 
 
 reputation, 804, 805. 
 
 declarations, 808-810. 
 
 pedigree, 812-815. 
 
 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. 
 
 in Federal courts, 872. 
 EXCEPTIONS to statutes of limitation, 753a-753/. 
 
 no adverse possession against State, 753a. 
 
 no statute against the government, 753a, 784. 
 
 as to infants, 7535. 
 
 co-existing disabilities, 753c, 753a 7 . 
 
 disabilities of co-tenants, 753/. 
 
 suspension by agreement, 753e. 
 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. 
 
 title by, 793. 
 the classes of cases, 793. 
 what evidence required, 793. 
 EXECUTION PURCHASER, ejectment by, 335, 793. 
 
 of equity of redemption, 343. 
 EXECUTOR. See Administrator ; Personal Representatives. 
 right of, to maintain ejectment, 207-210. 
 usually vested with no power over realty, 208. 
 
810 References] INDEX. \P re to sections. 
 
 EXECUTOR— continued. 
 
 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. 
 
 devise to, for aliens, valid, 206, n. 
 EXEMPLARY DAMAGES, 638a. 
 
 Mr. Sedgwick's rule, 668a. 
 
 the cases considered, 668a. 
 
 allowed for willful trespass, 668a. 
 
 argument for, 668a. 
 
 scarcity of cases, 668a. 
 
 difficulties of securing, 668a. 
 EXHIBITS properly constitute no part of pleading, 444. 
 
 rule as to pleading, 444. 
 
 FACTS, to be pleaded, 425, 425, n. 
 
 entitling plaintiff to recover, 792. 
 
 particular, evidence of, 807, 812. 
 FAMILY FACTS, questions of pedigree, 812. 
 
 analogy to particular facts, 812. 
 
 declarant's relationship, how proved, 814. 
 FEDERAL COURTS, statutes granting new trials controlling in, 607, 870. 
 
 local laws constituting rules of property binding in, 607. 
 
 State judgment a bar, 79, 633. 
 
 former action pending, 633. 
 
 State law binding in, 870. 
 
 exceptions to the rule, 871. 
 
 State rules of evidence in, 872. 
 
 rules of pleading and practice, 873. 
 
 amendments, 874. 
 
 jurisdiction in equity, 875. 
 
 ejectment not maintainable on equitable title, 876. 
 
 examples from the cases, 877. 
 
 equitable title no defense, 878. 
 
 State statutes recognizing equitable title, 879. 
 
 rule not affected by the practice act, 881. 
 
 rule different in Pennsylvania, 882. 
 
 cases in conflict with the rule, 883. 
 
 exceptional cases, equitable estoppel, 884. 
 
 equitable relief not granted where relief at law is adequate, 885. 
 
 ejectment bill not allowed in, 886. 
 
 conclusiveness of a patent, 887. 
 
 doctrine of relation, conflicting patents, 889. 
 
 title under United States not determined by State laws, 890. 
 
References] INDEX. X. ar e to sections. 811 
 
 FEDERAL COURTS— continued. 
 
 possessory title of no avail against patent title, 891. 
 
 practice where equitable relief is necessary, 892. 
 
 jurisdiction of, 893. 
 
 original jurisdiction of the Supreme Court, 894. 
 
 inter-state boundaries, 895. 
 
 question of State title to lands, 896. 
 
 intervention by United States, 897. 
 
 practice in, 898. 
 
 controversies between citizens of same State, original act and 
 changes, 899. 
 
 new theory of the jurisdiction, 900. 
 
 pecuniary limit, 901. 
 
 appellate jurisdiction of the Supreme Court. — Federal question, 902. 
 
 title under treaty, 903. 
 
 appeals from circuit courts, 904. 
 
 territorial mining claim, 905. 
 
 original jurisdiction of the circuit courts, 906. 
 
 jurisdictional amount, 907. 
 
 different parcels, 908. 
 
 recovery of less than claim, 909. 
 
 change of residence, 910. 
 
 collusive transfers, 911. 
 
 the removal statutes, 912. 
 
 ejectment for land confiscated during Rebellion, 913. 
 
 title by act of Congress, 785, 914. 
 
 ejectment on Indian title, 783, 915. 
 
 venue, 475, 916. 
 
 statute of limitations in equity, 917. 
 
 pleading citizenship of parties, 918. 
 
 mandamus to compel issue of patent, 919. 
 FEDERAL OFFICERS, ejectment against, 244, 249. 
 
 See United States. 
 FEDERAL QUESTIONS involved in ejectment, 902. 
 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. 
 
 amendment to life estate, 436, 4545. 
 
 claim of, as the basis of adverse possession, 697, 758. 
 FEE TAIL, recovery of, not allowed under claim of fee simple, 436. 
 FELON, right of, to bring ejectment before office found, 229. 
 
812 References] INDEX. \. are to sections. 
 
 FENCE, not necessary to establish adverse possession, 733. 
 
 when not an improvement, 699. 
 FERRY RIGHT, nature of, 152. 
 
 is a continuation of a road, 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, 35-37, 39, 422-424. 
 
 practice invented by Rolle, 36, 37. 
 
 consent rule, 36. 
 
 introduction of imaginary parties, 37. 
 
 method of procedure, 37-39. 
 
 judgment inconclusive by reason of the fictions, 42, 43, 513. 
 
 liberal view of, by the courts, 53, 424. 
 
 fictions now abolished, 43, 55, 425. 
 
 abolition of, renders judgment conclusive, 43, 515-517, 524. 
 
 utility of fictions, 63a. 
 
 benefits conferred on ejectment by, 63a. 
 
 retained in Delaware and Alabama, 90. 
 
 rule as to, in Federal courts, 873. 
 FIELD, J., views of as to estoppel, 847. 
 FIRE, destruction of building by, terminates tenant's interest, 155. 
 
 effect of, generally, 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. 
 
 independent of the soil, 142, n. 
 
 State may regulate, 142, n. 
 FIXTURES, ejectment for, 103, 104. 
 
 and improvements, pass to plaintiff by recoverv in ejectment, 563, 
 684, 690. 
 
 recovery of vein or lode, surface fixtures do not pass, 115. 
 
 as between hostile claimants, 684. 
 "FLAG FLYING," adverse possessor must keep, 735, 735. n. 
 FLORIDA, rights of mortgagee in, 332. 
 
 pleading statute of limitations, 482. 
 
 example of plea held insufficient, 482. 
 
 receiver in ejectment after judgment, 619. 
 FLOWING LAND, adverse possession by, 734, n. 
 
 not usually considered an ouster, 149. 
 FORCE, owner entering by, cannot be evicted by ejectment, 94, 94a. 
 
References} INDEX. [are to sections. 813 
 
 FORCIBLE ENTRY statutes, influence of, upon ejectment, 4. 
 statutes, new trial in actions under, 594. 
 
 idea of giving ejectment effect of real action, derived from, 4. 
 FORCIBLE ENTRY PROCEEDING, distinguished from ejectment, 94. 
 title cannot be tried in, 94, 94, n, 164, 471. 
 designed to protect actual possession, whether rightful or wrongful, 
 
 94, 94, n. 
 recovery opposed to legal possession, 94, 94, n. 
 incorporeal hereditaments not recoverable under, 152. 
 proceeding for ferry right, 152. 
 proceeding changed to ejectment, 183. 
 not maintained by intruder, 94. 
 general purposes of, 94, n. 
 against whom it lies, 94, 94, n. 
 when an exclusive remedy, 164. 
 does not suspend statute of limitations, 743, n. 
 FORECLOSURE, common remedy of mortgagee, 329. 
 more effectual than ejectment, 329. 
 no trial of title in, 179a. 
 second mortgagee may intervene, 179a. 
 judgment creditors may attack mortgage, 179a. 
 ejectment converted into, 180. 
 impeachment of, title in, 184a. 
 FOREIGN JUDGMENT cannot affect or pass title to land, 465, 407, 542. 
 
 court of equity may compel conveyance of land in foreign State, 542. 
 FOREIGN LANDS, judgments do not affect, 467a, 542. 
 
 ejectment local action, 465, 542. 
 
 lex loci rel sitce, 467a, 542. 
 FOREIGN STATES, corporation and aliens by comity may bring ejectment 
 in. 195. 
 judgment in, does not affect realty, 465, 467, 542. 
 FORFEITURE, ejectment for breach of covenant against waste, 362. 
 
 ejectment founded on, 796. 
 
 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,-796. 
 
 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. 
 
814 References} INDEX. \. are io sections. 
 
 FORFEITURE —continued. 
 
 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. 
 
 pleading a forfeiture, 447. 
 
 setting up in answer, 486. 
 
 not established in collateral proceeding, 184a, 797 
 
 of corporation, 184a, 797. 
 FORGED, deed canceled as a cloud, 154, n., 171, n. 
 
 appearance by attorney, 415. 
 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, 40 J. 
 
 of writ of possession, 550. 
 
 of provisional relief, 612. 
 
 of ancient real writs not regarded, 75. 
 FORMEDON, abuses in writs of, 45. 
 
 nature of, 71. 
 FORMER ACTION PENDING, 6<?3-637. 
 
 rule in Federal courts, 633. 
 FOUNDATION, projecting, remedy for, 157. 
 
 of real action, 64. 
 FRANCHISE of ferry, not subject to ejectment, 152. 
 FRAUD, of landlord, to be availed of by tenant, must be pleaded, 355. 
 
 on vendee, election of remedies, 307. 
 
 to set aside judgment, 507, n. 
 
 possession acquired by, £32. 
 
 in estoppel, 845, 846. 
 
 possession acquired by, as a defense, 832. 
 FRAUDS, STATUTES OF, lease void as to, 379. 
 
 conveyance void as to, 344. 
 
 statute of, part performance, 321a, 797. 
 
 as affecting estoppel, 845. 
 
 contract void as to, will not sustain claim for improvements, 708. 
 FRAUDULENT CONVEYANCE, what recovered in suit to cancel, 181. 
 
 when adverse possession does not run, 751, n. 
 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. 
 
Reference's] INDEX, [are to sections. 815 
 
 GARNISHMENT, process of, upheld on count for mesne profits, 617. 
 GENERAL DESCRIPTION, controlled by particular, 458, 864, n. 
 GENERAL ISSUE in ejectment, 476. See Answer. 
 "not guilty," 476. 
 the plea favored, 476. 
 defenses admissible under, 477, 483. 
 advantage 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. 
 GENERAL REPUTATION, as to birth of issue, 815. 
 as to boundaries, 804-806. 
 as to particular facts, 807. 
 as to pedigree, 812, 815. 
 GEORGIA, mortgagee cannot bring ejectment, 333, 338. 
 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. 
 GERMANS, land holding among, 724, n. 
 GIFT, title by parol, 321a, 798. 
 
 plea of, must allege improvements, 486. 
 evidence must be clear, 798. 
 consideration, 798. 
 GILBERT, views of, as to ejectment, 12, n., 14, n., 25, n, 28, n. 
 GLEBE, after sequestration, not recoverable in ejectment, 148. 
 GOLD MINE, is real estate, 108. n. 
 
 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 bona fide occupant, 694-696. 
 "notice" and " good faith,'' how interpreted, 696. 
 in assertion of adverse possession, 759. 
 
 only important in connection with color of title, 757, 775, 778a. 
 GOVERNMENT, divesting title from, 784. 
 possession of lands of, 717, n. 
 statutes run against, when, 717, n., 753a. 
 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. 
 
816 References} INDEX. [are to sections. 
 
 GRADES of real actions, 66. 
 
 GRANT, presumption of, as applied to incorporeal hereditaments, 724, 726. 
 
 presumption of, against the government, 717, 784. 
 
 ejectment not maintainable for interests which lie in, 146. 
 
 theory of presumption, 786, 787. 
 
 presumption of, when not necessary, 784. 
 
 construction of, intention governs, 856, 858, 860, 860, n. 
 
 on the sea shore, 860. " 
 
 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 with warranty may recover against grantor, 230. 
 
 of quitclaim deed may bring ejectment, 230. 
 
 may recover for improvements made by grantor or warrantor, 706. 
 
 no estoppel against, 853. 
 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. 
 
 deceased, statements of, 809. 
 GRASS, 143. See Pasturage and Herbage. 
 GRAY, J., rule stated by, as to conveyance to center, 857. 
 GROUND RENT, in mitigation, 682. 
 GROWING CROPS. See Crops. 
 
 pass to disseizee, 563, 683. 
 
 commencement of ejectment equivalent to re-entry, 683. 
 GUARDIAN, general, 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. 
 
 cannot grant incorporeal hereditament, 202. 
 
 ad litem, appointment not effectual until jurisdiction is acquired, 
 254, n. 
 
 guardian cannot buy up adverse title, 292, n. 
 GUTTER, overhanging, not ground of ejectment, 93, 156. 
 
References} INDEX. [are to sections. 817 
 
 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 the 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, 455, 554, 564. 
 
 peaceable possession without a writ, 549. 
 HABERE FACIAS 8EISINAM. See "Writ of Possession. 
 
 final writ' in system of real actions, 548. 
 
 awarded seizin of land recovered, 548. 
 
 effect of execution of, 548. 
 
 distinction between, and habere facias possessionem, 42, 510, 548. 
 HEARSAY EVIDENCE excluded, 805. 
 HEIRS AT LAW, may bring ejectment, 205. 
 
 may recover lands belonging to ancestor, 205. 
 
 may convey without awaiting discovery of will, 205. 
 
 may support an action, though the ancestor died out of possession, 
 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. 
 
 as parties in action of dower, 129, n. 
 HERBAGE AND PASTURAGE, ejectment for, 143. 
 
 the English cases, 143. 
 
 rule in America, 143. 
 HEREDITAMENTS corporeal, ejectment will lie for, 95, 97, 98, 101, 127 r 
 146, 185. 
 
 consist of permanent and substantial objects, 95. 
 See Ejectment. 
 HIGHEST EVIDENCE of title, patent is, 785. 
 
 meaning of, 785. 
 HIGHWAY, land subject to right of, recoverable in ejectment, 130, 132, 148, 
 526, 571. 
 
 52 
 
818 References] INDEX. b"~e to sections. 
 
 HIGHWAY— continued. 
 
 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. 
 
 adverse possession against fee of, 753as. 
 
 when conveyed by deed, 857, 858. 
 HISTORY of ejectment, 1, 63, 510, 546, 647. See Ejectment. 
 
 of real actions, 1-3, 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. 
 
 ejectment by insolvent for, 224. 
 
 judgment for land subject to, 526. 
 
 person asserting, not entitled to notice to quit, 386. 
 HORIZONTAL DIVISIONS of land, 105, n., 106a. 
 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, 730, 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. 
 HUNTER, has no possession, 719, 722, n. 
 HUSBAND AND WIFE, joinder of, as defendants, 255. 
 
 rule at common law, 255. 
 
 husband cannot hold adversely to wife, 752, n. 
 
 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. 
 
 ILLEGAL CONTRACT, no estoppel, 358, 851. 
 
 ^LEGITIMATE CHILDREN, cannot inherit, 205, n. 
 
 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. 
 
References} INDEX. [are to sections. £19 
 
 ILLINOIS — continued. 
 
 judgment in ejectment must specify particular estate, 535. 
 
 same rule as to verdict, 500. 
 
 judgment against vendee not binding on vendor, 530. 
 
 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, 3S9. 
 
 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. 
 
 abstracts as evidence, 827. 
 IMPLIED license of vendee to enter, 304. 
 IMPLICATION of no incumbrances, 811, n. 
 IMPROVEMENTS, 63, 690, 716. 
 (1.) Claim for improvements, what embraced in, 600. 
 
 policy of the common law, 690. 
 
 in ejectment, 63, 690. 
 
 in trespass to try title, 91. 
 
 aversion to granting allowance for improvements, 690. 
 
 rule of the civil law, 691. 
 
 distinction between oonmfidei and malm 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. 
 
 set-off, when not allowed, 699. 
 
 constitutionality of improvements acts, 692, 698, 712. 
 
 views of Cooley, J., 712, n. 
 
 improvements made by grantor or warrantor, 706. 
 
 basis of the valuation, 707. 
 
 not allowed against lunatic, 699. 
 
 as affected by public improvements, 705. 
 
 apportionment of improvements, 707. 
 
 betterments pass by recovery in ejectment, 563, 690. 
 
 on a railroad, 690, n. 
 
 on surface, do not pass by recovery of lode or vein, 115. 
 (2.) Bona fide occupant under claim of title, 63, 694. 
 
 question of good faith for the jury, 694. 
 
 who is a bona fide possessor, 694, 695. 
 
 occupant under color of title, 694. 
 
 claimed by creditor, 709, n. 
 
 no presumption that possessor is a wrong-doer, 372, 694. 
 
 trustee and guardian, when not allowed for improvements, 694. 
 
820 References] INDEX. [ afe to sections. 
 
 IMPROVEMENTS— continued. 
 
 exceptions to the general rule, 695. 
 
 rule in Texas considered, 695. 
 
 heir as claimant, 706. 
 (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, 697. 
 
 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 improvement, 699-702. 
 
 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. 
 
 matters of taste, 701. 
 
 adaptability of the improvements the test, 701. 
 
 perishable improvements not regarded, 702. 
 
 expenditures in experimenting for profits disallowed, 703. 
 
 repairs not allowed, 699, 711. 
 
 expenditures by life tenant, 699. 
 
 ring-barking, 699. 
 
 addition to house, 699. 
 
 obstruction is not, 699. 
 
 payment of taxes and incumbrances, 688, 704. 
 
 incumbrances allowed in equity, 704. 
 (6.) Improvements after suit Drought, 705. 
 
 notice of title by bringing suit, fatal to the claim, 705. 
 
 the principle illustrated, 705. 
 (7.) Titles which will support claim for improvements, 694, 708, 709, n. 
 
 improvements by life tenant not chargeable against remainderman, 
 708. 
 
 vendee in default cannot claim, 708. 
 
 vendee not in default, rule as to, 323. 
 
 tax title insufficient in Texas, 708. 
 
 quitclaim deed, 697. 
 
 improvements under contract void by statute of frauds disallowed, 
 
 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. 
 life tenant, 699. 
 
References'] INDEX. [are to sections. 821 
 
 IMPROVEMENTS— continued. 
 (8.) Practice as to recovery of improvements, 713-716. 
 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 Impbovembnts. 
 
 not usually allowed aB mesne profits, 678. 
 INCONSISTENT DEFENSES in ejectment, 830. 
 INCORPOREAL HEREDITAMENTS. See Ejectment. 
 
 cannot be recovered in ejectment, 95, 101, 110, 146, 148, 152. 
 
 defined, 146. 
 
 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 allowandfe for, 688, 704. 
 
 paid by one co-tenant, lien for, 291. 
 
 implication that title is free of, 311, n. 
 INDEMNITY, officer executing writ of possession may require, 565, 560. 
 INDIAN, right of, to bring ejectment, 228. 
 INDIAN TITLE, outstanding, effect of, 194. 
 
 nature of, 194. 
 
 is an easement, 194. 
 
 ejectment founded upon, 915. 
 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. 
 
 owner of fee in street may eject wrongdoer, 269. 
 INFANT, may bring ejectment, 196. See Guardian. 
 
 security for costs by, 197. 
 
 disaffirmance of deed, 198, 451. 
 
 how pleaded, 451. 
 
 tendering back consideration, 198. 
 
 as plaintiff, notice to quit by, 398. 
 
 realty of, guardian cannot convey, 114, 202. 
 
 may recover mesne profits, 656. 
 
 disability, 753&. 
 
822 References} INDEX. \. are to sections. 
 
 INFANT— continued. 
 
 as defendant, 254. 
 
 must appear by guardian, 196, 254. 
 
 cannot be estopped, 198. 
 INFERENCE against the government, from possession, 717, n. 
 INHERIT, illegitimate children cannot, 205, u. 
 INJUNCTION, 622, 632. See Provisional Remedies. 
 
 against ejectments, 46, 47, 580, 608, 608, n., 840. 
 
 rules as to granting, 840. 
 
 changes as to, 840. 
 
 not proper in order for restitution, 568, 575. 
 
 against trespass or waste pending ejectment, 622, 624. 
 
 failure to prosecute ejectment forfeits right to, 625. 
 
 in suit to determine conflicting claims, 622. 
 
 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. 
 
 concerning working of mines, 626. 
 
 favored as a form of provisional relief, 622. 
 
 ordinary uses of land not restrained by, 625. 
 
 mandatory to restore running water, 149. 
 
 against cutting timber, 622, 628. 
 
 malicious and destructive waste, 626. 
 
 by abutter to restrain use of street, 269. 
 
 when allowed in addition to usual relief in ejectment, 173, 639. 
 
 vacated on sworn answer denying merits, 626. 
 IN PAIS, estoppel by matter, will not support ejectment, 798a. 
 
 estoppel against the State, 854. 
 
 estoppel by matter, not equivalent of equitable estoppel, 843. 
 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. 
 INSPECTION of lease ordered, 4645. 
 INSTRUCTIONS of court may control jury, 496, n. 
 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 of adverse claim, 757. 
 
 acts and declarations of the occupant indicating intent, 758. 
 
References] INDEX. [ore to sections. 823 
 
 INTENTION— continued. 
 
 possession under mistake, 759. 
 
 disputed boundary lines erroneously located, 760, 867-869. 
 
 governs, in construction of grants, 856, 858. 
 INTEREST on mesne profits, rule as to, 664, 670. 
 
 generally allowed, 670. 
 
 distinction between liquidated and unliquidated demands, 670, 
 G70, 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, 
 101. 
 
 true test as to when ejectment lies, 101. 
 
 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, 155. 
 
 theory of the decisions, 106. 
 
 vaults, 107. 
 
 inaccessible lands, 127, 572. 
 
 mining rights, 108-111, 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. 
 INTERFERENCE with possession, no ground of ejectment, 93. 
 INTERLOCUTORY ORDER, not conclusive as an adjudication, 508. 
 INTERMEDDLING with property in litigation, 645, 645, n. 
 INTERPRETATION OF STATUTES, rule as to, 193. 
 See Construction. 
 
 circumstances prompting enactment of, considered, 193. 
 
824 References'] INDEX. \. are to sections. 
 
 INTERRUPTION OP ADVERSE POSSESSION, 740-744. 
 
 by re-entry of the owner, 741. 
 
 not by survey, 745, n. 
 
 nor by unsuccessful ejectment, 743, n. 
 
 by other adverse claimants, 745. 
 
 effect of bringing ejectment, 743. 
 
 by abandonment, 744. 
 INTER-STATE BOUNDARIES, rule as to, 895. 
 INTERVENTION by United States, 897. 
 INTOXICATION, effect of proof of, 304. 
 INTRUDERS, not entitled to notice to quit, 376, 377. 
 IOWA, pleadings liberally construed, 428. 
 
 doctrine of lis pendens, 645. 
 
 rule as to boundaries, 760. 
 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 Jubt. 
 ISSUES not determinable in ejectment, 184a. 
 
 for the jury, 495. 
 
 as to adverse possession, 729n. 
 
 JEOFAILS, statute of, extended to writs of right, 498. 
 JOHNSON v. FCLLERTON, criticised, 560. 
 JOINDER OP 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 /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 OP PARTIES. See Plaintiffs; Defendants; Pasties.. 
 
 of joint tenants, 302. 
 
 of coparceners, 303. 
 
 of tenants in common, 297-299. 
 
 of plaintiffs, 187-189. 
 
 of hostile claimants, 188, 450. 
 
 cases of misjoinder, 189. 
 
 executor cannot join with devisee, 189. 
 
References] INDEX. [are to sections. 825 
 
 JOINDER OF PARTIES— continued. 
 
 ■widow cannot join with heirs, 189. 
 
 reversioners must all join, 189. 
 
 of defendants, 238-241. 
 
 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, 297-299. 
 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, 41-44, 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 muat be the same, 507, 
 
 508. 
 causes of actions must be identical, 507. 
 frauds sufficient to avoid, 507, n. 
 conclusiveness of a judgment not affected by the form of the action, 
 
 507. 
 nor by fact that judgment was rendered upon erroneous grounds, 
 
 507. 
 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. 
 (1.) Judgment in real actions, 67, 69, 509, 522. 
 writs of different degree 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 ejectment, 42-45, 506, 545. 
 
 review of the origin of ejectment, 1, 23-25, 27, 36, 37, 510-512, 576. 
 originally an action of trespass, 1, 510. 
 
826 References] INDEX. [« to sections. 
 
 JUDGMENT— continued. 
 
 damages formerly the only recovery, 1, 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, 41-44, 511-515, 576. 
 
 reasons for this result, 42, 511, 513. 
 
 no privity between fictitious parties, 42. 
 
 each ejectment based upon a new lease, 42. 
 
 no seizin or estate awarded by the judgment, 511-514. 
 
 nothing remaining of record to show the title adjudicated, 513. 
 
 judgment established right of possession, 42, 513. 
 (4.) Abolition of fictions rendered judgment conclusive, 43, 511, 513, 515-518, 
 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 hetween realty and personalty, 516, 521, 522. 
 
 rule as to judgments, 516, 521, 522. 
 
 no inherent difference, 522. 
 
 test as to conclusiveness, 506, 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 award- 
 ed, 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, 550. 
 
 form and effect of, the same in the various actions, 92. 
 
References} INDEX. [ate to sections. 827 
 
 JUDGMENT— continued. 
 (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. 
 
 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, 673. 
 
 form of judgment for improvements, 716. 
 (9.) Various other proceedings, 532«, 5325,532c. 
 
 judgments in partition, 532as. 
 
 common law and chancery partition, 532a. 
 
 in condemnation proceedings, 5326. 
 
 action to quiet title, 532c. 
 
 affecting contingent interests, 532a, n. 
 JUDGMENT CREDITORS, may attack mortgage, 179. 
 
 reach improvements, 709, n. 
 
 statute of limitations against, 751, n. 
 JUDICIAL RECORD, title by, 794. 
 
 entire record not essential as evidence, 794. 
 JURISDICTION, in equity to grant injunctions, 626, 840. 
 
 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, 162-134. 
 
 over lands in possession of Federal officers, 244-249. 
 
 of Federal courts, 893, 894, 900, 902, 904. 
 
 of equity as to boundaries, 865. 
 
 of equity in Federal courts, 875. 
 JURISDICTIONAL AMOUNT in Federal courts, 901, 904, 906, 907. 
 JURY, questions of fact to be tried by, 170, 496, 790. 
 
 trial, matter of right in actions at law, 170. 
 
 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. 
 
 may review probate of will, 205, n. 
 
 presume a grant, 787. 
 
 may be controlled by instructions, 496, n. 
 
828 References] INDEX. \. are to sections. 
 
 JURY — continued. 
 
 courts should determine equitable questions, 496. 
 
 determines the facts which constitute adverse possession, 729, n. 
 
 KANSAS, statutory new trials, when not allowed, 592. 
 
 statutory new trial must be demanded in trial court, 603. 
 KEEPING ameliorations, 690, n. 
 KENTUCKY, public easement not the basis of an ejectment, 272. 
 
 mortgagee cannot bring ejectment in, 332. 
 KENYON, LORD, influence of, upon ejectment, 52. 
 KIMMEL v. BENNA criticised, 518. 
 KING, ejectment by the, 191. 
 
 not considered "consistent with royal prerogative," 191. 
 
 proprietor of all lands, 783. 
 
 title of, by discovery, 783. 
 
 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. 
 
 LACHES in prosecuting ejectment, 625. 
 
 forfeits right to injunction, 625. 
 
 not imputed to the government, 75 3i. 
 
 right to improvements founded upon, 712. 
 LAND, what embraced in definition of, 102, n., 105, 115. 
 
 emerging from the sea, title to, 123. 
 
 under water, ejectment for, 117, 119. 
 
 subject to easement, recoverable in ejectment, 130, 132, 528, 571. 
 
 subject to homestead right, 141, 526. 
 
 private way, passage way, alley way, or ferry right, 132. 
 
 how described in ejectment, 455, 464. 
 
 reputed name of, description by, 461, 767, n. 
 LAND CERTIFICATES, not subject of pledge, 327, n. 
 LANDING PLACE, privilege of, not recoverable in ejectment, 148. 
 LANDLORD AND TENANT, ejectment between, 346-371. 
 
 prior to introduction of summary proceedings, 346. 
 
 objection to the remedy, 347. 
 
 title to land not usually involved, 349, 352. 
 
 statutory new trials in actions between, 593. 
 
 execution of writ of possession, 569. 
 (1.) Landlord, defined, 29, 265, 266. 
 
 what the landlord must prove in ejectment, 350. 
 
 must show present right of possession, 350. 
 forfeiture or expiration of term, 350. 
 
References] INDEX. {are to sections. 829 
 
 LANDLORD AND TENANT— amUiiued. 
 
 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 cases upon re-delivery of possession, 353. 
 
 estoppel against tenant applies only to title under which he entered, 
 353. 
 
 estoppel not applicable in cases of fraud, 355. 
 
 judgment against tenant not binding on landlord, 537. 
 
 fraud of landlord, 355. 
 
 estoppel against landlord, 351. 
 
 as defendant, 264. 
 
 ejectment will lie against, on possession of tenant, 264. 
 
 party claiming as, 265. 
 
 defending in tenant's place, 393. 
 
 rule as to notice to quit, 393. 
 (2.) Tenant may 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 tbat 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 property, 362. 
 
 not bound to rebuild in case of fire, 362. 
 
 interest of, ceases when buildings are destroyed, 155. 
 
 test of waste, 363. 
 
 waste can only be committed of thing demised, 363. 
 
 waste by tenant at will, 364. 
 
 disclaimer by, 388. 
 
 tenant's notice to landlord, 400. 
 LAW of the place, governs real estate, 467a. 
 
 and fact, right to easement, question of, 729, n. 
 
 is equitable estoppel available at ? 849. 
 
 of State, binding in Federal courts, 870. 
 
 and equity in Federal courts, 871, 879. 
 LEANING WALL, remedy for, 156. 
 LEASE, to bore for oil, ejectment based upon, 112-114. 
 
 entry and ouster, 34. 
 
 valid lease necessary under early practice, 28, 424. 
 
 landlord has no right of re-entry during existence of, 350. 
 
830 References} INDEX. [ are io sections. 
 
 LEASE — continued. 
 
 unless right is reserved, 160, 350, 370. 
 ■when forfeited, 362, 365, 369. 
 inspection of, ordered, 464J. 
 severance of conditions in, 366. 
 construction of conditions, 367. 
 waiver of forfeiture, 371, 371, n. 
 destruction of premises by fire, 155. 
 LEGAL TITLE generally prevails in ejectment, 58, 876. 
 
 bill in equity not maintained for lands claimed under, 168, 169, 886. 
 LEGAL AND EQUITABLE RIGHTS may be adjudicated in same forum, 
 169, 184, 639. 
 equitable case first heard, 496. 
 entire relief obtained in one action, 184, 639. 
 LEGAL AND EQUITABLE TITLE, party vested with, cannot proceed in 
 equity, 172. 
 rules relating to discovery, 790. 
 confusion in the cases, 790. 
 LEGISLATION, cannot take away title by adverse possession, 727. 
 new trial, when not given by, 595. 
 interpretation of, 193. 
 LENGTH OP POSSESSION to presume a grant, 787. 
 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. 
 LEX FORI, governs provisional remedies, 610, n. 
 LEX LOCI REI SIT2E, 467a, 542. 
 
 effect of foreign probate, 467a. 
 avoiding rule, 542. 
 LIBERAL view of fictions, 53. 
 
 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, insufficient to support ejectment, 98. 
 distinguished from easement, 98, n. 
 to use land by railroad, 834. 
 LICENSEE, vendee holds as, 305. 
 
 implied right to enter, 304. 
 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. 
 should pay taxes, 214, n. 
 
References'] INDEX. [are to sections. 831 
 
 LIFE TENANT— continued. 
 
 proceedings to discover death of, 215, n. 
 
 purchase of outstanding title by, 292, n. 
 
 inures to remainderman, 292, n. 
 
 improvements by, 699. 
 
 claim of contribution, 699. 
 
 adverse possession, 751, n. 
 LIMITATION, statutes, of, historically considered, 724. 
 
 rule as to pleading, 482; 686. 
 
 purpose and policy of, 482, 727. 
 
 in mesne profits, 686. 
 
 See Adverse Possession ; Colob of Title ; Constructive 
 Possession. 
 LIS PENDENS, practice as to filing, 6215, 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. 
 LOMBARDS, prescriptive title recognized among, 724, n. 
 LONGFIELD on Ejectment, 8, n. 
 
 rule formulated by, as to plaintiffs, 185. 
 LOST DEEDS, evidence, 820. 
 
 secondary evidence, 820, 821. 
 LUNATIC. Bee Committee oe Lunatic. 
 
 may bring ejectment in Missouri, 203. 
 
 committee of, cannot bring ejectment, 203. 
 
 committee may maintain equitable action, 204. 
 
 improvements as against, 699. 
 
 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. 
 
 allege seizin within twenty years, 430. 
 
 pleading fee simple, 440. 
 
 amendment embracing new land not admissible, 464. 
 
 rule as to notice to quit, 384. 
 
832 References] INDEX. [ are to sections. 
 
 MAINE— continued. 
 
 writ of entry maintainable for land covered with party wall, 158. 
 
 title to land cannot be tried in assumpsit in, 176. 
 
 remedy of mortgagor against mortgagee, 345. 
 MAINE PROFESSOR, advocate of fictions, 63a. 
 MAINTENANCE, 190. See Champerty Statutes. 
 
 in early practice iu ejectment, 28. 
 MALA FIDE, possessor, not entitled to improvements, 691, 694. 
 
 under color of* title, 775-?78<z. 
 MANDAMUS not issued in aid of judgment in ejectment, 175. 
 
 to officer to execute writ of possession, 565. 
 
 to compel issue of patent, 919. 
 MANDATORY INJUNCTION, when allowed, 149. 
 
 to restore running water, 149. 
 MANSFIELD, Lord, introduction of equitable principles by, in ejectment, 51. 
 
 observations of, as to ejectment, 5. 
 MAP, furnished with bill of particulars, 464 a. 
 
 ancient, as evidence, 819. 
 MARKET GROUNDS, ejectment for, 271. 
 MARRIAGE, validity of, cannot be determined in summary proceedings, 164. 
 
 determined in action for dower, 129. 
 
 by what law governed, 129, n. 
 
 admeasurement proceedings not conclusive as to, 129. 
 MARRIED WOMEN, right of, to bring ejectment, 215, 220. 
 
 take their husband's name, 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. 
 
 may lose property by adverse possession, 220. 
 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. 
 
 rule as to improvements, 694. 
 MASSACHUSETTS, writs of entry in, 70, 73-75, 79. 
 
 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. 
 
References] INDEX. [are to sections. 833 
 
 MASSACHUSETTS— continued. . 
 
 tenancy at will, how terminated, 402. 
 
 tenant pleading general issue, estopped to deny possession, 479. 
 
 commissioners, views of, as to real actions, 26. 
 
 real and personal actions in, 64a. 
 
 adjustment of mesne profits, 665. 
 MATTER OF LAW, not to be pleaded, 425, n.' 
 
 MEASURE OP DAMAGES, 665, 666. See Mesne Profits and Damages. 
 MELIORATIONS, 690, 716. See Improvements. 
 MENTAL INCAPACITY, determinable in ejectment, 203, n. 
 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. 
 
 exemplary damages, 668a. 
 
 restitution, 689a. 
 
 nature of the action, 648, 649. 
 
 a bar to trespass guare elausum /regit, 668. 
 (1.) 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. 
 
 in trespass to try title, 83. 
 (2.) Mesne profits in ejectment, 647. 
 
 mesne or intermediate profits defined, 647. 
 
 sketch of ejectione firmm, 647. See Ejections FikM/B. 
 
 effect of the introduction of fictions upon the recovery of damages, 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 occupa- 
 tion, 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. 
 
 53 
 
834 References} INDEX. Y are io sections. 
 
 MESNE PROFITS AND DAMAGES— continued. 
 (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. 
 
 distinction in the cases, 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, 663-665. 
 
 for what defendant is liable, 663. 
 
 mot accountable for profits prior to his entry, 663. 
 
 -.nor subsequent to abandonment, 680. 
 
 ;plaintiff only recovers from time his right to the possession accrued, 
 66a. 
 
 .damages assessed down to day of trial, 664. 
 (9.) Measure of damages, 665-667. 
 
 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 mesne 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. 
 i{12.) Evidence as to mesne profits, 674-677. 
 
 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, 680-682. 
 
 effect of release of one defendant, 680. 
 
 payment of rent to disseizor as landlord not a defense, 680. 
 
References] INDEX. [««? to sections. 835 
 
 MESNE PROFITS AND DAMAGES— continued. 
 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, 638. 
 (15.) Mesne profits 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. 
 MICHIGAN, ejectment for streets, 273. 
 
 public easement not a basis of the action, 273. 
 ejectment against mortgagee in possession, 842. 
 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, 593, 598. 
 MINE, may be recovered in ejectment, 108-111. 
 
 defined, 111. 
 
 may be delivered in execution, 108, 109. 
 
 may be worked by owner of fee where land is subject to easement, 
 134, 140. 
 
 distinction between, and quarry, 111. 
 
 ejectment for possessory mining claim, 116. 
 
 ejectment for patented mining claim, 116. 
 
 as against intruder, 116. 
 
 rule as to mesne profits of, 677. 
 
 injunction against working, 626. 
 
 the New York rule, 626. 
 
 distinction between grant of minerals and liberty to prospect, 150. 
 
 license to mine not basis of ejectment, 150. 
 
 adverse possession of, 733, n. 
 
 nature of the acts, 733, n. 
 
 legal right to, not the basis of bill in equity, 169. 
 MINING CLAIM, territorial, 905. See Mine. 
 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. 
 MISDEMEANOR, in New York, to convey lands in litigation, 190. 
 
#36 References] INDEX. [ are to sections. 
 
 MISJOINDER of parties plaintiff, 188, 189. 
 
 amendments to avoid, 189. 
 
 of parties defendant, 238, 240. 
 
 objection, how taken, 494a. 
 
 of actions, 640-642. 
 
 partition and ejectment, 640. 
 
 suit to foreclose and recover land, 640. 
 
 cured by verdict, 505. 
 
 how waived, 494a. 
 
 MISSING LINKS, presumption of, 789. 
 
 rule as to deducing title, 789. 
 
 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, 211. 
 
 rule as to recovery by tenants in common, 300. 
 
 conveyance pending action, 645. 
 
 no distinction between prior and adverse possession, 723. 
 
 equitable defense, 488. 
 
 judgment in ejectment not conclusive, 518, 519. 
 
 MISTAKE, in notice to quit, 403. 
 
 possession by, 759, 760. 
 
 MITIGATION, matters in, 682. 
 
 MIXED POSSESSIONS, general principles regulating, 753. 
 
 MOIETY, undivided, recovered on claim of the whole, 438. 
 
 MONTH TO MONTH, tenancies from, 383a. 
 
 notice to quit, 383a. 
 
 MONUMENTS, govern course, distance and contents, 862. 
 
 destruction of, 863. 
 
 erected under deed, 864. 
 
 absence of, course and distance governs quantity, 864. 
 
 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 unconstitutional 
 334. 
 
 ejectment by execution purchaser, 335. 
 
 title after default, 336. 
 
References] INDEX. [are to sections. 837 
 
 MORTGAGEE AND MORTGAGOR— contin^d. 
 
 deed absolute on its face may be shown to be a mortgage, 337. 
 
 ejectment upon deed intended as a mortgage, 338. 
 
 outstanding title, 339. 
 
 mortgagee may purchase equity at execution sale, 343. 
 
 statutory new trial by, 601. 
 
 may come in to defend, 262. 
 
 rule as to improvements, 710. 
 
 trial of title in foreclosure, 179a. 
 MORTGAGOR AGAINST MORTGAGEE, ejectment by, 340. 
 
 heirs of, 205, n. 
 
 remedy of, 345. 
 
 not maintainable until after accounting, 341. 
 
 and application of rents, 341. 
 
 rule in Michigan, 342. 
 
 right of possession, 331. 
 
 conveyance by mortgagor to mortgagee, 344. 
 MOTION, title not tried on, 164. 
 
 to affect pleadings, 428. 
 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. 
 
 conflicting cases, 269, 271, 274. 
 
 ejectment by, for streets and public 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. 
 
 as defendant, 252. 
 
 may be let in to defend ejectment, 252. 
 
 title by adverse possession, 753a, 267. 
 
 generally acquire easement in streets, 267. 
 
 adverse possession and prescription against, 753a. 
 
 opposing cases, 753a. 
 MUNIMENTS OF TITLE not to be set forth in pleading, 444. 
 
 NAKED POSSESSION, basis of adverse possession, 729. 
 
 cannot be extended by construction, 732, n. 
 NAME of place overrules mistaken description, 461. 
 
 of land, description by, 461. 
 
 of ejectment, confusion concerning, 76, 76, n. 
 NAMES of parties to actions, 426. 
 
 initials and middle names not recognized, 426. 
 
 senior and junior no part of a name, 426. 
 
 of married women, 220. 
 
838 References] INDEX. [ afe to sections. 
 
 NAMES — continued. - 
 
 when fictitious, recora should so state, 426. 
 
 mistakes as to, in notice to quit, 401, 403. 
 
 reputed, of property, description by, 461, 767, n. 
 NATUEAL OBJECTS, govern course and distance, 863, 
 NATURE of ejectment, 1, 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, 73, 74. 
 
 reasons considered, 73, 74. 
 
 real writs in, 70, 71, 75-77, 
 
 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, 124, n. 
 NEW JERSEY, shore line divisions must be settled in equity, 151. 
 
 rule as to notice to quit, 374. 
 
 tax title attacked by certiorari, 184a. 
 NEW THEORY of jurisdiction in Federal courts, 900. 
 NEW TRIALS, 576-609. 
 
 early practice as to new trials in ejectment, 576. 
 
 Lord Mansfield's views, 576. 
 
 reason for allowing new trial, 576. 
 (1.) 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 new 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. 
 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. 
 
References} INDEX. [are to sections. 839 
 
 NEW TBIALS— continued. 
 
 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, 584. 
 (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, 593. 
 
 right not lost by defects in forms, 585, 588. 
 (5.) Actions not within the statutes, 585, 589, 591-593, 595, 609. 
 
 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, 596, 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, 598-600. 
 
 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. 
 
 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. 
 
840 References] INDEX. I>« *> sections. 
 
 NEW TORK — continued. 
 
 ejectment for land covered by party wall, 158. 
 
 infant may bring real action, 196. 
 
 committee of a lunatic cannot prosecute ejectment, 203. 
 
 is not a 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 posses- 
 sion, 433. 
 
 must claim a certain estate, 434, 438. 
 
 defect available by demurrer, 434. 
 
 under claim of fee simple may prove title as mortgagee in posses- 
 sion, 437. 
 
 questions of venue, how raised, 469. 
 
 rule as to trial of local actions, 472. 
 
 statutes of limitation must be pleaded, 482. 
 
 doctrine as to color of title, 776. 
 
 rule as to equitable defenses, 486-488. 
 
 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 actions, 636, 639-641. 
 
 pleading claim for mesne profits, 655. 
 
 rule as to damages, 666. 
 
 distinction between damages and mesne profits, 653. 
 
 construction of pleadings in, 428. 
 NEXT FRIEND, ejectment by, 196, 199-201. See Guardian. 
 NOLLE PROSEQUI as to part of claim, 5. 
 NOMINAL DAMAGES, recovery of, not a bar to actual damages, 662. 
 
 after introduction of fictions, 61, 647. 
 NON-PAYMENT OF RENT, ejectment for, 160, 370. 
 
 demand must be sb own, 370. 
 NON-SUIT under early practice, 38. 
 
 joinder of too many plaintiffs ground for, 187. 
 
 statutory new trial not granted in cases of, 585. 
 NON-TENURE, plea of, 480a. 
 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. 
 
References] INDEX. [are to sections. 841 
 
 NORTH CAROLINA— continued. 
 
 statute of limitations need not be pleaded, 482. 
 
 practice as to joinder of actions, 644. 
 
 abstracts as evidence, 827. 
 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, constructive, what is, 723a, n. 
 
 defined by Supreme Court, 723a, n. 
 
 possession as, 723a. 
 
 to defeat improvement claim, 694, 696. 
 NOTICE OF OUSTER, 2S0a. 
 
 necessity of actual notice, 280a. 
 
 open exercise of exclusive right, 280a. 
 
 of pendency of suit, 537, n. 
 NOTICE OF PENDENCY OF ACTION, 645. See Lis Pendens. 
 NOTICE TO QUIT, 372-414. 
 
 upon what the right is founded, 373. 
 
 definition of, 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. 
 
 monthly tenancies, 383a. 
 
 weekly tenancies, 383a. 
 
 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, 383. 
 
 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, 381. 
 
 tenant at sufferance, 385. 
 
 at common law not entitled to notice to quit, 385. 
 
842 References] INDEX. [ are io sections. 
 
 NOTICE TO QUIT— continued. 
 
 exception to the rule in Michigan, 385. 
 
 void-homestead claim, possession under, 386. 
 
 possessor not entitled to notice to quit, 3S6. 
 
 adverse possession, no notice necessary, 387. 
 
 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. 
 (1.) Between vendor and vendee, 310, 394-396'. 
 
 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, 401-403. 
 
 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, 405-409. 
 
 by landlord, 405. 
 
 by authorized agent, 405. 
 
 by agent of corporation, 407. 
 
 should be in principal's name, 405. 
 
 owner of reversion, 405. 
 
 devisee, heir, or executor, 405. 
 
 receiver, with power to let, 405. 
 
 receiver, in chancery, 406. 
 
 rule in doubtful cases, 405. 
 
 joint tenants, 408. 
 
References} INDEX. [are to sections. 843 
 
 NOTICE TO QUIT— continued. 
 
 trustees, 408. 
 
 tenants in common, 409. 
 (7.) Who cannot give notice, 410. 
 
 vendee without title cannot, 410. 
 (8.) Waiver of notice, 411. 
 
 objection must be taken at nisiprius, 411. 
 
 acceptance of subsequently accruing rent is waiver of, 411. 
 
 how disclaimer may be waived, 411. 
 
 effect of second notic, 411. 
 
 notice waived by stipulation in lease, 411. 
 
 by agreement, 411. 
 
 by admission in pleading, 411. 
 (9.) Service of notice, 412-414. 
 
 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.) Sow sened, 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. 
 NOTICE to tenant in possession, 37. 
 
 possession as notice of occupant's rights, 723a. 
 NOTORIETY of possession to presume a grant, 787. 
 
 adverse possession, 735, 736. 
 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. 
 
 when abatement not justified, 156, n. 
 
 ejectment not proper remedy for, 156. 
 
 bill to abate is local, 465, 475, n. 
 
 joinder of plaintiffs in bill to suppress, 187, n., 298. 
 NULLUM TEMPUS OCCUEIT REGI, 753a. 
 
 OBJECTIONS to real writs, 2, 3, 5, 6, 75. 
 
 to ejectment in New England, 73-75. 
 
 to a title, 311, n., 541. 
 
 implication of no incumbrances, 311, n. 
 
844 References] INDEX. \. an to sections. 
 
 OBJECTS govern course and distance, 862. 
 OBSTRUCTION, not an improvement, 699. 
 OCCUPANT OF LAND must be made defendant, 231, 234, 236, 432, 659. 
 
 ionajide, recovers for improvements, 63, 694. 
 OCCUPATION OP LAND, character of, to warrant ejectment, 133, 135, 136, 
 232-234. 
 
 to constitute adverse possession, 729, 731. 
 OCEAN', bed of, recoverable in ejectment, 121. 
 
 title to, 121. 
 OFFICE, color of title to, 762, n. 
 OFFICE COPIES OF DEEDS, 821. 
 
 admissibility of, 821. 
 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, 112-114. 
 
 leases of, 112. 
 
 receiver of, appointment vacated, 618a. 
 
 oil regarded as a mineral, 114, 202. 
 
 conflict in the cases, 112-114. 
 OPEN AND NOTORIOUS, adverse possession must be, 735. 
 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. 
 ORDER OF PROOF, rule as to, 799. 
 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, 1, 63. 
 
 trespass to try title, 81, 91. 
 
 statutory new trials, 578. 
 
 action for mesne profits, 647. 
 ORIGINAL JURISDICTION of the Supreme Court, 894. 
 
 t of the Circuit Courts, 706. 
 ORNAMENTAL IMPROVEMENTS, cost of, disallowed, 701. 
 OUSTER. See Tenants in Common; Co-tenants. 
 
 what constitutes, is a question of fact, 281. 
 
 defined, 80, 93, 276. 
 
 early practice as to, 272. 
 
 must be shown between tenants in common, 277. 
 
 notice of, 280a. 
 
References] INDEX. {.are to sections. 845 
 
 OUSTER^-continued. 
 
 cases explained, 280a. 
 
 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. 
 
 nor cutting grass, 284. 
 
 nor removing fixtures, 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. 
 
 whether presumption of law or of fact, 289, 289, n. 
 
 views of court in Dubois v. Campau, 289, n. , 
 
 OUTSTANDING TITLE, defendant may show, 57, 477, 492a, 831. 
 
 in Indians defeats recovery by the people, 194. 
 
 wrong-doer cannot set up title of cestui que trust against trustee, 222. 
 
 pleading, 492a. 
 
 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. 
 
 is a common defense, 831. 
 
 character of, to make a defense, 831. 
 
 must be present, subsisting and available, 831. 
 
 deed in escrow is not, 831 . 
 
 nor sheriff's certificate, 831. 
 
 nor outstanding equity, 831. 
 
 not applicable to possessory tfaims, 831. 
 
 in Federal court, 903. 
 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 off, 156. 
 OWNERSHIP OF LAND, independent from right of easement, 132, 147. 
 OYSTERS, considered fish, 142, n. 
 
 parties, planting protected, 142, n. 
 
846 References] INDEX. \. are to sections, 
 
 PACIFIC OCEAN, belongs to no nation, 121. 
 PANNAGE, right to, not the basis of ejectment, 148. 
 PAPER TITLE and possession, 72Zd. 
 
 simple deed not evidence of title, 7%3d. 
 as color of title, 762, 772. 
 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. 
 to vary a writing, 824. 
 when monument destroyed, 863. 
 may be given to prove deed a mortgage, 337. 
 gift, improvements under, 705. 
 gift, plea of, must allege improvements, 486. 
 gift, rule as to, 798. 
 gift, as color of title, 762, 773. 
 color of title cannot rest in, 762. 
 notice of pendency of suit, 537, n. 
 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. 
 PARTICULAR FACTS, reputation as to, 807. 
 the cases explained, 807, 812. 
 family facts, analogy to, 812. 
 PARTICULAR words and phrases, in grants, 859. 
 description controls general, 458, 864, n. 
 PARTICULARS, bill of, 464a. See Bill of Particulars of Breaches, 464J. 
 PARTIES. See Plaintiffs; Defendants. 
 (1.) Who may prosecute ejectment, 185-230. 
 
 tenants in common inter sese, 276, 294. 
 tenants in common against third parties, 297-299. 
 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. 
 (3.) Mortgagee and mortgagor, 327, 345. 
 
 mortgagee's rights at common law, 330. 
 ejectment by, prohibited, 331, 332. 
 in what States allowed. 333. 
 
References] INDEX. [ are to sections. 847 
 
 PARTIES— continued. 
 
 mortgagor against mortgagee in possession, 340-342, 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, 238-241. 
 
 misjoinder, 188, 238, 494a. 
 (6.) Mesne profits, parties plaintiff, 656. 
 
 plaintiff must acquire actual possession, 657. 
 
 parties defendant, 658, 659. 
 
 co-tenants, 660. 
 
 executors, 661. 
 PARTITION, action of, 166, 167. 
 
 consolidation, 638, n. 
 
 based on common and not disputed ownership, 166. 
 
 contingent interests in, 532a, n. 
 
 not a substitute for ejectment, 166. 
 
 title to land cannot be established in, 166. 
 
 statutory exceptions, 166, 532a. 
 
 reason one of policy, not want of power, 166. 
 
 adverse title must be disclosed to defeat, 167. 
 
 answers held bad, 167. 
 
 objection waived unless promptly urged, 166. 
 
 defective plea, 482. 
 
 possessory title will not support, 296, 717, n. 
 
 judgment in, 532a. 
 
 receiver in, 621a. 
 
 receiver cannot maintain, 227. 
 
 improvements awarded in, 711. 
 PARTITIONS, taking down is apparent waste, 363. 
 PARTNERS, right of, to bring ejectment, 221, 303a. 
 
 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. 
 
 subject to partnership debts, 221, 303a. 
 PARTNERSHIP, real estate, 221, 303a. See Partners. 
 
 dower in, 129. 
 PART PERFORMANCE, statute of frauds, 321a, 797. 
 
 as avoiding the statute, 321a, 797. 
 
 theory of the law, 797, 798. 
 
 rule governing, 32la. 
 PARTY 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. 
 
848 References} INDEX. \. are to sections. 
 
 PARTY WALLS— continued. 
 
 practical objections to ejectment in such cases, 158. 
 
 removal of, by sheriff, 158. 
 PASSAGE ROOM, ejectment for, 106. 
 PASSAGE WAT, land recoverable subject to, 132. 
 PASTURAGE AND HERBAGE, ejectment for, 143. 
 
 the cases considered, 143. 
 PATENT, conclusive in ejectment, 184a, 887. 
 
 highest evidence of title, 785. 
 
 theory of the law, 887. 
 
 Wirth v. Branson, 888. 
 
 possessory title not available against, 891. 
 
 mandamus to compel issue of, 919. 
 PAYMENT OF TAXES and incumbrances, 688, 704. 
 PEACEABLE POSSESSION. See Wbit of Possession. 
 
 may be taken without writ of possession, 549, 657. 
 PECUNIARY LIMIT in Federal courts, 901. 
 
 appeals from Circuit Court, 904. 
 
 method of determining, 904. 
 
 jurisdictional amount, 907. 
 PEDIGREE and family facts, 812, 815. 
 
 general reputation as to, 815. 
 
 testimony as to, 812, 815. 
 PEDIS POSSESSIO, 732, 736. See Adverse Possession. 
 PENDENCY OF ACTION, 645. See Lis Pendens. 
 
 parol notice of, 537, n. 
 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 allowed, 
 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. 
 
 judgment by default, 530." 
 
References] INDEX. {are to sections. 849* 
 
 PENNSYLVANIA— continued. 
 
 when injunction will be granted, 028. 
 
 rule as to abatement, 689. 
 PEOPLE, ejectment by, 192, 800. 
 
 burden of proof, 800. 
 
 occupy advantageous position as plaintiffs, 192. 
 
 when they cannot recover, 193. 
 
 tenants cannot join with, 189. 
 PERISHABLE IMPROVEMENTS, cost of, not allowed, 702. 
 PERMANENT ERECTIONS, pass with land, 106, 563, 690. 
 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. 
 
 distinguished from real writs, 64a. 
 PERSONAL PROPERTY must be removed under writ of possession, 556, 557. 
 
 failure to remove does not invalidate execution of writ, 556. 
 
 partnership real estate treated as, 221. 
 
 probate conclusive as to, 205, n. 
 
 tenancy in common of, 276, n. 
 PERSONAL REPRESENTATIVES. See Executor; Administrator. 
 
 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 OP RIGHT, nature of, 244. 
 
 lies against the crown, 244. 
 PIER, is real estate, 101, n. 
 PLACE OP TRIAL. See Venue. 
 
 actions to recover realty are local, 465-475. 
 
 residence of the parties immaterial, 466. 
 PLAINTIFFS, 185-230. See Parties. 
 
 who may maintain ejectment, 185. 
 
 difficulties of classification, 186. 
 
 statutory remedies cumulative, 186. 
 (1.) 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 re- 
 cover land, 189. 
 54 
 
850 References] INDEX. \. are to sections. 
 
 PLAINTIFFS— continued. 
 
 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 firmm in early times, 191. 
 right of a State to recover in ejectment, 193. 
 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, 197. 
 must disaffirm conveyance, 198, 451. 
 i-(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. 
 (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, 212-215. 
 
 may maintain ejectment after a breach of a condition subsequent, 
 212. 
 
 all the original grantors or their heirs must joid, 212. 
 
 interest of, not a title, 212. 
 
 cannot eject life tenant for waste, 214. 
 
 nor for claiming the fee against the reversioner, 214. 
 
References] INDEX. [«« to sections. 851 
 
 PLAINTIFFS— continued. 
 
 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, 22Q. 
 
 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 cestuis que trustent, 222. 
 
 real actions in nature of ejectment must be brought in the name of, 
 222. 
 (15.) Oestuis que trustent may 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, 225-230. 
 (18.) Co-tenants, 276, 296. 
 
 See Co-tenants; Tenants in Common; Ouster. 
 
 actual ouster must be shown, 277. 
 
 tenants in common against third parties — joinder, 297-299. 
 
 joint tenants, proof of ouster required, 295. 
 
 joint tenants against third parties, 302. 
 
 coparceners inter sese, 295. 
 
 against third parties, 303. 
 (19.) Vendor and vejidee, 304, 326. See Vendor and Vendee. 
 (20.) Mortgagee and Mortgagor, 327, 345. 
 (21.) Landlord and tenant, 346, 371. 
 PLAINTIFF'S TITLE, proof in trespass to try title, 82. 
 PLAINTIFF'S TITLE AND EVIDENCE, 782-828. 
 
 limits of the treatise, 782. 
 
 sources of title, 783. 
 
 divesting the government of title, 784. 
 
 patents — highest evidence of title, 785. 
 
 presumption of grant, 786. 
 
 no fixed rule as to length of time, 787. 
 
 difference between presumption and prescription, 788. 
 
 missing links, 789. 
 
 legal and equitable titles, 790. 
 
 strength of plaintiff 's title, 791. 
 
852 References] INDEX. [are to sections. 
 
 PLAINTIFF'S TITLE AND EVIDENCE— continued. 
 
 facts entitling plaintiff to recover, 792. 
 
 title by execution, 793. 
 
 title by judicial record, 794. 
 
 title by relation, 795. 
 
 ejectment founded on a forfeiture, 796. 
 
 title by part performance — statute of frauds, 797. 
 
 title by parol gift, 798. 
 
 title by estoppel, 798a. 
 
 order of proof, 799. 
 
 burden of proof, 800. 
 
 right to begin and reply, 801. 
 
 production of title papers, 802. 
 
 commpn source of title, 803. 
 
 evidence of reputation, 804. 
 
 reputation as to private boundaries, 805. 
 
 conclusions from the cases, 808. 
 
 particular facts, 807. 
 
 declaration of deceased owner as to boundary, 808. 
 
 statements of deceased grantor, 809. 
 
 statements qualifying possession — res gestae, 810. 
 
 declarations as part of the res gestce, 811, 
 
 pedigree and family facts, 812. 
 
 ante litem motam, 813. 
 
 declarant's relationship must be established by other testimony, 814. 
 
 pedigree, 815. 
 
 age, 816. 
 
 presumption of death, 817. 
 
 ancient deeds and wills, 818. 
 
 ancient surveys and maps, 819. 
 
 lost deeds, 820. 
 
 office copies of deeds, 821. 
 
 delivery of deed, 822. 
 
 recitals in deed, 823. 
 
 parol evidence to vary written instrument, 824. 
 
 transactions with deceased persons, 825. 
 
 seals, 826. 
 
 abstracts, 827. 
 
 unofficial records, 828. 
 PLEA, 476, 495. <S«« 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. 
 
 limitations, agreement as to, 753e. 
 
 advantages of personal actions, 7, 9, 10. 
 
References] INDEX. [are to sections, 853 
 
 PLEADINGS— con tinued. 
 
 influence of practice in trover and assumpsit, 11. 
 
 early pleadings in ejectment, 37, 53, 56, 422-424. 
 (1.) Pleadings in real actions, 2, 3, 3, n., 5, 429, 430, 054. 
 
 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. 
 
 name of the parties, 426. 
 
 written pleadings required, 427. 
 
 how construed, 428, 428, n. 
 
 facts to be pleaded, 425, 425, n. 
 
 form and substance of, 428. 
 
 in Federal courts, 873, 881. 
 
 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. 
 
 pleading forfeiture, 447, 447, n. 
 
 rules as to variance, 436, 437. 
 
 prayer for relief, 454a. 
 
 amendments, 436, 4545. 
 (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. 
 
 estoppel, 855. 
 
 the rules discussed, 855. 
 
 specific chain of title, 443, 444. 
 
 muniment of title not to be pleaded, 444, 445. 
 
 effect of averment of possession, 435. 
 
 evidence not to be pleaded, 445, 4926. 
 
 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. 
 POMEROY (Professor), statement of, as to modern ejectment, 76, n. 
 
 rule of pleading stated by, 425, n. 
 
 views of, as to legal and equitable titles, 790. 
 
 as to fraud in estoppel, 845. 
 
854 References] INDEX. l are to actions. 
 
 POOL, ejectment for, 120. 
 
 POS8ESSIO CONTRA OMNES VALET PRJETER EUM CUI JUS SIT 
 
 POSSESSIONS, 717. 
 POSSESSION. See Adverse Possession ; Color of Title ; Writ op 
 Possession ; Landlord and Tenant. 
 
 right of, essential to support ejectment, 100, 185, 187, 712, 792. 
 
 interference with, no ground of ejectment, 93. 
 
 raises a presumption of right, 696, 717. 
 
 presumption may be rebutted, 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. 
 
 between vendor and vendee, 304-306. 
 
 vendee not entitled to, 304. 
 
 admitted by interposing general denial, 479. 
 
 when evidence of important, 717. 
 
 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. 
 
 estoppel between landlord and tenant aimed at, 353. 
 
 right of, tried in ejectment, 94. 
 
 not tried in forcible entry proceedings, 94. 
 
 of tenant subordinate to landlord, 353. 
 
 inauguration of adverse possession, 353. 
 
 two possessions, 717. 
 
 equal equities, possession prevails, 717. 
 
 to sustain trespass, 720, n. 
 
 casual occupancy is not, 722, n. 
 
 of State accompanies title, 792. 
 
 declarations affecting, 808, 810, 811. 
 (1.) Possession as evidence of title, 717. 
 
 i3 a low degree of title, 717. 
 
 prima facie evidence of seizin in fee, 717. 
 
 effect of pleading, 435. 
 
 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, 718-720. 
 
 the rule applicable to writs of entry, trespass, ejectment and tres- 
 pass to try title, 718. 
 
 good against all the world, 717. 
 
 (3.) Character of the possession, 718-720. 
 
 proofs sufficient and insufficient to constitute possession, 719, 720. 
 
References} INDEX. [.are to sections. #55 
 
 POSSESSION— continued. 
 
 possession which will warrant ejectment against defendant not the 
 test, 721. 
 
 possession considered insufficient to support ejectment, 722. 
 (4.) Distinction between prior possession and adverse possession, 719, 723. 
 the cases considered, 723. 
 distinction denied in Missouri, 723. 
 not recognized in California, 723. 
 (5.) Possession as notice of possessor's rights, 723a. 
 character of such possession, 723a. 
 must be open and visible, 723a. 
 (6.) Constructive possession, 723a, 723a, n. 
 
 not notice of possessor's rights, 723a. 
 denned, 723a, n. 
 must be distinct, 723a, n. 
 (7.) Statutory suit to quiet title, 723e, 
 
 nature of possession to sustain, 723c. 
 must be actual, 723c. 
 (8.) Possession and paper title, 723d. 
 rule of the cases, 723d. 
 POSSESSORY ACTION, ejectment is, 98, n., 100. 
 • title will not support partition, 290. 
 
 title, not available against patent title, 891. 
 POST LITEM MOTAM, declarations inadmissible, 813. 
 
 as to deeds, 823. 
 PRACTICE. See Attorney's Authority ; Parties ; Complaint ; Answer; 
 Verdict ; Judgment ; Writ oe Possession ; Ejectment ; Real 
 Actions; Federal Courts. 
 early practice in ejectment, 27, 28, 31, 35, 37, 38. 
 in real actions, 2, 3, 5, 6, 9, 73, 75, 77, 79. 
 in Federal courts, 870-919. 
 as to granting statutory new trials, 576, 609. 
 introduced by Rolle, 35. 
 PRATER FOR RELIEF, 454a. 
 
 when not conclusive, 169, n. 
 PRECISION in pleading in real actions, 3. 
 
 pleading forfeiture, 447. 
 PRE-EMPTOR of swamp lands, ejectment by, 230. 
 PREMISES, how described in the complaint, 455, 464. 
 PRESCRIPTION AND LIMIT A.TIONS historically considered, 724. 
 mixed question of law and fact, 729, n. 
 theory of prescription, 726. 
 distinction between, 726. 
 right to fishery acquired by, 142, n. 
 against the State, 753a. 
 municipal corporations, 753a. 
 disabilities, 753a-753/. 
 
856 References] INDEX. \. are to sections. 
 
 PRESUMPTION of title in the State, 192. 
 
 of title in occupant, 192, 717. 
 
 may be rebutted, 717, 
 
 when not indulged, 787, 788. 
 
 that possessor holds by right, 91, 282, 373, 694, 749. 
 
 of a grant, 786. 
 
 of missing lints, 789. 
 
 of grant not indulged in favor of squatter, 241. 
 
 of grant not conclusive, 787. 
 
 of ouster irom lapse of time, 289, 750. 
 
 that tenant holds under landlord, 351, 352, 751, a. 
 
 how overcome, 751, n. 
 
 of law as to ouster not indulged, 289. 
 
 and prescription distinguished, 788. 
 
 that attorney had authority to bring ejectment, 415. 
 
 of grant of incorporeal right, 724, 726. 
 
 of death, 817. 
 PRIMA FACIE evidence of title, possession is, 717. 
 
 not a rule of pleading, 435. 
 PRIOR POSSESSION, 717, 723. See Possession. 
 
 rules as to, 717, n. 
 
 distinguished from adverse possession, 723. 
 PRIVATE BOUNDARIES, reputation as to, 805, 806. 
 
 cases discussed, 805. 
 
 conclusions from, 806. 
 PRIVATE WAY, land recoverable subject to, 132. 
 PRIVILEGE of landing place not the basis of ejectment, 148. 
 
 appurtenant to land, recovered therewith, 102, 102, n., 527, 676. 
 PRIVITY OF ESTATE required to render notice to quit necessary, 374, 375. 
 PROBATE OF WILL, reviewed by jury, 205, n. 
 
 conclusive as to personalty, 205, n. 
 
 equity will not set aside, 205, n. 
 
 in foreign state, 467a. , 
 
 after concealment, 838. 
 PROCEDURE in Federal courts, 870-919. 
 PRODUCTION of title papers, 464J, 802. 
 
 when enforced, 802. 
 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. 
 PROMISE or assurance basis of estoppel, 844. 
 PROOF, order of, 799. 
 
 discretionary, 799. 
 
 burden of, 282, 447, n., 800. 
 PROSPECT, right to, not sufficient to sustain ejectment, 150. 
 
References] INDEX. [are to sections, 857 
 
 PROVISIONAL REMEDIES, 610-632. 
 
 provisional relief at common law, 611. 
 
 only obtainable by bill in chancery, 611. 
 
 reforms effected in modem procedure, 611. 
 
 forms of provisional relief, 612. 
 
 governed by lex fori, 610, n. 
 
 effect of lis pendens, 6216, 645. 
 (1.) 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. 
 
 receiver not appointed before judgment, 615. 
 
 theory of the decisions, 614. 
 
 practice in Georgia, 617, 619. 
 
 practice in Illinois, 618. 
 
 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, 622-624, 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 trespass 
 for forcible entry, 630. 
 
 relief of this character not generally given in ejectment, 630. 
 
 execution against the person allowed in Wisconsin, 630. 
 (4.) Reasonsfor granting and withholding provisional relief considered, 631, 632. 
 
 objections to premature inspection of the title, 631. 
 
 hardships incident to withholding provisional relief, 632. 
 (5.) Receivers for co-tenants, 621a. 
 
 when appointed, 621a. 
 
 English rule, 621a. 
 
 in partition, 621a. 
 
858 References] INDEX. [ are to sections. 
 
 PUBLIC places, ejectment for, 267 275. 
 
 squares, ejectment for, 271. 
 
 easement, ejectment based upon, 139, 267, 268, 270, 271. ^Ease- 
 ment ; Municipal Corporations. 
 
 distinguished from private easement, 140, 161. 
 
 no adverse possession, 753a. 
 
 generally acquire an easement, 267. 
 
 improvement, claim for improvements, 705. 
 
 and private boundaries, 804-806. 
 PUBLIC DOCUMENTS, authenticated copies admissible, 820. 
 PUIS DARREIN CONTINUANCE, 495. See Answer. 
 
 plea of, when allowed, 495. 
 PURCHASE-MONET, suit for, on rescission, 311. 
 
 when tender of, unnecessary, 314. 
 
 lien for, when unrefunded, 323. 
 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. 
 
 of outstanding title, 291, 292. 
 
 taking title by adverse possession, 727. 
 
 QUANTITY, least important element in description, 864, n. 
 
 yields to monuments, course and distance, 864, n. 
 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 IMPED IT is a local action, 465. 
 QUARRY defined, 111. 
 
 ejectment for, 111, 150. 
 
 adverse possession of, 733, n. 
 
 distinction between, and mine, 111. 
 
 right to work, belongs to owner of fee, 1 34. 
 QUESTION OF FACT. See Jury. 
 
 must be determined by jury, 170, 496. 
 
 ouster is, 281. 
 
 disclaimer is, 388. 
 QUESTION OF STATE title to land, 896. 
 QUIET TITLE, action to, 154. 
 
 nature of, explained, 46, n. 
 
References} INDEX. [are to sections. 859 
 
 QUIET TITLE— continued. 
 
 ejectment not a substitute for, 154. 
 
 statutory new trial in Indiana, 586. 
 
 judgment in, 532c. 
 
 possession to sustain, 723c. 
 
 specific performance converted into, 180. 
 
 object of statute of limitations, 760, n. 
 QUITCLAIM OEED, grantee of, may bring ejectment, 230. 
 
 basis of improvement claim, 697. 
 QUO WARRANTO and not ejectment to establish title to office, 184a. 
 
 RAILS, are real estate, 101, n. 
 
 BAIL WAT, injunction to stop running of train, when not allowed, 174. 
 ejectment against, 135-137, 250. 
 ejectment by, 271. 
 
 wrongful use of lands by, not protected, 136. 
 nature of, defined, 690, n. 
 rule as to ameliorations, 690, n. 
 license to use land by, 834. 
 REAL ACTIONS, 2, 3, 5, 8, 64-66, 79. See Ejectment. 
 ancient real writs, 2, 64. 
 foundation of, 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. 
 (1.) 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. 
 
 each writ final for its own purpose, 67. 
 (3.) Writs 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. 
 
§60 References] INDEX. \. are to sections, 
 
 REAL ACTIONS— continued. 
 (4.) Writs of entry, 70. 
 
 moat 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 offormedon, 71. 
 
 wholly unsuited to titles in this country, 71. 
 occasionally used, 71. 
 (6.) Beat 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, 75-77. 
 modern statutory changes, 79. 
 pleading in real actions, 429, 430, 654. 
 judgment, 509. 
 damages, 646. 
 REAL AND PERSONAL ACTIONS DISTINGUISHED, 64a. 
 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. 
 in action of dower, 614, n. 
 against alien defendant, 614, n. 
 theory of the decisions, 614. 
 practice in Georgia, 617, 619. 
 contempt of court to interfere with, 252a. 
 sale of property in hands of, 252a. 
 of oil well, 618a. 
 views of Sharswood, C. J., 618a. 
 for co-tenants, 621a. 
 the cases criticised, 618, 632. 
 receiver after judgment, 619. 
 
References] INDEX, [are to sections. 8G1 
 
 RECEIVERS— continued. 
 
 defendant's right to move for a receiver, 620. 
 
 as plaintiffs, 227. 
 
 in chancery may bring ejectment, 227. 
 
 must obtain leave of court to sue, 227. 
 
 may give notice to quit, 406. 
 
 cannot bring partition, 227. 
 
 comments upon appointment of, 632. 
 RECITALS in deeds, 823. 
 
 same rule as to declarations, 823. 
 
 general rule affecting, 823. 
 RECOGNITION of true title, effect on adverse possession, 753e. 
 RECORD, of judicial proceeding as evidence, 794. 
 
 raises presumption of delivery of deed, 820. 
 
 lost, power to restore, 820, n. 
 
 unofficial, as evidence, 828. 
 RECOVERY IN EJECTMENT, what warrants, 792. 
 REDEEM, action to, when proper, 184a. 
 
 ejectment converted into, 180. 
 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 stops statute of limitations, 741. 
 
 to avoid particular title, 766. 
 
 statutory regulations as to, 742. 
 REFERENCE in verdict, 499. See Verdict. 
 
 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. 
 RELATION, title by, 795, 889. 
 
 defined, 795. 
 RELIEF, between defendants, 266a. 
 
 when allowed, 266«. 
 
 equitable, in ejectment, 485. 
 
 prayer for, 454cs. 
 RELIGIOUS CORPORATION, ejectment by, 144, 230. 
 
 ejectment against, 243. 
 REMAINDERMAN, cannot have partition, 532a, n. 
 
 improvements against, 699. 
 
 statute of limitations, 751, n. 
 REMEDIES, reasons for mistakes in selecting, 184. 
 
 selection of, 162, 184. 
 
8(52 References] INDEX. \_are to sections. 
 
 REMEDIES —continued. 
 
 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. 
 
 to establish boundaries, 865. 
 
 statutory, as to boundaries, 865, 866. 
 
 equitable, as affecting boundaries, 865. 
 REMOVAL STATUTES, State to Federal courts, 912. 
 
 apply to ejectment cases, 912. 
 RENT, basis of mesne profits, 665, 666. 
 
 as between co-tenants, 621a, 660. 
 RENTAL VALUE, mesne profits measured by, 62, 665, 666. 
 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, 371. 
 
 judgment against government agent negatives implied promise to 
 pay, 540. 
 
 demand of, 371. 
 REPAIRS, not improvements in Massachusetts, 699. 
 
 liability between co-tenants, 711. 
 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. 
 
 right to, 801. 
 
 incident to right to begin, 801. 
 REPOSE OP TITLE, limitations intended to accomplish, 727, 727, n. 
 REPUTATION, evidence of, 804-806. 
 
 as to public matters, 804. 
 
 excluded as to private matters, 804. 
 
 as to private boundaries, 805. 
 
 conclusions from the cases, 806. 
 REQUIREMENT of good faith, 778a. 
 
 as to adverse possession, 775-778a. 
 
 as to infringements, 694. 
 RES ADJUDICATA, 506-545, 633-639. See Judgment. 
 
 judgment in trespass binding in ejectment, 582. 
 RESCISSION OF CONTRACT must be in to to, 311. 
 
 cannot be repudiated and enforced, 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. 
 
References} INDEX. [are to sections. 863 
 
 RES GESTAE, declarations as part of, 811, 812. 
 
 statements of deceased grantor, 809. 
 
 statements qualifying possession, 810. 
 
 recitals in deeds, 823. 
 RESIDENCE OF THE PARTIES, not material in ejectment, 466. 
 
 change of, in Federal courts, 910. 
 RESTITUTION, writ or order of, 60, 568, 575. See Writ of Possession. 
 
 when allowed, 60, 575. 
 
 order for, in New York, 568, 575. 
 
 of mesne profits, 689a. 
 
 injunction in order for, not proper, 568. 
 
 applicant must make clear case, 575. 
 
 by infant, 198. 
 
 RESTRICTIONS AND EASEMENTS, not recoverable in writ of entry, 
 
 102, n. 
 RETURN DAT 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, 212-215. 
 
 cannot have partition, 532a, n. 
 
 all original grantors or heirs must join, 189, 212. 
 
 interest of, is not a title, 212. 
 
 remedy for waste, 363, n. 
 
 cannot eject life tenant for waste, or claiming the fee, 214. 
 
 ' statute does not run against, 751, n. 
 REVIEWING STATE JUDGMENT, Federal question, 902. 
 RHODE ISLAND, mortgagor regarded as tenant at sufferance, 335. 
 
 ejectment by execution purchaser, 335. 
 RIGHT OF WAT not the basis of ejectment, 148. 
 
 to a road not recoverable, 148. 
 
 effect of transfer of, 132, n. 
 RIGHT TO BEGIN and reply, 801. 
 RIGHT, WRIT OF, 67, 69, 509. See Real Actions; Writ of Right. 
 
 most important of the real writs, 69. 
 
 evidence in, 69. 
 
 judgment final, 69, 509. 
 RIGHTS APPURTENANT TO LAND recoverable in ejectment, 102, 102, n., 
 
 527, 676. 
 RINGBARKING is an improvement, 699. 
 RIPARIAN PROPRIETORS, ejectment by, 119. 
 RIVER, island in thread of, 124, n. 
 land bounded by, 857. 
 
 when bed of stream is conveyed, 857. 
 RIVULET OR POOL, ejectment for, 120, 149. 
 ROAD, land not touching upon, recovered in ejectment, 127, 572. 
 
 land bounded by, 857, 858. 
 
864 References] INDEX. \. are to sections. 
 
 ROAD — continued. 
 
 land subject to right to maintain, recovered in ejectment, 131, 132. 
 
 abandoned road-bed, recovered by owner, 138. 
 ROLLE, CHIEF 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. 
 ROSS, History by, land owning among the Germans, 724, n. 
 ROVING POSSESSION", is not adverse possession, 739. 
 RULE OP PROPERTY in Federal courts, 870. 
 RULES OF PLEADING AND PRACTICE in Federal courts, 873. 
 RUNNING WATER, restraining interference with, 149. 
 
 restored by mandatory injunction, 149. 
 
 SALT BOILERT, ejectment for, 126. 
 
 grant of, passes the soil, 126. 
 SAW MILL AND SITE, 675. 
 
 income of, included in mesne profits, 675. 
 SCHOOL HOUSE, condition against, valid, 213. 
 SCROLLS used as seals by statute, 826. 
 SEA, land swallowed by, title to, 123. 
 
 bed of, 121, 122. 
 
 shifting interest in, 122. 
 
 shore, grants on, 860. 
 SEALS, effect of, 826. 
 
 presumption as to, 826. 
 
 scrolls used as, 826. 
 SECONDARY EVIDENCE, as to deeds, 820, 821. 
 
 unofficial records, 828. 
 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. 
 
 non-resident lessor, 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. 
 SEQUESTRATION OF RENTS, title of receiver, 227. 
 
References] INDEX. [are to sections. 865 
 
 SERVANTS OE EMPLOYEES not liable to ejectment, 242. 
 
 act in another's right. 242. 
 
 rule in New York, 242, n. 
 
 of corporations, entry by, 94. 
 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. 
 SEVERAL DEFENSES may be set up, 830. 
 SHERIFF. See "Writ op Possession. 
 
 duties of, in executing writ of possession, 158, 555, 557. 561, 565- 
 567. 
 
 has no judicial powers, 566. 
 
 responsibility of, 158, 565. 
 
 may exact bond of indemnity, 565, 566. 
 
 burden upon, to excuse non-execution of writ, 561, 567. 
 
 must act on his own responsibility, 158. 
 SHORE of river, as boundary, 858. 
 
 of sea, grants on, 860. 
 SHORE LINE divisions must be settled in equity in New Jersey, 151. 
 SOLVENT defendant, receiver denied, 615. 
 SOURCES OF TITLE, 783. 
 
 right of discovery, 783. 
 
 Indian rights, 783. 
 
 title in the King, 783. 
 
 titles in United States, 783. 
 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 general 
 issue, 492. 
 SPECIFIC PERFORMANCE, when not maintainable, 165, 306. 
 
 statutory new trial not granted in, 595. 
 
 vendee may require, as to part, 321. 
 
 changed to action to quiet title, 180. 
 
 defense of unmarketable title, 841. 
 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. 
 55 
 
866 References] INDEX. [are to sections. 
 
 ST LI'S— continued. 
 
 title to lands in another State, 192, n. 
 
 trespass to try title by, 191. 
 
 presumptively the owner of land within its borders, 192. 
 
 statute recognizing equitable title, 879. 
 
 no adverse possession against, 753a. 
 
 owns beds of tide waters, 121. 
 
 may regulate fishery, 142, n. 
 
 convey escheated lands, 192, n. 
 
 law of, governs real estate, 467a. 
 
 law binding in Federal courts, 870. 
 STATEMENTS of deceased grantor, 809. 
 
 qualifying possession, res gestm, 810. 
 STATIONARY, adverse possession must be, 739. 
 STATUE, when real estate, 101, n. 
 STATUTE OP FRAUDS, lease void as to. 379. 
 
 conveyance void as to, 321a, 344. 
 
 contract void as to, will not sustain claim for improvements, 708. 
 
 part performance, 321a, 797. 
 
 possession and improvements, 321a. 
 
 sale of mining claim, 321a. 
 
 and estoppel, 846. 
 STATUTE OF LIMITATIONS. See Adverse Possession; Constructive 
 Possession ; Color or Title ; Answer ; Disabilities. 
 
 rule as to pleading in ejectment, 482. 
 
 the subject discussed, 482. 
 
 in mesne profits, 686. 
 
 in equity, 917. 
 
 adverse possession under, 724, 753. 
 
 historically considered, 724. 
 
 as to co-tenants, 276, 753/. 
 
 applicable to real actions, 725. 
 
 theory of prescription and limitations, 726. 
 
 purpose and policy .of, 727. 
 
 disabilities, 753o-753/. 
 STATUTORY NEW TRIALS, 576-609. See New Trials. 
 STATUTORY REMEDIES, cumulative, 186. 
 
 as to boundaries, 866. . 
 
 nature of, 866. 
 STAY OF NEW TRIAL until payment of costs, 51, 197, n., 598, n. 
 STEALING TITLE, adverse possession is, 727, n. 
 STEALTH, adverse possession not acquired by, 730, n. 
 STIPULATION waiving statutory new trial valid, 604. 
 STORY, views of, as to statute of limitations, 727, n. 
 STRANGERS not entitled to statutory new trial, 601. 
 STREET NUMBERS, description by, 460. 
 
References] INDEX. [are to sections. 867 
 
 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. 
 
 adverse possession, 753<z. 
 
 land bounded by, 857, 858. 
 STRENGTH OF PLAINTIFF'S TITLE, 791. 
 
 meaning of the rule, 791. 
 
 not applicable to possessory actions, 791, 
 SUBORDINATE TO LANDLORD, possession of tenant, 352, 353. 
 SUBROGATION, illustrations, 291, 688, 704. 
 SUBSEQUENT DISABILITIES, tacking, 753i. 
 SUCCEEDING TRUSTEES, substituted in ejectment, 222. 
 SUITS to quiet title explained, 46, n. 
 
 statutory new trials in, 586. 
 
 specific performance converted into, 180. 
 
 judgment in, 532c. 
 
 possession to sustain, 723c. 
 SUMMARY PROCEEDINGS, ejectment prior to introduction of, 346, 348. 
 
 title not involved in, 349. 
 
 statutes not considered, 349. 
 
 not given to purchaser at tax sale, 164. 
 
 by administrator, 164. 
 
 not proper when title is in issue, 164. 
 SUPPLEMENTAL ANSWER, 495. See Answer. 
 SUPPLEMENTAL COMPLAINT, 454c. 
 
 object of, 454e. 
 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. 
 
 original jurisdiction of, 894. 
 SURVEY, ordered, in trespass to try title, 91. 
 
 ancient, as evidence, 819. 
 
 under order of the court, 819. 
 
 TACKING DISABILITIES, 753d. 
 
 TACKING POSSESSIONS, 746-748. See Adverse Possession. 
 
 term " tacking of possessions " criticised, 746. 
 
 possession must be continued in the same right, 746. 
 
 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. 
 
 disabilities, 753i. 
 
868 References] INDEX. [<"* t° sections. 
 
 t 
 TANGIBLE, subject-matter of ejectment must be, 97. 
 
 TASTE, expenditures as matter of, 701. 
 
 TAX DEED, grantee of, may be made defendant, 235, 257. 
 
 TAXES AND ASSESSMENTS, payment of, by disseizor, 688. 
 
 rule as to allowance, 688. 
 
 should be paid by life tenant out of income, 214, n. 
 
 as to co-tenants, 291. 
 TAX TITLE, rule as to pleading, 491. 
 
 not enforced in summary proceeding, 164. 
 
 will not support claim for improvements, 708. 
 
 owner of fee may defeat, 838. 
 
 mortgagee in possession cannot acquire, 343, n. 
 
 owner of fee may defeat, when irregular, 836. 
 TELEGRAPH POLES, ejectment for maintaining, 133. 
 TEMPORARY TRESPASS, not sufficient to maintain forcible entry, 94. 
 TENANCY by the entirety in New York, 295, n. 
 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, 384, 385. 
 
 not entitled to notice at common law, 385. 
 
 at will cannot bring ejectment, 217. 
 
 has no estate which he can convey, 217. 
 
 adverse possession by, 730, n., 751. 
 
 writ of entry against, 258. 
 
 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. 
 
 all tenants should be defendants, 238. 
 TENANT AT SUFFERANCE, notice to quit, 385. 
 TENANT AT WILL, notice to quit, 384. 
 
 as defendant, 258. 
 
 waste by, 364. 
 
 constructively tenant from year to year, 384. 
 TENANTS IN COMMON. See Co-tenants; Ousteb. 
 
 of personal property, 276, n. 
 (1.) Ejectment betioeen 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. 
 
References] INDEX. [are to sections. 869 
 
 TENANTS IN COMMON— continued. 
 
 ouster the principal question, 276. 
 
 how distinguished from ouster in other eases, 278-280, 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. 
 
 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 Ousteb. 
 (2.) Against third parties, 297-299, 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, 291-294. 
 
 sustain a relation of trust, 276. 
 
 cannot dispute common title, 291. 
 
 lien for incumbrances paid by one, 291. 
 
 outstanding title, purchase of, 292-294. 
 
 esteemed to be for the common benefit, 291-293. 
 
 limitations upon the rule, 292, 293. 
 
 limited in some cases to titles acquired under same instrument, 393. 
 
 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. t 
 
 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. 
 
 made without assent, 711. 
 
 imperfect statutory regulations, 711, 711, n. 
 TENDER of deed by vendor, 313. 
 
 objections to form of deed, mu3t be stated, 313. 
 
 when not necessary, 314. 
 
870 References] INDEX. \. are to sections. 
 
 TENDER— continued,. 
 
 of payment by vendee, when not necessary, 314, n. 
 unnecessary when vendor has broken agreement, 314, n. 
 TENEMENT, signifies land as well as house, 104, 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. 
 peculiar equity jurisdiction, 169. 
 TERRITORIAL MINING CLAIM, 905. 
 TEST of waste, 363. 
 
 TESTAMENTARY CAPACITY, question of, raised in ejectment, 205, n. 
 TEXAS, trespass to try title in, 91. 
 
 exclusive remedy to test title in that State, 91. 
 various proceedings in, 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 quality general 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. 
 co-tenant may recover entire estate, 301. 
 damages, 91. 
 TIDE LANDS may be recovered in ejectment, 122. 
 
 are lands covered and uncovered by the tide, 122. 
 State owns bed of tide waters, 121. 
 TIN BOUNDS, ejectment for, 110. 
 description of, 110. 
 not a mere easement, 110. 
 not recoverable eo nomine, 110, 150. 
 TITHES, ejectment for, 145. 
 
 TITLE, plaintifl must have present subsisting title, 95, 185. 
 strength of, 791. 
 
 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 eiectment, 99. 
 owner of easement not vested with title to soil, 146. 
 legal title usually prevails, 58. 
 
 See Plaintiff's Title; Evidence. 
 
References] INDEX. \are to sections. 871 
 
 TITLE— continued. 
 
 rule the same in the various actions, 92. 
 
 claim of, to warrant ejectment, 161. 
 
 generally, 185-230. 
 
 cloud on, 154, 154, n. 
 
 lease, entry and ouster, 34. 
 
 investigated on second trial, 597. 
 
 defective, doubtful, or unmarketable, 841. 
 
 setting up several titles, 830. 
 
 in Federal courts, 870-919. 
 
 equitable title will not support ejectment bill, 168-171, 886. 
 
 conflicting titles not tried in assumpsit, 176. 
 
 trial of title in condemnation proceedings, 1 77. 
 
 title of receivers, 227. 
 
 effect of payment of damages, 177. 
 
 title admitted by answer, 490. 
 
 which will support improvement claim, 708. 
 
 after-acquired title, judgment not conclusive upon, 541. 
 
 after-acquired, does not support ejectment, 185. 
 
 must be somewhere, 728, n. 
 
 by execution, 793. 
 
 by judicial record, 794. 
 
 by relation, 795, 889. 
 
 by act of Congress, 914. 
 
 by part performance, 321a, 797. 
 
 by parol gift, 798. 
 
 by estoppel, 798a, 842-855. 
 
 by patent, 887, 888. 
 
 under United States, 890. 
 
 under treaty, 903. 
 
 by confiscation, 913. 
 
 See Outstanding Title. 
 (1.) Of municipal corporations. 
 
 vested with fee, 267. 
 
 public easement, 26?, 268. 
 
 rights incident to, enlarged in modern cases, 270. 
 
 have title to support ejectment for streets and public places, 271, 275. 
 
 adverse possession, 753a. 
 (2.) Tenants in common. 
 
 under the same instrument, 293, 294. 
 
 common title cannot be disputed, 291. 
 Bee 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. 
 
872 References] INDEX. L a?r to sections. 
 
 TITLE— continued. 
 
 (4.) Mortgagee and mortgagor. 
 
 mortgagee's interest at common law, 330. 
 modern practice, 331. 
 
 mortgage regarded as a lien, 331, 332. 
 
 title after default, 336. 
 
 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, 719-732. 
 
 distinguished from adverse possession, 723. 
 7.) Adverse possession. 
 
 general principles of possession, seizin and ouster, 728. 
 
 is a perfect title, 727, 727, n. 
 
 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, 737-739. 
 
 hostile, 749. 
 
 exclusive, 752. 
 
 must be accompanied with an adverse intent, 754. 
 
 intent the essence of adverse possession, 755. See Adverse Pos- 
 session. 
 (8.) Color of title. 
 
 denned, 761. 
 
 instances of what held to be color of title, 780. 
 
 what held insufficient to constitute, 781. See Color of Title. 
 (9.) Of Indians, mere right of occupancy, 194, 783. 
 
 how vested in government, 194. 
 
 how acquired by settlers, 783. 
 (10.) Plaintiff's title and evidence, 782-828. 
 
 sources of title, 783. 
 
 patents, 785, 887. 
 
 presumption of grant, 786, 787. 
 
 legal and equitable, 790. 
 
 strength of plaintiffs title, 791. 
 
 by execution, 793. 
 
 judicial record, 794. 
 
References] INDEX. \fl re t° sections. 873 
 
 TITLE — continued. 
 
 relation, 795. 
 
 part performance, 797. 
 
 parol gift, 798. 
 
 estoppel, 798a. 
 TITLE PAPERS, production of, 4645, 802. 
 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. 
 TRANSACTIONS with deceased persons, 825. 
 TRANSITORY ACTIONS. See Venue. 
 
 local actions, 465, 475. 
 TREATY, lands reserved to Indians by, recoverable in ejectment, 228. 
 
 title under, 903. 
 TRESPASS on land insufficient to support ejectment, 80, 93, 178. 
 
 distinction between, and ejectment, 93, 178. 
 
 ejectment originally an action of, 1. 
 
 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. 
 
 possession to sustain, 720, n. 
 
 common source of title, 803. 
 
 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, 173, 174, n. 
 
 jurisdiction explained, 174, n. 
 
 enjoined when it is a nuisance, 174, 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 m et armis for assault and battery, 649, n. 
 
 for injuries after verdict and before writ, 669. 
 
 action of, as assertion of ownership, 758. 
 
 to justify forcible entry, 94. 
 TRESPASS TO TRY TITLE, origin of, 83. 
 
 originally an action of trespass, 81, 83. 
 
 resemblance to ejectment, 82, 91. 
 
 no fictions employed, 81. 
 
 proof of disseizin not required, 82. 
 
 cutting or blazing a tree sufficient, 82. 
 
 introduction in South Carolina, 81. 
 
874 References] INDEX. [ are to sections, 
 
 TRESPASS TO TRY TITLE— continued. 
 
 reasons for the change, 84, 85. 
 
 abolished in South Carolina, 87. 
 
 introduction in Alabama, 88. 
 
 principles relating to ejectment applicable to, 88. 
 
 mesne profits in action of, 83. 
 
 statutory changes, 89. 
 
 abolished in Alabama, 89. 
 
 only action to try title in Texas, 91. 
 
 proving title, 91. 
 
 equitable title, 91. 
 
 ejectment 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. 
 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. 
 TRESPASS QUARE CLAUSUM FREGIT. See Trespass. 
 TRIAL BY BATTLE ABOLISHED, 2, n. 
 TRIAL OF TITLE in foreclosure, 179a. 
 
 by arbitration, 1796. 
 
 in condemnation proceedings, 177. 
 
 in partition, 166, 167. 
 
 in assumpsit, 176. 
 
 in ejectment. See Ejectment in Real Actions. See Real 
 Actions. 
 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 of, to construe will, 163. 
 
 as defendant, 243. 
 
 when not allowed for improvements, 694. 
 
 succeeding trustee substituted, 222. 
 
 pleading his title, 222, 449. 
 
 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. 
 
References] INDEX. \. are to sections, 875 
 
 UNDIVIDED INTEREST, where entire interest is claimed, 4546. 
 
 not recovered without amendment, 4546. 
 UNMARKETABLE TITLE, may be rejected, 841. 
 
 rule to determine, 841. 
 UNITED STATES, ejectment against, 244-249. 
 
 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, 249a. 
 
 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. 
 
 how divested of title, 784. 
 
 no limitations against, 753a, 784. 
 
 presumption 'of a grant, 784, 786-788. 
 
 courts, procedure in, 870-919. 
 
 title under, not determined by State laws, 890. 
 
 intervention by, 897. 
 UNOCCUPIED LANDS, parties defendant in cases of, 234. 
 
 acts of trespass considered acts of possession, 234. 
 •UNOFFICIAL RECORDS, 828. 
 
 copies not evidence, 828. 
 UNSUCCESSFUL EJECTMENT, does not suspend statute, 743, n. 
 USE AND OCCUPATION, action for, distinguished from mesne profits, 052. 
 USQUE AD CCELUM ET AD INFERNOS, 105, 115. 
 UTILITY OF FICTIONS, 63a. 
 
 views of Blackstone, 63a. 
 
 of Professor Maine, 63a. 
 
 of Mr. Adams, 63a. 
 
 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. 
 
 from particulars of breaches, 464J. 
 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. 
 
876 References} INDEX. \are to sections. 
 
 VENDOR AND VENDEE— continued. 
 
 nature of the relationship, 305, 315. 
 
 not changed to landlord and tenant, 316.. 
 
 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. 
 
 not entitled to cut timber, 305. 
 
 at least until purchase-money is paid, 305, 751. 
 (1.) Bemedies 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 specific 
 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, 
 394-396. 
 
 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. 
 (4.) Rescission of contract, must be in toto, 311. 
 
 on bill to rescind, title offered at trial must be accepted, 811. 
 
 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 payment 
 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. 
 
References] INDEX. \. are to sections 877 
 
 VENDOR AND VENDEE— continued. 
 must show title has failed, 334. 
 
 judgment against veDdee not binding on vendor, 536. 
 VENUE— LOCAL AND TRANSITORY ACTIONS, actions for recovery of 
 realty are local, 465. 
 must be brought in the county and State where the lands are situ- 
 ated, 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. 
 condemnation proceeding, 471. 
 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. 
 lex loci rei sites, 467a. 
 
 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. 
 (1.) Local actions not maintainable in foreign jurisdictions, 465, 467, 542. 
 
 no action maintainable for possession of lands in another county 
 
 467. 
 no jurisdiction of local actions in foreign States, 467. 
 judgments in such cases nugatory, 467, 542. 
 (2.) Lands lying in several counties, 468. 
 the early practice, 468. 
 recovery extended to one county only, 468. 
 practice changed by statute, 468. 
 rule in Tennessee, 468. 
 (3.) Questions of venue, how raised, 469. 
 
 venue untrue on face of complaint, defendant may demur, 469. 
 
 objection available under general issue in Maine, 469. 
 
 venue must be proved in Tennessee, 469. 
 
 title papers considered sufficient proof, 469. 
 
 defendant cannot show that dejure the line of the county ought to 
 
 be differently located, 469. 
 in Texas plea to jurisdiction too late after plea to the merits, 470. 
 (4.) Change of venue, 471-473. 
 
 great prejudice against the title not a ground for the change in forci- 
 ble entry proceedings, 471. 
 fact that judge has given an opinion not sufficient ground, 471. 
 nor that the parties are influential citizens, 471. 
 
878 References] INDEX. \ are to sections. 
 
 VENUE -LOCAL AND TRANSITORY ACTIONS— continued. 
 
 practice in Illinois, 471. 
 
 change of veQue upon complying with statute a matter of right, 471. 
 
 terms may be imposed, 471. 
 
 practice in New Jersey, 472. 
 
 in England, 471. 
 
 exception to refusal to change venue not available in United States 
 Supreme Court, 472. 
 
 reasons for change, 471. 
 (5.) Practice in. New York, local actions cannot be adjourned to another 
 county, 472. 
 
 must be tried in county where land lies, 472. 
 (6.) Changes in territorial limits of counties, 473. 
 
 effect of change in boundaries pending ejectment, 473. 
 
 venue should be altered to new county, 473. 
 
 power of the legislature to regulate the subject, 473. 
 
 rule different in chancery, 473. 
 
 practice in Maine and Wisconsin, 473. 
 
 venue changed by consent, 473. 
 (7.) Change in channel of stream, 474. 
 
 rule as to boundaries of counties and States, 474. 
 
 where change is gradual division line shifts with channel, 474. 
 
 rule as to violent or visible alteration, or "cut off," 474. 
 
 abandoned channel remains the boundary, 474. 
 (8 ) Venue in Federal courts, in local actions, no jurisdiction attaches with- 
 out the district, 475, 916. 
 
 trespass quare elausum f regit, not maintainable beyond district limits, 
 475. 
 
 action to abate nuisance is local, 475, n. 
 VERBAL CLAIMS, do not effect an interruption of adverse possession, 745. 
 VERBAL DISCLAIMER, 369. See Disclaimer. 
 VERDICT, 238, 432, 496-505, 715. See Description. 
 
 questions of fact to be tried by jury, 170, 496. 
 
 disinclination of the courts to adjudicate upon conflicting facts, 496. 
 
 defective allegations of possession cured by, 432, 505. 
 
 misjoinder cured by verdict, 505. 
 
 verdict for improvements, 715. 
 (1.) Requirements of verdict, general form usually prescribed by statute, 497. 
 
 setting aside verdict on questions of location, 497. 
 
 insufficiency of description favorite ground of attacking verdicts, 497. 
 
 verdict could relate only to lands described in the consent rule, 497. 
 
 limited to lands claimed in the declaration, 497. 
 
 must correspond with the evidence, 497. 
 
 must be rendered only for lands to which plaintiff proved title, 497. 
 
 verdict must comprehend the whole issue, 49V. 
 
 substance of the issue must be found, 497, 498. 
 
 defective allegations of possession cured by, 432. 
 
References] INDEX. [ are to sections. 879 
 
 VERDICT — continued. 
 
 joint denial renders joint verdict proper, 238. 
 (2.) Liberally construed, 498, 501. 
 
 statute of jeofails extends to writs of right, 498. 
 
 illustrations, 498. 
 
 references in verdicts, 499. 
 
 certainty of verdict may be established by reference to deeds, dia- 
 grams, monuments, &c, 499. 
 
 verdict for " the land on which the defendant lives," held good, 499. 
 (3.) Sufficiency of verdict, 501, 502. 
 
 examples of verdicts considered sufficient, 500, 501. 
 
 " the old hedge row," certain enough for a boundary, 501. 
 
 "the farm as it stands in the writ," held good, 501. 
 
 verdicts considered insufficient, 502. N 
 
 for " part of the premises in the declaration mentioned," too uncer- 
 tain, 502. 
 
 "the middle of a stonewall," too indefinite a starting-point, 502. 
 
 condition in verdict reserving the right to remove improvements, 
 503. 
 
 (4.) Must usually specify nature of estate, 500. 
 
 failing to do so, may be treated as a nullity, 500. 
 
 in Illinois, jury failing to specify estate may be sent back, 500. 
 
 examples of sufficient and insufficient designation of estate, 500. 
 (5.) Between tenants in common, 504. 
 
 if verdict is special, actual ouster must be found, 283, 504. 
 
 ouster is a question of fact, 276, 277, 504. 
 
 finding of demand of possession and refusal not sufficient, 504. 
 VERMONT, town proprietors may recover in ejectment, 230. 
 
 tenant in common may oust intruder, 300. 
 
 mortgagee may bring ejectment, 333. 
 
 judgment in ejectment conclusive, 534. 
 
 injuries to premises allowed as damages, 668. 
 
 alienation pending suit, 187. 
 VIEW, what is, 6, n. 
 
 not granted unless absolutely necessary, 464a, n. 
 VIOLENCE, possession acquired by, not protected, 94, 94, n. 
 VIRGINIA, real actions abolished, 79. 
 
 statutory ejectment retained, 79. 
 
 parties defendant in ejectment, 235. 
 
 demandant's authority to bring writ of right, 417. 
 
 oral pleading in writ of right not allowed, 427, 
 
 practice as to verdicts, 500. 
 
 rule as to notice to quit, 394. 
 VISIBLE OBJECTS, govern course and distance, 862. 
 
$80 References] INDEX. L are to sections. 
 
 VISIBLE AND TANGIBLE, thing sought to be recovered in ejectment 
 must be, 97. 
 
 capable of livery of seizin, 97. 
 
 something upon which entry can be made, 97, 101. 
 
 capable of physical possession, 97. 
 
 of delivery by sheriff in execution, 97. 
 VOID DEED, not canceled as cloud, 154, n. 
 VOLUNTARY WASTE, defined, 362. 
 
 by teuant at will, 364. 
 VOUCHING OVER, explained, 6, n. 
 
 WAIVER of notice to quit, 411. 
 
 of forfeiture, 326, 371. 
 
 effect of acceptance of subsequently accruing rent, 371. 
 
 receipt of rent without knowledge of forfeiture is not, 371, n. 
 
 of defense of not guilty, 492. 
 WAR, suspends statute of limitations, 753a. 
 WARRANTOR, judgment when binding on, 537, n. 
 WARREN, not recoverable in ejectment, 148. 
 WASTE. See Pbovisionai Remedies; Injunction. 
 
 is a local action, 465, 542. 
 
 abuse or destructive use of property, 363. 
 
 tearing down partitions, 363. 
 
 test of, 363. 
 
 re-entry for, 362. 
 
 by tenant at will, 364. 
 
 construction of covenants against, 365. 
 
 voluntary waste, 362. 
 
 mortgagee liable for, 341. 
 
 non-interference in cases of, 624. 
 
 commission of, determines tenancy at will, 364, 384. 
 
 receiver appointed to prevent, 616, 621. 
 
 injunction granted to restrain, 622-624, 627, 628. 
 
 damages for, recoverable as mesne profits, 668. 
 
 practice not uniform, 668. 
 
 WATEE, land under, recoverable in ejectment, 117, 119. 
 course, ejectment will not lie for diverting, 149. 
 mandatory injunction to restore, 149. 
 not recoverable eo nomine in ejectment, 149. 
 
 WEEKLY TENANCIES, notice to quit, 383ffl. 
 
 WEST VIRGINIA, real actions superseded in, 79. 
 statutory ejectment substituted, 79. 
 
References] INDEX. [are to sections. 881 
 
 WHARFAGE, right to collect not foundation of ejectment, 153. 
 right of, is incorporeal, 153. 
 right to, passes as an appurtenant, 102, n. 
 
 WIDOW, cannot join with heirs in ejectment, 189. 
 ejectment against, in Pennsylvania, 256. 
 heirs must proceed under partition acts in that State, 256. 
 ejectment against, heirs admitted to defend, 256. 
 
 WIFE, joinder of, with husband, 219, 220, 225. See Makbied Women; 
 Husband and Wife. 
 may bring ejectment, 220. 
 
 WILLFUL INJURY, damages for, 668, n., 668a. 
 
 WILL, conveyance by heir before discovery of, 205. 
 probate of, reviewed in ejectment, 205, n. 
 probate conclusive as to personalty, 205, n. 
 equity will not set aside probate of, 205, n. 
 tenant at, 384. See Tenant at Will. 
 foreign probate of, 467a. 
 ancient, as evidence, 818. 
 concealment of, effect of after probate, 838. 
 
 WISCONSIN, pre-emptor of swamp lands may bring ejectment, 230. 
 
 grantee of tax deed may be made defendant in ejectment, 235. 
 mortgagee cannot bring ejectment, 332. 
 
 complaint in ejectment must allege unlawful withholding of posses- 
 sion, 433. 
 must state that plaintiff is entitled to possession, 443. 
 change in boundary of county, 473. 
 ejectment must proceed in original county, 473. 
 statute of limitations must be pleaded, 482. 
 statutory new trials in, 602, 604. 
 injunction to restrain waste, 622. 
 executions against the person, 630. 
 injuries to freehold not recoverable in action for mesne profits, 608. 
 
 WITNESSES, change of venue to convenience, 471. 
 
 WORDS, not evidence of ouster, 93. 
 
 WRIT, service of declaration resembled service of, 32. 
 of assistance, office of, 548. 
 
 WRIT OF ENTRY. See Real Wbits. 
 
 most ancient of possessory actions, 70. 
 in Massachusetts, 70. 
 changes effected in, 70. 
 for land subject to an easement, 132, n. 
 will not lie for an easement, 146. 
 nor on an equitable estate, 70, 169. 
 56 
 
882 References] INDEX. [are to sections. 
 
 WRIT OP ENTRY— continued. 
 
 nor usually for estates less than a freehold, 183, 233. 
 
 in Maine, 430. 
 
 pleading in, 480a. 
 
 requisites of declaration, 430. 
 
 tenant pleading general issue estopped to deny possession, 479. 
 
 amendment of, 436. 
 
 changed by amendment to ejectment, 183. 
 
 WRIT OP ERROR, 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 to supersede execution of judgment, 175. 
 WRIT OP FORMEDON, 71. 
 
 unsuited to try titles in America, 71. 
 WRIT OP POSSESSION, 40, 546-575. 
 
 (1.) Origin and purpose of the writ, 40, 82, 546, 547. 
 
 the early practice, 23, 25, 546. 
 
 term not at first recoverable, 24. 
 
 importance and reason of the change, 25, 546, 547. 
 
 same in the various actions, 92, 548. 
 
 writ of assistance, 548. 
 (2.) Habere facias seisinam, 548. 
 
 final writ in the system of real actions, 548. 
 
 awarded seizin of the lands recovered, 548. 
 
 effect of the execution of, 548. 
 
 distinction between, and habere facias possessionem, 510, 548. 
 (3.) Habere facias possessionem, 23, 40, 82, 510, 546. 
 
 origin 1 of the writ, 23, 546. 
 
 granted by analogy with equity procedure, 546. 
 
 allowed in trespass to try title, 82. 
 
 effect of the execution of the writ, 41, 510, 743. 
 
 plaintiff taking possession at his peril, 455, 554, 564. 
 (4.) Peaceable possession without a writ, 549. 
 
 judgment in ejectment a protection against trespass, 549. 
 
 possession must be taken by consent of person holding, 549. 
 
 plaintiff may authorize sheriff, as his agent, to take possession, 549. 
 (5.) Form and contents of the writ, 550, 551. 
 
 writ must follow the verdict, 550. 
 
 must conform to the judgment, 550. 
 
 describe the lands, 550. 
 
 be addressed to the sheriff of the county, 550. 
 
 usually no return day required, 551. 
 
 command to execute within a given time is directory, 551. 
 
References^ INDEX. [are to sections. £83 
 
 WRIT OP POSSESSION— continued. 
 
 execution of writ after return day, 551. 
 writ issued on behalf of heirs, 573. 
 (6.) Manner of executing the writ, 554, 555, 557, 559, 563. 
 officer must evict occupants, 555. 
 and all parties concluded by the judgment, 562. 
 
 defendant's family, servant and employees must be dispossessed, 
 
 558. 
 removal of wife under writ against husband, 559. 
 conflict of the cases, 559, 560. 
 personal property should be removed, 556, 557. 
 -failure to remove does not invalidate execution of writ, 556, 557. 
 when execution considered complete, 556. 
 
 possession to be given of fixtures and improvements, 563, 684. 
 690. 
 
 of part of a house, 105, 155. 
 
 of coal mine, 109. 
 
 party wall, 158, 565. 
 
 plaintiff takes growing crops, 563, 683. 
 
 possession delivered subject to an easement, 571. 
 
 possession of inaccessible lands, 572. 
 (7.) Alias writ, 552. 
 
 when issued, 552. 
 
 may be granted before return day of the first writ, 552. 
 
 pluries writ, when allowed, 552, 556. 
 «(8.) Officers' duties defined, 555-557, 561, 565-567. 
 
 marshal has no judicial powers, 566. 
 
 responsibility of, 158, 565. 
 
 may demand bond of indemnity, 565, 566. 
 
 burden upon officer to excuse non-execution of the writ, 561. 
 
 cannot receive and file affidavit to excuse non execution of the writ, 
 567. 
 
 <(9.) Interference by the court, 564-566. 
 
 court may limit the plaintiff to particular lands, 564. 
 
 order or mandamus to officer to execute writ, 565. 
 
 particular persons may be excepted from the writ, 566. 
 
 when enforcement of writ will be stayed, 569. 
 (10.) Co-tenants, 570. 
 
 practice when undivided interest is recovered, 570. 
 
 plaintiff put into possession with defendant, 570. 
 (11.) Landlord and tenant, 569. 
 
 writ against landlord, 537, 569. 
 
 practice in Illinois, 569. 
 
 enforcement of writ stayed, 569. 
 WRIT OP RIGHT, 69. See Real Actions. 
 
 most important of the real writs, 09. 
 
884 References] INDEX. \. are to sections. 
 
 WRIT OF RIGHT— continued. 
 
 resorted to by the Saxons, 69. 
 
 not a remedy for incorporeal hereditaments, 69. 
 
 authorxty to prosecute, 417. 
 
 declaration must allege seizin. 429. 
 
 judgment is final, 69, 509. 
 
 statute of jeofails extended to, 498. 
 WRITTEN INSTRUMENT, color of title must be, 762, 769. 
 
 parol evidence to vary, 824. 
 WRITTEN PLEADINGS, required in real actions, 427. 
 WRONG-DOER, any possession good against, 717, 718. 
 
 TEAR PRECEDING, evidence of rent of, 674. 
 TEAR TO TEAR, tenancies from, rule as to notice to quit, 882. 
 reasonable notice, 38*3. 
 
 WHOLE NO. OP PAGES, 948. 
 
KF 670 skh 1886 
 
 Author 
 
 Sedgwick, Arthur George 
 
 Vol. 
 Copy 
 
 Title 
 
 Treatise on the trial